Case Information
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SARAH SENCHYSHYN,
Plаintiff, -against- 6:17-CV-0162 (LEK/TWD) BIC SPORT NORTH AMERICA, INC . ,
Defendant. MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Sarah Senchyshyn brings this products liability action seeking compensation for injuries allegedly caused by a paddleboard she bought from defendant BIC Sport North America. Dkt. No. 1 (“Complaint”).
Presently before the Court is Defendant’s motion for summary judgment seeking dismissal of the Complaint in its entirety. Dkt. Nos. 53 (“Summary Judgment Motion”); 55-18 (“Statement of Material Facts” or “SMF”); 55-19 (“Memorandum”). Plaintiff opposes the motion. Dkt. Nos. 60 (“Response to SMF”); 60-1 (“Statement of Disputed Facts” or “SDF”); 61 (“Plaintiff Affidavit”); 61-1 (“Rao Affidavit”); 62 (“Opposition”). Defendant has filed a reply. Dkt. No. 65 (“Reply”). For the following reasons, the Court grants Defendant’s Summary Judgment Motion in part and denies the motion in part.
II. BACKGROUND
This action arises out of Plaintiff’s purchase and use of a paddleboard (“Board”) manufactured by BIC Sport SASU, a non-party. SMF ¶ 1. [1] Plaintiff, a New York resident, purchased the Board from Defendant in June 2016. SMF ¶ 7; Compl. ¶ 3. Defendant is a direct subsidiary of BIC Sport SASU and is the sole distributor of BIC Sport SASU’s products in the United States. SMF ¶ 2. Defendant is incorporated in and has its principal place of business in Massachusetts. Id. ¶ 3.
The Board consisted of a polystyrene core layered with fiberglass and resin, a fiberglass wrap, and a plastic skin. Id. ¶ 13. It was finished manually by a technician who visually inspected the Board and smoothed the seam with power tools. Id. ¶ 17.
Plaintiff used the Board for paddleboarding two to three times per day during the weeks after she purchased it. Id. ¶¶ 23–24. She would secure the Board to the roof of her car and remove it from the car by hand. Id. ¶ 25. About two weeks after beginning to use the Board, Plaintiff started feeling pain in both hands. Pl. Dep. at 138. At the time, she could not determine the cause of the pain and continued her paddleboarding routine. Pl. Aff. ¶¶ 18–19. Threе weeks into use, Plaintiff started to see some things “almost like a cactus” protruding from her fingers and would remove the protrusions with tweezers. Pl. Dep. at 144–45.
Due to the persistent pain, Plaintiff went to the emergency room on August 17, 2016 and reported two ulcers on her left hand at the base of her thumb and on her index finger. SMF ¶ 33. A healthcare worker suggested that she might have broken glass embedded in her hands, and Plaintiff agreed that it was possible. Pl. Aff. ¶ 20. An x-ray revealed no presence of foreign bodies. Id. ¶ 21. Plaintiff was then referred to the plastic surgery department and advised to wear gloves to protect her hands. Id. Several days later, Plaintiff visited a physician’s assistant, who conducted an excision procedure to remove the skin on Plaintiff’s left thumb and index finger. Id. ¶¶ 37, 40. But a biopsy of the excised skin did not reveal any foreign objects. Id. ¶ 40; Pl. Aff. ¶ 22.
Around this time, Plaintiff’s sister Aleah Homer observed “very small translucent whitish fibers sticking out of” Plaintiff’s fingers. Pl. Aff. ¶ 23. Plaintiff later determined that the Board was the source after observing “loose fibers” protruding from the seam. Id. ¶ 24. At a subsequent appointment on August 30, Plaintiff told the physician’s assistant of her discovery and was advised to stop using the Board. Id. ¶ 25; SMF ¶¶ 41–42. Plaintiff complied, but the pain got worse, and more fibers began working their way out of her hands. Pl. Aff. ¶ 26. About one week later, on September 9, Plaintiff reported two new ulcers on the right hand to her physician. SMF ¶ 43. At her next appointment, on September 27, Plaintiff reported that her hands were much better, but she still felt there was fiberglass in her fingers. Id. ¶¶ 45–48. Her physician advised that further excision was not recommended because the fiberglass would typically work itself out of her hands. Id. ¶ 46. In November, Plaintiff reported to her physician that she continued to have pieces of fiberglass coming out of her hands, despite not having used the Board for months. Id. ¶ 47.
