Fedelich v. American Airlines, No. 3:2009cv01218 - Document 50 (D.P.R. 2010)

Court Description: 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)

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Fedelich v. American Airlines Doc. 50 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 JEAN FEDELICH Civil No. 09-1218 (SEC) Plaintiff 5 v. 6 AMERICAN AIRLINES 7 Defendant 8 9 OPINION AND ORDER 10 11 12 13 14 15 Pending before the court are a Motion for Summary Judgment (Docket No. 34) and a Motion in Limine to exclude expert testimony (Docket No. 35) filed by Defendant American Airlines ( AA ). Plaintiff, Jean Fedelich ( Fedelich ), opposed both the Motion for Summary Judgment (Docket No. 45) and the Motion in Limine (Docket No. 42). After considering all the filings and the applicable law, for the reasons stated below, both Defendant s Motion in Limine and Motion for Summary Judgment will be GRANTED. 16 Factual and Procedural Background 17 18 19 20 21 22 23 24 25 Plaintiff filed the above captioned law suit on March 4, 2009 under Articles 1802 and 1803 of the Civil Code of Puerto Rico, 31 P.R. Laws § 5141-5412, seeking redress for the damages suffered as a result of her fall at an international baggage carousel in the San Juan International Airport, which is allegedly administered and maintained by Defendant. Docket No. 1. On March 17, 2008, Plaintiff was on a direct flight from the Dominican Republic to Miami. 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 time Plaintiff s original flight would have arrived. Id. While Defendant claims that Plaintiff 26 Dockets.Justia.com 1 Civ. No. 09-1218 (SEC) 2 2 consented 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 flight to Fort Lauderdale. Id. Although originally told the luggage would be available at 7 carousel number three, passengers were informed to proceed to carousel number four. See 8 Docket No. 34-3. Plaintiff stated that only one other passenger was present at carousel number 9 four when she arrived. Docket No. 34-2. Plaintiff saw her bag on the carousel, on top of other 10 luggage, and proceed to pick it up. Id. Unable to immediately remove her bag, Plaintiff 11 grabbed it and walked around the carousel as it circulated. Id. Plaintiff stated that she did not 12 see the emergency stop box attached to the carousel, and as a result, tripped over it and fell, 13 fracturing her left wrist. Id. 14 The following averments made by both parties are in dispute. Plaintiff claims the 15 emergency box was negligently placed, thereby causing her fall and resulting injuries. See 16 Docket No. 40-2. Since AA controls carousel number four, Plaintiff alleges that AA is liable 17 for 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 attention as she walked, that caused her fall and resulting injuries. Docket No. 34. Moreover, 20 Defendant contends that Puerto Rico tort law does not apply to the dispute, but rather the 21 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, 22 May 28, 1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S. 350, U.S.C.S. Montreal Convention 23 ( Montreal Convention ), under which Defendant argues Plaintiff is not entitled to any relief. 24 Id. 25 26 1 Civ. No. 09-1218 (SEC) 3 2 Additionally, Defendant claims that the emergency stop box is industry standard, is 3 found in numerous other airports, and complies with safety requirements. Id. Plaintiff, 4 however, rejoins that the emergency stop box protrudes unnecessarily and excessively far into 5 the pedestrian area around the baggage carousel. She avers this is a design defect and is 6 unreasonably dangerous. Docket No. 40-2. To support this assertion, Plaintiff submitted the 7 expert testimony of S. Melville McCarthy ( McCarthy or expert witness ), which Defendant 8 challenges as unreliable in its Motion in Limine. See Docket Nos. 35 and 40-2. 9 Motion in Limine to Exclude Expert Testimony 10 Before addressing Defendant s Motion for Summary Judgment, this Court will rule on 11 Defendant s Motion In Limine to exclude the testimony of Plaintiff s expert, McCarthy. See 12 Cortés-Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 188 (1 st Cir.1997) (holding If 13 proffered expert testimony fails to cross [the] ... threshold for admissibility, a district court may 14 exclude that evidence from consideration when passing upon a motion for summary 15 judgment. ); see also Southern Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1245 (11 th 16 Cir.2009) (holding that a trial court did not abuse its discretion in excluding an expert report at 17 the summary judgment stage). Defendant asks this Court to strike McCarthy s testimony 18 claiming it is unreliable, prejudicial, and improper. Docket No. 35. Plaintiff, on the other hand, 19 denies 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. E VID. 403 allows the exclusion of relevant evidence if its probative value is 23 substantially outweighed by the danger of unfair prejudice, confusion of the issues, or 24 misleading the jury or by considerations of undue delay, waste of time, or needless presentation 25 of cumulative evidence. 