Delgado v Markwort Sporting Goods Co.

[*1] Delgado v Markwort Sporting Goods Co. 2006 NY Slip Op 50528(U) [11 Misc 3d 1072(A)] Decided on April 3, 2006 Civil Court Of The City Of New York, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 3, 2006
Civil Court of the City of New York, Kings County

Miriam Delgado, Plaintiff,

against

Markwort Sporting Goods Company, MASON CITY TENT AND AWNING CO. and IFT INDUSTRIES, LTD., Defendants. MARKWORT SPORTING GOODS COMPANY, Third-Party Plaintiff, MASON CITY TENT AND AWNING CO. and IFT INDUSTRIES, LTD., Third-Party Defendants.



7374/97

Jack M. Battaglia, J.

Plaintiff was represented by Edward J. Anthony, Esq. of Gentile & Associates; defendant Markwort Sporting Goods Company was represented by Warren T. Harris, Esq. of the Law Office of Michael F.X. Manning; and defendants Mason City Tent and Awning Co. and IFT Industries, Ltd. were represented by Gregg D. Weinstock, Esq. of Garbarini & Scher, P.C.

In this products liability action, plaintiff Miriam Delgado alleges that, on October 2, 1994, she "was caused to be permanently and seriously injured while playing in a women's flag football game when, in the process of making a tackle' her right ring finger became entrapped in an opposing player's D ring' fastened flag football belt which was a defectively designed, manufactured and marketed product manufactured by [defendant] Mason City Tent and Awning and distributed, sold and placed into the stream of commerce by [defendant] Markwort Sporting Goods." (Plaintiff's Post-Frye Hearing Submission, at 1.) Ms. Delgado's Amended Verified Complaint asserts causes of action in negligence, strict liability in tort, and breach of implied warranty.

On December 12, 2005, the action was assigned to this judge by the Hon. Karen B. Rothenberg, presiding over the trial calendar, initially for a "Frye hearing", and then for trial. Defendants had moved that two of Plaintiff's designated experts, Dr. Bruce Maurer and Norbert Reiner, should be precluded from testifying at trial. A hearing was held on December 14 and 15, and each of the parties submitted a post-hearing memorandum. At a pre-trial conference on March 3, 2006, the Court ruled orally on the motions to preclude, as well as other issues that had surfaced at the hearing. This opinion further explains and supplements those rulings. The case will be tried commencing April 24, after jury selection.

"Under New York law, a design defect may be actionable under a strict products liability theory if the product is not reasonably safe." (Denny v Ford Motor Co., 87 NY2d 248, 256-57 [1995].) Liability is determined by a "negligence-like risk/benefit" inquiry (see id., at 258) that includes "the likelihood that the product will cause injury" and "the availability of a safer design" (see id., at 257). In contrast, the standard under an implied warranty theory is whether the product was "fit for the ordinary purposes for which such goods are used", an inquiry that "focuses on the expectations for the product when used in the customary, usual and reasonably foreseeable manners", without regard to the feasibility of alternative designs or the manufacturer's reasonableness' in marketing it in that unsafe condition." (See id., at 258-59.)

Both Dr. Maurer and Mr. Reiner offered to testify as to the "finger entrapment dangers" created by the design of the Markwort/Mason City belt; that the belt was "defectively designed"; [*2]that there were other available flag-football belts with safer designs; and that "the D ring belt was the competent producing cause of plaintiff's injury." (Plaintiff's Post-Frye Hearing Submission, at 15, 16.) Defendants object to their testimony, among other reasons, because, concededly, neither Dr. Maurer nor Mr. Reiner was ever trained or involved in the design or manufacture of belts. Neither, moreover, would be testifying based upon data as to the incidence of injury resulting from the Markwort/Mason City or similarly-designed belts; and, although Mr. Reiner conducted testing of the Markwort/Mason City belt that Defendants contend is irrelevant, Dr. Maurer has conducted no testing, and neither conducted other studies, or experimented with the belt in actual use.

