HAVLIK et al v. SCHINDLER ELEVATOR CORPORATION et al, No. 1:2012cv04610 - Document 56 (D.N.J. 2014)
Court Description: MEMORANDUM OPINION & ORDER granting Defendants 36 MOTION for Summary Judgment, 38 MOTION for Summary Judgment and to Preclude James Filippone, and 37 MOTION in Limine. Signed by Judge Joseph H. Rodriguez on 9/30/2014. (TH, )
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HAVLIK et al v. SCHINDLER ELEVATOR CORPORATION et al Doc. 56 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY _____________________________ PATRICIA and DENNIS HAVLIK, w/ h, Civil Action No. 12-4610 : v. Hon. J oseph H. Rodriguez : Plaintiffs, : MEMORANDUM OPINION & ORDER SCHINDLER ELEVATOR CORP. and CAESAR S ENTERTAINMENT CORP. d/ b/ a BALLY S CASINO, : Defendants. _____________________________ _ _ _ : : This m atter is before the Court on m otions of the Defendants to preclude the testim ony of Plaintiff s expert and for sum m ary judgm ent. Oral argum ent was heard on the m otions on Septem ber 9, 20 14 an d the record of that proceeding is incorporated here. For the reasons articulated on the record that day, as well as those set forth here, the m otions will be granted. Background On Novem ber 19, 20 10 , Plaintiff Patricia Havlik and her husband, Plaintiff Dennis Havlik, were at Bally s Atlantic City Hotel and Casino in Atlantic City, New J ersey, which is owned and operated by Defendant Bally s Park Place, Inc. d/ b/ a Bally s Atlantic City. Patricia Havlik Dep., 13:1-5; Bally s Answer with Affirm ative Defenses and Cross claim s, Dkt. Entry 13, ΒΆ 3. In order to catch the elevator on the sixth floor, Ms. Havlik placed her right hand between the elevator doors as they were closing. Patricia Havlik Dep., 19:24-20 :9, 20 :16-17, 8 5:7-17; Dennis Havlik Dep., 9:22-10 :2, 12:9-11. The elevator doors closed on Ms. Havlik s hand, causing injury. Patricia Havlik Dep., 20 :1721:5. Plaintiffs did not report the incident to the Casino on the day that it occurred, but returned the next day and filed a guest incident report. Patricia Havlik Dep., 32:9-15. Dockets.Justia.com Plaintiffs have asserted claim s of negligent m aintenance of the elevator by Schin dler (Count One), negligence/ prem ises liability by Bally s (Count Two), and loss of consortium (Count Three). In support of their claim s in this case, Plaintiffs have proffered an expert report dated J uly 29, 20 13 authored by J am es Filippone as well as a supplem ental report dated Septem ber 20 , 20 13 that was also authored by Mr. Filippon e. Procedural Posture Presently before the Court is a m otion by Schindler Elevator to preclude the expert reports and testim ony of Plaintiffs expert, J am es Filippone, pursuant to Fed. R. Civ. P. 70 2 an d Daubert v. Merrell Dow Pharm aceuticals, Inc., 50 9 U.S. 579 (1993) and for sum m ary judgm ent pursuant to Fed. R. Civ. P. 56 [38]. Schindler has argued that Plaintiffs cannot prove causation because the Filippone reports am ount to no m ore than an untested assum ption that the elevator s 3D sensor was not functioning, an d as such are unreliable under Daubert. Sim ilarly, Bally s has filed a m otion in lim ine to preclude J am es Filippone from testifying at trial [37] and a m otion for sum m ary judgm ent [36]. Bally s argues that Filippone s opinion that the 3D sensor for the elevator door was not functioning at the tim e of the incident because the 3D function was not on during his February 20 13 inspection is an unreliable, speculative net opinion. In addition, Bally s argues that there is no eviden ce in the record that the elevator was operating abnorm ally or not within industry standard. Rather, Plaintiff testified that she put her hand in front of norm ally operating elevator door when it was alm ost entirely closed; the accident was caused by her own n egligence. Bally s also seeks sum m ary judgm en t on the cross-claim for indem nification by Schin dler because Bally s, the property owner, contracted with Schin dler for m aintenance/ inspection. 