Santoro ex rel. Santoro v. Donnelly
| Decision Date | 30 September 2004 |
| Docket Number | No. 02 Civ. 8796(SAS).,02 Civ. 8796(SAS). |
| Citation | 340 F.Supp.2d 464 |
| Parties | Colby Rae SANTORO, a minor by her Guardian Ad Litem, her Mother, Diana SANTORO and Diana Santoro, Plaintiffs, v. Lewis DONNELLY, Fairview Majestic Fireplace, Corp., and the Vermont Castings Majestic Products Co., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Robert M. Motta, Alison Reiss, Reiss & Motta, L.L.P., Chicago, IL, for Plaintiffs.
Craig Lamster, Galvano & Xanthakis, P.C., New York, NY, for Defendant/Third-Party Plaintiff Lewis Donnelly.
Jon D. Lichtenstein, Gordon & Silber, P.C., New York, NY, for Vermont Castings Majestic Products Co.
Scott P. Benjamin, Steven R. Sundheim & Assoc., L.L.C., White Plains, NY, for Fairview Majestic Fireplace, Corp.
Colby Rae Santoro ("Colby") and her mother, Diana Santoro ("Santoro") bring this diversity action against Colby's father, Lewis Donnelly; Fairview Majestic Fireplace, Corp. ("Fairview"); and The Vermont Castings Majestic Products Co. ("Vermont"). Colby alleges causes of action for negligence, strict products liability, and breach of warranty arising from a December 2001 accident in which she sustained injuries from touching the glass surface of Donnelly's fireplace heater. Santoro asserts claims for negligent infliction of emotional distress, loss of consortium, and a derivative claim for loss of services and to recover medical expenses, arising from the same accident.1 Donnelly brings claims as a third-party plaintiff against Fairview and Vermont for contribution and indemnification, negligence, strict products liability, and breach of warranty.2 Vermont now moves to preclude the testimony of Donnelly's expert witness, Dr. Robert I. Goldberg, and Colby's expert witness, W. Alan Bullerdiek, and for summary judgment pursuant to Federal Rule of Civil Procedure 56 as against plaintiffs and Santoro.3 For the reasons that follow, Vermont's motions are granted in part and denied in part.
Colby Rae Santoro is a three-year-old child bringing this action by and through her natural mother and Guardian ad Litem, Diana Santoro. Colby and Santoro are New Jersey residents.4 Lewis Donnelly is Colby's natural father and a citizen of New York.5 Fairview is a corporation organized under the laws of New York, which sells and installs gas fireplaces.6 Vermont is a manufacturer of gas fireplaces conducting business in New York.7
The following facts are either undisputed or presented in the light most favorable to plaintiffs.
Donnelly owns a general contracting construction company called Ashmar Development ("Ashmar").8 He has been in the construction business for approximately seven years and learned the trade through hands-on experience.9 In the past, Fairview has sold and installed wood burning fireplaces in Ashmar-built homes.10
Sometime in 2001, Donnelly purchased a house on Ferndale Avenue in Highland Mills, New York. The house was in poor condition when Donnelly bought it, so he undertook extensive renovations to make the house habitable. The work was done mostly by Ashmar contractors and by Donnelly himself. There were no fireplaces in the home when he purchased it. Donnelly wanted to install a gas fireplace because he thought it would be more convenient than a wood burning fireplace as it does not use wood or produce ash.11
Ashmar's office manager, Mary Petrillo, contacted Fairview to obtain a gas fireplace for Donnelly's home.12 When Petrillo placed the order, she gave Fairview the model number for a Vermont-manufactured gas fireplace heater.13 A fireplace heater has the dual purpose of providing a decorative gas flame to simulate a wood burning fireplace and of heating the room through the combustion of gas.14 The fireplace heater has a glass front enclosing the flames. Because of their business relationship, Fairview gave Donnelly the fireplace heater free of charge.15 When the thirty-six inch heater was delivered, Donnelly thought it was too small for the living room and therefore instructed Fairview to install it in his bedroom.16 Donnelly then purchased a forty-three inch fireplace heater for his living room ("fireplace heater"),17 which was also sold and installed by Fairview.18
Donnelly never read any warnings either in the instruction manual or on the tethered plate located inside the bottom control compartment of the fireplace heater.19 Nor did he receive any written or verbal instructions as to how to operate the fireplace heater.20 Nonetheless, Donnelly did not search for an instruction manual because the fireplace heater could be operated with a simple flip of a switch.21
Vermont's Installation Instructions and Homeowner's Manual contains the following warning:
