Roman v. Sprint Nextel Corporation et al
Filing
111
OPINION & ORDER re: 48 MOTION for Summary Judgment filed by Sprint Solutions, Inc., Nextel Of New York, Inc., Sprint Nextel Corporation, Sprint Spectrum L.P., 39 FIRST MOTION for Summary Judgment and to Preclude Plaintiff' s Expert Testimony filed by HTC America Holding, Inc., HTC America, Inc., HTC America Innovation, Inc., HTC Corporation. For the foregoing reasons, Defendants' motions to dismiss Plaintiff's failure to warn claim pursuant t o Federal Rule of Civil Procedure 56 are DENIED. Plaintiff's motions in limine to exclude Defendants' expert witnesses will be dealt with in a separate opinion. The Clerk of Court is directed to terminate Docket Entry 39 and 48. (Signed by Judge Valerie E. Caproni on 9/29/2014) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------ X
MARIA I. ROMAN,
:
Plaintiff,
:
:
-against:
:
SPRINT NEXTEL CORP.,
:
NEXTEL OF NEW YORK, INC.,
:
HTC CORP.,
:
HTC AMERICA HOLDING, INC.,
:
HTC AMERICA INNOVATION, INC.,
:
SPRINT SPECTRUM L.P., and
:
SPRINT SOLUTIONS, INC.,
:
Defendants.
:
------------------------------------------------------------ :
SPRINT SPECTRUM L.P.,
:
SPRINT SOLUTIONS, INC.,
:
NEXTEL OF NEW YORK, INC., and
:
SPRINT NEXTEL CORP.,
:
Cross:
Claimants,
:
:
-against:
:
HTC AMERICA HOLDING, INC.,
:
HTC AMERICA INNOVATION, INC.,
:
HTC AMERICA, INC., and
:
HTC CORP.,
:
Cross:
Defendants.
:
------------------------------------------------------------ X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 9/29/2014
12-CV-276 (VEC)
OPINION & ORDER
VALERIE CAPRONI, United States District Judge:
Plaintiff Maria Roman alleges that she sustained a burn on her left breast, which
developed into complex regional pain syndrome (“CRPS”), during an overnight bus trip from
North Carolina to New York City between October 2 and 3, 2010, from a cellular phone that was
manufactured by Defendants HTC Corporation and HTC America Holding, Inc. (“HTC”) and
sold by Defendants Sprint Spectrum, L.P., Sprint Solutions, Inc., and Sprint/United Management
1
Company (“Sprint”). Sprint 56.1 ¶¶ 4-6. Plaintiff filed this complaint in the Supreme Court of
the State of New York, New York County, on October 21, 2011, and HTC removed the action to
this Court on January 13, 2012. Dkt. 1. After the close of discovery, all Defendants moved for
summary judgment. Dkt. 39; Dkt. 48. All Defendants also moved to preclude the testimony of
Plaintiff’s engineering expert, Roger L. Boyell, id., and HTC moved to preclude the testimony of
Plaintiff’s medical expert, Dr. Kiril Kiprovski, Dkt. 39.1 Plaintiff initially brought claims for
failure to warn, negligence, and breach of implied warranty. Amended Compl., Dkt. 15. She
now withdraws the claims for negligence and breach of implied warranty, leaving failure to warn
as the sole remaining cause of action. Pl. Mem. Law Opp. at 2.
For the reasons set forth below, Defendants’ motions for summary judgment are
DENIED. Defendants’ motions in limine to preclude the testimony of Mr. Boyell and Dr.
Kiprovski are GRANTED in part and DENIED in part.
I.
BACKGROUND
On a motion for summary judgment, the Court construes the evidence in the light most
favorable to the nonmoving party. In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d
Cir. 2008). The following facts are drawn from the pleadings, Plaintiff’s deposition, affidavits,
and exhibits submitted by the parties.
Plaintiff purchased an HTC EVO 4g cellular phone (the “cell phone”) in June 2010.
HTC 56.1 ¶ 3. The HTC User Guide (“User Guide”) and the HTC Basics Guide (“Basics
Guide”) include warnings related to the proper use of the product. HTC 56.1 ¶ 4; see HTC Ex.
T; HTC Ex. R. The cell phone, like all cell phones, is a low power radio transmitter and
1
On April 7, 2014, Plaintiff moved to preclude the testimony of Sprint’s experts, Dr. Jane Welch (warnings
expert) and Mark McNeely (engineering expert), and HTC’s experts, Dr. Frank E. Gomer (warnings expert) and
Eric Lalli (engineering expert). Dkt. 72. Those motions remain sub judice.
2
receiver. Roman 56.1 ¶ 32. It operates wirelessly by communicating with the Sprint network
through a transmitter chip that sends and receives radio frequency (“RF”) signals to “base
stations,” or network towers with antennas. Roman 56.1 ¶¶ 39-41; HTC Response to Pl. 56.1 ¶¶
39-41. When the cell phone is turned on, it sends and receives RF signals at varying intervals.
Roman 56.1 ¶ 33; HTC Response to Pl. 56.1 ¶ 33.
On October 2, 2010, Plaintiff boarded an overnight bus from Raleigh, North Carolina to
New York City. HTC 56.1 ¶¶ 10-11, 26. Before boarding, she charged her cell phone to 100% .
HTC 56.1 ¶ 12. She made one brief phone call when she boarded the bus, then turned off the
screen, put the cell phone face down against her skin on the left side of her chest, and fell asleep
for the duration of the nine-hour bus ride. HTC 56.1 ¶¶ 18-20. She did not power down the
phone, nor did she take any steps to turn off WiFi, roaming, or any idle applications. Roman
Aff. ¶ 5. After exiting the bus in New York City on October 3, 2010, she removed the phone
from under her camisole. Pl. Reply to HTC 56.1 ¶ 27. The surface of the phone had stuck to her
skin, and she felt pain when she pulled it loose. Pl. Mem. Law Opp. at 3. The battery depleted
from almost 100% to approximately 25% during the bus ride. Id.
Shortly after arriving in New York, Plaintiff showered and noticed a burning, tingling
sensation where the cell phone had been. Id. Over the course of the day, she began to feel like
she had a “rash” in the area, and later that evening she noticed some skin was missing and
blistered. Id. On October 6, 2010, Plaintiff saw her family doctor, who prescribed an ointment
commonly used to treat burns. Roman Dep. at 128 (HTC Ex. X). It took more than 10 days for
the skin to heal, and the burn left a scar. Id. at 132. Although the surface pain subsided, pain in
the tissue beneath the skin persisted. Id. at 134-35. On December 1, 2010, Plaintiff sought
treatment for the lingering pain from a breast specialist who had treated her in 2008 to remove a
3
cyst from the same breast. Id. at 136-138. After various other treatments, on June 27, 2012, she
sought treatment from Dr. Kiril Kiprovski. Id. at 157-158. After his initial consult, Dr.