26 1 Civ. No. 09-1218 (SEC) 4 2 The admission of expert testimony is governed by F ED. R. E VID. 702. Said rule provides: 3 4 5 6 [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 7 Rule 702 imposes a gate-keeping function on the trial judge to ensure that an expert s 8 testimony 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 Inc., 509 U.S. 579, 597, 113 S.Ct. 2786 (1993)). 11 Although a flexible and non-exclusive list, Daubert outlined specific factors that a trial 12 court may consider when testing the reliability of an expert witness testimony. Kumho Tire 13 Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167 (1999). A court must determine whether 14 the expert will testify to scientific knowledge that will assist the trier of fact to understand and 15 determine the facts in issue. Daubert, 509 U.S. at 593. This entails a preliminary assessment 16 as to: (1) whether the reasoning or methodology underlying the expert testimony is scientifically 17 valid, and (2) whether the reasoning or methodology can be applied to the facts of the case. Id. 18 Specifically, in determining if the evidence is reliable, a court must consider: (1) whether 19 Plaintiff 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 degree of acceptance of the theory in the scientific community. Daubert, 509 U.S. at 593-595; 22 see also Seahorse Marine Supplies, Inc. v. P.R. Sun Oil Co., 295 F. 3d 68 (1 st Cir.2002). 23 Applicable Law and Analysis 24 Defendant contends that McCarthy s opinion is unreliable, ipse dixit, or the mere 25 unsupported opinion of an expert, which is a legally insufficient basis to support an admissible 26 1 Civ. No. 09-1218 (SEC) 2 expert s opinion. Docket No. 35. From McCarthy s deposition, Defendant points out several 3 factors that allegedly render the expert opinion unreliable. These include that McCarthy (1) 4 used only photographic evidence of the emergency stop button and carousel to conduct his 5 analysis, (2) that he did not request any information or literature on the design of the baggage 6 carousel, (3) that he was unfamiliar with the events surrounding Plaintiff s fall since he did not 7 speak to Plaintiff nor did he review her deposition,1 (4) that he did not physically inspect the 8 carousel, and expressed that there was no need to do so, (5) that he did not conduct any testing 9 nor research as to the safety standards applicable to the baggage carousel. Id. Moreover, 10 Defendant questions McCarthy s reasoning and central assumption, which is that since Plaintiff 11 tripped on the emergency stop box, the box must necessarily be defective. Id. Lastly, 12 Defendant alleges that McCarthy did not provide an alternative design that was mechanically 13 feasible, and that he is unqualified to render an expert opinion given that has never worked with 14 sloped conveyer belts. Id. 5 15 Plaintiff responded that McCarthy is qualified as an expert in machine guarding 2 since 16 he has a master s degree in mechanical engineering, majored in machine design, and 17 participated in a publication about machine guarding. Docket No. 42. Furthermore, Plaintiff 18 argues that the report includes analysis using the Safe Design Methodology and Triodyne Safety 19 Brief to reach his opinion, a methodology which McCarthy testified is accepted in the industry 20 to evaluate the safety of a product. Id. Plaintiff also contends that McCarthy s analysis was 21 sufficient, in accord with industry standards, and argues that if there is not more extensive 22 23 24 25 26 1 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. 2 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. 