Whalen v. CSX Transp., Inc.

DANIEL WHALEN, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant.

13 Civ. 3784 (LGS)(HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 29, 2016

OPINION AND ORDER

PITMAN, United States Magistrate Judge:

I. Introduction

I write to resolve three separate motions seeking to preclude expert testimony pursuant to Fed. R. Evid. 702 -- (1) third-party defendant Haworth, Inc.'s ("Haworth's") motion to preclude Dr. Jeffrey Ketchman, an expert designated by defendant/third-party plaintiff CSX Transportation, Inc. ("CSX"); (2) CSX's motion to preclude Dr. Theresa Bellingar, an expert designated by Haworth and (3) plaintiff's motion to preclude Dr. Jamie R. Williams, an expert designated by CSX, Haworth and third-party co-defendant Office Environments Service Inc. ("OES") (Notice of Motion, dated Dec. 9, 2015 (Docket Item ("D.I.") 199); Notice of Motion, dated Dec. 18, 2015 (D.I. 196); Notice of Motion, dated Dec. 18, 2015 (D.I. 211)). With respect to the motion to preclude Dr. Ketchman, plaintiff represents that, while he "support[s]" the motion "solely with regard to the third-party product liability action," he opposes the "total preclusion of this expert, insofar as that would prevent [Dr. Ketchman's] relevant and reliable testimony in the [Federal Employers Liability Act] action" (Memorandum of Law in Partial Support of Motion to Preclude Dr. Jeffrey Ketchman, dated Dec. 26, 2015 (D.I. 216) ("Pl. Ketchman Mem."), at 1).

For the reasons set forth below, Haworth's motion to preclude Dr. Ketchman is granted in part and denied in part, CSX's motion to preclude Dr. Bellingar is granted in part and denied in part and plaintiff's motion to preclude Dr. Williams is granted.

II. Facts

A. Background

Plaintiff, an employee of CSX at all relevant times, commenced this action against CSX on June 1, 2013, alleging a claim under the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. ("FELA"). Plaintiff alleges that, on or about November 8, 2011, he was injured while working for CSX as a result of the negligence of CSX (Complaint, dated June 1, 2013 (D.I. 1)("Compl.")). Specifically, plaintiff alleges that an office chair -- specifically a Zody task chair (the "Zody Chair") -- in which plaintiff was sitting, moved in a sudden and unexpected manner, causing injuries to plaintiff (Third-Party Complaint, dated Sept. 27, 2013 (D.I. 12) ("Third-Party Compl.") ¶¶ 8-9). In the third-party complaint against Haworth and OES, CSX alleges that, if the allegations brought against it by plaintiff are true, Haworth and OES, the manufacturer and distributor of the Zody Chair, respectively, are strictly liable for defectively designing, testing, inspecting, manufacturing, distributing, labeling, selling and promoting the Zody Chair and, therefore, must indemnify CSX for any liability it faces as a result of plaintiff's claim against it (Third-Party Compl. ¶¶ 14, 18-26).

In support of its theory that Haworth manufactured the Zody Chair with a design defect, CSX has offered Dr. Ketchman, and Haworth has offered Dr. Bellingar to contradict Dr. Ketchman. In addition, Haworth and OES have offered Dr. Williams to opine that the injuries plaintiff alleges did not occur as a result of the incident at issue.

B. Dr. Jeffrey Ketchman

Dr. Ketchman is a mechanical engineer, with a bachelor's degree in mechanical engineering from the City College ofNew York, a master's degree in mechanical engineering from Ohio State University and a doctorate in engineering science from Columbia University; Dr. Ketchman has been licensed and registered as a professional engineer in New York since 1974 (Affidavit of Richard H. Rubenstein in Support of Motion In Limine to Preclude Jeffrey Ketchman, Ph.D., dated Dec. 9, 2015 (D.I. 200) ("Rubenstein Aff."), Ex. E-1, at 5¹). Currently, Dr. Ketchman is the Director of Mechanical and Safety Engineering of Inter-city Testing & Consulting Corporation (Declaration of Jeffrey Ketchman, filed Dec. 28, 2015 (D.I. 219) ("Ketchman Decl.") ¶ 1).