Kiprovski concluded that the burn from the cell phone damaged the intraepidermal and dermal
nerves beneath the skin, which caused her to suffer from CRPS. Kiprovski Report, Cerussi Decl.
Exh. DD, at 4. Plaintiff claims she still suffers from pain in the area where she sustained the
burn.
Plaintiff read the Basics Guide in its entirety when she purchased the phone in June 2010.
HTC 56.1 ¶ 5; Roman Dep. at 32 (HTC Exh. X). According to Plaintiff, neither the Basics
Guide nor the User Guide contained warnings that would have alerted a user to the risk of
sustaining a burn from storing the cell phone, powered on, next to her body for an extended
period of time while traveling.
II.
DISCUSSION
Plaintiff alleges that Defendants negligently failed to warn that the HTC EVO 4g phone
continually emits thermal energy and RF radiation and that the risk of injury from exposure to
these emissions varies based on factors such as the operating state of the phone, the active
applications of the phone, whether the carrier of the phone is traveling or stationary, the
proximity of the phone to the body, and the area of the body exposed to the emissions. Amended
Compl. ¶¶ 32-34, 41-42.
Defendants moved for summary judgment on the grounds that Plaintiff lacks sufficient
evidence to create a genuine issue of fact as to causation; that the Basics Guide warned against
Plaintiff’s use; and that Plaintiff lacks sufficient expert evidence to create a genuine issue that the
warnings provided were inadequate. Sprint Reply Mem. Law at 2, 9; HTC Mem. Law at 19;
HTC Reply Mem. Law at 5-9. Plaintiff claims that the circumstantial evidence creates a genuine
4
issue of fact whether the cell phone was a substantial cause of her injury – even without expert
testimony – and whether the warnings in the Basics Guide and User Guide adequately alerted a
user to this risk. Pl. Mem. Law Opp. at 11, 15-16.
a. Expert Evidence
The proponent of expert testimony has the burden of establishing by a preponderance of
the evidence that the expert meets the requirements of Federal Rule of Evidence 702. United
States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007). Rule 702 states:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. Rule 702 tracks Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591
(1993), and its progeny. See Fed. R. Evid. 702 advisory committee’s note. The ultimate object
of the court’s gate-keeping role under Rule 702 is to “make certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). To this end, Rule 703 allows an
expert to proffer an opinion based on facts “that the expert has been made aware of or personally
observed,” or, alternatively, on facts or data that “experts in the particular field would reasonably
rely on” in forming the opinion. Fed. R. Evid. 703. But Daubert rejected a “rigid” standard that
would require general acceptance of the expert’s opinion in the scientific community because
such a standard would be “inconsistent with the liberal thrust of the Federal Rules.” McCullock
5
v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995) (citing Daubert, 509 U.S. at 588). Instead,
“[t]he flexible Daubert inquiry gives the district court the discretion needed to ensure that the
courtroom door remains closed to junk science while admitting reliable expert testimony that
will assist the trier of fact.” Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d
Cir. 2002).
A court’s “inquiry into whether an expert meets Rule 702’s requirements includes a
review of (1) the qualifications of the proposed expert; (2) whether each proposed opinion is
based upon reliable data and reliable methodology; and (3) whether the proposed testimony
would be helpful to the trier of fact.” In re Puda Coal Sec. Inc. Litig., --- F. Supp. 2d ---, No. 11CV-2598 (KBF), 2014 WL 2915880 at *15 (S.D.N.Y. June 26, 2014). Reliability requires a
“sufficiently rigorous analytical connection” between the expert’s conclusions and the
underlying methodology. Nimely v. City of New York, 414 F.3d 381, 396 (2d Cir. 2005). The
Supreme Court has cautioned that the district court’s focus “must be solely on principles and
methodology, not on the conclusions they generate.” Daubert, 509 U.S. at 595. The Court
acknowledges, however, that “conclusions and methodology are not entirely distinct from one
another.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). If a court concludes that “there is
simply too great an analytical gap between the data and the opinion proffered,” it should exclude
expert opinion evidence “that is connected to existing data only by the ipse dixit of the expert.”
Id.
To warrant admissibility, “it is critical that an expert’s analysis be reliable at every step.”
Amorgianos, 303 F.3d at 267. “In deciding whether a step in an expert’s analysis is unreliable,
the district court should undertake a rigorous examination of the facts on which the expert relies,
the method by which the expert draws an opinion from those facts, and how the expert applies
6
the facts and methods to the case at hand.” Id. But, in accordance with the “liberal admissibility
standards of the federal rules,” only flaws in reasoning or methodology “large enough that the
expert lacks good grounds for his or her conclusions” warrant exclusion; otherwise, the court
should admit the evidence and “our adversary system provides the necessary tools for
challenging reliable, albeit debatable, expert testimony” through “vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof.” Id. (citations
omitted).
The final requirement for admissibility of expert evidence under Rule 702 is that “the
expert’s testimony (as to a particular matter) will ‘assist the trier of fact.’” Nimely, 414 F.3d at
397.
The requirement that expert testimony “assist the trier of fact” goes primarily to
relevance. Daubert, 509 U.S. at 591, 113 S. Ct. 2786. Relevance can be
expressed as a question of “fit” – “whether expert testimony proffered in the case
is sufficiently tied to the facts of the case that it will aid the jury in resolving a
factual dispute.” Id. (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d
Cir. 1985)). In addition, expert testimony is not helpful if it simply addresses “lay
matters which the jury is capable of understanding and deciding without the
expert’s help.” United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999).
Finally, the testimony is not helpful if it “usurp[s] either the role of the trial judge
in instructing the jury as to the applicable law or the role of the jury in applying
that law to the facts before it.” United States v. Duncan, 42 F.3d 97, 101 (2d Cir.
1994) (quoting United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991)).
In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 173 (S.D.N.Y. 2009).