2 Discussion Sum m ary judgm ent is proper if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 48 2 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (198 6)); accord Fed. R. Civ. P. 56 (a). The Court will enter sum m ary judgm ent in favor of a m ovant who shows that it is entitled to judgm ent as a m atter of law, and supports the showing that there is no genuine dispute as to any m aterial fact by citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials. Fed. R. Civ. P. 56 (c)(1)(A). An issue is genuine if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is m aterial if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the n onm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally s Park Place, Inc., 8 70 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party 3 m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. A nonm oving party m ay not rest upon m ere allegations, general denials or . . . vague statem ents . . . . Trap Rock Indus., Inc. v. Local 8 25, Int l Union of Operating Eng rs, 982 F.2d 8 84, 8 90 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party s case, an d on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the m ovant can support the assertion that a fact cannot be genuinely disputed by showing that an adverse party can not produce adm issible evidence to support the [alleged dispute of] fact. Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party s m otion for sum m ary judgm ent, the court s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a gen uine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determ in ations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). To prevail on a claim for negligence under New J ersey law, a plaintiff m ust establish the existence of a duty owed to the plaintiff by the defendant, a breach of that duty, and that the breach was the proxim ate cause of the plaintiff's injuries. Keith v. Truck Stops Corp. of Am ., 90 9 F.2d 743, 745 (3d Cir. 1990 ). An owner of a building has a non-delegable duty to exercise reasonable care for the safety of tenants and persons using the prem ises at his invitation. Mayer v. Fairlawn J ewish Ctr., 186 A.2d 274, 277 78 (N.J . 1962). That the owner contracts for m aintenance of an elevator does not relieve 4 it of that duty, although it m ay secure indem nification by contract with the m aintenan ce contractor or at com m on law. Rosenberg v. Otis Elevator, 841 A.2d 99,10 5 (N.J . Super. Ct. App. Div. 20 0 4). The parties agree that the basic facts of the case are not in dispute. Ms. Havlik testified that at the tim e of the accident she believed it was safe to put her hand in the elevator doors to stop them from closing. (Patricia Havlik Dep., 22:5-8.) Ms. Havlik approxim ated that the doors were open a little m ore than the width of a legal pad. (Patricia Havlik Dep., 8 5:13-17.) The doors closed on the center of [her] hand, (id. at 23:9-13), such that when [she] looked at [her] hand, the only thing [she] saw was a little edge of [her] hand and [her] wrist. The rest of it was in the elevator. (Id. at 23:47.) She also testified, I rem em ber leading with m y hand. (Id. at 74:10 .) Sim ilarly, Mr. Havlik testified that from her wrist to her fin gers disappeared, an d he noted, [s]he s got a sm all hand. (Dennis Havlik Dep., 11:14-20 .) Plaintiffs were not able to get on the elevator because [t]he elevator left. (Patricia Havlik Dep., 75:17-20 .) Ms. Havlik theorized, I guess the elevator inside went to another floor, but the doors rem ained closed on m y hand. (Id. at 75:21-23.) In 20 0 7, Bally s contracted with Otis Elevator Com pany to m odernize the subject elevator, designated as elevator P-3 by Bally s. (Mattia Dep., 41:13-43:5.) At that tim e, Otis installed, am ong other things, new doors, controllers, and an Otis electronic door edge called a Lam bda. (Mattia Dep., 42:13-19, 49:7-20 , 57:6-21.) Schindler did not m anufacture, design, or install the door protection device or any other part of the subject elevator and, since the 20 0 7 m odernization, the Lam bda electronic edge has never been repaired or replaced by Schin dler. (Mattia Dep., 43:12-14; 65:12-66:12.) 5 Schin dler s service technician Gregory Mattia testified that he rides the subject elevator approxim ately once a day during the course of his duties at Bally s but has never noticed any problem s with the electronic edge on the subject elevator, and is unaware of any patron other than Ms. Havlik claim ing to have been injured by the subject elevator s doors. (Mattia Dep., 64:25-65:8, 67:17-20 , 68 :1-3.) Further, Schin dler s Preventive Maintenance Work Reports from 20 10 , before and after the subject incident, do not evidence any problem s with the subject elevator or its door reopening device. (Schindler m aintenance tickets and m aintenan ce sum m ary, signed by Mattia.) The inspections perform ed by an inspector for Atlantic City from J anuary 20 10 through J uly 20 12 also evidence no problem s with the subject elevator s door reopening devices. (Atlantic City, New J ersey Elevator Inspection Reports signed by Bud Grant.) Finally, Plaintiffs liability expert, J am es Filippone, was unaware of any persons other than Ms. Havlik who had claim ed that their hands had been caught in the