HAVLIK et al v. SCHINDLER ELEVATOR CORPORATION et al

Filing 56

MEMORANDUM OPINION & ORDER granting Defendants 36 MOTION for Summary Judgment, 38 MOTION for Summary Judgment and to Preclude James Filippone, and 37 MOTION in Limine. Signed by Judge Joseph H. Rodriguez on 9/30/2014. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_____________________________
PATRICIA and DENNIS HAVLIK, w/h,

Civil Action No. 12-4610

:

v.

Hon. Joseph H. Rodriguez

:

Plaintiffs,

:

MEMORANDUM OPINION
& ORDER

SCHINDLER ELEVATOR CORP. and
CAESAR’S ENTERTAINMENT CORP. d/b/a
BALLY’S CASINO,

:

Defendants.
________________________________

:

:

This matter is before the Court on motions of the Defendants to preclude the
testimony of Plaintiff’s expert and for summary judgment. Oral argument was heard on
the motions on September 9, 2014 and the record of that proceeding is incorporated
here. For the reasons articulated on the record that day, as well as those set forth here,
the motions will be granted.
Background
On November 19, 2010, Plaintiff Patricia Havlik and her husband, Plaintiff
Dennis Havlik, were at Bally’s Atlantic City Hotel and Casino in Atlantic City, New
Jersey, which is owned and operated by Defendant Bally’s Park Place, Inc. d/b/a Bally’s
Atlantic City. Patricia Havlik Dep., 13:1-5; Bally’s Answer with Affirmative Defenses and
Cross claims, Dkt. Entry 13, ¶ 3. In order to catch the elevator on the sixth floor, Ms.
Havlik placed her right hand between the elevator doors as they were closing. Patricia
Havlik Dep., 19:24-20:9, 20:16-17, 85:7-17; Dennis Havlik Dep., 9:22-10:2, 12:9-11. The
elevator doors closed on Ms. Havlik’s hand, causing injury. Patricia Havlik Dep., 20:1721:5. Plaintiffs did not report the incident to the Casino on the day that it occurred, but
returned the next day and filed a guest incident report. Patricia Havlik Dep., 32:9-15.

Plaintiffs have asserted claims of negligent maintenance of the elevator by
Schindler (Count One), negligence/premises liability by Bally’s (Count Two), and loss of
consortium (Count Three). In support of their claims in this case, Plaintiffs have
proffered an expert report dated July 29, 2013 authored by James Filippone as well as a
supplemental report dated September 20, 2013 that was also authored by Mr. Filippone.
Procedural Posture
Presently before the Court is a motion by Schindler Elevator to preclude the
expert reports and testimony of Plaintiffs’ expert, James Filippone, pursuant to Fed. R.
Civ. P. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and
for summary judgment pursuant to Fed. R. Civ. P. 56 [38]. Schindler has argued that
Plaintiffs cannot prove causation because the Filippone reports amount to no more than
an untested assumption that the elevator’s 3D sensor was not functioning, and as such
are unreliable under Daubert. Similarly, Bally’s has filed a motion in limine to preclude
James Filippone from testifying at trial [37] and a motion for summary judgment [36].
Bally’s argues that Filippone’s opinion that the 3D sensor for the elevator door was not
functioning at the time of the incident because the 3D function was not on during his
February 2013 inspection is an unreliable, speculative net opinion. In addition, Bally’s
argues that there is no evidence in the record that the elevator was operating abnormally
or not within industry standard. Rather, Plaintiff testified that she put her hand in front
of normally operating elevator door when it was almost entirely closed; the accident was
caused by her own negligence. Bally’s also seeks summary judgment on the cross-claim
for indemnification by Schindler because Bally’s, the property owner, contracted with
Schindler for maintenance/inspection.