1. Engineering Expert Roger L. Boyell
Defendants object to the admissibility of Plaintiff’s electrical engineering expert, Roger
L. Boyell, on three grounds: first, they dispute Boyell’s qualification as an expert to provide
testimony on cell phone operation generally; second, they challenge the reliability of Boyell’s
testing of the phone’s propensity to cause thermal burns; and, finally, they claim Plaintiff’s
disclosure did not meet the requirements of Rule 26(a)(2)(B) as to his opinions regarding RF
7
radiation, and therefore seek to preclude those opinions under Rule 37. Sprint Mem. Law at 812; HTC Mem. Law at 6-7, 11-17.2
Turning to the first issue, Boyell’s qualification as an expert: “[t]he court should admit
specialized expert testimony if the witness is ‘qualified as an expert by knowledge, skill,
experience, training or education.’” Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d
736, 746 (2d Cir. 1998) (quoting Rule 702). “To determine whether a witness qualifies as an
expert, courts compare the area in which the witness has superior knowledge, education,
experience, or skill with the subject matter of the proffered testimony.” United States v. Tin Yat
Chin, 371 F.3d 31, 40 (2d Cir. 2004). If the witness has superior knowledge on the subject
matter of the proffered testimony, and that knowledge would assist a lay juror in understanding a
fact or issue in trial, then he may be qualified to provide expert testimony on that issue. See id.
Mr. Boyell is a licensed Professional Engineer with 55 years of electrical engineering
experience working with design, construction, testing, and evaluation of electrical devices and
electronic systems, including radio and radar systems and cellular telephone systems. Boyell
C.V. at 1, 3, 6-8, Cerussi Decl. Exh. CC (Dkt. 44-6); Boyell Decl. ¶ 2 (Dkt. 64). For the last 15
years he has been employed primarily as an expert witness on electrical engineering matters. In
that capacity, he has provided technical assistance on several disputes related to RF radiation,
cell phones and their wireless networks, and heat transfers of electrical devices. See Boyell C.V.
at 9-19; Boyell Decl. ¶¶ 7-9. He has a Bachelor of Electrical Engineering from the University of
Florida and a Master of Science in Applied Science from Adelphi University. Boyell C.V. at 3.
He is a senior member of the Institute of Electrical and Electronics Engineers, a member of the
2
Defendants also argue that Boyell is not qualified to opine on cell phone design and manufacture or on
warnings. Sprint Mem. Law at 4-8; HTC Mem. Law at 6-10. Plaintiff, however, has not proffered Boyell’s
testimony on those issues. Pl. Mem. Law Opp. at 18-19.
8
National Society of Professional Engineers, and a fellow of the National Academy of Forensic
Engineers. Id.
Boyell’s background and experience provide him with superior knowledge, education,
and experience with cell phone operation and the mechanics of radio transmitting devices, and he
is therefore qualified to testify on the technical aspects of how a cellular phone operates. It is not
a stretch to assume that lay jurors own cellular phones and understand how to use them but not
necessarily how they work. Boyell’s testimony on how the cell phone was operating on
Plaintiff’s bus ride from North Carolina to New York would be relevant to assist the trier of fact
to understand an issue that Plaintiff must establish in order to prevail: whether a normally
operating (that is, a non-defective) cell phone could have caused Plaintiff’s injury under the
conditions that she used it. Boyell’s qualifications and the relevance of the subject matter of his
opinion testimony satisfy these initial Rule 702 requirements.
Boyell’s engineering analysis, on the other hand, is a different story. After describing the
facts of Plaintiff’s alleged injury (the placement of the cell phone, the duration and distance of
the bus ride, and the depletion of the battery), Boyell’s written report served with Plaintiff’s Rule
26 disclosure stated, “You [Plaintiff’s counsel] asked me for an engineering analysis of the
instrument’s potential for thermal burns (from the direct application of heat, as opposed to
radiation burns), and you provided me with the instrument at issue.” Cerussi Decl. Exh. CC
(“Boyell Report”) at 1. The report described Boyell’s “operating principles,” or the facts or data
considered in forming his opinion on the phone’s propensity to cause thermal burns:
A mobile phone of this type continually “checks in” with its host network (Sprint,
Verizon, ATT, etc.) and provides its host network with its approximate location in
the world. Its location is implied by the cellsite (base station) with which the last
connection was made. . . . [T]he phone continually scans its nearby cellsites and,
when the cellsite is observed to change, the phone “registers” its location by
transmitting a data burst to the network. . . . Continual location changes therefore
9
require continual checking in. A trip along major highways at an average speed
of 50 mph will pass typically 20 cellsites per hour. Every new site encountered
will cause the phone to transmit a data burst, requiring its transmitter to turn on
and draw power from the battery. This is why a phone in motion, even if not used
to make or receive calls, depletes its battery much faster than the same phone
sitting in an office – typically measured in hours rather than in days. When the
transmitter turns on and draws power from the battery, some of that power is
dissipated by the electronics in the form of heat. It is common to feel a phone
getting hot in one’s hand during a prolonged voice call. In the matter at issue, the
[cell] phone would heat as a result of repeatedly checking in.
Boyell Report at 2.
Using these principles, Boyell conducted a “replication” by placing a two-way, 15minute phone call from Plaintiff’s cell phone and found that the temperature of the surface of the
phone increased 18 degrees Celsius in open air. Id. at 3. Based on an 18-degree Celsius
temperature increase, Boyell then “extrapolated” that if the phone were “confined under light
clothing against human skin” (which has a normal temperature of 36 degrees Celsius) as it was
during Plaintiff’s bus ride, a “temperature rise of 18 C will bring the face of the phone to
54 C. . . . In actuality the temperature will not get to 36 + 18 = 54 C because of some amount of
heat dissipation through the skin. . . . However, if only half the temperature rise due to the phone
is transferred to the skin through direct contact, the skin temperature will be 36 + 9 = 45 C.”3 Id.
at 3. Relying on scientific studies that show the threshold temperature for an exposure burn is 44
degrees Celsius, Boyell concluded that the cell phone would be sufficiently hot to cause damage
to the epidermis after prolonged exposure. Id. at 3-4. Boyell then summarized his expert
opinion based on the facts of this case:
I conclude that, to a reasonable engineering certainty, the [cell phone] caused skin
burns to your client’s body. Because of the design of the instrument, the phone
overheated during a trip even though she was not operating it to make or receive
calls. Simply holding it against her body resulted in the burns. The instrument
caused burn damage before its effect was perceived by your client.
3
54 degrees Celsius is 129.2 degrees Fahrenheit; 45 degrees Celsius is 113 degrees Fahrenheit.
10
Id. at 5.