1 Civ. No. 09-1218 (SEC) 2 research on record in the report, it is only because the case was simple enough that it did not 3 require further analysis. Id. 6 4 The present case has certain similarities with Kumho Tire Co., 526 U.S. at 143-44, where 5 the defendants challenged an engineer s expert testimony that a defective tire was the cause of 6 a fatal vehicle accident. In Kumho Tire Co., the expert s opinion was based on a visual and 7 tactile inspection of the car tire, and upon a theory that, since at least two of the four physical 8 symptoms indicating tire abuse were not present, the tire failure was caused by a defect. Id. at 9 144, 153. The court in Kumho Tire Co. did not doubt the expert s qualifications nor did it 10 question whether the expert s methodology was generally unreliable. Id. at 153. Rather, the 11 court s determination was based on the reasonableness of using such an approach... to 12 reliably determine the cause of failure of the particular tire at issue. Id. at 154. The Supreme 13 Court upheld the District Court s decision to exclude the expert testimony due to, among other 14 factors, the subjectiveness of the expert s method and the lack of other experts and secondary 15 sources that supported his approach. Id. at 155-56. 16 Likewise, in the present case, the admissibility of McCarthy s testimony does not depend 17 on his qualifications, but on whether his photographic inspection of the carousel is a reliable 18 method to reach the conclusions he did about Plaintiff s fall at the AA baggage carousel. See 19 id. at 154 (admissibility of expert testimony depended on reasonableness of using such an 20 approach... to draw a conclusion regarding the particular matter to which the expert testimony 21 was directly relevant. ). 22 While this Court has noted Defendant s argument regarding McCarthy s lack of 23 specialized experience in sloped carousels, his experience as an engineer qualifies him to testify. 24 See Docket No. 35. In DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1 st Cir.1988), the 25 First Circuit reached a determination that expert testimony need not be limited only from 26 mechanical engineers who have had design experience with the specific machine in question 1 Civ. No. 09-1218 (SEC) 2 because only experts with an interest in defending the design would be able to testify. As in 3 DaSilva, McCarthy is familiar with fundamental engineering principles of machine design 4 and has had extensive experience evaluating and recommending safety devices for machines. 5 Id. Accordingly, he is qualified to render an expert opinion regarding the safe design of a 6 baggage carousel. Id. Based on the record, McCarthy has ample credentials, given that he is 7 a mechanical engineer holding a masters degree, and substantial experience in machine design 8 and machine guarding. See Docket No. 42-2. Thus, this Court cannot strike McCarthy s report 9 on the basis of his qualifications. 7 10 The remaining issue is whether the methodology used by McCarthy is sufficiently 11 reliable to reach a conclusion regarding the particular problem at hand. See Kumho Tire Co., 12 526 U.S. at 154. Plaintiff argues that given the simplicity of the case, and McCarthy s 13 significant experience, a detailed analysis was not necessary. See Docket No. 42. She asserts 14 that even a lay person could have reached the same conclusions by looking at the emergency 15 box. Id. Furthermore, McCarthy states that he followed the Safe Design Methodology to reach 16 his conclusions, which consists of the following three step process: (1) identifying severe 17 hazards, (2) preventing access to severe hazards whenever technically and economically 18 feasible, and (3) if it is not feasible to alter the design without defeating the utility of he product, 19 then appropriately warning of the risk of injury or death. See Docket No. 42-5. McCarthy 20 states that one accident, Plaintiff s accident, is enough to identify there is a severe hazard in the 21 design of the carousel. See Docket Nos. 35-3, 42-5. McCarthy also argues that given the 22 existence of other emergency boxes in baggage claim terminals, including AA s domestic 23 terminal, AA was aware of a safe alternative design, but kept the more dangerous model at the 24 international terminal. See Docket No. 42-8. Third, Plaintiff contends that, even if a safe 25 alternative design was not feasible, AA was negligent in not having provided sufficient warning 26 of its protruding emergency box. See Docket No. 42. 