subject elevator s doors. (Filippone Dep., 8 4:21-24.) The subject elevator doors consist of two sets of doors: the car doors, which are part of the elevator car and travel with the elevator (the interior elevator doors), and the hoistway or landing doors, which are the exterior doors on each floor. (J uly 29, 20 13 Filippone Report, p. 3.) There are approxim ately 6 inches (or 5.625 inches) between the elevator car doors and the hoistway doors. (J uly 29 Filippone Report, p.3.) Both sets of doors open to a m axim um width of 48 inches. (J uly 29 Filippone Report, p. 1.) The subject elevator is also equipped with an Otis Lam bda 3D door protection device, a device that detects objects in the path of the closing doors and re-opens the doors. (J uly 29 Filippone Report, p. 3.) The Otis Lam bda 3D device has two features. The first feature is a light curtain series of invisible infrared beam s installed on the car 6 doors which only detects objects that enter the 2D plane of the interior car doors, not the hoistway doors. (J uly 29 Filippone Report, p. 3.) There is no allegation and no opinion that the 2D light curtain beam series was involved in the subject accident. The second feature is a 3D system , which is designed to detect objects outside the plane of the car doors. (J uly 29 Filippone Report, p. 3-4.) It is the 3D system that Plaintiffs allege is involved in causing the Plaintiffs accident. The Otis Technical Inform ation Publication describes the function of the 3D system as follows: Beam s of infrared light are aim ed from the em itter door unit into the entryway at approxim ately a 30 -degree an gle from the plane of door travel. If an object is in the m id-portion of the door opening, som e of the light will reflect off the object and into the detector door unit array. If the signal is strong enough, a reversal (relay output contacts open) will occur. The detection area for sensing 3D targets varies with door separation but is always in the present center of the door separation. When the doors are fully open, the detection zone starts at ~30 % of the opening size out into the entryway from the car door plane (e.g., detection should start at ~14 in. for a 48-inch opening). As the doors close, the detection zone recedes towards the car doors. At car door separation s of 16 in. or less, the target detection zone is inside typical hoistway doors. The vertical coverage of 3D is between ~18 and ~54 in. from the bottom of the door units. Target detection varies with the am ount of door separation. When doors are separated m ore than ~24 in., the system detects both large and sm all objects. A large object (in this context) is a hum an body torso. A sm all object is an extended arm , for exam ple. The larger the target, the m ore likely it will be detected. As the doors close, the detection operation changes. As the door separation n arrows from 24 to 18 in., the system will ignore large targets as noise. It will, however, detect sm all objects such as an extended arm or hand. In the last ~18 in. of door travel, the system will only detect sm all objects that are rapidly m oving into or out of the hoistway door zone (provided this region is enabled via dip switch 7), such as a last-second attem pt to extend a hand and stop the doors. If the system falsely senses objects in this region, dip switch 7 can be used to enable or disable 3D operation in this 7 region. (Otis Technical Inform ation Publication at pp. 2, 5-6.) Thus, according to Otis, the location and size of the detection area in which the 3D system will work will depend, am ong other things, on how far apart the elevator doors are at a given m om ent. Plaintiffs expert, J am es Filippone, opines in his J uly 29, 20 13 report that: The cause of the door reopening device not detecting Ms. Havlik s hand/ wrist is that the 3D function [i.e. the 3D system ] was not turned on. If this 3D protection had been turned on when Ms. Havlik attem pted to enter the incident elevator, the doors would not have closed on her hand/ wrist an d she would not have suffered any injuries. (J uly 29 Filippone Report, p. 4.) In a supplem ental report dated Septem ber 20 , 20 13, Filippone stood by this conclusion and further opined that the 3D function was not on during his inspection in February 20 13 and m ust have been off at the tim e of the subject incident. (Sept. 20 , 20 13 Filippone Report, p. 1.) As such, Plaintiffs assert that Schin dler negligently failed to enable the Lam bda 3D safety device on the elevator in question. With regard to Bally s, Plaintiffs argue that the com pany, by and through Schin dler, was required to activate the Lam bda 3D via dip switch 6 and 7 and keep it activated at all tim es; Bally s alleged failure to do so caused Plaintiff s injury. Defendants seek to preclude Filippone s testim ony, 1 arguing that his opinion that the accident was caused because the 3D sensor was off is not based upon any eviden ce or scientific m ethodology, but relies solely on speculation and, as such, is unreliable. 