Children and adults should be alerted to the hazards of the high surface temperatures of the fireplace and should stay away to avoid burns or ignition of clothing. Caution, due to high glass surface temperature children should be carefully supervised when they are in the same room as the fireplace.22
The tethered plate inside the fireplace heater reads:
CAUTION: HOT WHILE IN OPERATION. DO NOT TOUCH. SEVERE BURNS MAY RESULT. KEEP CHILDREN, CLOTHING, FURNITURE, GASOLINE AND OTHER LIQUIDS HAVING FLAMMABLE VAPORS AWAY.23
On December 22, 2001, Colby, then one year old, sustained burns on her hands, left forearm, and forehead after touching the glass cover of the fireplace heater in Donnelly's living room. The incident occurred during Colby's first visit to Donnelly's house.24 On the day of the accident, Donnelly was supervising Colby, as well as two eleven-year-old girls — his daughter, Ashley Donnelly and her friend, Brooke Sackaris.25 As he was unpacking groceries in the kitchen, Ashley asked him for permission to turn on the fireplace heater in the living room.26 Donnelly consented and told her how to light it.27 All three children were in the living room while Donnelly was in the kitchen.28 The fireplace heater was turned on. Within approximately ten minutes, Ashley ran into the kitchen holding Colby, which alerted Donnelly that Colby had been burned.29
Donnelly immediately took Colby to the nearest hospital, but she was transferred to Westchester County Medical Center ("WCMC") because it had a child burn unit.30 Upon being informed of the accident, Santoro met them at WCMC.31 Colby suffered serious second or third degree burns on both her hands, left forearm, and forehead.32 To treat the burns, Santoro had to scrub, clean, and bandage Colby's wounds at least twice a day for three months prior to Colby's release from the hospital, and she continued this routine for another month after the release.33 As part of the procedure, Santoro was required to scrub the burn areas until they bled to ensure that all the dead skin was removed from the damaged areas.34 Santoro's parents often needed to hold Colby down while Santoro changed the bandages.35
Colby was treated by multiple doctors, including an occupational therapist, a pediatrician, and a specialist in Maryland.36 Santoro also spoke to doctors about Colby's need for skin grafts on her hands and treatment from a child psychiatrist.37 Since the accident, Colby has suffered from, among other things, nightmares, loss of appetite, aggressiveness, and an obsession with hot and cold.38
Donnelly's medical insurance did not pay for many of Colby's treatment costs, and as a result, Santoro has spent almost ten thousand dollars out of pocket for medical treatment.39 In addition, Santoro was forced to stop working and delay finishing her education by one year in order to care for her daughter.40
Colby and Santoro instituted this action against Donnelly on October 2, 2002. Donnelly answered the Complaint and instituted a third-party action against Vermont and Fairview. Colby and Santoro thereafter amended their Complaint to assert claims against Vermont and Fairview, as well.
Vermont moves to exclude the testimony of Donnelly's expert, Dr. Robert I. Goldberg and Colby's expert, W. Alan Bullerdiek.
The proponent of expert evidence must establish admissibility under Rule 104(a) of the Federal Rules of Evidence by a preponderance of the proof.41
Federal Rule of Evidence 702 provides:
If 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.
In Daubert v. Merrell Dow Pharmaceuticals, Inc.,42 the Supreme Court defined the district court's gatekeeping role, requiring a court to determine whether an expert's scientific testimony satisfies Rule 702's general requirements of reliability and relevance.43 Originally intended to screen out "junk science," Daubert has been extended to apply to technical and other specialized knowledge.44 Rule 702 now incorporates Daubert's gatekeeping formulation by requiring district courts to ensure that "(1) the testimony is based upon sufficient facts and 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."
Under Rule 702 and Daubert, the trial judge must determine whether the evidence "both rests on a reliable foundation and is relevant to the task at hand."45 "The focus ... must be solely on the principles and methodology, not on the conclusion that they generate."46 To assess reliability, Daubert provides four non-exclusive criteria to apply to the expert's methodology: (1) whether the theory or technique can be, and has been, tested; (2) whether the theory or technique has been subjected...
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