1 Civ. No. 09-1218 (SEC) 8 2 Defendant challenges McCarthy s methodology and several of his assertions and this 3 Court agrees. Having reviewed McCarthy s deposition and expert testimony, this Court finds 4 that McCarthy s photographic inspection of the carousel and the multiple assumptions, 5 unsupported by factual evidence, made in his analysis, are insufficient to demonstrate that he 6 used a reliable methodology to reach his conclusions. Kumho Tire Co., 526 U.S. at 153 (citing 7 Civ. Action No. 93-0860-CB-S (S.D.Ala. June 5, 1996)) (holding that the methodology 8 employed by the expert in analyzing the data obtained in the visual inspection, and the scientific 9 basis, if any, for such an analysis was unreliable). 10 Relevant case law does not support Plaintiff s contention that the case was so simple that 11 it did not require significant research and analysis. Trial courts exercise a gatekeeping function, 12 the objective of which is to make certain that an expert... employs in the courtroom the same 13 level of intellectual rigor that characterizes the practice of an expert in the relevant field. Id. 14 at 152. This Court finds it hard to believe that in his engineering work, McCarthy, if asked to 15 evaluate the designs of baggage carousels for safety, would conduct no tests, would not research 16 the safety standards, the specific design of the machine in question, its alternatives, nor past 17 accident rates, and would intuitively render an opinion from a superficial visual analysis. 18 The opinion of an engineer is relevant in this dispute and would help a trier of fact 19 because as an expert, he is able to understand and explain technical data specific to the carousel 20 design and is able to identify safe alternative designs, if any. In contrast, an expert who testifies 21 about what he intuitively deducts is not helpful to a jury or this Court. Daubert, 509 U.S. at 580 22 (testimony must assist the trier of fact to understand the evidence or to determine a fact in 23 issue). 24 dangerous apart from asserting that the emergency stop box appears to protrude excessively. 25 He asserts that there is an alternative design by presenting photos of a flat conveyor belt as 26 evidence. See Docket No. 34-6. However, McCarthy does not explain how the alternative flat McCarthy does not explain what makes the emergency stop button particularly 1 Civ. No. 09-1218 (SEC) 2 design is safer since he conducted no testing to examine its safety, did not research accident 3 rates, the design of the machinery, nor does he cite industry safety standards. There is no 4 evidence on the record that McCarthy was methodical about his approach since he has no 5 documentation to support his assertions despite the Supreme Court s holding that expert 6 testimony must comply with an evidentiary reliability standard. Daubert, 509 U.S. at 590. The 7 expert fails to point out how the design in dispute falls outside the safety standards, and he fails 8 to explain to a trier of fact any concrete information about the design of the carousels. 9 9 In contrast to McCarthy s report, Defendant s expert, Dan Pockrus ( Pockrus ) provides 10 information that supports his position and helps the trier of fact make a decision based on 11 concrete facts. See Docket No. 34-10. To wit, Pockrus explained how the sloped conveyor belt 12 found in the international baggage claim is designed for high volume of passengers, how it 13 complies with the standards set forth by the American Society of Mechanical Engineers, and 14 how it is not mechanically feasible to make a less protrusive emergency box with the physical 15 design of the slope-plate track and still comply with electrical requirements. Id. Additionally, 16 Pockrus explains that the flat conveyor belt is meant for lower volume of passenger areas. Id. 17 Although this Court does not make any determinations as to the accuracy of Pockrus testimony, 18 Pockrus provides the Court with verifiable facts, and provides a reasoning behind his testimony 19 rather than subjective, unsupported speculations. 20 It is undeniable that experts ofter times reach conclusions from a set of observations 21 alone. Kumho Tire Co., 526 U.S. at 156. However, nothing in either Daubert or the Federal 22 Rules of Evidence requires that a district court admit opinion evidence that is connected to 23 existing data only by the ipse dixit of the expert. Id. at 157. According to Daubert, if tested, 24 the expert s method should show an objective standard against which the court can measure the 25 accuracy of Plaintiff s contentions. Id. at 149. This Court finds no such objectivity in 26 1 Civ. No. 09-1218 (SEC) 2 McCarthy s testimony. Rather McCarthy s opinion is subjective, conclusory, and cannot 3 reasonably be assessed for reliability. 