1 Whether to hold an in lim ine hearing upon a Daubert objection is an issue that rests in the sound discretion of the district court. Padillas v. Stork Gam co, Inc., 18 6 F.3d 412, 418 (3d Cir. 1999). See also Kum ho Tire Co. v. Carm ichael, 526 U.S. 137, 152 (1999) ( The trial court m ust have the sam e kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides w hether or not that expert's relevant testim ony is reliable. ). A hearing m ay not be required in all 8 Plaintiffs have argued that expert testim ony is not required to prove that the subject elevator m alfunctioned, but it is only necessary to provide an explanation in lay term s of the possible ways in which the accident could have occurred that would m ore likely than not point to defendant s negligence as a substantial contributing cause. Pl. Opp n Br. [44, 46], p. 1 (quoting Gore v. Otis Elevator Co., 762 A.2d 292, 296 (N.J . Super. Ct. App. Div. 20 0 0 )). According to Plaintiffs expert, if the switch was turned on, the elevator doors would not have closed on Plaintiff s hand. Thus, taking the facts in the light m ost favorable to Plaintiff, the only possible reason for the doors to close on Plaintiff s hand is that Defendant failed to m aintain the 3D device in the on position as Plaintiff s expert discovered upon his inspection. Pl. Br. In Opp n to Bally s Mot. In Lim ine, p. 5. Plaintiff s argum ent is as follows. Here, Plaintiff s expert inspected and tested the subject elevator and found the 3D function to be disabled. W hen he tested the doors, the doors closed, w hich m eans that the 3D device w as functional, just not turned on, because as Defendant s elevator technician confirm ed, if the device is broken, the doors w ill not close at all. Plaintiff s expert applied the inform ation contained in the Lam bda Technical sheet with Plaintiff s uncontroverted testim ony and his inspection in order to form his opinion. Thus, Plaintiff s expert s opinion m eets the reliable standard set forth in Daubert. As the J ohnson Court rem inds us, the standard for determ ining reliability is not that high. Id. at p. 6 (citing J ohnson v. SJ P Mgm t., LLC, Civ. No. 0 7-5545, 20 0 9 WL 367539 (E.D. Pa. Feb. 12, 20 0 9) (em phasis added)). circum stances, particularly where the depositions, affidavits, or briefing before the court are sufficient to perform a proper analysis. See Oddi v. Ford Motor Co., 234 F.3d 136, 151 54 (3d Cir. 20 0 0 ). 9 The guiding principles that inform the Court s judgm ent are found in Federal Rule of Evidence 70 2 and Daubert, 50 9 U.S. 579. Federal Rule of Evidence 70 2 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the eviden ce or to determ ine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, train ing, or education, m ay testify thereto in the form of an opinion or otherwise, if (1) the testim ony is based upon sufficient facts or data, (2) the testim ony is the product of reliable prin ciples and m ethods, and (3) the witness has applied the principles and m ethods reliably to the facts of the case. Fed. R. Evid. 70 2. Consistent with that Rule, Daubert established a trilogy of restrictions on the adm issibility of expert testim ony relating to scientific knowledge. See Calhoun v. Yam aha Motor Corp., 350 F.3d 316, 321 (3d Cir. 20 0 3). Daubert also applies to expert testim ony relating to technical or other specialized knowledge. See Oddi v. Ford Motor Corp., 234 F.3d 136, 146 (3d Cir. 20 0 0 ) (quoting Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 141 (1999)). This trilogy consists of qualification, reliability and fit. Id. The Third Circuit liberally construes the qualifications of an expert, noting that a broad range of knowledge, skills, and train ing will qualify a witness as an expert . . . . See Yarchak v. Trek Bicycle Corp., 20 8 F. Supp. 2d 470 , 495 (D.N.J . 20 0 2) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) ( Paoli II )) (internal quotations om itted). As such, exclusion of an expert witness is im proper sim ply because an expert does not have the m ost appropriate degree of training. Yarchak, 20 8 F. Supp. 2d at 495 (quoting Diaz v. J ohnson Matthey, Inc., 8 93 F. Supp. 358, 372 (D.N.J . 