Federal District Court Opinions

DEMAR v. D.L. PETERSON TRUST, (N.D.N.Y. 10-13-2006) AMY
DEMAR, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF
PAUL J. SIRIANNI AND ADMINISTRATRIX OF THE ESTATE OF GLORIA
M. SIRIANNI, Plaintiff, v. D.L. PETERSON TRUST, Defendant.
1:05-cv-0103. United States District Court, N.D. New York.
October 13, 2006

DECISION and ORDER

THOMAS McAVOY, District Judge

Plaintiff commenced the instant action against the D.L.
Peterson Trust asserting claims of negligence and seeking
to recover damages for personal injury to Plaintiff Amy
Demar and for the wrongful death of Paul and Gloria
Sirianni. Currently before the Court are cross-motions
seeking to preclude certain expert testimony. Defendant
moves to preclude: (1) Dr. Abraham Phillip from offering an
opinion on the issue of the effect of seatbelt use; and (2)
Plaintiffs’ rebuttal experts (Robert Burns and David
Gushue) from testifying at all. Plaintiff moves to preclude
Defendant’s seatbelt expert, Thomas Lacek, and to dismiss
the seatbelt defense.

I. FACTS

Defendant D.L. Peterson Trust (the “Trust”) owned a
certain Ford Explorer motor vehicle. The Trust leased the
vehicle to GlaxoSmithKline, the employer of Plaintiff Amy
Page 2 DeMar. On July 30, 2004, Plaintiff’s spouse, Randy
DeMar, was operating the vehicle eastbound on the New York
State Thruway in the Town of Montezuma, County of Cayuga,
State of New York. Randy DeMar was seated in the driver’s
seat. Amy DeMar was seated in the passenger’s seat. Both
driver and front seat passenger were wearing seat belts.
Paul and Gloria Sirianni were seated in the back seat of
the vehicle. Neither of them were wearing a seat belt.

At approximately 1:00 p.m., the vehicle left the road,
traveled over the rumble strips on the side of the road,
entered the median, and then rolled over several times
before coming to rest upside down. Paul and Gloria Sirianni
were ejected from the vehicle. Paul Sirianni never regained
consciousness and was pronounced dead at the scene.

Plaintiff then commenced the instant action on behalf of
herself and as administratrix of the estates of Paul
Sirianni and Gloria Sirianni.

II. STANDARD OF REVIEW

The admissibility of expert testimony is governed by Rule
702 of the Federal Rules of Evidence. That Rule provides as
follows:

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, 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.

Fed.R.Evid. 702.

In reviewing the admissibility of expert testimony, “the
district court has a `gatekeeping’ function under Rule 702
— it is charged with `the task of ensuring that an
expert’s testimony both rests on a reliable foundation and
is relevant to the task at hand.'” Page 3 Amorgianos v.
Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir.
2002) (quoting Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 597, 113 S.Ct. 2786 (1993)).

As the Second Circuit has explained:

In fulfilling this gatekeeping role, the trial court
should look to the standards of Rule 401 in analyzing
whether proffered expert testimony is relevant, i.e.,
whether it has any tendency to make the existence of any
fact that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence. Next, the district court must
determine whether the proffered testimony has a
sufficiently reliable foundation to permit it to be
considered. In this inquiry, the district court should
consider the indicia of reliability identified in Rule
702, namely, (1) that the testimony is grounded on
sufficient facts or data; (2) that the testimony is the
product of reliable principles and methods; and (3) that
the witness has applied the principles and methods
reliably to the facts of the case. In short, the district
court must make certain that an expert, whether basing
testimony upon professional studies or personal
experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field.

Amorgianos, 303 F.3d at 265 (internal alterations,
quotations, and citations omitted). “In undertaking this
flexible inquiry, the district court must focus on the
principles and methodology employed by the expert, without
regard to the conclusions the expert has reached or the
district court’s belief as to the correctness of those
conclusions.” Id. “In deciding whether a step in an
expert’s analysis is unreliable, the district court should
undertake a rigorous examination of the facts on which the
expert relies, the method by which the expert draws an
opinion from those facts, and how the expert applies the
facts and methods to the case at hand. A minor flaw in an
expert’s reasoning or a slight modification of an otherwise
reliable method will not render an expert’s opinion per se
inadmissible. The judge should only exclude the evidence if
the flaw is large enough that the expert lacks good grounds
for his or her conclusions.” Id. (internal quotations and
citation omitted). Page 4