The Court notes, preliminarily, that the nature of Defendants' objections to the proposed testimony of Plaintiff's experts did not require a pre-trial hearing addressed to admissibility under either the "general acceptance" standard of Frye v United States (293 F 1013 [DC Cir 1923]) or the reliability standards of Daubert v Merrell Dow Pharmaceuticals, Inc. (509 US 579 [1993]) and Kumho Tire Co., Ltd. v Carmichael (526 US 137 [1999].) (See People v Wesley, 83 NY2d 417, 422-23 [1993]; People v Valez, 298 AD2d 213, 213 [1st Dept 2002]; People v Roraback, 242 AD2d 400, 404-05 [3d Dept 1997]; Wahl v American Honda Motor Co., 181 Misc 2d 396, 398-99 [Sup Ct, Suffolk County 1999].) "[M]atters going to trial foundation or weight of the evidence" are "not properly addressed" in a pre-trial proceeding addressed to such issues. (See People v Wesley, 83 NY2d 436; see also CPLR 4515; Adamy v Ziriakus, 92 NY2d 396, 402 [1998].)

That should not mean, however, that a court never has discretion to convene a pre-trial hearing on a motion in limine addressed to a proposed expert's qualifications or the foundation for the opinions that an expert will offer at trial (see Drago v Tishman Construction Corp. of New York, 4 Misc 3d 354, 359-61 [Sup Ct, NY County 2004]), remaining mindful, of course, of the statutory limitations on expert witness disclosure (see CPLR 3101[d]; Marsh v Smyth, 12 AD3d 307, 311-12 [1st Dept 2004][Saxe, J., concurring]). The rules, if that they are, that constrain the admissibility of expert testimony proceed from often elusive distinctions between fact and opinion, and common and specialized knowledge, attempting to resolve overlapping questions about qualifications, the scope of expertise, the permitted bases of expert opinion, and its probative value. Particularly in jury trials, the manner and pace of the presentation of evidence, and arguments and rulings on objections, necessarily affect the deliberative processes of both judge and jury, and in certain cases there is much to be gained by organized and reflective resolution of evidentiary issues.

An "expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable." (Matott v Ward, 48 NY2d 455, 459 [1979].) Assuming that a witness meets a threshold of competence by study or experience, any limitation on either would go to the weight of the testimony, not its admissibility. (See Texter v Middletown Dialysis Center, Inc., 22 AD3d 831, 831 [2d Dept 2005]; Ochoa v Jacobsen Division of Textron, Inc., 16 AD3d 393, 394-95 [2d Dept 2005]; McLamb v Metropolitan Suburban Bus Authority, 139 AD2d 572, 573 [2d Dept [*3]1988]; Locilento v John A. Coleman Catholic High School, 134 AD2d 39, 42 [3d Dept 1987].)

Defendants do not contend that Dr. Maurer and Mr. Reiner would fail to qualify as experts for any purpose. Nor do they contend that the matters on which the experts would opine or provide information are not appropriate subjects of expert testimony. (See States v Lourdes Hospital, 100 NY2d 208, 212 [2003]; Selkowitz v Nassau County, 45 NY2d 97, 101-03 [1978]; compare Mariano v Schuylerville Central School District, 309 AD2d 1116, 1117-18 [3d Dept 2003] with Doukas v America on Wheels, Levittown, New York, Inc., 154 AD2d 426, 428 [2d Dept 1989].) Rather, Defendants challenge the experts' respective qualifications to testify on issues related to the design of flag-football belts, and they challenge the bases for any such opinion, or, as they would have it, the lack thereof.

Rules and Specifications

Both Dr. Maurer and Mr. Reiner propose to testify about rules or specifications that the respective expert contends will inform his opinion on material issues in the case. None of the rules or specifications, however, may provide a basis for either witness's expert testimony.