1995)). Qualification is not at issue in this case. With respect to reliability, the focus is on the principles and m ethodology, not on the conclusions that they generate. Daubert, 50 9 U.S. at 595. Four benchm arks help determ ine whether a theory or technique qualifies as scientific knowledge such 10 that it will assist the trier of fact. See Daubert, 50 9 U.S. at 593. The Court considers: (1) whether the theory can be or has been tested; (2) whether the theory or technique has been subjected to peer review and/ or publication; (3) the rate of error; and (4) whether the theory or technique has been generally accepted within the putative expert s respective com m unity. Id. at 593-94. The Third Circuit adds other factors, including: (5) the existence and m aintenance of standards controlling the technique s operation; (6) the relationship of the technique to m ethods which have been established to be reliable; (7) the qualifications of the expert testifying based on the m ethodology; and (8 ) the non-judicial uses to which the m ethod has been put. Paoli II, 35 F.3d at 742 n.8. When considering these factors, the Court s inquiry m ust be a flexible one. Id. As for the third prong, Rule 70 2 requires that the proffered expert testim ony m ust fit within the facts of the case. Yarchak, 20 8 F. Supp. 2d at 496. The fit requirem ent m andates that the testim ony in fact assist the jury, by providing it with relevant inform ation, necessary for a reasoned decision of the case. Id. (citing Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 595 (D.N.J . 20 0 2)). Thus, even if an expert is qualified and relies on sound m ethodology, he m ust still apply this expertise to the m atter at hand. See Calhoun, 350 F.3d at 324. These factors are not exclusive. They are intended to serve only as useful guideposts, not dispositive hurdles that a party m ust overcom e in order to have expert testim ony adm itted. Yarchak, 20 8 F. Supp. 2d at 495 (quoting Heller v. Shaw Industries, Inc., 167 F.3d 146, 152 (3d Cir. 1999)). In rendering his opinions in this m atter, Filippone reviewed and relied upon the Lam bda 3D Technical Inform ation Publication. He also reviewed Schindler s m aintenance and repair records and the Inspection Reports from Atlantic City. (J uly 29 11 Filippone Report, p. 6, nos. 7, 14, 17; Filippon e Dep., 13:15-14:20 .) Filippone testified that the Atlantic City Inspection Reports indicate that the car reopening devices functioned satisfactorily both before and after the subject incident. (Filippone Dep., 45:14 46:25.) Filippone testified there is no evidence upon which he relied to in dicate that the 3D system was not functioning when the elevator was inspected in 20 10 , the year of the subject incident. (Filippone Dep., 46:20 -47:10 .) He testified that he did not inspect the controller for the 3D system on the subject elevator to determ ine if the switches for the 3D system were on or off. (Filippone Dep., 33:7-12.) Filippone also testified that he did not know whether either one of two dip switches which control the 3D system - DIP switches 6 and 7 - was on or off. (Filippone Dep., 39:4-40 :17.) When questioned why he did not exam in e and docum ent the controller for the 3D system to determ ine its settings, Filippone testified that [t]here s no reason to. (Filippone Dep., 33:16-19.) Nonetheless, Filippone opined: [w]hen [Schindler expert J on Halpern] and I exam ined the elevator and the operation of the LAMBDA 3D device on February 16, 20 13, the 3D function was not operational. (Sept. 20 Filippone Report, p. 3; Filippone Dep., 34:13-18, 38 :14-18 .) In his deposition, Filippone testified that he determ ined that the 3D system was off by standing in front of the doors and [seeing that] the doors would continue to close, then taking a step closer to see if the doors would close again. (Filippone Dep., 34:19-23, 35:22-25.) Filippone testified that, with regard to his abovereferenced observation of seeing the subject elevator doors close while standing in front of the doors and stepping closer to them , he could not recall the distance of his step forward and that he does not have a standard protocol as to how m any inches out from the elevator he would have stepped forward. (Filippone Dep., 36:1-9.) Filippone also 12 could not recall whether he took another step closer to the elevator or walked right up to the elevator doors. (Filippone Dep., 36:21 - 37:1.) Filippone testified that that he eventually stood right at the elevator doors and saw them close, an d that he did not docum ent the specific distances at which he stood from the elevator doors; his only notes regarding his test of the 3D system were [p]robably just