Fedelich v. American Airlines

Filing 50

OPINION AND ORDER granting 35 MOTION in Limine to Exclude the Testimony and Report of S. Melville McCarthy; grantin 34 MOTION for Summary Judgment. Defendant's Motion for Summary Judgment is GRANTED. Judgement shall be entered accordingly. Signed by Judge Salvador E Casellas on 7/20/2010.(THD)

Fedelich v. American Airlines

Doc. 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEAN FEDELICH

I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

C iv il No. 09-1218 (SEC) Plaintiff v. A M E R IC A N AIRLINES D efendant

OPINION AND ORDER P e n d in g before the court are a Motion for Summary Judgment (Docket No. 34) and a M o tio n in Limine to exclude expert testimony (Docket No. 35) filed by Defendant American A irlin e s ("AA"). Plaintiff, Jean Fedelich ("Fedelich"), opposed both the Motion for Summary J u d g m e n t (Docket No. 45) and the Motion in Limine (Docket No. 42). After considering all the f ilin g s and the applicable law, for the reasons stated below, both Defendant's Motion in Limine a n d Motion for Summary Judgment will be GRANTED. Factual and Procedural Background P la in tif f filed the above captioned law suit on March 4, 2009 under Articles 1802 and 1 8 0 3 of the Civil Code of Puerto Rico, 31 P.R. Laws § 5141-5412, seeking redress for the d a m a g e s suffered as a result of her fall at an international baggage carousel in the San Juan In te rn a tio n a l Airport, which is allegedly administered and maintained by Defendant. Docket N o . 1. On March 17, 2008, Plaintiff was on a direct flight from the Dominican Republic to M ia m i. Docket No. 34-2. However, after Plaintiff's flight was cancelled, she was rescheduled to fly through San Juan, Puerto Rico, and arrive in Fort Lauderdale at approximately the same tim e Plaintiff's original flight would have arrived. Id. While Defendant claims that Plaintiff

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c o n s e n te d to this change, Plaintiff alleges she had no choice but to accept the change in routing. 3 However, this fact is immaterial to the present dispute. 4 After arriving in San Juan, Plaintiff proceeded to the international baggage claim in order 5 to gather her luggage, proceed to U.S. Customs and Immigration, and subsequently board her 6 f l i g h t to Fort Lauderdale. Id. Although originally told the luggage would be available at 7 c a ro u se l number three, passengers were informed to proceed to carousel number four. See 8 D o c k e t No. 34-3. Plaintiff stated that only one other passenger was present at carousel number 9 f o u r when she arrived. Docket No. 34-2. Plaintiff saw her bag on the carousel, on top of other 10 lu g g a g e , and proceed to pick it up. Id. Unable to immediately remove her bag, Plaintiff 11 g ra b b e d it and walked around the carousel as it circulated. Id. Plaintiff stated that she did not 12 s e e the emergency stop box attached to the carousel, and as a result, tripped over it and fell, 13 f ra c tu rin g her left wrist. Id. 14 T h e following averments made by both parties are in dispute. Plaintiff claims the 15 e m e rg e n c y box was negligently placed, thereby causing her fall and resulting injuries. See 16 D o c k e t No. 40-2. Since AA controls carousel number four, Plaintiff alleges that AA is liable 17 f o r any injuries there sustained. See Docket No. 1. Defendant, on the other hand, claims that 18 it was Plaintiff's own negligence in walking next to the moving carousel, and in failing to pay 19 a tte n tio n as she walked, that caused her fall and resulting injuries. Docket No. 34. Moreover, 20 D e f e n d a n t contends that Puerto Rico tort law does not apply to the dispute, but rather the 21 M o n tre a l Convention for the Unification of Certain Rules for International Carriage by Air, 22 M a y 28, 1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S. 350, U.S.C.S. Montreal Convention 23 (" M o n tre a l Convention"), under which Defendant argues Plaintiff is not entitled to any relief. 24 Id. 25 26