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Discussion
“Summary judgment is proper if there is no genuine issue of material fact and if,
viewing the facts in the light most favorable to the non-moving party, the moving party
is entitled to judgment as a matter of law.” Pearson v. Component Tech. Corp., 247 F.3d
471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986));
accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a
movant who shows that it is entitled to judgment as a matter of law, and supports the
showing that there is no genuine dispute as to any material fact by “citing to particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56 (c)(1)(A).
An issue is “genuine” if supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id. In determining whether
a genuine issue of material fact exists, the court must view the facts and all reasonable
inferences drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the moving party has met this burden, the nonmoving party must identify, by affidavits
or otherwise, specific facts showing that there is a genuine issue for trial. Id.;
Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to
withstand a properly supported motion for summary judgment, the nonmoving party
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must identify specific facts and affirmative evidence that contradict those offered by the
moving party. Andersen, 477 U.S. at 256-57. “A nonmoving party may not ‘rest upon
mere allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v.
Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting
Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact
cannot be genuinely disputed by showing that “an adverse party cannot produce
admissible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B);
accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Credibility determinations are the province of the factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
To prevail on a claim for negligence under New Jersey law, a plaintiff must
establish the existence of a duty owed to the plaintiff by the defendant, a breach of that
duty, and that the breach was the proximate cause of the plaintiff's injuries. Keith v.
Truck Stops Corp. of Am., 909 F.2d 743, 745 (3d Cir. 1990). An owner of a building has
a non-delegable duty to exercise reasonable care for the safety of tenants and persons
using the premises at his invitation. Mayer v. Fairlawn Jewish Ctr., 186 A.2d 274, 277–
78 (N.J. 1962). That the owner contracts for maintenance of an elevator does not relieve
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it of that duty, although it may secure indemnification by contract with the maintenance
contractor or at common law. Rosenberg v. Otis Elevator, 841 A.2d 99,105 (N.J. Super.
Ct. App. Div. 2004).
The parties agree that the basic facts of the case are not in dispute. Ms. Havlik
testified that at the time of the accident she believed it was safe to put her hand in the
elevator doors to stop them from closing. (Patricia Havlik Dep., 22:5-8.) Ms. Havlik
approximated that the doors were open “a little more” than the width of a legal pad.
(Patricia Havlik Dep., 85:13-17.) The doors closed on “the center of [her] hand,” (id. at
23:9-13), such that “when [she] looked at [her] hand, the only thing [she] saw was a
little edge of [her] hand and [her] wrist. The rest of it was in the elevator.” (Id. at 23:47.) She also testified, “I remember leading with my hand.” (Id. at 74:10.) Similarly, Mr.
Havlik testified that “from her wrist to her fingers disappeared,” and he noted, “[s]he’s
got a small hand.” (Dennis Havlik Dep., 11:14-20.) Plaintiffs were not able to get on the
elevator because “[t]he elevator left.” (Patricia Havlik Dep., 75:17-20.) Ms. Havlik
theorized, “I guess the elevator inside went to another floor, but the doors remained
closed on my hand.” (Id. at 75:21-23.)
In 2007, Bally’s contracted with Otis Elevator Company to modernize the subject
elevator, designated as elevator P-3 by Bally’s. (Mattia Dep., 41:13-43:5.) At that time,
Otis installed, among other things, new doors, controllers, and an Otis electronic door
edge called a Lambda. (Mattia Dep., 42:13-19, 49:7-20, 57:6-21.) Schindler did not
manufacture, design, or install the door protection device or any other part of the
subject elevator and, since the 2007 modernization, the Lambda electronic edge has
never been repaired or replaced by Schindler. (Mattia Dep., 43:12-14; 65:12-66:12.)