4 10 McCarthy implies that Plaintiff s accident proves there is a defect in the design without 5 having studied past accident rates, nor having conducted any testing. See Docket No. 35. 6 However, case law does not support an automatic conclusion of negligence from the mere 7 occurrence of an accident. In Gates v. Ford Motor Co., 494 F.2d 458, 460 (10th Cir. 1974), as 8 it evaluated the case of man fatally injured while operating a tractor, the court held that injury, 9 of itself, is not proof of a defect and raises no presumption of defectiveness. More to the point, 10 in Puerto Rico, the theory of res ipsa loquitur as a basis for recovery in negligence suits has 11 been rejected. See Wells Real Estate Inv. Trust II, Inc. v. Chardon/Hato Rey P ship, S.E., 643 12 F.Supp.2d 182, 193 (D.P.R. 2009) (holding that the mere occurrence of a fuel spill did not 13 demonstrate negligence on the Defendant s part in maintaining property) (citing Alberto O. 14 Bacó v. Almacén Ramón Rosa Delgado Inc., 151 D.P.R. 711 (2000)). Thus, McCarthy s 15 presumption that Plaintiff s fall is proof of the carousel s defective design is in disaccord with 16 local tort law. Negligence on part of the injured party is a possibility, but from McCarthy s 17 deposition it seems that the expert failed to consider this possibility since he did not review 18 Plaintiff s account of the facts and his testimony seems to be based on the premise that the 19 accident is proof of a defective design without considering how negligent Plaintiff might have 20 been. 21 Furthermore, similar to Kuhmo Tire Co., the deposition transcript cast(s) considerable 22 doubt upon the reliability of the explicit theory and the implicit proposition since there is 23 repeated reliance on the subjective of his mode of analysis in response to question seeking 24 specific information on how he could differentiate... between safe alternative designs. Kumho 25 Tire Co., 526 U.S. at 154-55. In several instances, McCarthy was asked questions to clarify the 26 reasoning behind his assertions. See Docket No. 35-3. Instead of supplying Defendant and the 1 Civ. No. 09-1218 (SEC) 2 Court with specific information, McCarthy s answers compounded this Court s doubts about 3 the reliability of his method to reach the specific conclusions included in his report. Id. For 4 example, McCarthy (1) assumed, rather than investigated the reason why the emergency box 5 was angled or tapered, (2) except for his intuition, he could not provide concrete facts as to why 6 the flat conveyor belt was safer than the sloped belt, and (3) he testified that there was a 7 mechanically feasible safe alternative design without having considered that the two designs 8 (flat and sloped) might serve different functions and are designed accordingly, as Pockrus 9 testified. See Docket Nos. 35 and 35-3. Since McCarthy s testimony seems to be based more 10 on subjective elements than objective analysis, and because this Court has struggled to find 11 verifiable facts to support the expert s conclusions, Defendant s Motion in Limine is 12 GRANTED and McCarthy s testimony is stricken as unreliable. 11 13 Motion for Summary Judgment 14 This Court will now consider Defendant s Motion for Summary Judgment and make a 15 decision in light of the above determination excluding McCarthy s expert testimony, which 16 Plaintiff relied heavily on to support her negligence claims against Defendant. 17 Standard of Review 18 Fed. R. Civ. P. 56(b) provides that: A party against whom a claim . . . is asserted . . . 19 may, at any time, move with or without supporting affidavits for a summary judgment in the 20 party s favor as to all or any part [of the claims asserted against him/her]. The Court may grant 21 the movant s motion for summary judgment when the pleadings, depositions, answers to 22 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 23 genuine issue as to any material fact and that the moving party is entitled to judgment as a 24 matter of law. Fed. R. Civ. P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25 248(1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1 st Cir. 2005). At this 26 stage, the court examines the record in the light most favorable to the nonmovant, and 1 Civ. No. 09-1218 (SEC) 2 indulges all reasonable inferences in that party s favor. Maldonado-Denis v. Castillo- 3 Rodríguez, 23 F.3d 576, 581 (1 st Cir. 1994). 