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A d d itio n a lly, Defendant claims that the emergency stop box is industry standard, is 3 f o u n d in numerous other airports, and complies with safety requirements. Id. 4 h o w e v e r, rejoins that the emergency stop box protrudes unnecessarily and excessively far into 5 th e pedestrian area around the baggage carousel. She avers this is a design defect and is 6 u n re a so n a b ly dangerous. Docket No. 40-2. To support this assertion, Plaintiff submitted the 7 e x p e rt testimony of S. Melville McCarthy ("McCarthy" or "expert witness"), which Defendant 8 c h a lle n g e s as unreliable in its Motion in Limine. See Docket Nos. 35 and 40-2. 9 Motion in Limine to Exclude Expert Testimony 10 B e f o re addressing Defendant's Motion for Summary Judgment, this Court will rule on 11 D e f e n d a n t's Motion In Limine to exclude the testimony of Plaintiff's expert, McCarthy. See 12 C o rté s-Iriz a rry v. Corporación Insular de Seguros, 111 F.3d 184, 188 (1 st Cir.1997) (holding "If 13 p ro f f e re d expert testimony fails to cross [the] ... threshold for admissibility, a district court may 14 e x c lu d e that evidence from consideration when passing upon a motion for summary 15 ju d g m e n t." ); see also Southern Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1245 (11 th 16 C ir.2 0 0 9 ) (holding that a trial court did not abuse its discretion in excluding an expert report at 17 th e summary judgment stage). Defendant asks this Court to strike McCarthy's testimony 18 c la im in g it is unreliable, prejudicial, and improper. Docket No. 35. Plaintiff, on the other hand, 19 d e n ie s these allegations and claims that McCarthy is qualified to render an expert opinion. 20 Docket No. 42. 21 Standard of Review 22 F ED. R. EVID. 403 allows the exclusion of relevant evidence "if its probative value is 23 s u b s ta n tia lly outweighed by the danger of unfair prejudice, confusion of the issues, or 24 m is le a d in g the jury or by considerations of undue delay, waste of time, or needless presentation 25 o f cumulative evidence." 26 Plaintiff,

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T h e admission of expert testimony is governed by FED. R. EVID. 702. Said rule provides: 3 4 5 6 7 R u le 702 "imposes a gate-keeping function on the trial judge to ensure that an expert's 8 te s tim o n y `both rests on a reliable foundation and is relevant to the task at hand.'"United States 9 v . Mooney, 315 F.3d 54, 62 (1st Cir. 2002) (quoting Daubert v. Merrell Dow Pharmaceuticals, 10 In c ., 509 U.S. 579, 597, 113 S.Ct. 2786 (1993)). 11 A lth o u g h a flexible and non-exclusive list, Daubert outlined specific factors that a trial 12 c o u rt may consider when testing the reliability of an expert witness' testimony. Kumho Tire 13 C o . v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167 (1999). A court must determine whether 14 th e expert will testify to scientific knowledge that will assist the trier of fact to understand and 15 d e te rm in e the facts in issue. Daubert, 509 U.S. at 593. This entails a preliminary assessment 16 a s to: (1) whether the reasoning or methodology underlying the expert testimony is scientifically 17 v a lid , and (2) whether the reasoning or methodology can be applied to the facts of the case. Id. 18 S p e c if ic a lly, in determining if the evidence is reliable, a court must consider: (1) whether 19 P la in tif f 's proffered scientific theory can and has been tested, (2) whether it has been subject 20 to peer review and publication, (3) the known or potential rate of error of the test, and (4) the 21 d e g re e of acceptance of the theory in the scientific community. Daubert, 509 U.S. at 593-595; 22 s e e also Seahorse Marine Supplies, Inc. v. P.R. Sun Oil Co., 295 F. 3d 68 (1 st Cir.2002). 23 A p p lic a b le Law and Analysis 24 D e f e n d a n t contends that McCarthy's opinion is unreliable, ipse dixit, or the mere 25 u n s u p p o rte d opinion of an expert, which is a legally insufficient basis to support an admissible 26 [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to u n d e rs ta n d the evidence or to determine a fact in issue, a witness qualified as an expert b y knowledge, skill, experience, training or education, may testify thereto in the form of a n opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the te s tim o n y is the product of reliable principles and methods, and (3) the witness has a p p lie d the principles and methods reliably to the facts of the case.