III. DISCUSSION

a. Dr. Abraham Phillip

The first dispute is over Plaintiff’s expert, Dr. Abraham
Phillip. Dr. Phillip is pathologist employed by the
Onondaga County Medical Examiner’s Office. It is clear that
Phillip has extensive experience in performing autopsies,
including autopsies performed on people who have died in
car accidents. As such, Phillip is familiar with the types
and manner of injuries sustained by persons in car
accidents. Phillip certainly would be qualified to testify
as to the cause of the injury; that is, whether it was
caused by a blunt impact or other means. For the reasons
that follow, the Court remains doubtful, however, that
Phillip should be permitted to testify concerning the
seatbelt defense and whether the use of a seatbelt could
have, or would have, lessened the injuries in this case.
The Court similarly has doubt whether Phillip has provided
an adequate basis for his conclusions as to how the
decedents sustained blunt injury (e.g. striking the roof of
the vehicle and/or striking the rear of the front seats)
and whether the use of seatbelts would have lessened and/or
prevented these injuries.

Phillip conducted the autopsies on the decedents and
prepared the autopsy reports. Phillip concluded that Paul
Sirianni sustained a head injury when his body was
propelled against the roof of the car. The apparent basis
of this conclusion is because of a laceration to Paul
Sirianni’s forehead, with abrasions and contusions to the
face. Phillip further concluded that Paul Sirianni
sustained his chest and hand injuries when his body hit the
back side of the vehicle’s front seat. Phillip did not know
the type of front seat in the vehicle. Phillip stated that
Gloria Sirianni sustained her injuries when she struck the
back of the front seat of the car. Phillip noted that
neither Paul nor Gloria Sirianni exhibited signs of road
rash Page 5 or graze abrasions which are typically seen
when persons are ejected from a fast moving vehicle.

Phillip’s report also made conclusions concerning the
likely impact upon the Siriannis had they been using
seatbelts. Phillip stated that, in his opinion, to a
reasonable degree of medical certainty, the Siriannis would
have sustained their injuries regardless of whether they
used a seatbelt. In support of his conclusions, Phillip
cited some statistics regarding the reduction in injuries
and deaths in all types of accidents through seatbelt use
and noted the “randomness” that the body suffers in a car
accident. Phillip further stated that injuries to vehicle
occupants is related to several key factors including: mass
of the vehicle, speed of the vehicle at impact, and the
extent to which the occupants were protected from the impact
of vehicle parts against the body and not merely whether
the occupant was ejected from the vehicle or the extent to
which the occupant’s movement was restrained. Phillip
concluded that “[a]ssuming for the sake of argument that
there is a uniform 40% reduction in severity of injury of
all motor vehicle accidents, with seat belt use, the
decedents would still have suffered serious injury, which
could have resulted in their death. The fact that the two
decedents were in their 70s, with all the frailties that
implies, only makes it highly likely that serious morbidity
or mortality would have been the outcome.”

Phillip’s conclusions are predicated solely upon his
physical examination of the bodies. Phillip did not perform
any accident reconstruction or engage in any mechanical
studies concerning the effect of a rolling car on the human
body. Phillip never observed the accident scene, the
vehicle, or discussed the matter with any relevant
witnesses, including the police or other medical personnel
who were on the scene. Phillip was not aware of the
direction in which the vehicle first started to roll.
Phillip also stated he did not know how far Page 6 Paul
Sirianna was ejected from the vehicle or through what
portion of the car he was ejected. Phillip did observe some
pictures of the post-accident vehicle. Phillip also was
unaware of the mass or speed of the vehicle at the time of
the accident (other than knowing it was a “high” speed)
despite his statement that such information are “key” to
the analysis.

At deposition, Phillip testified that he believed that
Paul Sirianni’s head struck the roof of the car. However,
Phillip could not state what part of the roof was struck.
Although Phillip stated that the basis for his conclusion
that Paul Sirianni’s head struck the roof of the vehicle
was the laceration to the forehead, Plaintiff has not
identified any portion of Phillip’s deposition testimony
wherein he explains why the laceration sustained by
Sirianni was likely to be caused by the roof of the vehicle
or why the laceration could not have been sustained by some
other means, namely when Paul Sirianni was ejected from the
vehicle and landed on the ground. Thus, there appears to be
a gap between the evidence (the laceration) and the
expert’s conclusion (that the laceration was caused by roof
of the vehicle).

