Kye v. Schindler Elevator Corporation et al
Filing
34
MEMORANDUM AND ORDER denying 16 Schindler's Motion to Exclude testimony of pltf's expert, John S. Morse; denying 18 Schindler's Motion for Summary Judgment. Signed by Judge Susan Webber Wright on 5/4/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
BEVERLY KYE,
*
*
Plaintiff,
*
*
vs.
*
*
*
*
SCHINDLER ELEVATOR CORPORATION *
and SCHINDLER ELEVATOR COMPANY *
f/k/a WESTINGHOUSE ELEVATOR CO.
*
and JOHN DOES 1-5,
*
*
Defendants.
*
No. 5:09cv00390 SWW
MEMORANDUM AND ORDER
Plaintiff Beverly Kye brings this negligence action against Schindler Elevator
Corporation, Schindler Elevator Company f/k/a Westinghouse Elevator Co. (collectively,
Schindler), and John Does 1-5, for damages she allegedly sustained in an elevator accident in the
Shorey Building on the University of Arkansas for Medical Sciences (UAMS) campus. The
following motions are before the Court: (1) Schindler’s motion to exclude testimony of
plaintiff’s expert [doc.#17]; and (2) Schindler’s motion for summary judgment [doc.#18].
Plaintiff has responded in opposition to Schindler’s motions and Schindler has filed a reply to
plaintiff’s responses. For the reasons that follow, the Court denies Schindler’s motion to exclude
testimony of plaintiff’s expert and denies Schindler’s motion for summary judgment.1
1
Plaintiff states that “Separate Defendants, John Does 1-5, are persons or entities having direct or vicarious
responsibility for the safety of elevator patrons and adherence to safety regulation and policy, and for the maintenance, care,
clean-up, design, and construction of the elevator located at the Shorey Building on the UAMS campus.” Am. Compl. at ¶ 3. By
Order dated January 26, 2010 [doc.#8], the Court gave plaintiff sixty (60) additional days in which to serve all defendants.
However, there is no indication in the record that John Does 1-5 have ever been served with process or even identified and the
time for conducting discovery has long since expired. Accordingly, separate defendants John Does 1-5 are hereby sua sponte
dismissed from this action leaving Schindler as the sole remaining defendant.
I
Plaintiff was employed by UAMS in its housekeeping department and was assigned to
the Shorey Building on the UAMS campus. Plaintiff claims that on September 14, 2006, while
performing her cleaning duties in the Shorey Building, she was injured in an elevator that
Schindler manufactured and for which Schindler was responsible for maintaining, inspecting,
and repairing.
Plaintiff gives essentially three different versions of the accident at issue. In her
amended complaint, plaintiff states that upon entering the elevator in the Shorey Building, the
elevator, without warning, dropped suddenly and rapidly and fell for approximately 3-4 floors
until coming to rest at the ground floor level. Am. Compl. at ¶ 16. She states that “[s]aid
elevator fell to the ground causing Plaintiff injuries to her back, ankle and teeth.” Id. 2
In her deposition, plaintiff states that she “mashed the elevator button to get on the
elevator” on the 5th floor of the Shorey Building and that “the door came open and I stepped in
and the floor wasn’t there.” Kye Depo. at 14. She states that there “might have been about [a]
three or four” foot difference between the floor of the elevator and the floor of the hallway and
that “[i]t sounded like maybe the elevator was on a chain or something, because it was jerking
back and forth, up and down, when I was on there.” Id. at 15, 19. Plaintiff states that “[t]he
elevator came back up, but it didn’t come up to the floor” and that an individual “got down in the
elevator with me and helped me out.” Id. at 19.
2
Schindler’s expert, Ronald E. Creak, issued an expert report dated January 24, 2011, it which he states that it was
first reported for purposes of worker’s compensation with respect to plaintiff’s accident that “employee twisted foot when trying
to get on elevator” and, later, that “elevator fell from the 5th floor to the ground.”