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e x p e rt's opinion. Docket No. 35. From McCarthy's deposition, Defendant points out several f a c to rs that allegedly render the expert opinion unreliable. These include that McCarthy (1) u s e d only photographic evidence of the emergency stop button and carousel to conduct his a n a lys is , (2) that he did not request any information or literature on the design of the baggage c a ro u se l, (3) that he was unfamiliar with the events surrounding Plaintiff's fall since he did not s p e a k to Plaintiff nor did he review her deposition,1 (4) that he did not physically inspect the c a ro u se l, and expressed that there was no need to do so, (5) that he did not conduct any testing n o r research as to the safety standards applicable to the baggage carousel. Id. Moreover, D e f e n d a n t questions McCarthy's reasoning and central assumption, which is that since Plaintiff trip p e d on the emergency stop box, the box must necessarily be defective. Id. Lastly, D e f e n d a n t alleges that McCarthy did not provide an alternative design that was mechanically f e a s ib le , and that he is unqualified to render an expert opinion given that has never worked with s lo p e d conveyer belts. Id. P la in tif f responded that McCarthy is qualified as an expert in machine guarding 2 since h e has a master's degree in mechanical engineering, majored in machine design, and p a rtic ip a te d in a publication about machine guarding. Docket No. 42. Furthermore, Plaintiff a rg u e s that the report includes analysis using the Safe Design Methodology and Triodyne Safety B rie f to reach his opinion, a methodology which McCarthy testified is accepted in the industry to evaluate the safety of a product. Id. Plaintiff also contends that McCarthy's analysis was s u f f ic ie n t, in accord with industry standards, and argues that if there is not more extensive

McCarthy believed that whether or not Plaintiff was familiar with the design of the carousel was of no consequence. Docket Nos. 35 and 35-3. "Machine guarding is defined as a shield or device covering hazardous areas of a machine to prevent contact with body parts or to control hazards like chips and noise from exiting the machine." Docket No. 42.
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re se a rc h on record in the report, it is only because the case was simple enough that it did not re q u ire further analysis. Id. T h e present case has certain similarities with Kumho Tire Co., 526 U.S. at 143-44, where th e defendants challenged an engineer's expert testimony that a defective tire was the cause of a fatal vehicle accident. In Kumho Tire Co., the expert's opinion was based on a visual and ta c tile inspection of the car tire, and upon a theory that, since at least two of the four physical s ym p to m s indicating tire abuse were not present, the tire failure was caused by a defect. Id. at 1 4 4 , 153. The court in Kumho Tire Co. did not doubt the expert's qualifications nor did it q u e s tio n whether the expert's methodology was generally unreliable. Id. at 153. Rather, the c o u rt's determination was based on "the reasonableness of using such an approach..." to " re lia b ly determine the cause of failure of the particular tire at issue." Id. at 154. The Supreme C o u rt upheld the District Court's decision to exclude the expert testimony due to, among other f a c to rs , the subjectiveness of the expert's method and the lack of other experts and secondary s o u rc e s that supported his approach. Id. at 155-56. Likewise, in the present case, the admissibility of McCarthy's testimony does not depend o n his qualifications, but on whether his photographic inspection of the carousel is a reliable m e th o d to reach the conclusions he did about Plaintiff's fall at the AA baggage carousel. See id . at 154 (admissibility of expert testimony depended on "reasonableness of using such an a p p ro a c h ... to draw a conclusion regarding the particular matter to which the expert testimony w a s directly relevant."). While this Court has noted Defendant's argument regarding McCarthy's lack of s p e c ia liz e d experience in sloped carousels, his experience as an engineer qualifies him to testify. S e e Docket No. 35. In DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1 st Cir.1988), the F irs t Circuit reached a determination that expert testimony need not be limited "only from m e c h a n ic a l engineers who have had design experience with the specific machine in question"