Plaintiff did not return for another hand treatment until six months later. Id. ¶ 48. In June 2017, she visited her physician again regarding ongoing problems with both hands, at which time she presented a jar of materials she had removed from her skin. Id. ¶¶ 49–50. Plaintiff’s physician described the materials as “almost amber colored flex [sic] of fiberglass at least a tablespoon’s worth” and diagnosed Plaintiff at that visit with “questionable foreign objects, bilateral hands.” Id. ¶ 50; Russin Record at 22. In August, believing she still had fiberglass in her hands over one year since she had last used the Board, Plaintiff specifically asked her physician to excise the skin on her hands. Id. ¶ 52. A biopsy of the excised skin sample again did not detect any foreign bodies. Id. ¶ 53.
Plaintiff filed this lawsuit in February 2017, asserting nine causes of action: (1) strict products liability – manufacturing defect, (2) strict products liability – design defect, (3) strict products liability – failure to warn, (4) breach of express warranty, (5) breach of implied warranty, (6) negligent manufacture, (7) negligent design, (8) general negligence, and (9) punitive damages. Compl. at 4–14. After extensive discovery, Defendant moved for summary judgment on all causes of action in September 2019. Summ. J. Mot.; see also Docket.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 56 instructs courts to grant summary judgment if “there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under
the governing law,” and a dispute is “‘genuine’ . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
The party seeking summary judgment bears the burden of informing the court of the basis for the motion and identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party has failed “to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322.
In attempting to repel a motion for summary judgment after the moving рarty has met its
initial burden, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
IV. DISCUSSION
A. Choice of Law
As an initial matter, the Court must determine the governing law in this diversity action Compl. ¶ 1. Defendant argues that New York law applies here. Mem. at 1. Plaintiff does not contest this assertion, see Opp’n, and, in any event, the Court agrees with Defendant.
“A federal court sitting in diversity . . . must apply the substantive law of the state in
which it is sitting, including the state’s choice of law rules.” Young Men’s Christian Ass’n of
Plattsburgh v. Philadelphia Indem. Ins. Co., No. 18-CV-565,
Here, Plaintiff is a resident of New York, purchased the Board in New York, and was
injured in New York. Compl. ¶ 3; SMF ¶¶ 5–7, 29–57. While Defendant is incorporated in and
has its principal place of business in Massachusetts, it does business in New York and is subject
to jurisdiction here. Mem. at 1. The Court therefore applies New York substantive law. See e.g.,
Colon v. Multi-Pak Corp.,
B. The Merits of Defendant’s Summary Judgment Motion
To establish a prima facie case regarding any theory of products liability under New York
law, a plaintiff must show that “the product at issue was defective” and it was “the actual and
proximate cause of the plaintiff’s injury.” Lara v. Delta Int’l Mach. Corp.,
1. Admissibility of Rao’s Expert Report
Defendant objects to both the form and the substance of Rao’s report. Mem. at 13; Reply
at 2. With regard to the form, Defendant characterizes Rao’s opinion as “speculation,” given that
“[n]owhere in [Rao’s] expert reports did he offer his conclusions or opinions to a reasonable
degree of certainty.”
[2]
Mem. at 13. The Court finds this argument unavailing. An expert witness
need not express their opinion “in term of the particular combination of magical words
rеpresented by the phrase ‘reasonable degree of [] certainty,’” as long as it conveys “equivalent
assurance that it was not based on either supposition or speculation.” Ongley v. Mount Sinai
Health Sys., Inc., No. 14-CV-3360,
On the substance, Defendant notes that Rao chose to disregard the chemical analysis of one of the two fibers he tested. [3] Mem. at 11–12; Reply at 2; Rao Report, Part 2 at 38. The result of Rao’s test of that fiber showed only carbon and oxygen, inconsistent with the composition of fiberglass. [4] See Reply at 2. Defendant further notes that only fibers that were perpendicular, rather than parallel to the Board’s seam, could potentially become dislodged and impact Plaintiff’s hands. Id. (citing Rao Dep. at 98, 117). And since Rao disregarded the only perpendicular fiber he tested, Defendant argues that Rao’s report is not probative on whether the Board was defective for containing loose fiberglass in the seam. Id.