Dr. Ketchman represents that he is a "specialist in the areas of accident reconstruction and safety in the design and use of industrial and consumer products" (Rubenstein Aff., Ex. E-1, at 5). In his curriculum vitae, Dr. Ketchman lists a variety of areas of "product and technical experience," which include, among other things, accident reconstruction; human factors in design, bioengineering and biomechanical analysis; fall protection; testing and instrumentation; exercise bicycles and equipment; bowling and warnings and instructions; his curriculum vitae does not, however, indicate that Dr. Ketchman has any experience withoffice chairs (Rubenstein Aff., Ex. E-1, at 6). In a declaration submitted in opposition to the instant motion, Dr. Ketchman represents that: (1) he has experience in the "testing and use of chairs, including chairs in bowling establishments and lounge/bench seating"; (2) he has been involved in "half a dozen investigations involving office chairs"; (3) he has been "involved in the design of chairs" while he worked at American Machine and Foundry ("AMF") and (4) that he has served previously as an expert in connection with accidents involving chairs (Ketchman Decl. ¶¶ 7, 11, 14, 16). Dr. Ketchman states that, during this expert testing and consulting, he utilized the ANSI/BIFMA² test methodology and that he has had to determine whether chairs were in accordance with BIFMA standards (Ketchman Decl. ¶¶ 7, 9, 11). Dr. Ketchman also represents that, prior to this case, he has "had the opportunity to inspect and use Syn-chronous Tilt office chairs and [is] familiar with the characteristics of such chairs" (Ketchman Decl. ¶ 21).

During his deposition, however, Dr. Ketchman stated that he has never (1) designed office chairs, (2) written any instructions or warnings for office chairs, (3) worked for a company that manufactures or distributes office chairs or (4) visited a factory of a company that makes office chairs; he also testified that he has never been retained by a manufacturer or distributor of office chairs in a non-litigation context (Rubenstein Aff., Ex. F-1, 50:22-50:24, 54:22-55:17). Dr. Ketchman further testified that he has never published any articles, treatises or books regarding office chairs and has not delivered any lectures or presentations concerning office chairs (Rubenstein Aff., Ex. F-1, 38:11-38:18). Dr. Ketchman further testified that his purported expertise in the use of chairs is based on his "personal experience" in having "used many different types of office chairs" and "watching other people use them" (Rubenstein Aff., Ex. F-1, 61:4-61:12). Finally, Dr. Ketchman stated that he has been retained as an expert in about six prior cases involving office chairs; however, he could only remember the details of three of those cases and stated that he did not provide trial or deposition testimony in any of those cases(Rubenstein Aff., Ex. F-1, 36:6-36:25; Ex. F-3, 180:22-181:17, 205:11-206:5).

In his expert report, Dr. Ketchman describes the Zody Chair as having a five-arm castered base and that the chair has hand controls that allow the user to adjust the seat height and position (Rubenstein Aff., Ex. E-1, at 9-10). The backrest of the chair also has the ability to recline or tilt backward when pressure is applied by the user (Rubenstein Aff., Ex. E-1, at 9-10). The chair includes a crank for adjusting the tension on the backrest so that the user may adjust the amount of pressure necessary to cause the chair to recline (Rubenstein Aff., Ex. E-1, at 9-10). The chair also includes a "backstop control lever," which, when activated, limits the degree to which the backrest will recline (Rubenstein Aff., Ex. E-1, at 9-10).

In his report, Dr. Ketchman explains that he reached his opinion after reviewing background materials related to plaintiff's accident and inspecting the Zody Chair, as well as "other similar-purpose chairs" (Rubenstein Aff., Ex. E-1, at 8).³Ketchman's inspection included weighing the Zody Chair and measuring the amount of force needed to recline the chair's backrest at both minimum and maximum tension settings (Rubenstein Aff., Ex. E-1, at 11). Dr. Ketchman also measured the angle of the backrest when (1) no pressure is placed on it and the tension setting is at its highest setting; (2) the backstop lever is engaged and the individual pulls back on the backrest; (3) "approximately 66 lbs of force" is applied to the backrest and the backstop lever is released and (4) the backstop lever is engaged at a ten-degree and fifteen-degree recline and pressure is applied to the backrest (Rubenstein Aff., Ex. E-1, at 11). In addition, Dr. Ketchman measured the amount of force needed to tilt the Zody Chair back to a 43-degree angle when the backrest tension is at its lowest setting (Rubenstein Aff., Ex. E-1, at 11).

Dr. Ketchman also made the following observations with respect to the Zody Chair's reclining features: (1) the back of the chair will return to the upright position when the user gets up from the chair and pressure is removed from the backrest, regardless of whether the backstop lever has been engaged, with the consequence that it is impossible to discern whether the back of an unoccupied Zody Chair is locked in the upright position; (2) to lock the chair in the upright position after the backstop has been engaged in any other position, the user must unlock the backstop and re-engage it when the seat is in the upright position and (3) when the backrest tension is set at minimum resistance, the seat pan and the backrest will begin to recline when pressure is applied to the seatpan only (and not the backrest) (Rubenstein Aff., Ex. E-1, at 11-12).⁴

Dr. Ketchman opines that plaintiff's "tilt-back accident" occurred because the backstop had not been engaged and the backrest tension had been set at its lowest resistance setting, causing the chair's back, which was in an upright position whenplaintiff approached it, to recline...