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b e c a u s e only experts with an interest in defending the design would be able to testify. As in D a S ilv a , McCarthy is "familiar with fundamental engineering principles of machine design" a n d has had "extensive experience evaluating and recommending safety devices for machines." Id. Accordingly, he is qualified to render an expert opinion regarding the safe design of a b a g g a g e carousel. Id. Based on the record, McCarthy has ample credentials, given that he is a mechanical engineer holding a masters degree, and substantial experience in machine design a n d machine guarding. See Docket No. 42-2. Thus, this Court cannot strike McCarthy's report o n the basis of his qualifications. T h e remaining issue is whether the methodology used by McCarthy is sufficiently re lia b le to reach a conclusion regarding the particular problem at hand. See Kumho Tire Co., 5 2 6 U.S. at 154. Plaintiff argues that given the simplicity of the case, and McCarthy's s ig n if ic a n t experience, a detailed analysis was not necessary. See Docket No. 42. She asserts th a t even a lay person could have reached the same conclusions by looking at the emergency b o x . Id. Furthermore, McCarthy states that he followed the Safe Design Methodology to reach h i s conclusions, which consists of the following three step process: (1) identifying severe h a z a rd s , (2) preventing access to severe hazards whenever technically and economically f e a s ib le , and (3) if it is not feasible to alter the design without defeating the utility of he product, th e n appropriately warning of the risk of injury or death. See Docket No. 42-5. McCarthy s ta te s that one accident, Plaintiff's accident, is enough to identify there is a severe hazard in the d e s i g n of the carousel. See Docket Nos. 35-3, 42-5. McCarthy also argues that given the e x is te n c e of other emergency boxes in baggage claim terminals, including AA's domestic te rm in a l, AA was aware of a safe alternative design, but kept the more dangerous model at the in te r n a t io n a l terminal. See Docket No. 42-8. Third, Plaintiff contends that, even if a safe a lte rn a tiv e design was not feasible, AA was negligent in not having provided sufficient warning o f its protruding emergency box. See Docket No. 42.

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D e f e n d a n t challenges McCarthy's methodology and several of his assertions and this C o u rt agrees. Having reviewed McCarthy's deposition and expert testimony, this Court finds th a t McCarthy's photographic inspection of the carousel and the multiple assumptions, u n s u p p o rte d by factual evidence, made in his analysis, are insufficient to demonstrate that he u s e d a reliable methodology to reach his conclusions. Kumho Tire Co., 526 U.S. at 153 (citing C iv . Action No. 93-0860-CB-S (S.D.Ala. June 5, 1996)) (holding that "the methodology e m p lo ye d by the expert in analyzing the data obtained in the visual inspection, and the scientific b a s is , if any, for such an analysis" was unreliable). Relevant case law does not support Plaintiff's contention that the case was so simple that it did not require significant research and analysis. Trial courts exercise a gatekeeping function, th e objective of which is to "make certain that an expert... employs in the courtroom the same le v e l of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. a t 152. This Court finds it hard to believe that in his engineering work, McCarthy, if asked to e v a lu a te the designs of baggage carousels for safety, would conduct no tests, would not research th e safety standards, the specific design of the machine in question, its alternatives, nor past a c c id e n t rates, and would intuitively render an opinion from a superficial visual analysis. The opinion of an engineer is relevant in this dispute and would help a trier of fact b e c a u s e as an expert, he is able to understand and explain technical data specific to the carousel d e s ig n and is able to identify safe alternative designs, if any. In contrast, an expert who testifies a b o u t what he intuitively deducts is not helpful to a jury or this Court. Daubert, 509 U.S. at 580 (te s tim o n y must assist the trier of fact to understand the evidence or to determine a fact in is s u e ). McCarthy does not explain what makes the emergency stop button particularly

d a n g e ro u s apart from asserting that the emergency stop box appears to protrude excessively. He asserts that there is an alternative design by presenting photos of a flat conveyor belt as e v id e n c e . See Docket No. 34-6. However, McCarthy does not explain how the alternative flat

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d e s i g n is safer since he conducted no testing to examine its safety, did not research accident ra te s , the design of the machinery, nor does he cite industry safety standards. There is no e v id e n c e on the record that McCarthy was methodical about his approach since he has no d o c u m e n ta tio n to support his assertions despite the Supreme Court's holding that expert te s tim o n y must comply with an evidentiary reliability standard. Daubert, 509 U.S. at 590. The e x p e rt fails to point out how the design in dispute falls outside the safety standards, and he fails to explain to a trier of fact any concrete information about the design of the carousels. In contrast to McCarthy's report, Defendant's expert, Dan Pockrus ("Pockrus") provides in f o rm a t i o n that supports his position and helps the trier of fact make a decision based on c o n c re te facts. See Docket No. 34-10. To wit, Pockrus explained how the sloped conveyor belt f o u n d in the international baggage claim is designed for high volume of passengers, how it c o m p lie s with the standards set forth by the American Society of Mechanical Engineers, and h o w it is not mechanically feasible to make a less protrusive emergency box with the physical d e s ig n of the slope-plate track and still comply with electrical requirements. Id. Additionally, P o c k ru s explains that the flat conveyor belt is meant for lower volume of passenger areas. Id. Although this Court does not make any determinations as to the accuracy of Pockrus' testimony, P o c k ru s provides the Court with verifiable facts, and provides a reasoning behind his testimony ra th e r than subjective, unsupported speculations. It is undeniable that experts ofter times reach conclusions from a set of observations a lo n e . Kumho Tire Co., 526 U.S. at 156. However, "nothing in either Daubert or the Federal R u le s of Evidence requires that a district court admit opinion evidence that is connected to e x is tin g data only by the ipse dixit of the expert." Id. at 157. According to Daubert, if tested, th e expert's method should show an objective standard against which the court can measure the a c c u ra c y of Plaintiff's contentions. Id. at 149. This Court finds no such objectivity in

