JOHNS v. CROWN EQUIPMENT CORPORATION (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Eugene Faughnan, J.), entered March 28, 2024 in Broome County, upon a verdict rendered in favor of defendant.

On December 31, 2018, plaintiff was operating a stand-up forklift, designed, manufactured and distributed into the stream of commerce by defendant, when he was unable to successfully initiate either of the two braking mechanisms on the machine and collided into a support pole in the warehouse where he was working.  During this accident, his left leg moved outside of the operator compartment of the machine and was crushed between the machine and the support pole.  Plaintiff suffered significant injuries to his lower left leg, ultimately resulting in an amputation.  Plaintiff commenced this action in July 2019, alleging that the forklift was defectively designed, and that defendant knew or should have known of the dangers presented by utilizing the forklift for its intended purpose.

Following joinder of issue and discovery, both plaintiff and defendant filed motions in limine seeking to preclude certain expert testimony to be proffered by the other.  Supreme Court held oral argument on these motions and, thereafter, determined that defendant's expert M. Laurentius Marais, a statistician, would be permitted to testify at trial, and the court reserved judgment on the admissible scope of the testimony of plaintiff's experts Barry Root, a physical medicine and rehabilitation physician, and Paul Thomas, an economist, until a foundation was laid at trial.  After Root testified in full at trial, the court found that aspects of his testimony were too speculative and, as a result, limited the permissible scope of Thomas’ testimony so as to not permit testimony related to the costs of certain treatments that Root had testified plaintiff may need in the future.  At the close of trial, the jury determined that the forklift was not defectively designed, and that defendant did not breach its warranty.  Accordingly, the jury did not reach the issue of damages, and a judgment was entered in favor of defendant.  Plaintiff appeals.

Initially, we agree with plaintiff's contention that Supreme Court abused its discretion in permitting Marais to testify as to a comparative analysis that utilized the broad category of accidents involving “industrial truck and tractor operators.”  Based upon this error, a new trial is warranted.¹ ,²

“[D]efects in the opinions of ․ experts or the foundation on which those opinions are based should go to the weight to be accorded that evidence by the trier of fact, not to its admissibility in the first instance” (Sadek v. Wesley, 27 N.Y.3d 982, 984, 32 N.Y.S.3d 42, 51 N.E.3d 553 [2016];  see Benguigui v. Racer, 198 A.D.3d 608, 609, 152 N.Y.S.3d 347 [2d Dept. 2021]).  Nevertheless, it must always first be determined, “as a preliminary matter of law, whether an adequate foundation for the admissibility of th[e] particular evidence has been established” (People v. Wesley, 83 N.Y.2d 417, 429, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994];  see Johnson v. Guthrie Med. Group, P.C., 125 A.D.3d 1445, 1447, 3 N.Y.S.3d 828 [4th Dept. 2015];  Jackson v. Nutmeg Tech., Inc., 43 A.D.3d 599, 601, 602, 842 N.Y.S.2d 588 [3d Dept. 2007]).  In this regard, “proof of a prior accident, whether offered as proof of the existence of a dangerous condition or as proof of notice thereof, is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same” (Hyde v. County of Rensselaer, 51 N.Y.2d 927, 929, 434 N.Y.S.2d 984, 415 N.E.2d 972 [1980];  accord Nyambuu v. Whole Foods Mkt. Group, Inc., 191 A.D.3d 580, 581, 143 N.Y.S.3d 14 [1st Dept. 2021];  O'Buckley v. County of Chemung, 149 A.D.3d 1232, 1234, 53 N.Y.S.3d 209 [3d Dept. 2017]).

Marais testified that he utilized two different databases to compute the statistical likelihood of accidents involving defendant's forklifts as compared to those suffered by industrial truck and tractor operators more widely.  First, Marais utilized a database of accidents created and maintained by defendant from which he determined that the rate of injury for “all kinds of injuries to operators of [defendant's forklifts]” was 0.48 per every 100,000 eight-hour shifts.  Notably, this database was entirely reliant upon injuries being voluntarily reported to defendant.  Second, Marais utilized a federally collected database which compiled accidents involving industrial truck and tractor operators to determine that the rate of injury for this category of employees is approximately 1.3 injuries per every 100,000 eight-hour shifts.