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Schindler’s service technician Gregory Mattia testified that he rides the subject
elevator approximately once a day during the course of his duties at Bally’s but has
never noticed any problems with the electronic edge on the subject elevator, and is
unaware of any patron other than Ms. Havlik claiming to have been injured by the
subject elevator’s doors. (Mattia Dep., 64:25-65:8, 67:17-20, 68:1-3.) Further,
Schindler’s Preventive Maintenance Work Reports from 2010, before and after the
subject incident, do not evidence any problems with the subject elevator or its door
reopening device. (Schindler maintenance tickets and maintenance summary, signed by
Mattia.) The inspections performed by an inspector for Atlantic City from January 2010
through July 2012 also evidence no problems with the subject elevator’s door reopening
devices. (Atlantic City, New Jersey Elevator Inspection Reports signed by Bud Grant.)
Finally, Plaintiffs’ liability expert, James Filippone, was unaware of any persons other
than Ms. Havlik who had claimed that their hands had been caught in the subject
elevator’s doors. (Filippone Dep., 84:21-24.)
The subject elevator doors consist of two sets of doors: the car doors, which are
part of the elevator car and travel with the elevator (the interior elevator doors), and the
hoistway or landing doors, which are the exterior doors on each floor. (July 29, 2013
Filippone Report, p. 3.) There are approximately 6 inches (or 5.625 inches) between the
elevator car doors and the hoistway doors. (July 29 Filippone Report, p.3.) Both sets of
doors open to a maximum width of 48 inches. (July 29 Filippone Report, p. 1.)
The subject elevator is also equipped with an Otis Lambda 3D door protection
device, a device that detects objects in the path of the closing doors and re-opens the
doors. (July 29 Filippone Report, p. 3.) The Otis Lambda 3D device has two features.
The first feature is a “light curtain” series of invisible infrared beams installed on the car
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doors which only detects objects that enter the 2D plane of the interior car doors, not
the hoistway doors. (July 29 Filippone Report, p. 3.) There is no allegation and no
opinion that the 2D light curtain beam series was involved in the subject accident.
The second feature is a 3D system, which is designed to detect objects outside the
plane of the car doors. (July 29 Filippone Report, p. 3-4.) It is the 3D system that
Plaintiffs allege is involved in causing the Plaintiffs’ accident. The Otis Technical
Information Publication describes the function of the 3D system as follows:
Beams of infrared light are aimed from the emitter door unit into
the entryway at approximately a 30-degree angle from the plane of
door travel. If an object is in the mid-portion of the door opening,
some of the light will reflect off the object and into the detector
door unit array. If the signal is strong enough, a reversal (relay
output contacts open) will occur.
The detection area for sensing 3D targets varies with door
separation but is always in the present center of the door
separation. When the doors are fully open, the detection zone
starts at ~30% of the opening size out into the entryway from the
car door plane (e.g., detection should start at ~14 in. for a 48-inch
opening). As the doors close, the detection zone recedes
towards the car doors. At car door separations of 16 in. or less,
the target detection zone is inside typical hoistway doors. The
vertical coverage of 3D is between ~18 and ~54 in. from the
bottom of the door units.
Target detection varies with the amount of door separation. When
doors are separated more than ~24 in., the system detects both
large and small objects. A large object (in this context) is a human
body torso. A small object is an extended arm, for example. The
larger the target, the more likely it will be detected.
As the doors close, the detection operation changes. As the door
separation narrows from 24 to 18 in., the system will ignore large
targets as noise. It will, however, detect small objects such as an
extended arm or hand. In the last ~18 in. of door travel, the system
will only detect small objects that are rapidly moving into or out of
the hoistway door zone (provided this region is enabled via dip
switch 7), such as a last-second attempt to extend a hand and stop
the doors. If the system falsely senses objects in this region, dip
switch 7 can be used to enable or disable 3D operation in this
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region.
(Otis Technical Information Publication at pp. 2, 5-6.) Thus, according to Otis, the
location and size of the detection area in which the 3D system will work will depend,
among other things, on how far apart the elevator doors are at a given moment.
Plaintiffs’ expert, James Filippone, opines in his July 29, 2013 report that:
The cause of the door reopening device not detecting Ms. Havlik’s
hand/wrist is that the 3D function [i.e. the 3D system] was not
turned on. If this 3D protection had been turned on when Ms.
Havlik attempted to enter the incident elevator, the doors would
not have closed on her hand/wrist and she would not have suffered
any injuries.
(July 29 Filippone Report, p. 4.) In a supplemental report dated September 20, 2013,
Filippone stood by this conclusion and further opined that the 3D function was not on
during his inspection in February 2013 and must have been off at the time of the subject
incident. (Sept. 20, 2013 Filippone Report, p. 1.) As such, Plaintiffs assert that
Schindler negligently failed to enable the Lambda 3D safety device on the elevator in
question. With regard to Bally’s, Plaintiffs argue that the company, by and through
Schindler, was required to activate the Lambda 3D via dip switch 6 and 7 and keep it
activated at all times; Bally’s alleged failure to do so caused Plaintiff’s injury.
Defendants seek to preclude Filippone’s testimony, 1 arguing that his opinion that
the accident was caused because the 3D sensor was off is not based upon any evidence
or scientific methodology, but relies solely on speculation and, as such, is unreliable.

