Wurtzel v. Starbucks Coffee Co., 01CV0324TCPMLO.

• Decision Date: 11 April 2003
• Docket Number: No. 01CV0324TCPMLO.,01CV0324TCPMLO.
• Citation: 257 F.Supp.2d 520
• Parties: Deborah WURTZEL, Plaintiff, v. STARBUCKS COFFEE COMPANY, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 520

257 F.Supp.2d 520

Deborah WURTZEL, Plaintiff, v. STARBUCKS COFFEE COMPANY, Defendants.

No. 01CV0324TCPMLO.

United States District Court, E.D. New York.

April 11, 2003.

Jeremy J. Deutsch, Deutsch, Tane, Waterman & Wurtzel, New York City, for Deborah Wurtzel, plaintiff.

George N. Tompkins, Jr., George N. Tompkins, III, Schnader Harrison Segal & Lewis, LLP, New York City, for Starbucks Coffee Company, defendant.

MEMORANDUM AND ORDER

PLATT, District Judge.

Defendant Starbucks Coffee Company ("Starbucks" or "Defendant") moves for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, dismissing the Complaint of Plaintiff Deborah Wurtzel ("Wurtzel" or "Plaintiff). Defendant also seeks to preclude the testimony of Plaintiffs proposed expert, Robert I. Goldberg, Ph.D., based on the criteria set forth in Rule 702 of the Federal Rules of Evidence.

The Court heard oral arguments on March 14, 2003. For the following reasons, Dr. Goldberg's testimony is inadmissible and Defendant's Motion for Summary Judgement is GRANTED.

BACKGROUND

A. The Parties

Plaintiff is a resident of East Meadow, New York. Starbucks is a corporation existing under the laws of the State of Washington and maintains its principal place of business in Seattle. Starbucks operates a retail store at 1228 Hempstead Turnpike in Uniondale, New York (the "Store").

B. Factual Background¹

This is a coffee-spill case. Plaintiff claims that she was injured when hot coffee spilled onto her as she making a right hand turn while driving in her car. Plaintiff contends that her injuries were caused by the negligence of Starbucks, who she claims failed to properly secure the lid to her coffee cup.²

On June 26, 1999, Plaintiff drove her convertible to the Store and parked her vehicle. Plaintiff then entered the Store and ordered a large, black brewed coffee and a large, iced coffee. Plaintiff requested flat, top lids for both drinks, "because [they were] to go." (Pl.Dep. Tr. 24). Plaintiff did not request either a bag or a tray to carry her beverages because she assumed they were located at the condiment bar.

When she received the coffee cups from the Starbucks employee, the lids were already placed on them. After she received the coffee cups, she walked over to the condiment bar. No coffee spilled from either cup. Plaintiff testified that she never opened the lid of the black coffee cup at the condiment bar. After realizing that there were no trays or bags at the condiment bar, Plaintiff did not request either from the counter due to the long line.

Plaintiff then walked across the parking lot to her car, carrying the black coffee cup in her right hand and the iced coffee in her left hand. Once again, no coffee spilled from either cup. Plaintiff also testified that she did not notice that the lid of her cup was insecure. (Pl.Dep. Tr. 67-68.)

When she arrived at her car, the top of the car was open, and she leaned into the car in order to place the black coffee into the vehicle's cup holder. The cup holder was located in a closed, covered console between the two front seats. While still holding the iced coffee in her left hand and the black coffee in her right hand, she opened the console cover with her right hand and placed the black coffee in the cup holder. The console had a "little latch" which releases without the assertion of pressure. (Pl.Dep. Tr. 52-53.) Plaintiff inserted her pinky into the latch and popped it back. Once again, no coffee spilled from either cup and Plaintiff did not notice anything amiss with the lid to the coffee cup.

Plaintiff then entered the car and placed the iced coffee on the passenger seat. Plaintiff then drove her car out of the Starbucks parking lot and proceeded East on Hempstead Turnpike en route to her home. She testified that she normally drives approximately 40 miles per hour on Hempstead Turnpike on weekends. (PI. Dep. Tr. 60.)

While she was making a right hand turn onto Coolidge Drive, Plaintiff downshifted her transmission and applied her brakes. (Pl.Dep. Tr. 62-64.) As she was turning, she reached over and placed her right hand on the iced coffee to prevent it from tipping. (Pl.Dep. Tr. 95.) During this time the hot black coffee spilled onto Plaintiffs right leg, right buttock and the back portion of her left leg. Plaintiff did not see the coffee spill and does not know how much coffee came out of the cup.