"Proof of generally accepted practice, custom or usage within a particular trade or profession is admissible as tending to establish a standard of care, and proof of a departure from that general custom or usage may constitute evidence of negligence." (Cruz v New York City Transit Authority, 136 AD2d 196, 199 [2d Dept 1988]; see also Trimarco v Klein, 56 NY2d 98, 105-107 [1982].) "Professional experience" may be the basis for expert testimony as to an accepted industry practice or standard. (See Diaz v New York Downtown Hospital, 99 NY2d 542, 544-45 [2002].)

"There must exist, however, an identity of conditions, so that the particular custom or usage is applicable to the circumstances of the case at hand." (Cruz v New York City Transit Authority, 136 AD2d at 199.) And an expert "may not rely on the nonmandatory recommendations and guidelines promulgated by governmental and professional entities...Absent proof that a particular guideline or recommendation has been adopted in actual practice, it cannot be held to impose a...standard of care upon the defendants." (Capotosto v Roman Catholic Diocese of Rockville Centre, 2 AD3d 384, 386 [2d Dept 2003]; see also Davidson v Sachem Central School District, 300 AD2d 276-77 [2d Dept 2002]; Honohan v Turrone, 297 AD2d 705, 706 [2d Dept 2002]; Washington v City of Yonkers, 293 AD2d 741, 742 [2d Dept 2002]; Merson v Syosset Central School District, 286 AD2d 668, 670 [2d Dept 2001].)

Mr. Reiner proposes to testify that the Markwort/Mason City belt fails to conform to two specifications published by the American Society for Testing and Materials: ASTM F 963-95, Standard Consumer Safety Specification on Toy Safety; and ASTM F 1487-95, Standard Consumer Safety Performance Specification for Playground Equipment for Public Use. But these specifications clearly do not apply to the design of flag-football belts used by adults (see [*4]Sajkowski v Young Men's Christian Association of Greater New York, 269 AD2d 105, 107 [1st Dept 2000]; see also Pinzon v City of New York, 197 AD2d 680, 681 [2d Dept 1993]), and no evidence was presented at the hearing that either specification had been "adopted in actual practice" (see Capotosto v Roman Catholic Diocese of Rockville Centre, 2 AD3d at 386) by either manufacturers of flag-football belts or manufacturers of belts generally.

Dr. Maurer proposes to testify that the Markwort/Mason City belt fails to conform to the 1993 & 1994 Flag & Touch Football Rules & Official's Manual (Sixth Edition) published by the National Intramural-Recreational Sports Association, "NIRSA", for which Dr. Maurer served as "Editor". With appropriate foundation, similar rules have served as articulations of customary practice. (See Zmitrowitz v Roman Catholic Diocese of Syracuse, 274 AD2d 613, 614-15 [3d Dept 2000]; Locilento v John A. Coleman Catholic High School, 134 AD2d 39, 42 [3d Dept 1987].)

At the hearing, Dr. Maurer was not able to establish that the NIRSA Rules had been "adopted in actual practice" by either the manufacturers or users of flag-football belts. But, as Plaintiff contends, the deposition of Charles Gasswindt, President of Mason City, is sufficient to do so, at least on a prima facie basis. (See Plaintiff's Post-Frye Hearing Submission, at 23; Examination Before Trial of Defendant Mason City, February 27, 1997, at 40-43.)

A more serious problem for Dr. Maurer's testimony on customary practice is that the particular rule on which Dr. Maurer would rely was essentially "unrelated to safety purposes", and cannot, therefore, be used to establish a standard of care, defectiveness, or unfitness for use. (Clark v Sachem School District at Holbrook, 227 AD2d 366, 367-68 [2d Dept 1996].) Although, as will appear, the Markwort/Mason City belt does not conform to the NIRSA Rules, Defendants' liability in this case cannot thereby be established.