2
Finally, plaintiff signed an injury and incident report on the day of the accident that was
filled out by her supervisor, Derrick Chambers, in which it is stated that plaintiff “was about to
step on the elevator on the 5th floor of Shorey” and that “when she placed her right foot on the
floor of the elevator, it suddenly dropped a foot then it jumped back flush with the floor causing
her to fall and twist her ankle and [roll?] her foot.” UAMS Employee/Student/Visitor Injury and
Incident Report. In response to a question at her deposition asking her if that is what happened,
plaintiff responded, “Yes. That happened, too, and I hurt my back and everything.” Kye Depo.
at 44.3
Both plaintiff and Schindler have retained experts. Plaintiff’s expert, John S. Morse, has
a Ph.D. in mechanical engineering. Morse stated in his preliminary expert report dated August
19, 2010 that it his opinion that the incident was caused by a mis-leveling of the elevator. He
notes that the contract between Schindler and UAMS required that the elevators be level to
within 3/8 inch and that UAMS elevator records indicate the elevator had previous leveling
issues. Morse states that it is his opinion that Schindler was negligent and that this negligence
caused the incident.
Schindler’s expert, Ronald E. Creak, is a Qualified Elevator Inspector. Creak stated in
his report dated January 24, 2011 that “it is a technical certainty that the subject elevator came to
a stop below the 5th floor landing outside of its leveling zone and within its mechanical door
zone.” He states that it is more probable than not that the cause of the event experienced by
plaintiff was the result of a foreign object lodged between the car door guide and the car door sill
groove and that this was not a maintenance issue for which Schindler was responsible. He notes
3
Plaintiff states in her brief in support of her response to Schindler’s motion to exclude expert testimony and motion
for summary judgment that she “intends to request leave of the court to amend her Complaint so as to conform to the proof as
testified in her deposition.”
3
that had plaintiff been more observant of her surroundings after the elevator doors had opened,
she would have seen the misalignment of the elevator floor with the 5th floor landing and could
have chosen to not enter the elevator, or in the alternative, taken greater care in doing so.
II
Schindler moves to exclude the testimony of plaintiff’s expert, John Morse, on grounds
that while Morse has a degree in mechanical engineering, he has absolutely no applicable or
appropriate training, experience, or other equivalent knowledge that would qualify him to assist
the jury in understanding elevators or what "went wrong," if anything, in this matter. Schindler
argues his testimony must therefore be rejected under Rule 702 of the Federal Rules of Evidence
and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993).
A
Under Federal Rule of Evidence 702, an expert opinion is admissible “if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.” When determining the reliability of an expert's opinion, the district court
examines the following four non-exclusive factors: (1) “whether it can be (and has been) tested”;
(2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the
known or potential rate of error”; and (4) “[the method's] ‘general acceptance.’” Presley v.
Lakewood Engineering and Mfg. Co., 553 F.3d 638, 643 (8th Cir. 2009) (quoting Daubert, 509
U.S. at 593-94). The above listed factors are not exhaustive or limiting, and a court must use the
factors as it deems fit to tailor an examination of the reliability of expert testimony to the facts of
each case. Id. (citation omitted). In addition, the district court can weigh whether the expertise
was developed for litigation or naturally flowed from the expert's research; whether the proposed
4
expert ruled out other alternative explanations; and whether the proposed expert sufficiently
connected the proposed testimony with the facts of the case. Id. (internal quotation marks and
citation omitted). While weighing these factors, the district court must continue to function as a
gatekeeper who separates expert opinion evidence based on good grounds from subjective
speculation that masquerades as scientific knowledge. Id. If the court is satisfied with the
expert's knowledge, skill, experience, training, or education, and the expert's testimony is
reasonably based on that expertise, the court does not abuse its discretion by admitting the
testimony. Weitz Co. v. MH Washington, 631 F.3d 510, 527 (8th Cir. 2011) (internal quotation
marks and citation omitted). Nevertheless, the district court must exclude expert testimony if it
is so fundamentally unreliable that it does not assist the jury; otherwise, the factual basis of the
testimony goes to the weight of the evidence. Id.4
B
Schindler argues that Morse does not know what may or may not have occurred with the
elevator on the date of the alleged incident of September 14, 2006 or upon the two other dates he
alleges it to have "malfunctioned," those being August 11, 2006 and December 15, 2006, and
that Morse did not even perform a cursory inspection or examination of this elevator or any of its
pertinent component parts; he simply looked at the elevator carriage, pushed the up and down
button, rode the elevator up and down, took some pictures of the interior cab of the elevator and
measured the length and width of the cab. Schindler argues Morse did not examine and indeed
does not even know what kind of leveling devices are or were present upon this elevator, what
4
“When a district court is satisfied with an expert's education, training, and experience, and the expert's testimony is
reasonably based on that education, training, and experience, the court does not abuse its discretion by admitting the testimony
without a preliminary hearing.” United States v. Kenyon, 481 F.3d 1054, 1061 (8th Cir.2007).