12 4 Once the movant has averred that there is an absence of evidence to support the 5 nonmoving party s case, the burden shifts to the nonmovant to establish the existence of at least 6 one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 7 (1st Cir. 1990) (citations omitted). A factual issue is genuine if it may reasonably be 8 resolved in favor of either party and, therefore, requires the finder of fact to make a choice 9 between the parties differing versions of the truth at trial. DePoutout v. Raffaelly, 424 F.3d 10 112, 116 (1st Cir. 2005) (quoting, Garside, 895 F.2d at 48 (1st Cir. 1990)). By like token, 11 material means that a contested fact has the potential to change the outcome of the suit under 12 the governing law if the dispute over it is resolved favorably to the nonmovant. Rojas-Ithier 13 v. Sociedad Española de Auxilio Mutuo, 394 F.3d 40, 42-43 (1st Cir. 2005) (citations omitted). 14 Therefore, there is a trial-worthy issue when the evidence is such that there is a factual 15 controversy pertaining to an issue that may affect the outcome of the litigation under the 16 governing law, and the evidence is sufficiently open-ended to permit a rational fact-finder to 17 resolve the issue in favor of either side. Id (citations omitted). 18 In order to defeat summary judgment, the opposing party may not rest on conclusory 19 allegations, improbable inferences, and unsupported speculation. See, Hadfield v. McDonough, 20 407 F.3d 11, 15 (1st Cir. 2005) (citing, Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 21 5, 8 (1st Cir. 1990). Nor will effusive rhetoric and optimistic surmise suffice to establish 22 a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1 st Cir. 1997). Once 23 the party moving for summary judgment has established an absence of material facts in dispute, 24 and that he or she is entitled to judgement as a matter of law, the party opposing summary 25 judgement must present definite, competent evidence to rebut the motion. Méndez-Laboy v. 26 Abbot Lab., 424 F.3d 35, 37 (1st Cir. 2005) (quoting, Maldonado-Denis v. Castillo Rodríguez, 1 Civ. No. 09-1218 (SEC) 2 23 F.3d 576, 581 (1st Cir. 1994)). The nonmovant must produce specific facts, in suitable 3 evidentiary form sufficient to limn a trialworthy issue. . . . Failure to do so allows the summary 4 judgment engine to operate at full throttle. Id.; see also Kelly v. United States, 924 F.2d 355, 5 358 (1st Cir. 1991) (warning that the decision to sit idly by and allow the summary judgment 6 proponent to configure the record is likely to prove fraught with consequence. ); Medina- 7 Muñoz, 896 F.2d at 8, (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1 st Cir. 8 1989)) (holding that [t]he evidence illustrating the factual controversy cannot be conjectural 9 or problematic; it must have substance in the sense that it limns differing versions of the truth 10 13 which a factfinder must resolve ). 11 Applicable Law and Analysis 12 Defendant seeks summary judgment on the argument that under the Montreal 13 Convention, which he alleges is the applicable law in the current case, Plaintiff is barred from 14 recovery. See Docket No. 34. Plaintiff, on the other hand, states that Puerto Rico tort law is 15 controlling in this case, and that she is entitled to recover due to AA s negligence in maintaining 16 its premises. Id. at 40. If, however, the Montreal Convention governed the dispute, Plaintiff 17 alleges she would still be entitled to damages. Id. 18 This Court first reviews if there is a genuine dispute as to a material fact between the 19 parties. Plaintiff accepted the majority of Defendant s list of material, uncontested facts, only 20 qualifying fact 3 and denying 7-8, 11, and 20. See Docket No. 40-2. Of these, the only fact 21 relevant to the issue being decided by this Court is fact 20, where AA stated that the emergency 22 box found at the baggage carousel is industry standard and any manufacturer of sloped plate 23 baggage carousel places the emergency box similarly on the outside of the carousel. See Docket 24 Nos. 34-2 and 40-2. Plaintiff refuted this fact with McCarthy s expert testimony and submitted 25 a statement with three additional uncontested facts, all referencing McCarthy s expert 26 testimony. See Docket No. 40-2. Since this Court has found McCarthy s testimony unreliable 1 Civ. No. 09-1218 (SEC) 2 and struck it from the record, these three additional facts will not be considered. Additionally, 3 since there is no admissible evidence to refute Defendant s fact 20, this Court must admit 4 Defendant s version. 