Boyell’s “extrapolation” assumed that the initial temperature of Plaintiff’s cell phone was
36 degrees Celsius (i.e., body temperature), that it would generate energy equivalent to an
increase of 18 degrees Celsius during the bus ride when it was in “sleep mode,” that 50% of the
cell phone’s temperature rise would transfer to the Plaintiff’s skin and the balance would
dissipate, and that, as a result, the cell phone would have a surface temperature of 45 degrees
Celsius – hot enough to cause Plaintiff’s injury.
There is simply “too great an analytical gap” (several, actually) for his extrapolation to be
reliable evidence. First, unlike Boyell’s “replication” using a two-way phone call, Plaintiff’s
phone was in sleep mode when her injury occurred. This alone raises relevance concerns and
raises concerns whether Boyell “applied [his] principles and methods reliably to the facts of the
case.” See Fed. R. Evid. 702. Second, Boyell offers no support for his assumptions that (1) at
the beginning of the bus ride (and the beginning point of the phone’s thermal temperature rise)
the surface of the cell phone would be equal to the temperature of Plaintiff’s body4; (2) the cell
phone would generate the same amount of thermal energy when it was in sleep mode but
periodically reregistering with passing cell towers as it did during a 15-minute active phone call;
and (3) the amount of heat that would dissipate rather than be absorbed was 50% of the total
temperature rise (as opposed to 10% or 90% or anything in between). Notwithstanding Boyell’s
qualifications as an engineering expert, his own ipse dixit is insufficient to tie his replication and
extrapolation to the facts of this case; he is therefore precluded from offering these opinions at
trial. Cf. Kumho Tire, 526 U.S. at 153-54 (affirming the trial court’s exclusion of a qualified
4
Depending on the thermal conductivity of the materials in the cell phone, through pure conductivity –
regardless of its temperature at the outset – Plaintiff’s body heat would have warmed the cell phone to something
approaching 98.6 degrees Fahrenheit (or 36 degrees Celsius) eventually.
11
expert’s testimony which was based on an accepted methodology because it was unreasonable to
use that methodology “to draw a conclusion regarding the particular matter to which the expert
testimony was directly relevant.” (emphasis in original)).
Defendants next argue that Boyell should be precluded from offering any opinions about
RF radiation under Fed. R. Civ. P. 37(c) because Boyell’s report did not describe his opinions on
the subject of RF radiation. Sprint Mem. Law at 12-13; HTC Mem. Law at 17. When an expert
witness is retained for the purpose of providing expert testimony in a case, the party proffering
the expert testimony must produce a Rule 26 disclosure identifying the expert witness and
include with it a written report prepared and signed by the witness containing:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
case.
Fed. R. Civ. P. 26(a)(2)(B).5 “If a party fails to provide information . . . as required by Rule
26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at
a trial, unless the failure was substantially justified or was harmless.” Fed. R. Civ. P. 37(c)(1).
The purpose of the Rule 37(c) exclusion is “to prevent the practice of ‘sandbagging’ an opposing
5
A party also has a duty to supplement an expert witness disclosure “in a timely manner if
the party learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been made to the other
parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1).
12
party with new evidence,” especially when new evidence is submitted for the purpose of
precluding summary judgment. Ebewo v. Martinez, 309 F. Supp. 2d 600, 606-07 (S.D.N.Y.
2004) (citations omitted). Courts in the Second Circuit, however, “recognize that preclusion of
[expert] evidence pursuant to Rule 37(c)(1) is a drastic remedy and should be exercised with
discretion and caution.” Id. at 607 (citations omitted). In determining whether to exclude expert
testimony, courts consider “(1) the party’s explanation for the failure to comply with the
disclosure requirement; (2) the importance of the testimony of the precluded witness; (3) the
prejudice suffered by the opposing party as a result of having to prepare to meet the new
testimony; and (4) the possibility of a continuance.” Design Strategy, Inc. v. Davis, 469 F.3d
284, 296 (2d Cir. 2006) (quoting Patterson v. Balsamico, 440 F.3d 104 (2d Cir. 2006)
(alterations omitted)).
Mr. Boyell’s report did not disclose his opinion that RF radiation was a possible cause of
Plaintiff’s injury. The report was self-limiting to the subject of thermal burns caused by a
normally operating cell phone. Boyell Report at 1. Nowhere did Boyell state an opinion that the
cell phone caused Plaintiff’s injury due to its emission of RF radiation, which Sprint claims he
disclosed for the first time at his deposition. Sprint Mem. Law at 12. Even assuming, as
Plaintiff argues, that Defendants were on notice that RF radiation was a theory of causation
alleged in the Complaint, Pl. Mem. Law Opp. at 22, and accepting that RF radiation as a
potential cause of Plaintiff’s injury was at least mentioned during Boyell’s deposition, see
Haworth Decl. Exh. J at 82-85, Plaintiff has not supplemented Boyell’s initial report to
substantiate Boyell’s opinion that the RF radiation emitted by Plaintiff’s cellular phone was a
possible cause of her injury as Rule 26(e) requires. See also Fed. R. Civ. P. 26(e)(2) (“[T]he
party’s duty to supplement extends . . . to information given during the expert’s deposition.”).
13
Thus, Defendants do not have the benefit of the information Rule 26(a)(2)(B) requires: a
complete statement of Boyell’s opinion on RF radiation as a possible cause of Plaintiff’s injury
and the basis and reasons for that opinion, as well as the facts or data on which Boyell relied in
forming his opinion.
Plaintiff argues that Boyell’s testimony on Plaintiff’s RF radiation exposure during the
bus trip should be admissible because it is a “known physical fact of the way cell phones work.”
Pl. Mem. Law Opp. at 22. To the extent that is true, Boyell’s expert opinion would be relevant if
it tends to make it more likely that Plaintiff was exposed to sufficient RF radiation to cause her
injury. Assuming that is his opinion (i.e., a normally operating cell phone emits sufficient RF
radiation to cause harm to a human if the phone is next to human skin for 9 hours while the
phone regularly re-registers with passing cellular towers), Defendants are entitled to an
opportunity to test the reliability of that opinion before it is admitted against them at trial.
Plaintiff’s failure to make full Rule 26 disclosures deprived Defendants of that opportunity.
Plaintiff has offered no explanation for the failure to comply with the disclosure requirement or
duty to supplement her disclosures before this late juncture, and the failure was neither
substantially justified nor harmless.6 Defendants would likely require new expert testimony of
their own to meet the new evidence causing further expense and delay, as well as a second
deposition of Mr. Boyell. Mr. Boyell is therefore precluded from proffering an opinion that RF
radiation emitted from Plaintiff’s cellular phone caused her injury.