The Markwort/Mason City flag-football belt is a webbed belt with two "D rings" at one end; a "D ring" is simply a metal ring that resembles the letter "D". Attached to the belt are two plastic loops that can slide along the belt; the fabric "flags" are affixed to the plastic "sliders" by Velcro. During play, removal of a flag from the belt of the runner in possession of the ball works as a tackle, and brings the down to an end.

The allegedly applicable NIRSA rule states that "[e]ach player must wear a one piece belt at the waistline with three flags permanetly attached, one flag on each side and one in the center of the back." (NIRSA Rules, Section 4, "Player Equipment-Required", Article 3, "Flag belt".) The Markwort/Mason City belt is not a "one piece belt...with...flags permanently attached."

Plaintiff's contention is that the failure of the Markwort/Mason City belt to conform to the NIRSA rule was a substantial factor in bringing about her injury. Although the rule does not explicitly prohibit belts with D Rings, the argument is that a "one piece belt...with...flags permanently attached" requires a "quick-release" mechanism in order to serve the belt's function; with a "one-piece belt...with...flags permanently attached", removal of the entire belt from the [*5]runner in possession of the ball works as the tackle. A belt with D rings, and presenting a risk of "finger entrapment", would obviously not work, whereas a belt with the necessary "quick-release" mechanism would not present the same risk of "finger entrapment". In short, had the Markwort/Mason City belt conformed to the NIRSA rule, Plaintiff would not have been injured.

Assuming that such "but for" causation would otherwise constitute proximate cause in any event, the NIRSA rule cannot serve as a standard of care, defectiveness, or unfitness for use in this case, because its requirements were primarily engendered by considerations of convenience and efficiency, and not safety. Based upon Mr. Maurer's testimony, it is reasonably clear that the NIRSA rule was intended to deal with deficiencies in the Velcro binding, particularly when wet, and with manipulation of the sliders by runners so as to make the flags less accessible to an opposing player; to the extent that the rule reflects safety considerations, they relate to the danger of finger entrapment inherent in the use of belts generally, and not to the use of D rings or any other method of closure. (See Transcript, at 42-43, 50-52, 57, 67.) Plaintiff was not injured because her finger became entrapped in the belt.

Except as they might be relevant for purposes other than establishing a standard of care, defectiveness, or unfitness for use, the NIRSA Rules shall not be admitted at trial or provide a basis for any expert opinion.

Dr. Bruce Maurer's Qualifications/Opinions

Dr. Maurer is currently Associate Director, Department of University Recreation and Intramural Sports, The Ohio State University. He holds Master of Science and Doctor of Philosophy degrees in Physical Education. He was the editor of the NIRSA Rules, First through Sixth Editions, and co-editor of the Official Manual, First through Sixth Editions. In addition to extensive professional activities related to other recreational and intramural sports programs, he has directed workshops on flag/touch football, and has made many presentations concerning the NIRSA Rules and Official Manual at NIRSA Conferences. He has participated in the evaluation of flag-football belts for NIRSA, a survey of NIRSA member institutions concerning the Flag & Touch Football Rules, and in a study of flag/touch football injury rates. In 1989, he was inducted into the United States Flag and Touch Football Hall of Fame. He testified that he had observed "tens of thousands" of flag-football games. (See Transcript, at 93.)

Concededly, Dr. Maurer has not been involved in the design or manufacture of flag-football belts. "Long observation and actual experience, though without actual study of the subject, qualify a witness as an expert in that subject. "(Meiselman v Crown Heights Hospital, Inc., 285 NY 389, 398 [1941]; see also Price v New York City Housing Authority, 92 NY2d 553, 559 [1998]; Steinbuch v Stern, 2 AD3d 709, 710 [2d Dept 2003].) Specifically, "practical experience" may qualify a witness to testify in a products liability case based upon allegations of defective design, even though the witness "was not a designer of and had never participated in constructing" the kind of product at issue. (See Caprara v Chrysler Corp., 52 NY2d 114, 121 [*6][1981][emphasis in original].) "As may be true for example, of a knowledgeable music critic who has never written a note, [the witness's] competency could just as well have derived from the real world of everyday use as from that of the laboratory." (Id.; but see Cervone v Tuzzolo, 291 AD2d 426, 427 [2d Dept 2002]; Goldman v County of Nassau, 170 AD2d 648, 648 [2d Dept 1991]; McGovern v Riverdale Country School Realty Co., Inc., 51 AD2d 894, 894-95 [1st Dept 1976].)

