Serby v. First Alert, Inc. et al

Filing 92

ORDER: Plaintiff's motion in limine to preclude the testimony of Dr. Wood, Dkt. 84 , is DENIED. Defendant's opposition to Plaintiff's motion in limine to preclude the testimony of Dr. Wood, Dkt. 89 , is GRANTED. Ordered by Judge William F. Kuntz, II on 7/22/2015. (Brucella, Michelle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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VICTOR M. SERBY,
Plaintiff,

ORDER
09-CV-4229 (WFK) (VMS)

-against-

FIRST ALERT, INC. and BRK BRANDS, INC.,
Defendants.

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WILLIAM F. KUNTZ, II, United States District Judge:
On July 10, 2015, Plaintiff Victor M. Serby ("Plaintiff'), filed a motion in limine to
preclude the testimony of Dr. Christine Wood at trial pursuant to Federal Rules of Evidence
Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Dkt. 84-5
("MIL"). On July 14, 2015, Defendants First Alert, Inc. ("First Alert") and its subsidiary BRK
Brands, Inc. ("BRK") (collectively "Defendants"), filed an opposition to Plaintiff's motion in
limine arguing that Plaintiff's arguments speak to the weight of Dr. Wood's testimony, not its

admissibility. Dkt. 89 ("Opp. to MIL") at 1. For the reasons set forth below, Plaintiff's motion
in limine is DENIED.

Plaintiff seeks to preclude Dr. Wood's testimony because the "proffered testimony is
not reliable and will not assist the trier of fact in reaching a determination." MIL at 1.
Specifically, Plaintiff argues Dr. Wood's testimony should be excluded since it is not the
product ofreliable principles and methods because her '"testing' involved methodologies
which were patently unsound, and her results are irrelevant to the case at hand since she has
not proffered a definition of 'openability' which can be gleaned from any relevant industry or
technical standard or that is in common usage in her field of 'human factors.'" Id. at 9.

Defendants, on the other hand, argue that "Plaintiffs arguments are meritless and
should be rejected, particularly in a bench trial where the potential for undue prejudice of the
trier of fact is virtually non-existent." Opp. to MIL at 1. In sum, Defendants claim Dr. Wood
"fully explained her methodology and testing procedures. The criticisms advanced by Plaintiff
speak to the weight of Dr. Wood's testimony rather than its admissibility, especially in a bench
trial where there is no prospect of prejudicing a jury." Id. at 7. Defendants are correct for the
following reasons.
First, the Court will be the finder of fact at trial. In general, "[i]t is a well-accepted
principle that Rule 702 embodies a liberal standard of admissibility for expert opinions."

Tiffany (NJ) Inc. v. eBay, Inc., 576 F. Supp. 2d 457, 458 (S.D.N.Y. 2007) (Sullivan, J.)
(internal quotation marks omitted) (citing Nimely v. City of New York, 414 F.3d 381, 395-396
(2d Cir. 2005)) . Moreover, "[i]n the context of a bench trial where there is not a concern for
juror confusion or potential prejudice, the [C]ourt has considerable discretion in admitting the
proffered testimony at the trial and then deciding after the evidence is presented whether it
deserves to be credited by meeting the requirements of Daubert and its progeny." Id. at 457
n. l (citing New York v. Solvent Chem. Co., Inc., 83-CV-1401C, 2006 WL 2640647, at *1
(W.D.N.Y. Sept. 14, 2006) (Curtin, J.) (collecting cases)). Because there is no potential for
undue prejudice, Plaintiffs argument that Dr. Wood's testimony is not reliable and will not
assist the trier of fact in reaching a determination is without merit. As such, Dr. Wood's
testimony should not be precluded from trial.
Second, Plaintiff raises a variety of issues with Dr. Wood's testimony such as her
failure to simulate real world conditions, her failure to provide a basis for comparison, and her
failure to provide context for her definition of "openability." MIL at 4-8. None of these

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issues, however, are grounds for preclusion. While Plaintiff argues Dr. Wood's testimony is
ultimately not reliable due to these issues and will not assist the trier of fact in reaching a
determination, as discussed above, such an argument is without merit for purposes of this
motion in limine. In fact, the issues Plaintiff raises go towards the weight of Dr. Wood's
testimony, not its admissibility, which can be addressed on cross-examination. For example,
although Plaintiff complains that Dr. Wood failed to simulate real world conditions, it is
"firmly established that the decision whether to admit evidence of experimental tests or
demonstrations is a matter left to the sound discretion of the trial judge. A court may properly
admit experimental evidence if the tests were conducted under conditions substantially similar
to the actual conditions. Admissibility, however, does not depend on perfect identity between
actual and experimental conditions. Ordinarily, dissimilarities affect the weight of the
evidence, not its admissibility." Veliz v. Crown Lift Trucks, 714 F. Supp. 49, 51 (E.D.N.Y.
1989) (Dearie, J.) (internal quotation marks, alterations, and citations omitted); see also
Cordeo v. Stop & Shop Supermarket Co., 11-CV-5701, 2012 WL 5951280, at *1 (S.D.N.Y.
Nov. 26, 2012) (Jones, J.); Cahalan v. Genie Indus., Inc., 276 F.R.D. 161, 167 (S.D.N.Y. 2011)
(Francis, IV, Mag. J.). Because Plaintiff will have ample opportunity on cross-examination to
raise such issues with Dr. Wood's testimony, and because there is no potential for undue
prejudice, Dr. Wood's testimony will not be precluded from trial.
CONCLUSION

Plaintiffs motion in limine to preclude the testimony of Dr. Wood, Dkt. 84, is
DENIED. Defendant's opposition to Plaintiffs motion in limine to preclude the testimony of
Dr. Wood, Dkt. 89, is GRANTED.

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s/WFK