Supreme Court, Ulster County, New York.
Craig E. TILISON, Sr. and Tina M. Tilison, Plaintiffs,
CALLANAN INDUSTRIES, INC., Defendant.
Aug. 21, 2012.
Couch, White LLP, Melanie J. LaFond, Esq., Albany, for Defendant/Third Party Plaintiff.
Conway & Kirby, LLP, Thomas A. Conway, Esq., Latham, for Plaintiff.
MICHAEL C. LYNCH, J.
*1 Plaintiff, a truck driver employed by third party defendant Mohawk Valley Leasing Corporation (hereinafter, MVL) commenced this action seeking to recover for injuries sustained when his truck rolled over on State Route 32 in the Town of Westerlo. Defendant Callanan Industries, Inc., (hereinafter, Callanan), whose employees loaded the truck with asphalt on the day of the accident, commenced a third party action seeking defense and indemnification against MVL, which it retained to provide trucking services. By Decision and Order dated October 8, 2010, this Court (Lynch, J.) denied Callanan’s motion for summary judgment in its favor dismissing plaintiff’s complaint as against it, finding, inter alia, that there were questions of fact with regard to whether Callanan properly loaded the truck.
By his disclosures served pursuant to CPLR 3101(d), plaintiff advised that he planned to call certain expert witnesses, including Stephen Derby, Roger Allen, and Charles Lee.Now, defendant Callahan moves to preclude their testimony.In support of its motion, Callahan submits an affidavit by John Serth, a licensed professional engineer. Callanan also submits a memorandum of law wherein its counsel cites a number of transcripts that are not currently before the Court. As part of his opposition, plaintiff provides a copy of the disclosure referenced in Callanan’s motion.
According to plaintiff’s disclosure, Mr. Derby is an engineer who, based on his experience, expertise, review of the pleadings and discovery, and his inspection of the Callahan facility and the tractor/trailer, will testify that Callahan issued a ticket indicating that the trailer was loaded with more asphalt than it was permitted to carry. Further, plaintiff advises that Derby will testify that the procedure Callahan used to load the trailer produced an “uneven load” and the,
uneven distribution in addition to asphalt being relatively spongy compared to gravel, caused the center of gravity of the asphalt load to be significantly higher in the trailer than that of a substance like gravel which would have been more evenly distributed and have a much lower center of gravity. Thus, this significantly higher center of gravity of the asphalt caused the [load of asphalt] to make the tractor trailer more unstable than a load like gravel which would have had a lower center of gravity.
Plaintiff also advises that he plans to introduce testimony by Roger Allen, an “expert engineer” FN1.By his disclosures, plaintiff advises that Mr. Allen will testify that based on his review of the pleadings and his experience and knowledge of the applicable rules and regulations, Callanan overloaded the trailer in violation of the applicable regulations and that the overloading of the trailer and consequent reduction in the maneuverability and the ability to control the tractor trailer were each a cause of the roll over.
FN1. Although the disclosure claims that he is an engineer, the referenced affidavit detailing his opinion confirms that his testimony is based on his experience in the trucking industry.
Plaintiff further advises that he will introduce expert testimony by Charles Lee, a “Motor Vehicle Inspector” with the New York State Department of Transportation (hereinafter, DOT). Based on the disclosure, plaintiff claims that based on his experience and personal inspection of the tractor trailer, Mr. Lee will testify with regard to the purpose and procedure used during a post-accident DOT inspection, the standards for determining when a vehicle is unsafe, broken, or damaged and possible causes for such a determination.More specifically, plaintiff advises that Mr. Lee will testify with regard to his findings with regard to the condition of the tractor trailer that plaintiff was driving when he had the accident, and that Callanan Industries violated certain rules and regulations.
*2 Generally, expert testimony should be allowed “when it would help to clarify an issue calling for professional or technical knowledge … beyond the ken of the typical juror” ( De Long v.. County of Erie, 60 N.Y.2d 296, 307  ).Further, expert opinion “must generally be based upon facts either found in the record, personally known to the witness, derived from a professionally reliable’ source or from a witness subject to cross-examination ( Brown v. County of Albany, 271 A.D.2d 819, 820  lv. denied 95 N.Y.2d 767  ). “The pivotal concern is whether such testimony would be helpful, as opposed to unduly confusing” ( Goverski v. Miller, 282 A.D.2d 789  ).