In Gernat v State of New York (23 AD3d 1015 [4th Dept 2005]), the appellate court held that the trial court did not abuse its discretion in striking the testimony of the claimant's expert; there was insufficient evidence that the expert, a mechanical engineer (see id., at 1016-17 [Gorshi, J., dissenting]), "had the requisite expertise on the issue of design of hockey rink doors" (see id., at 1015.) But the trial court had refused to strike the testimony of defendant's "alleged expert, a former hockey player and current hockey coach", whose "opinion was limited to his observations at various hockey rinks". (See id., at 1017 [Gorshi, J., dissenting]; see also Stackwick v Young Men's Christian Association of Greater Rochester, 242 AD2d 878, 879 [4th Dept 1997][unidentified expert's affidavit "stating that the defendant was negligent in failing to pad the cement wall" of basketball court was sufficient to create issue of fact]; Everett v Bucky Warren, Inc., 376 Mass 280, 292, 380 NE2d 653, 661 [1978][prep school coach could testify that one-piece helmet was safer than three-piece helmet].)

In addition to his lack of experience as a designer or manufacturer of flag-football belts, Dr. Maurer also could not describe any tests or studies he performed on the Markwort/Mason City belt or similarly-designed D-ring belts, or any studies on injuries resulting from use of a D-ring belt. An expert opinion "unencumbered by any trace of facts or data...should be given no probative force whatsoever." (Amatulli v Delhi Construction Corp., 77 NY2d 525, 533-34 n2 [1991]; see also Buchholz v Trump, 767 Fifth Ave., LLC, 5 NY3d 1, 8-9 [2005][summary judgment]; Gernat v State of New York, 23 AD3d at 1015; Canales v Hustler Manufacturing Co., 12 AD3d 392, 393 [2d Dept 2004][summary judgment]; Castro v Delta International Machinery Corp., 309 AD2d 827, 828 [2d Dept 2003][summary judgment]; Cervone v Tuzzolo,

291 AD2d at 427.)

In Romano v Stanley (90 NY2d 444 [1997]), the Court of Appeals found an expert's affidavit, submitted on a motion for summary judgment, to be "speculative and conclusory" (id., at 451) and of "no probative force" (id., at 452). Although the Court acknowledged that, "[i]n some situations, the nature of the subject matter or the expert's area of special skill will suffice to support the inference that the opinion is based on knowledge acquired through personal professional experience" (id.), the affidavit before it "was devoid of any reference to a foundational scientific basis for its conclusions", and "[n]o reference was made either to [the expert's] own personal knowledge acquired through his practice or to studies or to other literature that might have provided the technical support for the opinion he expressed" (id.).

Romano was distinguished in Adamy v Ziriakus (92 NY2d 396 [1998]), which involved a defendant's challenge to a jury verdict. In contrast to a motion for summary judgment, "when the [*7]expert testimony is offered at trial, the technical or scientific basis for a testifying expert's conclusions ordinarily need not be addressed as part of the proponent's direct case'...Rather, it falls to the opponent of the testimony to bring out weaknesses in the expert's qualifications and

foundational support on cross-examination." (Id., at 402 [quoting Romano v Stanley, 90 NY2d at 451].)