14 5 The issue in this case is whether AA was negligent in its maintenance of the international 6 baggage carousel by placing the emergency stop box in a hazardous location. See Silva v. 7 American Airlines, Inc., 960 F.Supp. 528 (D.P.R. 1997). While Plaintiff sued under Articles 8 1802 and 1803 of the Civil Code of Puerto Rico, Defendant argues that the claim is governed 9 by the Montreal Convention, which applies to all international carriage of persons, baggage, 10 or cargo performed by aircraft for reward. Montreal Convention, art. 17. 11 The Montreal Convention3 would apply only if Plaintiff was injured in the process of 12 embarking or disembarking, which is in dispute, with Defendant asserting baggage retrieval was 13 part of disembarking, and Plaintiff arguing it was not. Montreal Convention, art. 17(1) ( The 14 carrier is liable for damage sustained in case of death or bodily injury of a passenger upon the 15 condition only that the accident... took place on board the aircraft or in the course of any of the 16 operations of embarking or disembarking. ). If in fact the Montreal Convention applies, 17 Plaintiff s recovery is limited to what is available under the Convention since the claim would 18 not be subject to local law. See Acevedo-Reinoso v. Iberia Lineas Aereas de Espana S.A., 449 19 F.3d 7, 11 (1st Cir.2006) (holding that an air carrier is not subject to liability under local law 20 for passenger injuries covered by the Convention ). Article 17 states that Plaintiff may only 21 recover if she suffered an accident, defined as 22 23 24 25 26 3 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). 1 2 3 Civ. No. 09-1218 (SEC) 15 ...[when] passenger s injury is caused by an unexpected or unusual event or happening that is external to the passenger... But when the injury indisputably results from the passenger s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident... 4 5 Thus, the Montreal Convention is a more stringent standard than would apply if Puerto Rico tort 6 law governed this dispute. 7 In order to determine which law is applicable in this case, this Court must examine 8 whether Plaintiff was in the process of disembarking when she was injured. 9 Convention, art. 17(1). This inquiry focuses on three factors (1) the passenger s activity at the 10 time of the injury, (2) where the passenger was located, and (3) the extent to which the carrier 11 was exercising control over the passenger at the moment of injury. McCarthy v. Northwest 12 Airlines, Inc., 56 F.3d 313, 317 (1st Cir. 1995) (citing Schroeder v. Lufthansa German Airlines, 13 875 F.2d 613, 617 (7th Cir.1989)). However, courts have construed the act of embarking and 14 disembarking narrowly, normally strongly relating the accident with the physical act of entering 15 the plane. McCarthy, 56 F.3d at 316-17; see also MacDonald v. Air Canada, 439 F.2d 1402, 16 1405 (1st Cir. 1971) (holding that it would seem that the operation of disembarking has 17 terminated by the time the passenger has descended from the plane by use of whatever 18 mechanical means have been supplied... ). The three factors are looked at in unison, not as 19 separate inquiries. Id. at 317. Montreal 20 In the present suit, Plaintiff was injured retrieving her luggage from the international 21 baggage carousel, a location far removed from where passengers descend from the aircraft, the 22 commonly understood meaning of disembarkation. In addition, although connected to her 23 flight, baggage retrieval was not an action necessary to become separated from the plane. See 24 Martinez-Hernandez v. Air France, 545 F.2d 279, 281 (1st Cir.1976). Although the baggage 25 carousel itself is maintained and managed by AA, Plaintiff was not under the control of the 26 airline in the same sense as she was when she was entering or leaving the airplane. Plaintiff was 1 Civ. No. 09-1218 (SEC) 2 free to roam around, and choose her path, unlike when the airline directs passengers to line up 3 and enter the plane. Although this Court notes that Plaintiff was not in an entirely public place 4 and this has often been a consideration in determining whether a passenger was disembarking, 5 this fact is not dispositive. See McCarthy, 56 F.3d at 317-18; Ugaz, 576 F.Supp.2d at 1363-64. 6 At the time of the fall, Plaintiff was free from AA s direction, removed from the arrival gate, 7 and in the baggage claim area, a space where courts have held passengers are no longer in the 8 process of disembarking. See McDonald, 439 F.2d at 1405. Therefore, Plaintiff was not 9 disembarking within the meaning of the Montreal Convention. 