Now, Callanan submits an affidavit by its expert engineer, Mr. Serth and a Memorandum of Law in support of its request for an Order precluding testimony by Mr. Derby, Mr. Allen and Mr. Lee.Generally, Callanan contends that none of the experts are qualified to offer an opinion, that their opinions are unreliable, and will not assist the jury.Further, Callanan contends that plaintiff’s experts ignore or misstate critical facts and that their opinions are either unreliable or lack legal foundation.
On the record presented, the Court declines to preclude testimony by either Derby, Allen, or Lee on these grounds.A claim that an expert is not qualified to render an opinion is an issue that bears on the weight the jury should accord the opinion but not on its admissibility ( Pember v. Carlson, 45 AD3d 1092, 1094  ). Similarly, Callanan’s claims with regard to the factual bases for the experts’ opinions are without merit because the purportedly misstated “facts” remain disputed in the action. These “factual disagreements … go to the weight to be accorded such evidence by the trier of fact, and not its admissibility ( Jackson v. Nutmeg Tech., Inc., 43 AD3d 599, 602  ) Callanan will have an opportunity to question both the experts’ qualifications and the foundational support for their opinions during cross examination before a jury ( Adamy v. Ziriakus, 92 N.Y.2d 396, 402  ).
This Court also rejects Callanan’s claim that Derby’s testimony should be precluded because his opinions are not based on “sound principles and methods generally accepted in the scientific community” (Memorandum of Law p. 10). On this, defendant’s expert Mr. Serth opines that “spongy” is not a recognized scientific term and that Derby failed to consider the density of the asphalt or the concept of “moment” in his analysis with regard to the stability of the load (Affidavit at ¶ 3).
If a party seeks to introduce “novel scientific evidence” through an expert, a Frye’ hearing is necessary to determine whether the evidence is reliable ( Parker v. Mobil Oil Corp., 7 NY3d 434, 446  ).
“The Frye’ test asks whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific communcity generally” * * * Frye holds that while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs”
*3 (Id.). Here, the “thing” from which each expert bases his conclusion is the extent to which the asphalt settled in the trailer, and, as a consequence, whether and to what extent to which that asphalt caused the trailer to tip over. The science supporting Derby’s conclusion is not novel. Rather, in this Court’s view, the experts rely on the same science, but characterize it differently and reach different conclusions. Read as a whole, Callahan’s expert is questioning the wisdom of Derby’s conclusion, not the science that supports his conclusion. The issues raised may be relevant to the weight the jury should accord Derby’s testimony, but do not warrant its preclusion ( Alexander v. Dunlop Tire Corp., 81 AD3d 1134  ).
The Court also rejects Callanan’s claim that Allen’s testimony should be disregarded because he fails to identify a “specific industry standard or practice that Callanan violated” (Serth Affidavit, ¶ 33). On this, Callanan argues that absent reference to a specific industry standard, his opinion is unreliable and should be precluded (Memorandum of Law pp. 24–28). Plaintiff advises that Mr. Allen will offer an opinion with regard to industry practices and standards in the trucking industry based on his fifty-one years of experience as a truck driver and consultant in the industry (Exhibit 3, ¶¶ 1–5). Proof of practices or customs in a particular industry may be admissible to establish a standard of care in that industry ( Munzer v. Town of Hempstead, 8 AD3d 247  ). It is not always necessary that a party establish that a formal, written standard exists to support the asserted standard (see e.g. Selkowitz v. County of Nassau, 45 N.Y.2d 97  [“expert testimony was admissible to clarify the proper police practice expected in a given police emergency, despite the fact that no specific departmental rules or formal guidelines prevail and despite the jury’s common understanding of driving standards generally”] ).
Finally, contrary to defendant’s argument, the Court finds that Mr. Lee’s testimony could be helpful to the jury. Neither the procedures and standards applicable to post-accident inspections in the trucking industry, nor the relevance of the findings of such inspections are commonly known. That Mr. Lee was the individual who completed the post-accident inspection in this case does not necessarily warrant a finding that he should be precluded from testifying as an expert in this regard. The reliability of his testimony and the weight it should be accorded are issues for the jury ( Soto v. New York City Tr. Auth., 6 NY3d 487  ).
Accordingly, based on the foregoing, it is
ORDERED AND ADJUDGED that defendant Callanan’s motion in limine is denied, in its entirety.
This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for plaintiffs. The below referenced original papers are being filed with the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.