Whether to hold an in limine hearing upon a Daubert objection is an issue that
“rests in the sound discretion of the district court.” Padillas v. Stork–Gamco, Inc., 186
F.3d 412, 418 (3d Cir. 1999). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999) (“The trial court must have the same kind of latitude in deciding how to test an
expert's reliability, and to decide whether or when special briefing or other proceedings
are needed to investigate reliability, as it enjoys when it decides whether or not that
expert's relevant testimony is reliable.”). A hearing may not be required in all
1

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Plaintiffs have argued that “expert testimony is not required to prove that the
subject elevator malfunctioned, but it is only necessary to ‘provide an explanation in lay
terms of the possible ways in which the accident could have occurred that would more
likely than not point to defendant’s negligence as a substantial contributing cause.’” Pl.
Opp’n Br. [44, 46], p. 1 (quoting Gore v. Otis Elevator Co., 762 A.2d 292, 296 (N.J.
Super. Ct. App. Div. 2000)). According to Plaintiffs’ expert, if the switch was turned on,
the elevator doors would not have closed on Plaintiff’s hand. “Thus, taking the facts in
the light most favorable to Plaintiff, the only possible reason for the doors to close on
Plaintiff’s hand is that Defendant failed to maintain the 3D device in the ‘on’ position as
Plaintiff’s expert discovered upon his inspection.” Pl. Br. In Opp’n to Bally’s Mot. In
Limine, p. 5. Plaintiff’s argument is as follows.
Here, Plaintiff’s expert inspected and tested the subject elevator and
found the 3D function to be disabled. When he tested the doors, the doors
closed, which means that the 3D device was functional, just not turned
‘on,’ because as Defendant’s elevator technician confirmed, if the device is
broken, the doors will not close at all. Plaintiff’s expert applied the
information contained in the Lambda Technical sheet with Plaintiff’s
uncontroverted testimony and his inspection in order to form his opinion.
Thus, Plaintiff’s expert’s opinion meets the reliable standard set forth in
Daubert. As the Johnson Court reminds us, the standard for determining
reliability is not that high.
Id. at p. 6 (citing Johnson v. SJP Mgmt., LLC, Civ. No. 07-5545, 2009 WL 367539 (E.D.
Pa. Feb. 12, 2009) (emphasis added)).