16 10 This Court must then review Plaintiff s evidence for a tort claim under Puerto Rico law. 11 Article 1802 of the Civil Code of Puerto Rico states that a person who by an act or omission 12 causes damage to another through fault or negligence shall be obliged to repair the damage so 13 done. Business owners have a duty to keep their establishments in a safe condition so that 14 the clients do not suffer harm or damage. Torres v. KMart Corp., 233 F.Supp.2d 273, 278 15 (D.P.R. 2002) (citing Cotto v. Consolidated Mut. Ins. Co., 116 D.P.R. 644, 650 (1985)). 16 Furthermore, [l]iability is imposed in situations that involve risky conditions inside the 17 business premises that the owner knew or should have known existed. Id. A plaintiff can 18 recover by proving that the defendant had actual or constructive knowledge of the dangerous 19 condition that most likely than not caused the damage. Id; see also Mas v. United States, 984 20 F.2d 527, 530 (1st Cir.1993). 21 Plaintiff s evidence against AA to support her claims that Defendant was negligent in 22 maintaining its business premises is insufficient for a fact finder to reasonably find in her favor 23 since it consists of nothing more than conclusory allegations. Anderson, 477 U.S. at 252 24 (finding the mere existence of a scintilla of evidence in support of plaintiffs position will be 25 insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. ). 26 After adequate time for discovery, entry of summary judgment is appropriate when the 1 Civ. No. 09-1218 (SEC) 2 nonmovant party would have the burden of proof at trial on an essential factual element and has 3 failed to come forward with sufficient evidence to generate a trialworthy issue.... Clifford v. 4 Barnhart, 449 F.3d 276, 280 (1st Cir.2006) (citing In re Spigel, 260 F.3d 27, 31 (1 st Cir.2001)). 5 Numerous depositions were taken, experts rendered testimony, and neither party has made a 6 claim that they are unable to show sufficient evidence because they have not had ample 7 opportunity to conduct discovery. Moreover, it would be Plaintiff s burden at trial to establish 8 AA s negligence under Articles 1802 and 1803 of the Civil Code of Puerto Rico. See Torres, 9 233 F.Supp.2d at 278; see also Mas, 984 F.2d at 530. 17 10 This Court must determine whether the evidence presented by the Plaintiff is enough so 11 that a trier of fact could reasonably find for her. Anderson, 477 U.S. at 252. McCarthy s 12 testimony was the only evidence provided by Plaintiff to prove Defendant s alleged negligence 13 in maintaining its business premises, and in her claim that the emergency stop box was 14 excessively protrusive and caused her fall. Now that this Court has stricken that testimony, all 15 Plaintiff has submitted on this issue are her pleadings, where she states that since Defendant 16 controlled the section of the airport where her accident occurred, AA is responsible for her 17 injuries. It is well established law that in order to defeat a motion for summary judgment, the 18 party opposing the motion must present specific facts that support his or her contentions, and 19 must not solely rely on the allegations in the pleadings. Borschow Hosp. & Med. Supplies v. 20 Cesar Castillo Inc., 96 F.3d 10, 14 (1st Cir. 1996) (holding that the non-moving party may not 21 rest on mere allegations or denials of his pleading, but must set forth specific facts showing 22 there is a genuine issue for trial. ) (citing Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 23 (1st Cir.1995) (quoting Anderson, 477 U.S. at 256)). Nonetheless, Plaintiff has failed to provide 24 any admissible evidence to support a claim of negligence even though this is crucial and 25 dispositive in her tort claim. As a result, Plaintiff s allegations are insufficient to defeat 26 Defendant s motion for summary judgment. 1 Civ. No. 09-1218 (SEC) 18 2 In light of the fact that Plaintiff has not, through sufficient evidence, demonstrated that 3 there is a genuine issue of fact as to AA s alleged negligence, Defendant s Motion for Summary 4 Judgment is GRANTED. 5 Conclusion 6 For the reasons stated above, Defendant s Motion in Limine and Motion for Summary 7 Judgment are GRANTED and the case Plaintiff s claims are DISMISSED WITH 8 PREJUDICE. 9 10 IT IS SO ORDERED. In San Juan, Puerto Rico, this 20 th day of July, 2010. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 S/ Salvador E. Casellas SALVADOR E. CASELLAS United States District Judge

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