that it wasn t working and any notes would be in his expert reports. (Filippone Dep., 37:2 - 38 :1.) Filippone testified he did not use a ruler or any other device to m easure his distance from the elevator doors. (Filippone Dep., 38:2-6.) He also testified that he took no photographs or video recordings of his standing in front of the elevator doors and stepping closer to them . (Filippone Dep., 38 :7-9, 38 :19-21.) Filippone testified that he had all of the inform ation needed to calculate the size of the detection zone when the 3D system was active, describing how he would perform such a calculation. (Filippone Dep., 67:8 -68:9, 68:16-19.) Filippone testified that, in this case, he did not m ake any calculation of the size of the detection zone: A. It's just like I said. You have a triangle. You have a base, you have a distance that the doors are apart. The altitude is six inches, an d then if you want to know any point along the way you can just m easure it. Q. Did you do that in this case? A. No. Q. Why not? A. I didn't think it was necessary. (Filippone Dep., 68:25 - 69:8.) Filippone testified that he could calculate the circum stances in which a person s hand could be caught in between the closing hoistway 13 doors while the 3D system was active, but he did not m ake any such calculation. (Filippone Dep., 69:12-20 , 70 :9-71:12.) Filippone testified that the 3D system should have detected Ms. Havlik s hand, regardless of how close it was to the edge of the hoistway doors, if it was exten ded to the point that her wrist would be in between the hoistway doors. (Filippone Dep., 71:21 72:4, 72:16.) Filippone testified that he did not know the dim ensions of Ms. Havlik s hand. (Filippone Dep., 72:16.) Filippone testified that he could not rule out the possibility that a person s hand could be stuck in between elevator doors with the 3D system active if the hoistway doors contacted the m iddle of the hand. (Filippone Dep., 72:5-9, 72:15-18, 72:25 - 73:3.) In his expert reports or his testim ony, Filippone does not cite any m easurem ents or range of dim en sions for the size of Ms. Havlik s hand. There is no record evidence to suggest that the elevator was negligen tly m aintain ed or that there was anything wrong with the elevator or the 3D sen sor during the year of the Plaintiff s accident, and no evidence of whether the 3D sensor was on or off at the tim e of her accident. Further, there were no other in cidents involving the doors or 3D sensor on this elevator, no safety violations or citations issued by the Atlantic City inspector, and no m aintenance or service records from Schin dler eviden cing any com plaints, problem s, repairs, or service for the elevator at issue during the year of the Plaintiff s accident. Indeed, defense expert J on Halpern opined: Schindler Elevator m aintained the subject elevator and perform ed regular and system atic m aintenance on the elevator and docum ented the sam e. Schindler technicians exam ined and perform ed m aintenance on the door and door safety devices in J une, J uly, Septem ber, and Novem ber of 20 10 and there is no indication of any problem s with the door or the door protection. At the tim e of the incident there was no call or report to Schin dler Elevator with respect to this incident, no repair or adjustm ent m ade to the subject elevator and no other com plaints relating to an y m alfunction of the doors or the door protection. 14 Machine room placard indicates the subject elevator was inspected on J une 14, 20 10 , 6 m onths prior to the incident and on February 10 , 20 11 by city inspector Bud Grant, and the elevator was found to be fully com pliant with all standards and codes, including the operation of the door protection. (Aug. 27, 20 13 Halpern Report, p. 2.) Yet Filippone s expert report concludes: The cause of the door reopening device not detecting Ms. Havlik s hand/ wrist is that the 3D function was not turned on. If this 3D protection had been turned on when Ms. Havlik attem pted to enter the incident elevator, the doors would not have closed on her hand/ wrist and she would not have suffered any injuries. It is unexplained why the 3D protection was not m aintained operational by Schindler or Bally s. (J uly 29 Filippone Report, p. 3). Filippone s expert report also acknowledges, however, regarding the 2D sensors: Incidents involving passengers being struck by closing doors while entering an elevator are com m on. People are aware that the doors close autom atically and assum e that the doors will stop and reopen as they always have in the past when they extend their hand out. They are unaware that the