Boyell’s Rule 26 disclosure did state his opinion on how a cell phone operates by
“checking in” with cellular towers as it travels. This information is potentially relevant because
6
Plaintiff was given an opportunity to demonstrate to the Court whether any evidence in the record could
explain the amount of radiation that was emitted. Dkt. 107. Plaintiff was unable to make such a demonstration and
did not at that time seek leave to supplement Boyell’s Rule 26 disclosure, even though she was on notice that this
was clearly an issue. See Dkt. 108.
14
it might help the trier of fact understand a fact at issue in the dispute. Subject to a more complete
understanding of how the Plaintiff intends to prove her case at trial, Boyell will be permitted to
testify as to the operation of cell phones generally, but he will not be permitted to express an
opinion that Plaintiff’s injury could have been or was caused by either thermal or RF radiation
generated from her cell phone’s normal operation during the bus ride.
2. Dr. Kiril Kiprovski
HTC challenges Dr. Kiril Kiprovski’s qualification to testify on the issue of general
causation; that is, whether Plaintiff’s cell phone was capable of causing Plaintiff’s injury with its
RF radiation emissions. HTC Mem. Law at 18. HTC disputes: (1) whether Dr. Kiprovski is
qualified to offer expert testimony on RF radiation; (2) whether he could reliably conclude that
Plaintiff’s neuropathic injuries were caused by the cell phone based on her statements to that
effect and the notes from her primary care physician that were, for the most part, illegible; and
(3) whether testimony that RF radiation caused Plaintiff’s injury is beyond the scope of Dr.
Kiprovski’s expert disclosure under Rule 26(a)(2)(C). HTC Mem. Law at 18; HTC Reply Mem.
Law at 5-6.
The Court finds Dr. Kiprovski is qualified to provide expert medical testimony. He has
been practicing medicine for 25 years; he is licensed to practice in New York and is board
certified in neurology and clinical neurology. Kiprovski Decl. ¶ 1 (Dkt. 65). His areas of
medical practice include general neurology, neuromuscular problems and disorders, and nerve
diseases. Id. He is an Associate Professor of Neurology at the Department of Neurology of the
Clinical Neurophysiology Division of New York University’s Langone Hospital for Joint
Diseases and a member of the faculty of the Department of Neurology at New York University
Medical School. Id. He clears Rule 702’s hurdle. See McCullock v. H.B. Fuller Co., 61 F.3d
15
1038, 1043 (2d Cir. 1995) (finding a board-certified medical doctor was qualified to provide
expert testimony on a throat ailment and its causes based on thirty years of practice as an ear,
nose, and throat specialist).
Dr. Kiprovski’s expert qualification extends to causes of neuropathic injuries so long as
his conclusions are based on reliable methodologies and are reliably applied to the facts. HTC’s
argument that he must be an expert in RF radiation to testify that Plaintiff’s cell phone caused
her injury fails. See Fed. R. Evid. 703, 705; Romanelli v. Long Island R.R. Co., 898 F. Supp. 2d
626, 631 (S.D.N.Y. 2012). In McCullock, the Second Circuit rejected a similar argument. 61
F.3d at 1043. In that case, the Second Circuit held that the physician – an ear, nose, and throat
doctor with almost thirty years of experience – was qualified to testify to his diagnosis that fumes
from the defendant’s glue caused his patient’s throat polyps. Id. The court so held even though
there was not “a single piece of medical literature” to support his diagnosis, because the
diagnosis was based on a “range of factors,” including, inter alia, “his care and treatment of [the
plaintiff]; her medical history (as she related it to him and as derived from a review of her
medical and surgical reports)”; the doctor’s “training and experience”; and the use of a
differential diagnosis. Id. at 1044. The court noted that requiring causation testimony from an
expert on environmental medicine specifically would be “an unwarranted expansion of the
gatekeeper role announced in Daubert.” Id. The court noted that any “[d]isputes as to the
strength of his credentials, faults in his use of [his diagnostic] methodology, or lack of textual
authority for his opinion, go to the weight, not the admissibility, of his [opinion].” Id.
Just like the treating physician in McCullock, Dr. Kiprovski is qualified to testify to his
opinion that Plaintiff’s cell phone was the cause of the burn based on his treatment of Plaintiff, a
review of her medical history, his own training and experience treating nerve damage, and a
16
differential diagnosis that weighs all of those factors and rules out other possible causes. See
Kiprovski Decl. ¶¶ 25-29. Dr. Kiprovski first treated Plaintiff on June 27, 2012. Kiprovski
Report, Cerussi Decl. Exh. DD; Kiprovski Decl. Exh. 1 (Dkt. 65-1). Dr. Kiprovski’s Initial
Consultation Report recounted the onset of Plaintiff’s alleged burn, recited her treatment by other
physicians for the alleged burn, and generally summarized her medical history. Kiprovski
Report at 1-3. It documented her self-described symptoms and the results of his physical
examination. Dr. Kiprovski’s records of subsequent visits with Plaintiff showed that Plaintiff’s
symptoms persisted. See id. (treatment records for August 31, 2012; December 7, 2012; and
June 19, 2013).
Dr. Kiprovski concluded that “[t]he diagnosis of complex regional pain syndrome
[CRPS] will explain the chronic pain and protracted healing. There is a causal relationship of
[Plaintiff’s] symptoms and the injury that occurred due to second-degree skin burn from the cell
phone over the left breast.” Kiprovski Report at 5. Dr. Kiprovski’s Initial Consultation Report
also stated:
It is universally accepted that radiofrequency radiation can cause tissue heating
due to thermal effects. The mechanism of [Plaintiff’s] injury is probably due to
non-ionizing radiofrequency radiation from the cell phone and the subsequent
thermal skin injury leading to second degree burn which includes injury to the
intraepidermal and dermal nerves, sensory receptors and cutaneous nerve
terminals.
Cerussi Decl. Exh. DD, Kiprovski Initial Consultation, June 27, 2012, at 4.