circumstances, particularly where the depositions, affidavits, or briefing before the court
are sufficient to perform a proper analysis. See Oddi v. Ford Motor Co., 234 F.3d 136,
151–54 (3d Cir. 2000).
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The guiding principles that inform the Court’s judgment are found in Federal
Rule of Evidence 702 and Daubert, 509 U.S. 579. Federal Rule of Evidence 702
provides:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, 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.
Fed. R. Evid. 702. Consistent with that Rule, Daubert established a “trilogy of
restrictions” on the admissibility of expert testimony relating to scientific knowledge.
See Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003). Daubert also
applies to expert testimony relating to “technical or other specialized knowledge.” See
Oddi v. Ford Motor Corp., 234 F.3d 136, 146 (3d Cir. 2000) (quoting Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)). This “trilogy” consists of “qualification,
reliability and fit.” Id. The Third Circuit liberally construes the qualifications of an
expert, noting that “a broad range of knowledge, skills, and training will qualify a
witness as an expert . . . .” See Yarchak v. Trek Bicycle Corp., 208 F. Supp. 2d 470, 495
(D.N.J. 2002) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994)
(“Paoli II”)) (internal quotations omitted). As such, exclusion of an expert witness is
“improper simply because an expert does not have the most appropriate degree of
training.” Yarchak, 208 F. Supp. 2d at 495 (quoting Diaz v. Johnson Matthey, Inc., 893
F. Supp. 358, 372 (D.N.J. 1995)). Qualification is not at issue in this case.
With respect to reliability, the focus is on the “principles and methodology, not
on the conclusions that they generate.” Daubert, 509 U.S. at 595. Four benchmarks
help determine whether a theory or technique qualifies as “scientific knowledge” such
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that it will assist the trier of fact. See Daubert, 509 U.S. at 593. The Court considers: (1)
whether the theory can be or has been tested; (2) whether the theory or technique has
been subjected to peer review and/or publication; (3) the rate of error; and (4) whether
the theory or technique has been generally accepted within the putative expert’s
respective community. Id. at 593-94. The Third Circuit adds other factors, including:
(5) the existence and maintenance of standards controlling the technique’s operation;
(6) the relationship of the technique to methods which have been established to be
reliable; (7) the qualifications of the expert testifying based on the methodology; and (8)
the non-judicial uses to which the method has been put. Paoli II, 35 F.3d at 742 n.8.
When considering these factors, the Court’s inquiry must be a “flexible one.” Id.
As for the third prong, Rule 702 requires that the “proffered expert testimony
must ‘fit’ within the facts of the case.” Yarchak, 208 F. Supp. 2d at 496. The fit
requirement mandates that the testimony “in fact assist the jury, by providing it with
relevant information, necessary for a reasoned decision of the case.” Id. (citing
Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 595 (D.N.J.
2002)). Thus, even if an expert is qualified and relies on sound methodology, he must
still “apply this expertise to the matter at hand.” See Calhoun, 350 F.3d at 324.
These factors are not exclusive. They “are intended to serve only as ‘useful
guideposts, not dispositive hurdles that a party must overcome in order to have expert
testimony admitted.’” Yarchak, 208 F. Supp. 2d at 495 (quoting Heller v. Shaw
Industries, Inc., 167 F.3d 146, 152 (3d Cir. 1999)).
In rendering his opinions in this matter, Filippone reviewed and relied upon the
Lambda 3D Technical Information Publication. He also reviewed Schindler’s
maintenance and repair records and the Inspection Reports from Atlantic City. (July 29
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Filippone Report, p. 6, nos. 7, 14, 17; Filippone Dep., 13:15-14:20.) Filippone testified
that the Atlantic City Inspection Reports indicate that the car reopening devices
functioned satisfactorily both before and after the subject incident. (Filippone Dep.,
45:14 46:25.) Filippone testified there is no evidence upon which he relied to indicate
that the 3D system was not functioning when the elevator was inspected in 2010, the
year of the subject incident. (Filippone Dep., 46:20-47:10.) He testified that he did not
inspect the controller for the 3D system on the subject elevator to determine if the
switches for the 3D system were on or off. (Filippone Dep., 33:7-12.) Filippone also
testified that he did not know whether either one of two dip switches which control the
3D system - DIP switches 6 and 7 - was on or off. (Filippone Dep., 39:4-40:17.) When
questioned why he did not examine and document the controller for the 3D system to
determine its settings, Filippone testified that “[t]here’s no reason to.” (Filippone Dep.,
33:16-19.)
Nonetheless, Filippone opined: “[w]hen [Schindler expert Jon Halpern] and I
examined the elevator and the operation of the LAMBDA 3D device on February 16,
2013, the 3D function was not operational.” (Sept. 20 Filippone Report, p. 3; Filippone
Dep., 34:13-18, 38:14-18.) In his deposition, Filippone testified that he determined that
the 3D system was off by “standing in front of the doors and [seeing that] the doors
would continue to close,” then taking a step closer to see if the doors would close again.
(Filippone Dep., 34:19-23, 35:22-25.) Filippone testified that, with regard to his abovereferenced observation of seeing the subject elevator doors close while standing in front
of the doors and stepping closer to them, he could not recall the distance of his step
forward and that he does not have a standard protocol “as to how many inches out from
the elevator” he would have stepped forward. (Filippone Dep., 36:1-9.) Filippone also
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could not recall whether he took another step closer to the elevator or walked right up to
the elevator doors. (Filippone Dep., 36:21 - 37:1.) Filippone testified that that he
eventually stood right at the elevator doors and saw them close, and that he did not
document the specific distances at which he stood from the elevator doors; his only
notes regarding his “test” of the 3D system were “[p]robably just that it wasn’t working”
and any notes would be in his expert reports. (Filippone Dep., 37:2 - 38:1.) Filippone
testified he did not use a ruler or any other device to measure his distance from the
elevator doors. (Filippone Dep., 38:2-6.) He also testified that he took no photographs
or video recordings of his standing in front of the elevator doors and stepping closer to
them. (Filippone Dep., 38:7-9, 38:19-21.)
Filippone testified that he had all of the information needed to calculate the size
of the detection zone when the 3D system was active, describing how he would perform
such a calculation. (Filippone Dep., 67:8-68:9, 68:16-19.) Filippone testified that, in
this case, he did not make any calculation of the size of the detection zone:
A. It's just like I said. You have a triangle. You have a base,
you have a distance that the doors are apart. The altitude is six
inches, and then if you want to know any point along the way you
can just measure it.
Q. Did you do that in this case?
A. No.
Q. Why not?
A. I didn't think it was necessary.
(Filippone Dep., 68:25 - 69:8.) Filippone testified that he could calculate the
circumstances in which a person’s hand could be caught in between the closing hoistway