Phillip also opined that Paul Sirianni sustained injuries
when he struck the seat in front of him. When asked at
deposition for the basis of the statement that Paul
Sirianni struck the seat directly in front of him, Phillip
responded “I have no basis for that.” Phillip Dep. at 113.
Phillip offered a similar explanation for his conclusion
that Gloria Sirianni sustained her injuries by striking the
back of the front seats. Thus, there appears to be no
grounds for permitting Phillip to testify whether the chest
injuries were in fact caused by the Siriannis striking the
back of the front seats.

Phillips also did not consider the nature of the injuries
sustained by the driver and the passenger who were wearing
seatbelts, did not sustain life-threatening injuries and,
of course, were involved in the same car accident.
Furthermore, Phillip testified that the Page 7 decedents’
“frailties” support the conclusion that the use of
seatbelts would not have made a difference. However, the
only “frailties” of which Phillip was aware concerning Paul
Sirianni was heart disease. With respect to Gloria
Sirianni, her only frailty was that she was thin. Plaintiff
has pointed to no evidence explaining why either of these
“frailties” (if they be frailties at all) would support a
conclusion that the decedents would have died regardless of
whether they used seatbelts. Finally, Plaintiff has not
pointed to any evidence or testimony by Phillip explaining
why the injuries sustained by the decedents would not have
occurred if they had been wearing seatbelts.

For the foregoing reasons, the Court believes that Dr.
Phillip should not be permitted to testify about the effect
of a seatbelt and about the sources of the blunt trauma to
the decedents. The Court will, however, reserve its final
decision until trial at which time it can better evaluate
the particular evidence to be offered, the reasons for the
testimony, and the basis for any opinions or conclusions.

b. Robert Burns

Defendant seeks to exclude the testimony of Robert Burns
because it is not proper rebuttal evidence and because it
is cumulative of the testimony of New York State Trooper
Miller. Although Burns concurs with certain of Trooper
Miller’s findings, the brunt of Burns’s report concerns
attacking the methodologies used by Defendant’s expert,
Thomas Lasek. Thus, the testimony does not appear to be
cumulative. If, at trial, there appears to be cumulative
testimony, then the Defendant may make an appropriate
objection.

Next, Defendant contends that Burns’s report is not proper
rebuttal testimony because it attacks Lasek’s methodologies
rather than contradicting or rebutting Lasek’s conclusions.
Defendant’s argument takes an overly narrow look at
rebuttal evidence. Although one can Page 8 refute an
opinion or conclusion with contrary conclusions or
evidence, an opinion or conclusion also can be proven to be
false by demonstrating that the means by which the opinion
or conclusion were reached were faulty. Thus, Burns’s
report consists of proper rebuttal testimony.

c. David Gushue

Defendant next seeks to preclude the testimony of David
Gushue primarily on the ground that he is not qualified to
provide expert testimony. Based upon his significant
training and practical experience, it appears that Dr.
Gushue is qualified to render an opinion on the effect of
seat belt use in this accident. The Court will, however,
reserve final judgment pending a proffer at or before
trial. Defendant also seeks to preclude Dr. Gushue from
testifying on the ground that “he has not performed any of
the studies or design criteria that he believes are
important factors to arrive at a conclusion to a degree of
reasonable certainty with regard to the performance of a
restraint systems in a rollover crash.” This contention may
well be true. It appears to the Court, however, that Dr.
Gushue is being proffered not to give an opinion as to the
effect of seatbelt use in this case, but to challenge the
methodologies used by Defendants’ expert, Thomas Lacek. Dr.
Gushue’s opinions on the proper methodologies to be used in
this case may be used to discredit Dr. Lacek’s opinions.
Accordingly, it currently appears that Dr. Gushue’s opinion
would be admissible for this purpose. Again, however, the
Court will reserve final judgment until immediately before,
or during, trial.