At her deposition, Plaintiff testified that the cup "tilted" in the cup holder, but did not actually fall out of it. (Pl.Dep. Tr. 115.) However, according to the notes of one of Plaintiffs treating physicians, Dr. Barry Douglas, Plaintiff gave a different account of the incident. (Tompkins Decl., Ex. H at 10.) Dr. Douglas's notes, taken during his initial consultation with Plaintiff, state that "and upon turning a corner the cup overturned, spilling the scalding coffee all over [Plaintiffs] right upper thigh." (Tompkins Decl., Ex. H at 10.) According to a letter written from Dr. Douglas to Dr. Adler, "[t]he [Plaintiff] gives a history of spilling scalding water when her hot coffee fell out of the cup holder." (Tompkins Decl., Ex. I.)

Plaintiff testified that she never looked at the lid of the black coffee to see if it was securely fastened before the alleged accident and that she does not know that the lid was not, in fact, secured when she left Starbucks.

C. Plaintiffs Proposed Expert

Plaintiff has retained Dr. Goldberg in order to support her position that the lid was not secured. Defendant argues that Dr. Goldberg's testimony should be excluded because he does not meet the criteria set forth in Rule 702 of the Federal Rules of Evidence.

According to Dr. Goldberg's report and deposition testimony, he performed the following tests:

I filled the container with boiling hot water, carefully attached the plastic cover and pressed it down over the container's lip entirely around the circumference. Then, wearing rubber gloves, I turned the filled container up-side down. Holding it in a vertical position over a tub, I shook it for a count of twenty, slowly within twelve inches. The only leakage was from the tiny steam hole in the lid and this small amount stopped after several shakes.

Then, emptying and refilling the cup, I pushed the lid only partly closed making sure that at least fifty percent of the cap was engaged around the container. Changing the procedure, I tipped the cup about fifteen degrees. Some drops of hot water leaked from the steam hole but quickly the pressure of the water pushed the lid off the container and the hot water spilled into the basin.

(Tompkins Decl., Ex. F; Tompkins Decl., Ex. E at 246-52.)

Dr. Goldberg's report also stated:

When the seal between the lid and the container is not tightly fitting, under normal handling circumstances, the hot coffee within the container will tilt toward the opened side, exert pressure against the partly opened lid and force it open much wider. This is the sequence that develops into a substantial spill ...

From my knowledge of containers and the tests performed on the closures as noted above, it is my professional opinion that the spill of hot coffee was entirely the result of improper closing of the lid on to the container. The unsuspecting Plaintiff, expecting to receive a properly closed coffee container, was given one that was only partly closed. From outward appearance, a partly closed container may looked sealed, but the lid only touches the container, it does not go over and seal against the rolled top edge of the container.

(Tompkins Deck, Ex. F)(emphasis added).

Dr. Goldberg testified that he never reviewed the Complaint or any deposition transcripts, and that he never met with or spoke to the Plaintiff about how the alleged accident occurred. (Tompkins Decl, Ex. E at 17-22, 136.) Dr. Goldberg's knowledge of the facts were derived exclusively with phone conversations with Plaintiffs counsel. Plaintiffs counsel did not give Dr. Goldberg, "much information" about how the alleged incident occurred. (Tompkins Decl, Ex. E at 135-136.)

For example, Dr. Goldberg did not know that Plaintiffs alleged accident occurred in an automobile or that the cup was in a cup holder. (Tompkins Decl, Ex. E at 137-138.) Consequently, he did not inspect the vehicle in which the accident occurred or a similar automobile. Dr. Goldberg made no attempt to recreate the alleged accident.

In addition, Dr. Goldberg did not know that the incident occurred while the automobile was making a turn, nor did he take into account the rate of speed. He acknowledged that these additional forces were not taken into account when performing his testing.

Dr. Goldberg also testified that the depth of the cup holder, the location of the cup holder and the diameter of the cup holder would be relevant to his analysis, specifically the amount of the deflection caused by the cup holder. (Tompkins Decl, Ex. E at 138-141.) However, according to Dr. Goldberg there would be no deflection caused by the cup holder, "since the diameter of the base is, from my recollection of size, would certainly be small providing a space around the cup so therefore there would be no pressure on the cup by the holder." (Tompkins Decl, Ex. E at 143.)

D. Procedural History

Plaintiff filed a Summons and Complaint dated December 18, 2000, in the Supreme Court of the State of New York, Nassau County. On January 19, 2001, Starbucks removed the action to this Court, pursuant to 28 U.S.C. §§ 1332 and 1441, and Defendant also filed an Answer on that date.

The Complaint alleges that after Plaintiff purchased coffee from Starbucks, "Starbucks negligently failed to secure the lid to the cup of coffee or provide a bag or tray to store the coffee even though Plaintiff clearly stated that the coffee was to go." (Tompkins Decl, Ex. A.) Plaintiff alleges that she suffered severe physical injuries, including permanent disfigurement and scarring to her leg. She seeks $250,000...