Plaintiff’s expert disclosure of Dr. Kiprovski as a treating physician under Rule
26(a)(2)(C) and Dr. Kiprovski’s opinion that Plaintiff’s burn was caused by her cell phone meet
the requirements Daubert and the Federal Rules of Evidence.7 The disclosure and his opinion
7
Plaintiff disclosed that the subject of Dr. Kiprovski’s testimony would be his “[c]are and treatment of
plaintiff Maria Roman for reflex sympathetic dystrophy (RSD)/ Complex Regional Pain Syndrome I (CRPS)
proximately caused by exposure to the powered-on cell phone . . . during October 2-3, 2010” and his opinion that
17
that RF radiation emissions from the cell phone caused her burn, however, do not. Accepting
Plaintiff’s description of the events surrounding the appearance of the burn as true, a treating
physician could conclude that the onset of a cell phone-shaped burn – a burn being a commonlytreated injury that is caused by a foreign object – was caused by the cell phone. But there is a
link missing between Dr. Kiprovski’s conclusion that the cell phone caused Plaintiff’s burn
based on readily apparent physical evidence and his opinion that it was the phone’s RF radiation
specifically that caused the burn or resulting neurologic condition. As explained below, his
opinion would at the very least require a more robust disclosure under Rule 26(a)(2)(B) to
substantiate its reliability, rather than the Rule 26(a)(2)(C) disclosure Plaintiff provided. Dr.
Kiprovski is therefore precluded from offering his opinion that the cell phone’s RF radiation
caused Plaintiff’s burns.
A treating physician’s testimony is based on the physician’s personal knowledge acquired
from the examination, diagnosis, and treatment of the patient. Puglisi v. Town of Hempstead
Sanitary Dist. No. 2, 92 F.R.D. 113, at *3 (E.D.N.Y. 2013). The Federal Rules, therefore, permit
different disclosures from treating physicians than are required from medical experts whose
knowledge was acquired or opinion developed in anticipation of trial. See id. Unlike the
detailed report required by Rule 26(a)(2)(B), Rule 26(a)(2)(C) requires only disclosure of “the
subject matter on which the witness is expected to present evidence under Federal Rule of
Evidence 702, 703, or 705” and “a summary of facts and opinions to which the witness is
expected to testify.” Fed. R. Civ. P. 26(a)(2)(C); Romanelli, 898 F. Supp. 2d at 630-31. “In the
absence of an expert [Rule 26(a)(2)(B)] report . . . the testimony of [plaintiff’s] treating
“Ms. Roman’s RSD/CRPS I . . . was substantially caused by exposure of her left breast to the powered-on cell phone
on October 2-3, 2010.” Cerussi Decl. Exh. DD. She also disclosed Dr. Kiprovski’s opinion that the cell phone’s RF
radiation emissions specifically caused Plaintiff’s injury. Id.
18
physicians will be limited to opinions they actually formed during the course of treating [the
plaintiff].” Romanelli, 898 F. Supp. 2d at 631 (quoting Williams v. Regus Mgmt. Grp., LLC, No.
10-CV-8987 (JMF), 2012 WL 1711378, at *3 (S.D.N.Y. May 11, 2012)). “Courts in the Second
Circuit have regularly held this includes opinions on causation.” Id. (citing Regus Mgmt. Grp.,
2012 WL 1711378, at *3). “Even treating physicians, however, must demonstrate a
scientifically reliable method to support their conclusions.” Id. (internal quotations and citation
omitted). “Notwithstanding the general rule that treating physicians may testify as to injury
causation, the Court is charged with a gatekeeping function to ensure that invalid and unreliable
expert testimony is not presented to a jury.” Green v. McAllister Bros., Inc., No. 02-CV-7588
(FM), 2005 WL 742624 at *14 (S.D.N.Y. Mar. 25, 2005).
Dr. Kiprovski reached his conclusion that the cell phone caused Plaintiff’s burn through a
differential diagnosis. “A differential diagnosis is a patient-specific process of elimination that
medical practitioners use to identify the most likely cause of a set of signs and symptoms from a
list of possible causes.” Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 254 (2d Cir. 2005)
(internal quotations and citation omitted). “Where an expert employs differential diagnosis to
‘rule out’ other potential causes for the injury at issue he must also ‘rule in’ the specific cause,
and do so using scientifically valid methodology.” Id. (internal quotations and citations omitted).
A differential diagnosis may provide a reliable foundation for an expert’s opinion on general
causation – that is, that “the final, suspected ‘cause’ remaining after this process of elimination
[is actually] capable of causing the injury” – in the absence of bolstering scientific studies or
published reports in case-specific circumstances due to “the rigor of differential diagnosis
performed, the expert’s training and experience, [or] the type of illness or injury at issue.” Id.
See also Perkins v. Origin Medsystems, Inc., 299 F. Supp. 2d 45, 56 (D. Conn. 2004) (collecting
19
cases where a court admitted a physician’s testimony on general causation formed by differential
diagnosis, despite a lack of epidemiological studies to support the opinions). And, “in
appropriate circumstances, a temporal relationship between two events can serve as one aspect of
a more thorough differential diagnosis.” DeRienzo v. Metro. Trans. Auth., 694 F. Supp. 2d 229,
240 (S.D.N.Y. 2010). “A district court ‘has broad discretion in determining whether in a given
case a differential diagnosis is enough by itself’ to prove causation.” Id. at 237 (quoting
Ruggiero, 424 F.3d at 254). Alternatively, “[w]hen the causal connection is obvious to the
average man, ‘such as a broken leg from being struck by an automobile,’ the causal inference can
be left to the fact finder and expert testimony [on general causation] is not required.” Romanelli,
898 F. Supp. 2d at 631; see also Tufariello v. Long Island R.R. Co., 458 F.3d 80, 88 (2d Cir.
2006) (no expert testimony on causation in a negligence action under the Federal Employers’
Liability Act, 45 U.S.C. § 51 was required when “there [was] a generally understood causal
connection between the physical phenomena . . . and the alleged injury that would be obvious to
the layman” (quotations omitted)). If a causal inference may be drawn by the fact finder, it
follows, a fortiori, that the treating physician’s expert differential diagnosis on general causation
would not suffer from a lack of reliability.
Absent from Dr. Kiprovski’s treatment notes and Plaintiff’s Rule 26 disclosure is any
indication as to what methodology Dr. Kiprovski relied on in concluding that the “mechanism of
[Plaintiff’s] injury [was] probably due to non-ionizing radiofrequency radiation from the cell
phone.” Kiprovski Report at 4. Neither Plaintiff nor Dr. Kiprovski has pointed to any scientific
literature that would substantiate Dr. Kiprovski’s opinion that cell phones emit sufficient RF
radiation to cause damage to human nerves. The Court accepts as true Dr. Kiprovski’s statement
that “[i]t is universally accepted that radiofrequency radiation can cause tissue heating due to
20
thermal effects.” Id. But it is not universally accepted that a cell phone emits sufficient RF
radiation to cause a second-degree burn to human tissue.