Because the underlying data was specific to accidents involving defendant's forklifts and plaintiff's expert also relied upon and testified to that database, we find that Supreme Court properly allowed Marais to testify as to the rate of injuries sustained in the operation of defendant's forklifts as computed from defendant's database.  However, the court abused its discretion in permitting testimony related to the utilization of the wider category of accidents involving “industrial truck and tractor operators,” as defendant failed to establish that the underlying conditions of those accidents were substantially similar to the facts presented here (see Daniels v. New York City Tr. Auth., 35 N.Y.3d 938, 939, 124 N.Y.S.3d 1, 146 N.E.3d 1160 [2020];  O'Buckley v. County of Chemung, 149 A.D.3d at 1235, 53 N.Y.S.3d 209;  compare Martin v. Our Lady of Wisdom Regional Sch., 151 A.D.3d 838, 839, 54 N.Y.S.3d 692 [2d Dept. 2017];  Barnhard v. Cybex Intl., Inc., 89 A.D.3d 1554, 1556, 933 N.Y.S.2d 794 [4th Dept. 2011]).  The core of Marais’ testimony was that the rate of injuries involving defendant's forklifts was significantly lower than other industrial-related injuries.  Even crediting that the federal database Marais utilized to make this comparison included forklift injuries, it also included a variety of other dissimilar industrial vehicles.  In addition, there was no way to determine how many of the reported injuries therein were the result of forklift operations or, equally as important, the underlying conditions precipitating those accidents.  Defendant's assertion that this testimony was necessary to rebut plaintiff's expert is flawed – rebuttal does not give a defendant an open platform to present proof that would otherwise lack a sufficient foundation.  In sum, Marais opined about the safety of defendant's forklift – i.e., “the central issue to be resolved at trial” – and, therefore, the error in allowing such testimony cannot be deemed harmless and a new trial is required (244 Linwood One, LLC v. Tio Deli Grocery Corp., 214 A.D.3d 617, 618, 184 N.Y.S.3d 825 [2d Dept. 2023];  see Williams v. Ridge View Manor, LLC, 188 A.D.3d 1729, 1730, 132 N.Y.S.3d 916 [4th Dept. 2020];  Billok v. Union Carbide Corp., 170 A.D.3d 1388, 1390, 96 N.Y.S.3d 714 [3d Dept. 2019]).

As remittal is required, despite the jury not reaching the issue of damages, we address plaintiff's further argument that Supreme Court abused its discretion in limiting Thomas’ testimony regarding the associated costs of certain aspects of the life care plan that had been testified to by Root (compare Solomon v. Meyer, 149 A.D.3d 1320, 1321, 53 N.Y.S.3d 215 [3d Dept. 2017];  Juric v. Bergstraesser, 133 A.D.3d 951, 954, 19 N.Y.S.3d 360 [3d Dept. 2015]).

“Awards of damages for ․ future medical expenses must be supported by competent evidence which establishes the need for, and the cost of, medical care” (Wynter v. Transdev Servs., Inc., 207 A.D.3d 785, 787, 172 N.Y.S.3d 460 [2d Dept. 2022] [internal quotation marks and citations omitted]) and, therefore, “may not be based upon mere speculation” (Faas v. State of New York, 249 A.D.2d 731, 732, 672 N.Y.S.2d 145 [3d Dept. 1998];  accord Petrilli v. Federated Dept. Stores, Inc., 40 A.D.3d 1339, 1344, 838 N.Y.S.2d 673 [3d Dept. 2007]).  Root indicated that he had authored a life care plan for plaintiff based upon his examination of plaintiff, review of the medical records and his own knowledge developed over his decades-long career in medicine.  Root affirmed with certainty that, among other things, “consequential overuse syndromes are inevitable.” ³  In that regard, his opinions were based upon competent medical knowledge and not, as defendant argued, undue speculation.  Accordingly, while “[e]vidence submitted at trial that the plaintiff will incur medical expenses when and if future conditions develop that require treatment is speculative, and does not support an award of damages for future medical expenses” (Pilgrim v. Wilson Flat, Inc., 110 A.D.3d 973, 974, 973 N.Y.S.2d 738 [2d Dept. 2013];  accord Masmalaj v. New York City Economic Dev. Corp., 197 A.D.3d 1294, 1296–1297, 151 N.Y.S.3d 901 [2d Dept. 2021]), Root stated a basis for his opinion and indicated with a degree of medical certainty that plaintiff would require future treatment and described those treatments that would likely be necessary (see Wynter v. Transdev Servs., Inc., 207 A.D.3d at 788, 172 N.Y.S.3d 460;  compare Kun Sik Kim v. State St. Hospitality, LLC, 121 A.D.3d 760, 762, 994 N.Y.S.2d 617 [2d Dept. 2014];  Petrilli v. Federated Dept. Stores, Inc., 40 A.D.3d at 1344, 838 N.Y.S.2d 673;  Stylianou v. Calabrese, 297 A.D.2d 798, 799, 748 N.Y.S.2d 36 [2d Dept. 2002];  cf.  Tarpley v. New York City Tr. Auth., 177 A.D.3d 929, 933, 113 N.Y.S.3d 148 [2d Dept. 2019];  Leto v. Amrex Chem. Co., Inc., 85 A.D.3d 1509, 1512, 926 N.Y.S.2d 697 [3d Dept. 2011];  Mohamed v. New York City Tr. Auth., 80 A.D.3d 677, 679, 915 N.Y.S.2d 599 [2d Dept. 2011]).

