Serby v. First Alert, Inc. et al

Filing 93

ORDER: Plaintiff's motion in limine to preclude the testimony of Dr. Reddy, Dkt. 86 , is DENIED. 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 13, 2015, Plaintiff Victor M. Serby ("Plaintiff'), filed a motion in limine to
preclude the testimony of Dr. Thomas Reddy at trial pursuant to Federal Rules of Evidence
Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Dkt. 86-1
("MIL"). On July 20, 2015, Defendants First Alert, Inc. ("First Alert") and its subsidiary BRK
Brands, Inc. ("BRK") (collectively "Defendants"), filed an opposition to Plaintiffs motion in
limine arguing that Plaintiffs arguments speak to the weight of Dr. Reddy's testimony, not its

admissibility. Dkt. 91 ("Opp. to MIL") at 2. For the reasons set forth below, Plaintiffs motion
in limine is DENIED.

Plaintiff seeks to preclude Dr. Reddy' 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. Reddy's testimony should be excluded because it "(l) will not
help the trier of fact to understand the evidence or to determine a fact in issue (in the case of
the chemistry of the lithium anode batteries); (2) is not reliable or the product of reliable
principles and methods; and (3) consists of ipse dixit statements and Dr. Reddy performed no
testing, instead relying on anecdotal 'personal experience,' which clearly involved

methodologies which were patently unsound, or are irrelevant to the case at hand." Id at 9
(emphasis in the original).
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 2. In sum, Defendants claim "[t]he
criticisms advanced by Plaintiff speak to the weight of Dr. Reddy's testimony rather than its
admissibility, especially in a bench trial where there is no prospect of prejudicing a jury." Id.
at 12. 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.1 (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. Reddy's testimony is not reliable and will not
assist the trier of fact in reaching a determination is without merit. As such, Dr. Reddy's
testimony should not be precluded from trial.
Second, Plaintiff raises a variety of issues with Dr. Reddy's testimony such as the
irrelevancy of his testimony on the differences between lithium manganese dioxide batteries

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and lithium thionyl chloride batteries, his failure to have "[]sufficient facts or data on which to
base an opinion[,]" and his failure to provide specific data regarding his personal experience
with Kodak Ultralife Battery. MIL at 3-8. None of these issues, however, are grounds for
preclusion. While Plaintiff argues Dr. Reddy'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 Iimine. In fact, the issues Plaintiff
raises go towards the weight of Dr. Reddy's testimony, not its admissibility, which can be
addressed on cross-examination. For example, Plaintiff claims "Dr. Reddy's anecdotal
'personal experience' involving the Kodak Ultralife battery should[] be excluded[]" because
"[t]here is no date and no specifics stated[] regarding this 'personal experience."' Id. at 8.
However, under Federal Rules of Evidence Rule 703, "[a]n expert may base an opinion on
facts or data in the case that the expert has been made aware of or personally observed." Fed.
R. Evid. 703 (emphasis added). Because Dr. Reddy personally observed issues with the Kodak
Ultralife Battery and because Plaintiff will have ample opportunity on cross-examination to
raise such issues with Dr. Reddy's testimony, this testimony will not be precluded from trial.
CONCLUSION
Plaintiffs motion in limine to preclude the testimony of Dr. Reddy, Dkt. 86, is
DENIED.

SO ORDERED
Dated: July 22, 2015
Brooklyn, New York

s/WFK
TZ,II

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