d. Thomas Lacek

Defendants’ expert, Thomas Lacek, opines that the
Siriannis were not wearing their seatbelts at the time of
the accident, had the Siriannis been wearing their
seatbelts they Page 9 would not have died, and had the
Siriannis been using their seat belts their injuries would
have been no worse than those sustained by the front seat
passengers, who were wearing seat belts. Plaintiff moves to
preclude Defendants’ expert, Thomas Lacek, from testifying
on the ground that he is unqualified and his opinions are
unreliable. Indeed, Mr. Lacek does have limited education
in the area of biomechanics. He does, however, have a
degree in mechanical engineering, he is a member of the
Society of Automotive Engineers and the Association for the
Advancement of Automotive Medicine, and he has attended
conferences in biomechanic reasearch, crash performance,
crash reconstructions and crash injury countermeasures.
Moreover, Lacek has worked for Robson Forensic, Inc. for
over fifteen years. Robson Forensic specializes in the
investigation and analysis of accidents. Thus, Lacek has
significant practical experience in this area. Accordingly,
it appears that Mr. Lacek does have the qualifications to
express an expert opinion on whether the Siriannis were
using seatbelts at the time of the accident and the effects
of the failure to use seatbelts on their movement within
the vehicle and their ejections from the vehicle. However,
Lacek has no medical training or background and, therefore,
is not qualified to testify with respect to the cause of
death, whether death could have been avoided through the
use of seatbelts, or whether the injuries could have been
lessened through the use of seatbelts.

Plaintiff next contends that Mr. Lacek’s opinions are
unreliable. Although Plaintiff identifies many factors that
Mr. Lacek did not know, Mr. Lacek provided reasonable
explanations as to why those factors were not pertinent to
his analysis. It is for a jury to determine whether Mr.
Lacek’s analysis is unbelievable because of his failure to
know such things as: what portions of the vehicle the
Siriannis had contact with while still in the vehicle; the
number of times the vehicle rolled over; the speed of the
vehicle at the time of the roll; Page 10 measurements
concerning the amount of intrusion caused by the roof
deformation with regard to each passenger, etc. As Mr.
Lacek explained at deposition, much of that information was
irrelevant to him because he was not asked to determine how
the Siriannis’ died or to explain the nature of their
injuries, but, rather, whether the Siriannis were likely to
have sustained the serious injuries that they did had they
been using seat belts. Plaintiff also puts much on the fact
that Mr. Lacek did not account for the possibility of head
injuries notwithstanding the use of seat belts. However,
Mr. Lacek offered the reasonable explanation that the
damage to the vehicle was not consistent with a significant
head strike to the frame of the vehicle and that, based on
the impact of the accident on the front passengers (who
were using seat belts), such injuries were unlikely to
happen in this case. In sum, the foundation of Mr. Lacek’s
analysis appears to be reliable. Any discrepancies or
failures in Mr. Lacek’s analysis can be attacked on
cross-examination and the jury can decide the issues of
credibility. Once again, however, the Court will reserve
final judgment until immediately before, or during, trial.

e. Bruce Gorsak

Plaintiffs seek to preclude the testimony of Bruce Gorsak
on the grounds that they have stipulated to his opinion
— that the Siriannis were not wearing seatbelts at
the time of the accident. To the extent Gorsak’s testimony
is duplicative, it may be precluded. Gorsak may, however,
have information concerning his examination of the vehicle
that may be pertinent to other aspects of this case.
Accordingly, the motion to preclude his testimony is likely
to be denied.

IV. CONCLUSION Page 11

For the foregoing reasons, the Court makes a preliminary
finding that: (1) Dr. Phillip should not be permitted to
testify about the effect of a seatbelt and about the
sources of the blunt trauma to the decedents; (2) Dr.
Burn’s rebuttal testimony is admissible; (3) Dr. Gushue’s
rebuttal testimony is admissible; (3) Bruce Gorsak’s
testimony is admissible; and (4) Thomas Lacek’s testimony
should be admitted, but that he is unqualified to testify
regarding the cause of death to the Siriannis, whether the
use of seatbelts would have prevented death, and/or the
extent to which the use of seatbelts would have lessened
the Siriannis’s injuries. Lacek is qualified to testify
regarding whether the Siriannis were using seatbelts and
the mechanical implications on the human body of failing to
use seatbelts in the accident at issue here. Because
Defendant’s expert appears to have a reliable basis for
concluding that the use of a seat belt would have mitigated
the negative mechanical effects of the accident on the
Siriannis’s bodies, from which the jury could reasonably
infer that the injuries sustained by the Siriannis would
have been lessened had they been using seatbelts,
Plaintiffs’ motion to preclude the seat belt defense is
DENIED. As stated herein, the parties may renew these
motions at trial based upon a proper foundation.

IT IS SO ORDERED. Page 1