re-opening device is usually only effective when their hand is in the path of the closing car door (which has the re-openin g device attached to it), but m ay not be effective when they are in the path of the closing landing door. (J uly 29 Filippone Report, p. 3 (em phasis in original)). Halpern s opinion follows: Plaintiff testified that the door struck her hand between the wrist and the fingers indicating that the plane of the required car door protection was not obstructed and therefore not activated. (Halpern Report, p. 3.) Halpern also opined: The subject elevator had an Otis Lam bda 3D protection feature, however such a device based on its design can not guarantee that a passenger who places one s hand into the plane of a closing hoistway door be detected, as indicated in the theory of operation and can be disabled by design without any warning. The 3D feature has an anti-nuisance feature that can also autom atically disable the 3D detection due to external factors such as reflections and am bien t light. 15 (Halpern Report, p. 3.) Halpern added, [t]here is no indication that the Lam bda 3D device failed at any tim e and the sam e Lam bda 3D door protection device was on the elevator at the site exam ination perform ed [on] February 6, 20 13. (Id.) Filippone rationalizes, however, that [i]t m akes m uch m ore sense that the 3D feature was not operational when Ms. Havlik was injured and [Schindler and/ or Bally s] sim ply did not enable it. (Sept. 20 Filippone Report, at p. 3.) The Court agrees that the conclusion that the 3D function of the subject elevator was not turned on at the tim e of Plaintiff s accident is unsupported speculation, and therefore unreliable under Daubert. If Daubert and its progeny require anything, it is that plaintiffs com e forward with proof of a valid m ethodology based on m ore than just the ipse dixit of the expert. Furlan v. Schindler Elevator Corp., 8 64 F. Supp. 2d 291, 298 (E.D. Pa. 20 12) (quoting Pappas v. Sony Elecs., Inc., 136 F. Supp. 2d 413, 426 (W.D. Pa. 20 0 0 )). In addition, Plaintiffs have not produced evidence from which a reasonable jury could conclude that Defendants conduct or om ission caused Plaintiffs injury. There is no proof in the record of negligent m aintenance and none that would tend to indicate that the 3D sensor of the elevator was turned off. Negligence cannot be presum ed, it m ust be proven. Long v. Landy, 171 A.2d 1 (N.J . 1961). Further, the record reflects that [a]t car door separations of 16 inches or less, the target detection zone is inside typical hoistway doors. Otis Technical Inform ation Publication, p. 41. Thus, Ms. Havlik s injury could have occurred due to the hoistway doors closing, whether the Lam bda 3D switch was on or off. The issue here is m ore of whether there was a design defect than one of negligence by these Defendants. Notably, 16 Plaintiffs have not claim ed that the elevator doors were defectively designed or defectively m anufactured. Although it was not necessary for Plaintiffs to exclude all other possible causes of the accident, they were required to produce eviden ce from which a fact-finder m ight reasonably conclude that Defendants were, m ore probably than not, negligent; Plaintiffs failed to do so. Accordingly, the doctrine of res ipsa loquitor does not apply here since other responsible causes, in cluding the conduct of the Plaintiff, have not been sufficiently elim inated by the eviden ce. Tait v. Arm or Elevator Co., 958 F.2d 563, 572 (3d Cir. 1992)). See Gore v. Otis Elevator Co., 762 A.2d 292, 295 (N.J . Super Ct. App. Div. 20 0 0 ) (to apply the res ipsa loquitor doctrine, the eviden ce m ust support a reasonable inference that it was the defendant who was at fault ); Pace v. Mainstay Suites Hotel, Civ. No. 0 6-5166, 20 0 8 WL 486150 7 (E.D. Pa. Nov. 7, 20 0 8) (res ipsa loquitor did not apply because plaintiff failed to show that elevator door closing on plaintiff s arm ordinarily would not occur in the absence of negligence an d that there were no other responsible causes for the accident). Finally, because the loss of consortium claim is dependent upon the claim s of negligence, sum m ary judgm ent on that claim will be granted for the Defendants. Conclusion For these reasons, as well as those articulated on the record during oral argum ent, IT IS ORDERED on this 30 th day of Septem ber, 20 14 that m otions of the Defendants to preclude the testim ony of Plaintiff s expert as speculative and for sum m ary judgm ent [36, 37, 38 ] are hereby GRANTED. / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 17
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