Considering this proof, Supreme Court abused its discretion by striking Root's testimony and then limiting certain aspects of Thomas’ testimony regarding plaintiff's future medical expenses because the testimony was supported by “competent proof of necessary, anticipated medical costs through [a qualified physician] and [an] expert economist” (Morrison v. South Union RD HC, LLC, 225 A.D.3d 1209, 1212–1213, 207 N.Y.S.3d 768 [4th Dept. 2024] [internal quotation marks and citations omitted], lv dismissed 42 N.Y.3d 1032, 223 N.Y.S.3d 5, 248 N.E.3d 165 [2024];  see Andino v. Mills, 135 A.D.3d 407, 408, 23 N.Y.S.3d 63 [1st Dept. 2016], appeal dismissed 27 N.Y.3d 1180, 38 N.Y.S.3d 89, 59 N.E.3d 1201 [2016], mod 31 N.Y.3d 553, 81 N.Y.S.3d 331, 106 N.E.3d 714 [2018];  Barnhard v. Cybex Intl., Inc., 89 A.D.3d at 1556, 933 N.Y.S.2d 794;  compare Beadleston v. American Tissue Corp., 41 A.D.3d 1074, 1077, 839 N.Y.S.2d 283 [3d Dept. 2007]).  Instead, to rebut this admissible proof, defendant is able to present the jury with competing expert testimony that called into question the accuracy of Root's opinions concerning plaintiff's projected medical care needs and the accuracy of Thomas’ opinions concerning the costs of those projected needs.  Similarly, to the extent that defendant takes issue with the life care plan indicating that “plaintiff would require greater treatment ․ than he had previously received, ․ such testimony goes to the weight of the expert's opinion rather than its admissibility” (Tornatore v. Cohen, 162 A.D.3d 1503, 1506, 78 N.Y.S.3d 542 [4th Dept. 2018];  compare Lopez v. City of New York, 192 A.D.3d 634, 640–641, 146 N.Y.S.3d 81 [1st Dept. 2021]).

To the extent not specifically addressed, plaintiff's remaining contentions have either been rendered academic or have been reviewed and found to be without merit.

ORDERED that the judgment is reversed, on the law, with costs, and matter remitted to the Supreme Court for a new trial.

FOOTNOTES

1.   To the extent plaintiff makes mention of the Frye test, plaintiff's arguments do not allege that the testimony at issue was based upon a novel scientific procedure and, therefore, Frye is inapplicable here (see State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 1297–1298, 956 N.Y.S.2d 196 [3d Dept. 2012], lv denied 20 N.Y.3d 858, 2013 WL 452396 [2013];  Alexander v. Dunlop Tire Corp., 81 A.D.3d 1134, 1135, 917 N.Y.S.2d 376 [3d Dept. 2011];  see e.g. Johnson v. Guthrie Med. Group, P.C., 125 A.D.3d 1445, 1447, 3 N.Y.S.3d 828 [4th Dept. 2015]).

2.   Defendant's assertion that this contention is unpreserved for review by this Court is without merit inasmuch as plaintiff's motion in limine sought to preclude Marais’ testimony in full, and he was “not required to repeat the same arguments in order to preserve [his] contentions” for appellate review (Matter of Carmela H. [Danielle F.], 185 A.D.3d 1460, 1461, 126 N.Y.S.3d 602 [4th Dept. 2020], lv denied 35 N.Y.3d 915, 2020 WL 6065580 [2020];  cf.  People v. Woody, 214 A.D.3d 157, 166–167, 185 N.Y.S.3d 110 [1st Dept. 2023]).

3.   Root described in the life care plan that “[a]mbulation with a prosthesis is energy-demanding, requiring overuse of the skeletal support and musculature.”  He affirmed that plaintiff, as a result of the amputation, will experience “consequential right knee pain, instability, ACL insufficiency with pain exacerbated by prosthetic use,” as well as an “[e]levated risk for overuse syndromes at [the] wrists, shoulders, [and] right leg consequential to wheelchair, crutch and cane use.”  Incidental to this, plaintiff's spine, right knee, hips, wrists and shoulders must be monitored throughout his life and treatment to resulting conditions will likely be necessary.

Powers, J.

Clark, J.P., Pritzker and McShan, JJ., concur.