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doors while the 3D system was active, but he did not make any such calculation.
(Filippone Dep., 69:12-20, 70:9-71:12.)
Filippone testified that the 3D system should have detected Ms. Havlik’s hand,
regardless of how close it was to the edge of the hoistway doors, if it was extended to the
point that her wrist would be in between the hoistway doors. (Filippone Dep., 71:21 72:4, 72:16.) Filippone testified that he did not know the dimensions of Ms. Havlik’s
hand. (Filippone Dep., 72:16.) Filippone testified that he could not rule out the
possibility that a person’s hand could be stuck in between elevator doors with the 3D
system active if the hoistway doors contacted the middle of the hand. (Filippone Dep.,
72:5-9, 72:15-18, 72:25 - 73:3.) In his expert reports or his testimony, Filippone does
not cite any measurements or range of dimensions for the size of Ms. Havlik’s hand.
There is no record evidence to suggest that the elevator was negligently
maintained or that there was anything wrong with the elevator or the 3D sensor during
the year of the Plaintiff’s accident, and no evidence of whether the 3D sensor was on or
off at the time of her accident. Further, there were no other incidents involving the
doors or 3D sensor on this elevator, no safety violations or citations issued by the
Atlantic City inspector, and no maintenance or service records from Schindler
evidencing any complaints, problems, repairs, or service for the elevator at issue during
the year of the Plaintiff’s accident. Indeed, defense expert Jon Halpern opined:
Schindler Elevator maintained the subject elevator and performed regular
and systematic maintenance on the elevator and documented the same.
Schindler technicians examined and performed maintenance on the door
and door safety devices in June, July, September, and November of 2010
and there is no indication of any problems with the door or the door
protection. At the time of the incident there was no call or report to
Schindler Elevator with respect to this incident, no repair or adjustment
made to the subject elevator and no other complaints relating to any
malfunction of the doors or the door protection.
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Machine room placard indicates the subject elevator was inspected on
June 14, 2010, 6 months prior to the incident and on February 10, 2011 by
city inspector Bud Grant, and the elevator was found to be fully compliant
with all standards and codes, including the operation of the door
protection.
(Aug. 27, 2013 Halpern Report, p. 2.) Yet Filippone’s expert report concludes:
The cause of the door reopening device not detecting Ms. Havlik’s
hand/wrist is that the 3D function was not turned on. If this 3D
protection had been turned on when Ms. Havlik attempted to enter the
incident elevator, the doors would not have closed on her hand/wrist and
she would not have suffered any injuries. It is unexplained why the 3D
protection was not maintained operational by Schindler or Bally’s.
(July 29 Filippone Report, p. 3).
Filippone’s expert report also acknowledges, however, regarding the 2D sensors:
Incidents involving passengers being struck by closing doors while
entering an elevator are common. People are aware that the doors close
automatically and assume that the doors will stop and reopen as they
always have in the past when they extend their hand out. They are
unaware that the re-opening device is usually only effective when their
hand is in the path of the closing car door (which has the re-opening
device attached to it), but may not be effective when they are in the path of
the closing landing door.
(July 29 Filippone Report, p. 3 (emphasis in original)). Halpern’s opinion follows:
“Plaintiff testified that the door struck her hand between the wrist and the fingers
indicating that the plane of the required car door protection was not obstructed and
therefore not activated.” (Halpern Report, p. 3.) Halpern also opined:
The subject elevator had an Otis Lambda 3D protection feature, however
such a device based on its design cannot guarantee that a passenger who
places one’s hand into the plane of a closing hoistway door be detected, as
indicated in the theory of operation and can be disabled by design without
any warning. The 3D feature has an anti-nuisance feature that can also
automatically disable the 3D detection due to external factors such as
reflections and ambient light.