5
kind or whether or not it had door restrictors, or what kind or whether the elevator had door
zones, and that he did not inspect the track and hoistway upon which the elevator operates, did
not inspect the machine room above the elevator where the essential component parts that make
the elevator travel up and down are located, and did not inspect the pit area above which the
elevator comes to rest on the ground floor. Schindler states that while these omissions and lack
of knowledge are by themselves sufficient to disqualify Morse as a witness in this case, because
of the Arkansas regulatory scheme concerning elevators and elevator safety, Morse is also
disqualified from testifying because he possesses none of the requirements to inspect, maintain,
repair, replace, install, or upgrade an elevator in Arkansas. Schindler notes that Arkansas has
rigorous statutory and regulatory standards which must be met by anyone desiring to become an
elevator inspector or an elevator mechanic, and that absent these qualifications and certifications,
not even a mechanical engineer is qualified to testify concerning what makes elevators work and
what can go wrong with them.
Plaintiff, however, states that Morse has testified in his deposition and in his Affidavit
that this case is simply a matter of whether Schindler breached their duties to maintain the
elevator in a safe manner. Plaintiff states that Morse bases his opinion that Schindler failed to
maintain the elevator in a safe manner that would prevent mis-leveling accident on his
investigation and knowledge of the facts of this case and notes that Morse has been accepted by
Arkansas courts as being qualified to testify as to elevator safety issues and has so testified on at
least four occasions in Arkansas.
The Court has carefully considered the Daubert factors and Fed.R.Evid. 702 and is
satisfied with Morse’s knowledge, skill, experience, training, and education, and finds that
Morse's testimony is reasonably based on that expertise. The Court determines that any
6
deficiency in Morse’s methodology and/or the extent of his knowledge of what makes elevators
work and what can go wrong with them is a fact that bears more on the weight of Morse’s
testimony, rather than the fundamental reliability of his analysis. See Weitz, 631 F.3d at 528; see
also Daubert, 509 U.S. at 596 (noting that “[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”). Accordingly, the Court denies
Schindler’s motion to exclude the testimony of Morse.
III
Schindler moves for summary judgment on grounds that plaintiff cannot make a
submissable jury case because her expert is not qualified to testify. Schindler argues that
because this Court should grant the Daubert motion concerning plaintiff’s expert, it should
likewise grant the accompanying motion for summary judgment.
The Court denies Schindler’s motion for summary judgment as it has today denied its
motion to exclude the testimony of plaintiff’s expert. In addition, the Court has considered the
record and determines that there remain genuine issues of material fact for trial that preclude
summary judgment.5
IV
5
Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate “an absence of evidence to
support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly
supported its motion for summary judgment, the nonmoving party must “do more than simply show there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The nonmoving party
may not rest on mere allegations or denials of his pleading, but “must come forward with ‘specific facts showing ... a genuine
issue for trial.’” Id. at 587 (quoting Fed.R.Civ.P. 56(e) and adding emphasis). See also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the
party opposing the motion. Matsushita, 475 U.S. at 587 (citations omitted). However, “[w]here the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. (citation omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248. “Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
7
For the foregoing reasons, the Court denies Schindler’s motion to exclude testimony of
plaintiff’s expert, John S. Morse [doc.#16], and denies Schindler’s motion for summary
judgment [doc.#18].
IT IS SO ORDERED this 4th day of May 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?