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M c C a rth y's testimony. Rather McCarthy's opinion is subjective, conclusory, and cannot re a s o n a b ly be assessed for reliability. McCarthy implies that Plaintiff's accident proves there is a defect in the design without h a v in g studied past accident rates, nor having conducted any testing. See Docket No. 35. However, case law does not support an automatic conclusion of negligence from the mere o c c u rre n c e of an accident. In Gates v. Ford Motor Co., 494 F.2d 458, 460 (10th Cir. 1974), as it evaluated the case of man fatally injured while operating a tractor, the court held that "injury, o f itself, is not proof of a defect and raises no presumption of defectiveness." More to the point, in Puerto Rico, the theory of res ipsa loquitur as a basis for recovery in negligence suits has b e e n rejected. See Wells Real Estate Inv. Trust II, Inc. v. Chardon/Hato Rey P'ship, S.E., 643 F .S u p p .2 d 182, 193 (D.P.R. 2009) (holding that the mere occurrence of a fuel spill did not d e m o n s tra te negligence on the Defendant's part in maintaining property) (citing Alberto O. B a c ó v. Almacén Ramón Rosa Delgado Inc., 151 D.P.R. 711 (2000)). Thus, McCarthy's p re s u m p tio n that Plaintiff's fall is proof of the carousel's defective design is in disaccord with lo c a l tort law. Negligence on part of the injured party is a possibility, but from McCarthy's d e p o s i t i o n it seems that the expert failed to consider this possibility since he did not review P l a i n tif f 's account of the facts and his testimony seems to be based on the premise that the a c c id e n t is proof of a defective design without considering how negligent Plaintiff might have been. Furthermore, similar to Kuhmo Tire Co., the deposition transcript "cast(s) considerable d o u b t upon the reliability of the explicit theory and the implicit proposition" since there is " re p e a te d reliance on the subjective of his mode of analysis in response to question seeking s p e c if ic information on how he could differentiate..." between safe alternative designs. Kumho T ire Co., 526 U.S. at 154-55. In several instances, McCarthy was asked questions to clarify the re a s o n in g behind his assertions. See Docket No. 35-3. Instead of supplying Defendant and the

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C o u rt with specific information, McCarthy's answers compounded this Court's doubts about th e reliability of his method to reach the specific conclusions included in his report. Id. For e x a m p le , McCarthy (1) assumed, rather than investigated the reason why the emergency box w a s angled or tapered, (2) except for his intuition, he could not provide concrete facts as to why th e flat conveyor belt was safer than the sloped belt, and (3) he testified that there was a m e c h a n ic a lly feasible safe alternative design without having considered that the two designs (f la t and sloped) might serve different functions and are designed accordingly, as Pockrus te s tif ie d . See Docket Nos. 35 and 35-3. Since McCarthy's testimony seems to be based more o n subjective elements than objective analysis, and because this Court has struggled to find v e rif ia b le facts to support the expert's conclusions, Defendant's Motion in Limine is G R A N T E D and McCarthy's testimony is stricken as unreliable. Motion for Summary Judgment T h is Court will now consider Defendant's Motion for Summary Judgment and make a d e c is io n in light of the above determination excluding McCarthy's expert testimony, which P la in tif f relied heavily on to support her negligence claims against Defendant. Standard of Review F e d . R. Civ. P. 56(b) provides that: "A party against whom a claim . . . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in the p a rty's favor as to all or any part [of the claims asserted against him/her]." The Court may grant t h e movant's motion for summary judgment when "the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show that there is no g e n u in e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law." Fed. R. Civ. P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 4 8 (1 9 8 6 ); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1 st Cir. 2005). At this s ta g e , the court examines the record in the "light most favorable to the nonmovant," and