After reviewing Rao’s deposition testimony, the Court finds that Defendant’s reading runs counter to the record. While Defendant’s counsel seemed to suggest otherwise, Rao clarified during the deposition that he was “not necessarily distinguishing the hand contact with those two different types of fibers,” maintaining that both perpendicular and horizontal fibers could beсome dislodged. Rao Dep. at 118. In fact, Rao testified that perpendicular fibers were just horizontal fibers “further loosened by repeated contact.” Id.
Moreover, upon review of Rao’s expert report, the Court does not find any “serious flaws
in reasoning and methodology” that would warrant exclusion. See Scott v. Chipotle Mexican
Grill, Inc.,
Nor does the Court find analogous the cases cited by Defendant in support of their
argument that Rao’s testimony should be excluded. For instance, in June v. Lift-A-Loft Equip.,
Inc., the court disregarded expert testimony “devoid of any factual basis” and consisting solely of
a statement that “it was possible . . . for two chain anchor bolts to [] break.” No. 88-CV-1205,
2. Whether the Board Was Defective Defendant argues that summary judgment is appropriate because Plaintiff cannot raise a triable issue of fact that the Board was defective. For the following reasons, the Court disagrees.
To prevail on a products liability claim, plaintiffs must show that “the product was in
some manner defective.” June,
Defendant has satisfied its initial burden to show that the Board was not defective by offering the testimony of engineer Eugene Camerota and Defendant’s vice president, Chris DeCerbo. See Camerota Report; DeCerbo Dep. Camerota states that the design and manufacturing of the Board followed a “state of the art process” and constituted “good engineering practice,” see Camerota Report at 3–4, and DeCerbo testified that he was unaware of any other customer who has had a problem similar to Plaintiff’s. DeCerbo Dep. at 109; see also New York Cent. Mut. Fire Ins. Co. v. Electrolux Home Prod., Inc., No. 18-CV-294, 2020 WL 1151460, at *3 (W.D.N.Y. Mar. 9, 2020) (finding that the defendant made a prima facie showing that a product was not defective where a products safety engineer testified that the manufacturing process “represent[ed] the state-of-the-art” and found “no reports of substantially similar incidents”).
The burden then shifts to Plaintiff to “demonstrate a triable issue of fact as to whether a
defect nevertheless existed.” Tedone v. H.J. Heinz Co.,
Rao based his conclusion on the following information and analysis. According to Defendant’s marketing materials, the construction of the Board involved “sandwiсhing” a fiberglass wrap between two plastic layers. Rao Aff. ¶ 13. Visual inspection revealed that there was a gap in the Board seam between the top and bottom layers and that there were exposed fibers in multiple regions. Id. ¶ 17. During the manufacturing process, the technicians used a power router and hand sander to “finish” the Board, which would result in breakage and loosening of the exposed fiberglass in the seam. Id. ¶¶ 27, 29. And because fiberglass fibers are extremely thin and soft, the technicians were unlikely to spot or feel the fibers during their visual and hand inspection. Id. ¶ 28. Upon testing fibers extracted from Plaintiff’s hands and the Board seam, Rao concluded that the elemental composition of the two fibers was identical and consistent with that of fiberglass. See Rao Report, Part 2 at 78–79. A reasonable jury could credit Rao’s testimony and conclude that the Board was defective.
3. Whether the Board Caused Plaintiff’s Injuries Defendant also argues that summary judgment is appropriate because Plaintiff has failed to show causation. See Mem. at 18–24. Defendant maintains that Plaintiff cannot show that the Board caused her injuries because (1) there was no fiberglass in Plaintiff’s hands and (2) even if there was, her injuries were unrelated to fiberglass. Id.