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(Halpern Report, p. 3.) Halpern added, “[t]here is no indication that the Lambda 3D
device failed at any time and the same Lambda 3D door protection device was on the
elevator at the site examination performed [on] February 6, 2013.” (Id.) Filippone
rationalizes, however, that “[i]t makes much more sense that the 3D feature was not
operational when Ms. Havlik was injured and [Schindler and/or Bally’s] simply did not
enable it.” (Sept. 20 Filippone Report, at p. 3.)
The Court agrees that the conclusion that the 3D function of the subject elevator
was not turned on at the time of Plaintiff’s accident is unsupported speculation, and
therefore unreliable under Daubert. “If Daubert and its progeny require anything, it is
that plaintiffs come forward with proof of a valid methodology based on more than just
the ipse dixit of the expert.” Furlan v. Schindler Elevator Corp., 864 F. Supp. 2d 291,
298 (E.D. Pa. 2012) (quoting Pappas v. Sony Elecs., Inc., 136 F. Supp. 2d 413, 426 (W.D.
Pa. 2000)).
In addition, Plaintiffs have not produced evidence from which a reasonable jury
could conclude that Defendants’ conduct or omission caused Plaintiffs’ injury. There is
no proof in the record of negligent maintenance and none that would tend to indicate
that the 3D sensor of the elevator was turned off. Negligence cannot be presumed, it
must be proven. Long v. Landy, 171 A.2d 1 (N.J. 1961).
Further, the record reflects that “[a]t car door separations of 16 inches or less, the
target detection zone is inside typical hoistway doors.” Otis Technical Information
Publication, p. 41. Thus, Ms. Havlik’s injury could have occurred due to the hoistway
doors closing, whether the Lambda 3D switch was on or off. The issue here is more of
whether there was a design defect than one of negligence by these Defendants. Notably,

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Plaintiffs have not claimed that the elevator doors were defectively designed or
defectively manufactured.
Although it was not necessary for Plaintiffs to exclude all other possible causes of
the accident, they were required to produce evidence from which a fact-finder might
reasonably conclude that Defendants were, more probably than not, negligent; Plaintiffs
failed to do so. Accordingly, the doctrine of res ipsa loquitor does not apply here since
“other responsible causes, including the conduct of the Plaintiff, have not been
“sufficiently eliminated by the evidence.” Tait v. Armor Elevator Co., 958 F.2d 563, 572
(3d Cir. 1992)). See Gore v. Otis Elevator Co., 762 A.2d 292, 295 (N.J. Super Ct. App.
Div. 2000) (to apply the res ipsa loquitor doctrine, “the evidence must support a
reasonable inference that it was the defendant who was at fault”); Pace v. Mainstay
Suites Hotel, Civ. No. 06-5166, 2008 WL 4861507 (E.D. Pa. Nov. 7, 2008) (res ipsa
loquitor did not apply because plaintiff failed to show that elevator door closing on
plaintiff’s arm ordinarily would not occur in the absence of negligence and that there
were no other responsible causes for the accident).
Finally, because the loss of consortium claim is dependent upon the claims of
negligence, summary judgment on that claim will be granted for the Defendants.
Conclusion
For these reasons, as well as those articulated on the record during oral
argument, IT IS ORDERED on this 30th day of September, 2014 that motions of the
Defendants to preclude the testimony of Plaintiff’s expert as speculative and for
summary judgment [36, 37, 38] are hereby GRANTED.
/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.
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