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in d u lg e s all "reasonable inferences in that party's favor." Maldonado-Denis v. CastilloR o d ríg u e z , 23 F.3d 576, 581 (1 st Cir. 1994). O n c e the movant has averred that there is an absence of evidence to support the n o n m o v in g party's case, the burden shifts to the nonmovant to establish the existence of at least o n e fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably be re so lv e d in favor of either party' and, therefore, requires the finder of fact to make `a choice b e tw e e n the parties' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 1 1 2 , 116 (1st Cir. 2005) (quoting, Garside, 895 F.2d at 48 (1st Cir. 1990)). By like token, `m a te ria l' "means that a contested fact has the potential to change the outcome of the suit under th e governing law if the dispute over it is resolved favorably to the nonmovant." Rojas-Ithier v . Sociedad Española de Auxilio Mutuo, 394 F.3d 40, 42-43 (1st Cir. 2005) (citations omitted). T h e re f o re , there is a trial-worthy issue when the "evidence is such that there is a factual c o n tro v e rs y pertaining to an issue that may affect the outcome of the litigation under the g o v e rn in g law, and the evidence is sufficiently open-ended to permit a rational fact-finder to re so lv e the issue in favor of either side." Id (citations omitted). In order to defeat summary judgment, the opposing party may not rest on conclusory a lle g a tio n s , improbable inferences, and unsupported speculation. See, Hadfield v. McDonough, 4 0 7 F.3d 11, 15 (1st Cir. 2005) (citing, Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st Cir. 1990). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1 st Cir. 1997). Once th e party moving for summary judgment has established an absence of material facts in dispute, a n d that he or she is entitled to judgement as a matter of law, the `party opposing summary ju d g e m e n t must present definite, competent evidence to rebut the motion.' Méndez-Laboy v. A b b o t Lab., 424 F.3d 35, 37 (1st Cir. 2005) (quoting, Maldonado-Denis v. Castillo Rodríguez,

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2 3 F.3d 576, 581 (1st Cir. 1994)). "The nonmovant must produce specific facts, in suitable e v id e n tia ry form sufficient to limn a trialworthy issue. . . . Failure to do so allows the summary ju d g m e n t engine to operate at full throttle." Id.; see also Kelly v. United States, 924 F.2d 355, 3 5 8 (1st Cir. 1991) (warning that "the decision to sit idly by and allow the summary judgment p ro p o n e n t to configure the record is likely to prove fraught with consequence."); MedinaM u ñ o z , 896 F.2d at 8, (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1 st Cir. 1 9 8 9 )) (holding that "[t]he evidence illustrating the factual controversy cannot be conjectural o r problematic; it must have substance in the sense that it limns differing versions of the truth w h ic h a factfinder must resolve"). Applicable Law and Analysis D e f e n d a n t seeks summary judgment on the argument that under the Montreal C o n v e n tio n , which he alleges is the applicable law in the current case, Plaintiff is barred from re c o v e ry. See Docket No. 34. Plaintiff, on the other hand, states that Puerto Rico tort law is c o n tro llin g in this case, and that she is entitled to recover due to AA's negligence in maintaining its premises. Id. at 40. If, however, the Montreal Convention governed the dispute, Plaintiff a lle g e s she would still be entitled to damages. Id. This Court first reviews if there is a genuine dispute as to a material fact between the p a rtie s . Plaintiff accepted the majority of Defendant's list of material, uncontested facts, only q u a li f yi n g fact 3 and denying 7-8, 11, and 20. See Docket No. 40-2. Of these, the only fact re le v a n t to the issue being decided by this Court is fact 20, where AA stated that the emergency b o x found at the baggage carousel is industry standard and any manufacturer of sloped plate b a g g a g e carousel places the emergency box similarly on the outside of the carousel. See Docket N o s . 34-2 and 40-2. Plaintiff refuted this fact with McCarthy's expert testimony and submitted a statement with three additional uncontested facts, all referencing McCarthy's expert te s tim o n y. See Docket No. 40-2. Since this Court has found McCarthy's testimony unreliable