The caselaw indicates that, although specific training or involvement in product design will be required in many, perhaps most, cases to sufficiently qualify an expert to testify as to defective design, there is no automatic disqualification for lack of such background. Much, of course, must depend upon the nature of the product and its use, and the nature and circumstances of the injury. The product in this case is relatively simple in design, function and operation, and the general concept and method of minimal-contact football are reasonably familiar. With his extensive training in physical education and practical experience with the use of flag-football belts, Dr. Maurer is qualified to testify as to the risk of danger presented by the Markwort/Mason City belt, and the risk of danger presented by other available flag-football belts, even if he might not be qualified to testify as to all of the factors relevant to a determination of defective design. That training and experience, moreover, seems particularly well-suited to provide evidence as to the users' reasonable expectations for use of a flag-football belt.

Experts with similar expertise have been permitted to testify on related issues. And so, in Kremerov v Forest View Nursing Home, Inc. (24 AD3d 618 [2d Dept 2005]), a witness with a "background in physical education and recreation" was found sufficiently qualified to render an opinion that the defendant "negligently failed to advise and warn the plaintiff of the heightened risk of injury associated with bowling in heeled shoes" (id., at 620), over a dissent that the "expert's conclusions [were] based on no empirical, scientific, or medical data or analysis" (id., at 623 [Mastro, J., dissenting]; see also Baker v Briarcliff School District, 205 AD2d 652, 654 [2d Dept 1994]["expert in scholastic sports"]; Locilento v John A. Coleman Catholic High School, 134 AD2d 39, 42 [3d Dept 1987]["expert in the field of scholastic sports activities"].)

Nor would Dr. Maurer's testimony be rendered incompetent because it is not based upon testing, injury statistics, or experimental studies, but rather upon observation and other practical experience. In Kumho Tire Co., Ltd. v Carmichael (526 US 137), the U.S. Supreme Court discussed the admissibility of an "experience based methodology" (id., at 151), in that case "the reasonableness...of a tire expert's use of visual and tactile inspection to determine whether overdeflection had caused the tire's tread to separate from its steel-belted carcass" (id., at 153-54). The Court noted that "no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience" (id.; at 156).

There is no reason why, in an appropriate case, "long observation", which can serve as the source of expertise, cannot serve as the foundation for its exercise. Again, it must depend upon the product and the circumstances of its use. Perhaps characterized as "human factors" (see Wichy v City of New York, 304 AD2d 755, 756 [2d Dept 2003]) or "body mechanics" (see Sumowicz v Gimbel Bros., Inc., 161 AD2d 314, 315 [1st Dept 1990]), the results of Dr. Maurer's [*8]observations during "tens of thousands" of flag-football games are a sufficient basis for expert opinion, subject to cross-examination that might limit its weight.

None of the parties, however, has briefed the question whether Dr. Maurer may testify that the Markwort/Mason City belt is "unreasonably dangerous" or "unfit for use", and the Court offers no opinion on the question. (See, for example, Masiello v Efficiency Devices, Inc.,

6 AD3d 672, 673 [2d Dept 2004]; see also Kane v North Colonie Central School District, 273 AD2d 526, 528 [3d Dept 2000]; Stackwick v Young Men's Christian Association of Greater Rochester, 242 AD2d at 879; see also Baker v Briarcliff School District, 205 AD2d at 652.) Nor is the Court reaching any conclusion on whether Dr. Maurer's testimony standing alone would satisfy Plaintiff's prima facie burden on those questions.

Norbert Reiner

Mr. Reiner holds a Bachelor's degree in mechanical engineering, and is currently President of a consulting firm, serving the toy, recreation, and consumer products industries. He was previously employed by companies in the sporting goods and toy industries, responsible for design, manufacture , and quality assurance functions.