This is not an injury akin to suffering a broken leg after being struck by an automobile.8
It therefore requires expert testimony to bridge the analytical gap, which must be supported by a
Rule 26(a)(2)(B) expert disclosure. Daubert scrutiny is necessary to verify that, despite a lack of
general acceptance, the opinion is otherwise based on reliable methodology that is applied
reliably to the facts of the case. Because there was nothing beyond an ipse dixit to support Dr.
Kiprovski’s conclusion that Plaintiff’s injury was caused by RF radiation, he will not be allowed
to testify to that opinion. On the other hand, his testimony that Plaintiff’s burn was caused by
her cell phone is one that he formed as her treating physician; because a trier of fact could
reasonably reach this same conclusion without expert testimony, it is admissible opinion
testimony, even in the absence of the more robust expert disclosure.
In sum, Dr. Kiprovski will be allowed to testify to a causal relationship between the cell
phone’s placement, Plaintiff’s burn, and the resulting CRPS, but he will not be allowed to testify
that it was RF radiation that caused Plaintiff’s injury.
b. Defendants’ Motions for Summary Judgment
Summary judgment is appropriate when the record demonstrates that there is “no genuine
dispute as to any material fact” and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the burden of showing that it is entitled to summary judgment. Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2004). The motion should be granted “if the pleadings, depositions, answers
8
It is presumably within Dr. Kiprovski’s expertise to testify that a certain level of RF radiation can cause
damage to human tissue, but there is no evidence in the record what that level is, nor is there any evidence that a
normally operating cell phone emits that level of RF radiation.
21
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to [the absence or presence of] any material fact.” Id.; Fed. R. Civ. P. 56(c).
“[N]ot only must there be no genuine issue as to the evidentiary facts, but there must also be no
controversy regarding the inferences to be drawn from them.” Harris v. Provident Life &
Accident Ins. Co., 310 F.3d 73, 78 (2d Cir. 2002) (quoting Donahue v. Windsor Locks Bd. of Fire
Comm’rs, 834 F.2d 54, 57 (2d Cir. 1987)). The Court “is not to weigh the evidence but is
instead required to view the evidence in the light most favorable to the party opposing summary
judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility
assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004). Any
ambiguity is to be resolved in favor of the nonmoving party. Harris, 310 F.3d at 78. To avoid
summary judgment, the opposing party “must come forward with specific facts showing that
there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002).
Only when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party [is there] no genuine issue for trial.” Huminski, 396 F.3d at 70 (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (alteration in
original)).
c. Failure to Warn
Under New York law, which governs this diversity action, a failure to warn plaintiff must
show: (1) the defendant had a duty to warn; (2) against dangers resulting from foreseeable uses
about which it knew or should have known; and (3) the failure to do so was the proximate cause
of the harm. In re Fosamax Prods. Liab. Litig., 924 F. Supp. 2d 477, 486 (S.D.N.Y. 2013); see
also Santoro v. Donnelly, 340 F. Supp. 2d 464, 485 (S.D.N.Y. 2004).9 New York’s “heeding
9
Failure to warn liability extends to “sellers in the normal course of business.” Gebo v. Black Clawson Co.,
703 N.E.2d 1234, 1238 (N.Y. 1998).
22
presumption” dictates that “the Court must presume that a user would have heeded warnings if
they had been provided, and that the injury would not have occurred.” In re Fosamax, 924 F.
Supp. 2d at 486. Put differently, if a warning is missing or found to be inadequate, proximate
cause is presumed. No defect in the product itself need be proven; “[i]t has long been established
in New York that the duty to warn of dangers in the use of the product exists even though the
product is perfectly designed and made.” Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 440
(S.D.N.Y. 1999) (citing Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d Cir. 1991)). As with most
actions sounding in negligence, “[f]ailure-to-warn liability is intensely fact-specific, including
but not limited to such issues as feasibility and difficulty of issuing warnings in the
circumstances; obviousness of the risk from actual use of the product; knowledge of the
particular product user; and proximate cause.” Liriano v. Hobart Corp., 700 N.E.2d 303, 309
(N.Y. 1998).
A manufacturer or seller in the normal course of business has a duty to warn “(1) against
latent dangers resulting from foreseeable uses of its product of which it knew or should have
known, and (2) of the danger of unintended uses of a product provided these uses are reasonably
foreseeable.” Bee v. Novartis Pharma. Corp., --- F. Supp. 2d ---, No. 12-CV-1421 (JFB), 2014
WL 1855632 at *10 (E.D.N.Y. May 9, 2014) (quoting Liriano, 677 N.Y.S.2d at 766). “This duty
is a continuous one, and requires that a manufacturer be aware of the current information
concerning the safety of its product.” Id. To establish a duty to warn under either theory, a
plaintiff must first establish a causal link between the injury and the product, which requires both
general causation and specific causation. “General causation ‘bears on whether the type of injury
at issue can be caused or exacerbated by the defendant’s product. ‘Specific’ causation bears on
whether, in the particular instance, the injury actually was caused or exacerbated by the
23
defendant’s product.” In re Rezulin Prods. Liab. Litig., 441 F. Supp. 2d 567, 575 (S.D.N.Y.
2006) (quoting Ruggiero, 424 F.3d at 252 n.1).
Whether a plaintiff may meet the burden of proving causation without expert testimony
depends on whether “the nexus between the injury and the alleged cause” would be “obvious to
the lay juror.” Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2002). If expert testimony
is not required, a plaintiff may make a prima facie case through circumstantial evidence if she
“shows facts and conditions” from which causation of the injury “may be reasonably inferred.”
Williams v. KFC Nat’l Mgmt. Co., 391 F.3d 411, 421 (2d Cir. 2004); accord Fane, 927 F.2d at
131 (requirements for a prima facie showing of causation for a bone fracture which, “[i]n many
instances . . . is a matter within the experience and observation of the ordinary juryman,” are
different if the alleged cause of the fracture is a medical device implanted as part of a
“complicated surgery”; the latter was “beyond the sphere of the ordinary juryman and required
expert testimony.”). “New York has long recognized the viability of [a] circumstantial approach
in products liability cases.” Speller ex rel. Miller v. Sears, Roebuck & Co., 790 N.E.2d 252, 254
(N.Y. 2003).
To withstand a motion for summary judgment, a plaintiff must also introduce evidence
that the latent danger from the use or misuse of the product was foreseeable. Novartis, 2014 WL
1855632 at *11 (“Typically, summary judgment is appropriate where a plaintiff has not
introduced any evidence that a manufacturer knew or should have known of the danger at
issue.”).
If a defendant had a duty to warn, the focus shifts to whether the defendant adequately
discharged that duty. “Liability for failure to warn may be imposed based upon either the
complete failure to warn of a particular hazard or the inclusion of warnings that are insufficient.”
24
Fisher v. Multiquip, Inc., 949 N.Y.S.2d 214, 218 (N.Y. App. Div. 2012). “An adequate warning
or instruction is one that is understandable in content and conveys a fair indication of the nature
and extent of the danger to a reasonably prudent person.” Cooley v. Carter-Wallace, Inc., 478
N.Y.S.2d 375, 378 (1984). “The sufficiency of a warning is dependent upon both the language
used and the impression that the language is calculated to make upon the mind of the average
user of the product.” Id. “Of critical importance is whether the warning sufficiently conveys the
risk of danger associated with the product and is qualitatively sufficient to impart the particular
risk of harm.” Id.
Given the fact-intensive nature of the inquiry, “[t]he adequacy of the instruction or
warning is generally a question of fact to be determined at trial and is not ordinarily susceptible
to the drastic remedy of summary judgment.” Urena v. Biro Mfg. Co., 114 F.3d 359, 366 (2d
Cir. 1997) (quoting Beyrle v. Finneron, 606 N.Y.S.2d 465, 466 (N.Y. App. Div. 1993)). A “jury
does not need expert testimony to find a warning inadequate, but may use its own judgment
considering all the circumstances.” Billar v. Minn. Mining & Mfg. Co., 623 F.2d 240, 247 (2d
Cir. 1980). If defendants produce expert evidence suggesting a warning was sufficient or
additional warnings would have been ineffective under the circumstances, a jury is free to accept
or disregard that testimony in favor of their own judgment. Adebiyi v. Yankee Fiber Control,
Inc., 705 F. Supp. 2d 287, 290-91 (S.D.N.Y. 2010).
d. Analysis
Defendants argue that there is no genuine issue of fact whether they owed a duty to warn
because (1) Plaintiff lacks an expert witness on warnings to testify as to the adequacy of the
warnings provided; and (2) Plaintiff lacks evidence to establish a causal link between the cell
phone and Plaintiff’s injury. As to Defendants’ first argument, it is well-settled under New York
25
law that the adequacy of a warning is a question for the jury that does not require expert
testimony. See Billar, 623 F.2d at 247 (rejecting as “meritless” the argument that an expert
opinion was required to prove a warning was inadequate under New York law).10 Indeed, the
adequacy of a warning is particularly well suited for the ken of an ordinary juror because liability
for failure to warn turns on whether the danger was communicated to the user of the product. Id.
at 247. Thus, whether summary judgment based on this element of Plaintiff’s claim is
appropriate depends on whether Plaintiff has offered adequate evidence to establish a prima facie
case of causation based on her testimony as to the events surrounding her injury; Boyell’s
testimony on cell phone operation; and Dr. Kiprovski’s medical testimony that Plaintiff’s burn
was caused by the cell phone. The Court finds that she has.
Viewed in the light most favorable to the nonmoving party, the evidence shows that
Plaintiff placed the phone against her bare skin while it was still “on” and left it there while she
slept during a nine-hour trip. HTC 56.1 ¶ 25. After arriving in New York, she removed the
phone and noticed that it had been stuck to her skin. Pl. Mem. Law Opp. at 3. Over the next
several hours, a painful, visible burn developed in the area that had been in contact with the
phone. Roman Aff. ¶ 8, Ex. 3. Plaintiff sought medical treatment and was diagnosed with a
second-degree burn within days of the incident. Roman Aff. ¶ 7. Dr. Kiprovski testified that if
Plaintiff suffered a second degree burn in that area of her body, it could damage the underlying
nerves and cause CRPS. Causation in Plaintiff’s case is more like a broken leg caused by an
automobile accident, which is “a matter within the experience and observation of the ordinary
jur[or],” than a toxic tort, which would require expert medical testimony to establish that the
10
The cases the Defendants rely on for the proposition that a products liability plaintiff must produce expert
testimony as part of her prima facie case relate to causes of action for design defect and breach of warranty. These
cases are inapposite to a claimed failure to warn.
26
substance is capable of causing the particular ailment from which a Plaintiff suffered. Fane, 927
F.2d at 131.
Based on Plaintiff’s testimony alone, a jury could “reasonably infer” a causal link
between the cell phone and the burn. Williams, 391 F.3d at 421; see also Voss v. Black &
Decker Mfg. Co., 450 N.E.2d 204, 209 (N.Y. 1983) ( expert testimony is not required in a strict
liability claim if a juror could find proximate causation from the characteristics of the product
and plaintiff’s description of the accident).
Moreover, none of the Defendants offers an alternative explanation for the burn that
appeared on Plaintiff’s skin. “[W]here an injury has multiple potential etiologies, expert
testimony is necessary to establish causation,” but “[i]t is well settled that expert testimony is
unnecessary in cases where jurors ‘are as capable of comprehending the primary facts and of
drawing correct conclusions from them as are witnesses possessed of special or peculiar
training.’” Wills, 379 F.3d at 46 (quoting Salem v. United States Lines Co., 370 U.S. 31, 35
(1962)). In short, Plaintiff has produced enough evidence to create a genuine issue of material
fact whether the cell phone caused her injury.
A defendant may avoid liability by negating the presumption that the inadequate warning
proximately caused the injury by pointing to specific facts which show existing warnings were
adequate as a matter of law or that additional warnings would have been futile. Santoro, 340 F.
Supp. 2d at 486. HTC argues that if Plaintiff cannot prove causation, then it would not be liable
for failure to warn against a non-danger as a matter of law. That is, of course, true, but there is
sufficient evidence in the record to create a question of fact as to causation. Alternatively, HTC
points to a number of warnings that were provided, but none addresses the specific use at issue
here: storing a powered on cell phone next to the skin for an extended period of time while the
27
cell phone is in motion. Thus, whether the warnings were adequate is a question of fact for the
jury. Because proximate cause is presumed under New York’s heeding assumption, there is a
genuine issue of fact whether inadequate warnings proximately caused Plaintiff’s injury.
III.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss Plaintiff’s failure to warn
claim pursuant to Federal Rule of Civil Procedure 56 are DENIED. Plaintiff’s motions in limine
to exclude Defendants’ expert witnesses will be dealt with in a separate opinion.
The Clerk of Court is directed to terminate Docket Entry 39 and 48.
SO ORDERED.
_________________________________
___________________________
__
_
_
VALERIE CAPRONI
I
United States District Judge
Date: September 29, 2014
New York, NY
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