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a n d struck it from the record, these three additional facts will not be considered. Additionally, s in c e there is no admissible evidence to refute Defendant's fact 20, this Court must admit D e f e n d a n t's version. The issue in this case is whether AA was negligent in its maintenance of the international b a g g a g e carousel by placing the emergency stop box in a hazardous location. See Silva v. A m e ric a n Airlines, Inc., 960 F.Supp. 528 (D.P.R. 1997). While Plaintiff sued under Articles 1 8 0 2 and 1803 of the Civil Code of Puerto Rico, Defendant argues that the claim is governed b y the Montreal Convention, which applies to "all international carriage of persons, baggage, o r cargo performed by aircraft for reward." Montreal Convention, art. 17. The Montreal Convention3 would apply only if Plaintiff was injured in the process of e m b a rk in g or disembarking, which is in dispute, with Defendant asserting baggage retrieval was p a rt of disembarking, and Plaintiff arguing it was not. Montreal Convention, art. 17(1) ("The c a rrie r is liable for damage sustained in case of death or bodily injury of a passenger upon the c o n d itio n only that the accident... took place on board the aircraft or in the course of any of the o p e ra tio n s of embarking or disembarking."). If in fact the Montreal Convention applies, P la in tif f 's recovery is limited to what is available under the Convention since the claim would n o t be subject to local law. See Acevedo-Reinoso v. Iberia Lineas Aereas de Espana S.A., 449 F .3 d 7, 11 (1st Cir.2006) (holding that "an air carrier is not subject to liability under local law f o r passenger injuries covered by the Convention"). Article 17 states that Plaintiff may only re c o v e r if she suffered an accident, defined as

When evaluating claims under the Montreal Convention, it is appropriate to look at cases interpreting the Warsaw Convention. Although the Montreal Convention completely replaced the Warsaw Convention, courts rely on cases that apply the Warsaw Convention since they interpret similar provisions to those found in the Montreal Convention. See Ugaz v. Am. Airlines, Inc., 576 F.Supp.2d 1354, 1360 (S.D.Fla. 2008).

3

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...[ w h e n ] passenger's injury is caused by an unexpected or unusual event or happening th a t is external to the passenger... But when the injury indisputably results from the p a s s e n g e r's own internal reaction to the usual, normal, and expected operation of the a irc ra f t, it has not been caused by an accident... Thus, the Montreal Convention is a more stringent standard than would apply if Puerto Rico tort la w governed this dispute. In order to determine which law is applicable in this case, this Court must examine w h e th e r Plaintiff was in the process of disembarking when she was injured. Montreal

C o n v e n tio n , art. 17(1). This inquiry focuses on three factors (1) the passenger's activity at the tim e of the injury, (2) where the passenger was located, and (3) the extent to which the carrier w a s exercising control over the passenger at the moment of injury. McCarthy v. Northwest A irlin e s , Inc., 56 F.3d 313, 317 (1st Cir. 1995) (citing Schroeder v. Lufthansa German Airlines, 8 7 5 F.2d 613, 617 (7th Cir.1989)). However, courts have construed the act of embarking and d ise m b a rk in g narrowly, normally strongly relating the accident with the physical act of entering th e plane. McCarthy, 56 F.3d at 316-17; see also MacDonald v. Air Canada, 439 F.2d 1402, 1 4 0 5 (1st Cir. 1971) (holding that "it would seem that the operation of disembarking has te rm in a te d by the time the passenger has descended from the plane by use of whatever m e c h a n i c a l means have been supplied..."). The three factors are looked at in unison, not as s e p a ra te inquiries. Id. at 317. In the present suit, Plaintiff was injured retrieving her luggage from the international b a g g a g e carousel, a location far removed from where passengers descend from the aircraft, the c o m m o n ly understood meaning of disembarkation. In addition, although connected to her f lig h t, baggage retrieval was not an action necessary to become separated from the plane. See M a rtin e z - H e r n a n d e z v. Air France, 545 F.2d 279, 281 (1st Cir.1976). Although the baggage c a ro u se l itself is maintained and managed by AA, Plaintiff was not under the control of the a irlin e in the same sense as she was when she was entering or leaving the airplane. Plaintiff was