Like Dr. Maurer, Mr. Reiner has not been involved in the design or manufacture of any flag-football belt. Unlike Dr. Maurer, he does not have extensive experience with flag-football play, and, therefore, the resulting expert observation. Also unlike Dr. Maurer, however, Mr. Reiner did test the Markwort/Mason City belt. As described by Plaintiff: "Testing was performed by Mr. Reiner which involved applying a force to the belt to measure the closure of the D rings. When the force was applied, the distance between the rings was less than a half inch...[Mr. Reiner's conclusions]...were based on the fact that the 2 D rings created a closure which led to a pinching, which resulted in the injury. Furthermore, the moveable flag on the subject belt potentially placed the flags in close proximity to the D-rings." (Plaintiff's Post-Frye Hearing Submission, at 15-16.)

"Evidence of experiments is properly admissible so long as the proponent establishes a substantial similarity between the conditions under which the experiments were conducted and the conditions at the time of the event in question'...particularly where the opponent has an unrestricted opportunity to cross-examine." (Styles v General Motors Corp., 20 AD3d 338, 339 [1st Dept 2005][quoting People v Laufer, 275 AD2d 655, 655 (1st Dept 2000)]; see also Clemente v Blumenberg, 183 Misc 2d 923, 925-26 [Sup Ct, Richmond County 1999].) Defendants offered no expert testimony at the hearing to challenge the testing protocol used by Mr. Reiner, and that, therefore, is not at issue. [*9]

Defendants do contend that Mr. Reiner's testing protocol did not reproduce conditions "substantially similar" to those that allegedly resulted in Plaintiff's injury. Mr. Reiner testified that he devised his testing based upon a review of the testimony at various depositions, a medical report, and photographs, but Plaintiff makes no showing that anything in those sources support Mr. Reiner's use of ten to fifteen pounds of force with a resulting closure of the D rings. Plaintiff concedes, moreover, that to the extent Mr. Reiner's opinions are based upon the mobility of the "sliders" along the web, bringing the flags in closer proximity to the D rings, there is no evidence to connect any such alleged defect to Plaintiff's injury.

That Mr. Reiner may not testify as to his testing of the Markwort/Mason City belt does not mean that he may not testify at all. Although he has not been involved in the design or manufacture of any flag-football belt, his training as a mechanical engineer and practical expertise in the design, manufacture, and quality assurance of sporting goods and toys qualify him to render opinions based upon foundation facts of the type permissible for expert opinion generally. (See Wagman v Bradshaw, 292 AD2d 84, 86-87 [2d Dept 2002].) Any such testimony must, of course, fall within the scope of the expert disclosure made pursuant to CPLR 3101(d).

Unified v Bifacated Trial

A unified trial is warranted when "the injuries themselves are probative in determining how the incident occurred." (Vazquez v Costco Companies, Inc., 17 AD3d 350, 350 [2d Dept 2005][quoting DeGregorio v Lutheran Medical Center, 142 AD2d 543, 544 (2d Dept 1988)]; see also Culley v City of New York, 25 AD2d 519, 520 [1st Dept 1966]; Booker v K-Mart Corp., 9 Misc 3d 992, 993 [Buffalo City Court 2004].)

In a report dated February 25, 2005 of Albert Vangura, Jr., identified as a biomechanical, biomedical, and mechanical engineering expert by defendant Mason City, but submitted by defendant Markwort on these motions, the expert opined that Plaintiff's "injury could not have occurred in the manner which she testified" at her deposition; that her "injury could not have been caused by the [Markwort/Mason City] flag football belt"; and that "other mechanisms of injury could have caused [her] injury." (Expert Report of Miriam Delgado Incident, attached as Exhibit F to [undated] Memorandum of Law of defendant Markwort, at 6-7.) "Plaintiff intends to call its expert medical witness to describe mangling nature of the finger injury and that it could only have occurred by the finger being inside the D-ring". (Plaintiff's Post-Frye Hearing Submission, at 24-25.)

The parties shall proceed to a unified trial after jury selection commencing on April 24, 2006.

The Court is mailing a copy of this Decision and Order to the parties on this date. [*10]

April 3, 2006

Judge, Civil Court