“[W]hether the action is pleaded in strict products liability, breach of warranty or
negligence, it is a consumer’s burden to show that a defect in the product was a substantial factor
in causing injury.” Tardella v. RJR Nabisco, Inc.
,
a. Whether There Was Fiberglass in Plaintiff’s Hands Contrary to what Defendant asserts, the Court finds that Plaintiff has raised a triable issue of fact as to whether there was fiberglass in her hands. Defendant first points out that, during the course of Plaintiff’s treatment, no medical provider observed foreign bodies in Plaintiff’s hands. See Mem. at 18–19. But Plaintiff testified that she and her sister observed “small translucent whitish fibers” sticking out of her hands, which she removed with tweezers. Pl. Aff. ¶ 23. She collected the removed materials in a jar and presented it to her physician, who documented the materials as “questionable foreign bodies, bilateral hands.” SMF ¶ 50; Resp. ¶ 50.
Defendant further notes that Reitman, its materials expert, did not identify fiberglass in Plaintiff’s hand samples. However, Plaintiff’s materials expert determined that the hand samples contained fibers of the same type as the samples from the Board and that their composition was very similar to that of fiberglass. [5] See Opp’n at 13; Rao Report, Part 1 at 46. Accordingly, a reasonable jury could conclude that there was fiberglass in Plaintiff’s hands.
b. Whether Fiberglass Caused Plaintiff’s Injuries Defendant next argues that even if some fiberglass was in Plaintiff’s hands, there is no evidence causally connecting her injuries to fiberglass exposure. Mem. at 21. Here, the Court agrees, at least with respect to Plaintiff’s physical injuries, including pain, ulcerations, and nerve damage.
The mere existence of foreign objects in a plaintiff’s body is not a sufficient basis from
which to infer causation—the plaintiff must also show that those foreign bodies caused her or his
injuries. See e.g., Davila v. Gоya Foods, Inc., No. 05-CV-8067,
Defendant argues that Plaintiff has failed to bridge that gap, noting that Dr. Ramsay Farah, an independent medical еxaminer, opined that Plaintiff’s “injuries are not causally related to the alleged [fiberglass] exposure.” See Mem. at 20; Farah Report at 6–8. Dr. Farah based his opinion on discrepancies between Plaintiff’s injuries—specifically with regard to symptoms, location, and duration—and injuries that would ordinarily result from fiberglass exposure. See Farah Report at 6–8. Defendant also argues that the only evidence Plaintiff relies on to establish causation is inadequate, namely the testimony of her two treating physicians, Dr. David Griger and Dr. John Russin. Mem. at 20. Specifically, Defendant contends that because neither physician was disclosed as an expert, they may not provide testimony as to the cause of Plaintiff’s injuries beyond the scope of their treatment of Plaintiff, during which neither identified any foreign bodies in Plaintiff’s hands. Id. Moreover, Defendant asserts that the
physicians “merely said it was possible that [Plaintiff’s] injuries were from fiberglass exposure.” Id. (emphasis in original).
Plaintiff responds that “[a]lthough neither [physician] personally observed any foreign bodies in [Plaintiff’s] hands, they both testified that [her] hand and finger irritation and lesions were consistent with exposure to fiberglass.” Opp’n at 13. Plaintiff does not argue that the physicians’ testimony should be broadly admissible, [6] nor does she adduce any additional evidence on causation. [7] See Opp’n at 13. The Court now discusses why the physicians’ testimony has failed to bridge the gap between Plaintiff’s injuries and the fiberglass in her hands, and, thus, is insufficient to defeat summary judgment.
i. Dr. Griger’s Testimony
Upon review of the physicians’ deposition testimony, the Court finds that the parties’
consensus that the physicians only testified that Plaintiff’s injuries were “consistent with” and
“possibl[y]” caused by fiberglass is not accurate with regard to Dr. Griger. See Opp’n at 13;
Mem. at 20; Griger Dep. at 15, 25, 36. Dr. Griger testified that, when he treated Plaintiff, he
came to the conclusion that “a foreign body reaction to the fiberglass fibers that were embedded
in the skin” caused the lesions on Plaintiff’s hands. Griger Dep. at 25. He reached this conclusion
by “reviewing [] notes from [Plaintiff’s] hand surgeon,” “seeing [Plaintiff’s] hands,” and “getting
her history.” Griger Dep. at 25. While such testimony might serve to defeat summary judgment
under other circumstances, it cannot here, because, for the following reasons, Dr. Griger’s
testimony is inadmissible. Discover Fin. Servs. v. Visa U.S.A., Inc.,
“concedes through silence” in an opposition brief), aff’d sub nom. City of Pontiac Policemen’s &
Firemen’s Ret. Sys. v. UBS AG,
As an initial matter, the Court notes that Dr. Griger was not designated as an expert
witness, nor did Plаintiff provide an expert report or summary for him pursuant to Rule
26(a)(2)(B) or (a)(2)(C). See Docket; Fed. R. Civ. P. 26(a)(2)(B)–(C). It is well established that
“[t]reating physicians do not need to be designated as experts in order to testify.” Reilly v.
Revlon, Inc., No. 08-CV-205,
However, even to the extent that Dr. Griger’s causation opinion relies on his observations
of Plaintiff’s hands and her history, that opinion must be excluded as unreliable. “[W]hen the
treating physician seeks to render an opinion on causation, that opinion is subject to the same
standards of scientific reliability that govern the expert opinions of physicians hired solely for the
purposes of litigation.” Davids v. Novartis Pharm. Corp.,
As noted above, Dr. Griger “review[еd] the notes from the plastic surgeon, talk[ed] with
[Plaintiff], and [observed] the lesions on her hands,” though he did not personally observe any
foreign bodies in Plaintiff’s hands. Griger Dep. at 36. Based on this evidence, Dr. Griger
concluded that foreign bodies caused an “inflammatory reaction” in Plaintiff’s hands. See id. at
15, 25, 36. But such testimony is unreliable for three reasons. First, Dr. Griger’s conclusion is
not based on sufficient facts or data. See Fed. R. Evid. 702. He could not recall what the
surgeon’s notes said and was not sure if the surgeon had concluded there were foreign bodies in
Plaintiff’s hands or if the surgeon had performed a biopsy. Griger Dep. at 16, 26. The Court is
unable to verify whether the notes corroborated his opinion. See Robinson v. Suffolk Cty. Police
Dep’t, No. 08-CV-1874,
Considering the insufficient basis for the testimony and the thin reasoning and
methodology, the Court concludes that “there is simply too great an analytical gap betwеen the
data and the opinion proffered.” Gen. Elec. Co.,
ii. Dr. Russin’s Testimony
Dr. Russin’s testimony, if admitted, is also insufficient to defeat summary judgment. He
testified that “the history [Plaintiff] provided could be very consistent with fiberglass irritation in
the hand,” but he could not “conclude specifically what could have been [the cause of her hand
complaints].” Russin Dep. at 44. He further explained that Plaintiff’s injuries might have
stemmed from other causes. See e.g., id. at 22, 40 (“[The inflammation] could certainly [mean
something] other than a foreign body . . . . Just because people have numb fingers, you can’t
blame one thing. There could be other reasons. We see рeople every day with numb fingers who
have never had contact with fiberglass.”). Nowhere in his testimony did Dr. Russin conclude, to
a reasonable degree of medical certainty, that fiberglass caused Plaintiff’s injuries. See generally
Russin Dep. Therefore, his testimony does not raise a triable issue of fact as to causation. See
e.g., In re Gen. Motors LLC Ignition Switch Litig., No. 14-CV-5810,
c. Conclusion
As noted, the only evidence Plaintiff offers to prove that her injuries were caused by
fiberglass, other than the mere existence of it in her hands, is the testimony of the two physicians.
And since Dr. Griger’s testimony is excluded as unreliable and Dr. Russin’s is insufficient to
raise a triable issue of fact, Plaintiff has failed to present evidence from which a reasonable jury
could conclude that fiberglass caused the injuries to her hands. Accordingly, summary judgment
is warranted because Plaintiff has failed to raise a genuine issue of material fact concerning a
critical element in this case. See e.g., Davila,
However, the Court notes that in her Complaint, in addition to pain, nerve damage,
scarring, and other physical injuries, Plaintiff also alleges that she has suffered depression.
Compl. ¶ 17. And in her response to Defendant’s interrogatories, Plaintiff confirms that she
“suffered psychological and emotional injury.” Interrog. at 2. Since Defendant’s Summary
Judgment Motion is entirely silent on Plaintiff’s emotional injuries, the Court cannot dispose of
Plaintiff’s claim in its entirety. See Davila,
4. Other Issues Raised by Defendant
a. Design Defect
Defendant argues that Plaintiff cannot prevail under a defective design theory sounding in
either strict liability or negligence because she has provided no evidence that a safer design was
feasible. Mem. 14–15, 22–23. Under New York law, claims premised on design defect sounding
in either strict liability or negligence are “functionally equivalent.” O’Neil v. Argon Med.
Devices, Inc., No. 17-CV-640,
b. Failure to Warn
Defendant argues that Plaintiff cannot prevail on her failure to warn claim because
Defendant was not aware of any danger from fiberglass posed by the product. Mem. at 15. Under
New York law, to prevail on a claim for failure to warn, a plaintiff must demonstrate that “(1) a
manufacturer has a duty to warn (2) against dangers resulting from foreseeable uses about which
it knew or should have known, and (3) that failure to do so was the proximate cause of the
harm.” Rosen v. St. Jude Med., Inс.,
c. Breach of Express Warranty
Defendant argues that Plaintiff cannot prevail under breach of express warranty because
“even if she was aware of any warranty, [she] did not rely on it in making her purchase. Mem. at
16. “New York breach of express warranty claims require (i) a
material statement
amounting to a
warranty; (ii) the buyer’s
reliance
on this warranty as a basis for the contract with his immediate
seller; (iii) the
breach
of this warranty; and (iv) injury to the buyer
caused
by the breach.” Avola
v. Louisiana-Pac. Corp.,
d. Punitive Damages
Defendant argues that Plaintiff is not entitled to punitive damages because there is no
evidence that Defendant did anything intentional or outrageous that would warrant punitive
damages.
[9]
Mem. at 17. Because Plaintiff makes no mention of punitive damages in her
Opposition, the Court finds that Plaintiff has abandoned this claim and grants summary judgment
for Defendant. See Dark Storm Indus. LLC v. Cuomo, No. 20-CV-360,
V. CONCLUSION Accordingly, it is hereby:
ORDERED , that Defendant’s Summary Judgment Motion (Dkt. No. 53) is GRANTED in part and the following causes of action are DISMISSED in their entirety : strict products liability – design defect; strict products liability – failure to warn; negligent design; breach of express warranty; and punitive damages; and it is further
ORDERED , that the following causes of action are DISMISSED in part as to Plaintiff’s physical injuries but may proceed as to her emotional or psychological injuries: strict products liability – manufacturing defect; negligent manufacture; general negligence; and breach of implied warranty; and it is further
ORDERED , that the Clerk shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED: August 05, 2020
Albany, New York
Notes
[1] Where the Court cites only to the SMF, those facts were undisputed by Plaintiff. In the course of this opinion, the Court also relies on the following materials: Dkt. Nos. 53-4 (“Interrogatories”); 53-5 (“Plaintiff Deposition”); 53-7 (“Griger Depоsition”); 53-8 (“DeCerbo Deposition”); 53-10 (“Russin Deposition”); 54-1 (“Griger Record”); 54-2 (“Russin Record”); 54- 4 (“Rao Deposition”); 54-5 (“Rao Report, Part 1”); 54-6 (“Rao Report, Part 2”); 55-3 (“Reitman Report”); 55-4 (“Camerota Report”); 55-9 (“Farah Report”).
[2] Defendant also highlights that Rao wrote in his report “the presence of loose fibers . . .
potentially
indicates that the board seam rail was not properly finished.” Mem. at 13 (emphasis
in original) (citing Rao Report, Part 2 at 5). But the Court notes that Rao omitted the word
“potentially” in his affidavit in response, bolstering the certainty of his conclusion. See Rao Aff.
¶ 30; see also White v. ABCO Eng’g Corp.,
[3] Rao explained that he excluded the result as unreliable because “the extremely
disjointed, blurry and unclear image of the analyzed fiber [] prevented the detection of lower
elemental counts from the fiber.” Rao Aff. ¶ 31. Defendant appears to argue that the result is in
fact reliable and, thus, undermines Rao’s analysis, see Reply at 2 (suggesting that Rao’s analysis
conclusively “demonstrate[d] that the fiber in question was not fiberglass”), but points to nothing
to counter Rao’s description of the fiber’s image or address his concerns about the result’s
reliability, see id. (failing to discuss or acknowledge Rao’s concerns about the quality of the
image of the fiber); Mem. at 11–12 (same). Under the circumstances, the Court is hard-pressed to
find that Rao’s whole report is inadmissible for excluding that test, particularly where Defendant
does not question the reliability of the test Rao did include. Accordingly, to the extent Defendant
believes Rao should have included the second test rеsult in his report, that concern goes to the
weight of Rao’s report and does not bear on the admissibility of Rao’s report or, more broadly,
the merits of Defendant’s Summary Judgement Motion. See e.g., Hayes v. New York City Dep’t
of Corrections,
[4] “[A] fiber with a high proportion of silicon compared to carbon, along with elements such as oxygen, calcium and aluminum, often indicates glass, while a dominant carbon peak and notable oxygen peak . . . generally indicates a polymeric fiber such as polyester or cotton.” Reitman Report at 6.
[5] Defendant again argues that Rao’s conclusion is speculative and “[t]he best he could do
was to conclude that [the fiber from Plaintiff’s hand sample] ‘aрpeared to be’ fiberglass.” Mem.
at 19 (citing Rao Dep. at 86). However, a careful review of the transcript indicates that Rao
meant that the fiber in Plaintiff’s hands matched the elemental composition of the fiber from the
Board seam, which “appeared to be” glass fiber. See Rao Dep. at 81–86 (“Essentially the
elements that were noted in the [hand sample] analysis matched the main elements that constitute
[] glass, as well as the diameter and morphology of the glass, [and] of the fiber appeared to be
glass fiber in this case.”). In any event, arguments questioning the reliability of expert testimony
solely on the basis of semantics are unavailing, as discussed above. Harris v. Kem Corp., No. 85-
CV-2127,
[6] Plaintiff concedes this point by failing to address it in her Opposition. See e.g., Cole v.
Blackwell Fuller Music Publ’g, LLC, No. 16-CV-7014,
[7] Plaintiff does mention in her Opposition that her family members and a physician’s assistant observed fibers in her hands and that her materials expert Rao has identified fiberglass in the Board seam and in Plaintiff’s hands. Opp’n at 13–14. However, such evidence is not probative on the connection between Plaintiff’s injuries and the alleged fiberglass exposure, given that the Court has already determined that Plaintiff has raised a triable issue of fact as to whether fiberglass was embedded in Plaintiff’s hands.
[8] Defendant has raised two potential alternative causes of Plaintiff’s injuries. First, Dr. Farah opined that “the injuries suffered by [Plaintiff] were not caused by fiberglass, but were rather factitial in nature.” Farah Report at 6. “Factitial dermatitis [] is a condition in which skin lesions are solely produced or inflicted by the patient’s own actions.” Id. Second, before Plaintiff relayed her suspicions that the Board was the source of the things under her skin, a healthcare worker opined that Plaintiff might have broken glass embedded in her hands. Pl. Aff. ¶ 20. Plaintiff admitted that “it may be possible as, with four children, things occasionally would be broken.” Id. But Dr. Griger made no effort to rule out alternative explanations such as these.
[9] Defendant also argues that because the underlying causes of action are dismissed, the claim for punitive damages must likewise be dismissed. Mem. at 17. Since the Court does not dismiss all of Plaintiff’s causes of action, this argument is unavailing.