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f re e to roam around, and choose her path, unlike when the airline directs passengers to line up a n d enter the plane. Although this Court notes that Plaintiff was not in an entirely public place a n d this has often been a consideration in determining whether a passenger was disembarking, th is fact is not dispositive. See McCarthy, 56 F.3d at 317-18; Ugaz, 576 F.Supp.2d at 1363-64. At the time of the fall, Plaintiff was free from AA's direction, removed from the arrival gate, a n d in the baggage claim area, a space where courts have held passengers are no longer in the p ro c e ss of disembarking. See McDonald, 439 F.2d at 1405. Therefore, Plaintiff was not d ise m b a rk in g within the meaning of the Montreal Convention. This Court must then review Plaintiff's evidence for a tort claim under Puerto Rico law. Article 1802 of the Civil Code of Puerto Rico states that a "person who by an act or omission c a u s e s damage to another through fault or negligence shall be obliged to repair the damage so d o n e ." Business owners have a duty to keep their "establishments in a safe condition so that th e clients do not suffer harm or damage." Torres v. KMart Corp., 233 F.Supp.2d 273, 278 (D .P .R . 2002) (citing Cotto v. Consolidated Mut. Ins. Co., 116 D.P.R. 644, 650 (1985)). Furthermore, "[l]iability is imposed in situations that involve risky conditions inside the b u s in e s s premises that the owner knew or should have known existed." Id. A plaintiff can re c o v e r by proving that the defendant had "actual or constructive knowledge of the dangerous c o n d itio n that most likely than not caused the damage." Id; see also Mas v. United States, 984 F .2 d 527, 530 (1st Cir.1993). P l a i n t i f f 's evidence against AA to support her claims that Defendant was negligent in m a in ta in in g its business premises is insufficient for a fact finder to reasonably find in her favor s in c e it consists of nothing more than conclusory allegations. Anderson, 477 U.S. at 252 (f in d in g "the mere existence of a scintilla of evidence in support of plaintiffs position will be in su f f ic ie n t; there must be evidence on which the jury could reasonably find for the plaintiff."). After adequate time for discovery, entry of summary judgment is appropriate when the

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n o n m o v a n t party would have the burden of proof at trial on an essential factual element and has f a ile d to "come forward with sufficient evidence to generate a trialworthy issue...." Clifford v. B a rn h a rt, 449 F.3d 276, 280 (1st Cir.2006) (citing In re Spigel, 260 F.3d 27, 31 (1 st Cir.2001)). N u m e r o u s depositions were taken, experts rendered testimony, and neither party has made a c la im that they are unable to show sufficient evidence because they have not had ample o p p o rtu n ity to conduct discovery. Moreover, it would be Plaintiff's burden at trial to establish A A 's negligence under Articles 1802 and 1803 of the Civil Code of Puerto Rico. See Torres, 2 3 3 F.Supp.2d at 278; see also Mas, 984 F.2d at 530. This Court must determine whether the evidence presented by the Plaintiff is enough so t h a t a trier of fact could reasonably find for her. Anderson, 477 U.S. at 252. McCarthy's te s tim o n y was the only evidence provided by Plaintiff to prove Defendant's alleged negligence in maintaining its business premises, and in her claim that the emergency stop box was e x c e s siv e ly protrusive and caused her fall. Now that this Court has stricken that testimony, all P la in tif f has submitted on this issue are her pleadings, where she states that since Defendant c o n tro lle d the section of the airport where her accident occurred, AA is responsible for her in ju rie s . It is well established law that in order to defeat a motion for summary judgment, the p a rty opposing the motion must present specific facts that support his or her contentions, and m u s t not solely rely on the allegations in the pleadings. Borschow Hosp. & Med. Supplies v. C e s a r Castillo Inc., 96 F.3d 10, 14 (1st Cir. 1996) (holding that the non-moving party "may not re st on mere allegations or denials of his pleading, but must set forth specific facts showing th e re is a genuine issue for trial.") (citing Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir.1995) (quoting Anderson, 477 U.S. at 256)). Nonetheless, Plaintiff has failed to provide a n y admissible evidence to support a claim of negligence even though this is crucial and d isp o sitiv e in her tort claim. As a result, Plaintiff's allegations are insufficient to defeat D e f e n d a n t's motion for summary judgment.

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In light of the fact that Plaintiff has not, through sufficient evidence, demonstrated that th e re is a genuine issue of fact as to AA's alleged negligence, Defendant's Motion for Summary J u d g m e n t is GRANTED. Conclusion F o r the reasons stated above, Defendant's Motion in Limine and Motion for Summary J u d g m e n t are GRANTED and the case Plaintiff's claims are DISMISSED WITH P R E JU D IC E . IT IS SO ORDERED. In San Juan, Puerto Rico, this 20 th day of July, 2010. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge