Keith
E. Johnston recently obtained a dismissal of all claims against Schindler
Elevator Corporation by summary judgment in a case alleging product defect and
negligent maintenance of an escalator.
The court also granted Schindler’s Daubert motion to preclude plaintiff’s
expert from testifying.
The case involved an accident in which a three year old
child inserted his fingers into the area where the escalator handrail entered
the bottom of a down escalator located in a Boscov’s store.
Schindler was the only defendant in the case which was pending in federal
court in Phildelphia. The child was
playing at the bottom of the down escalator and his parents did not observe how
or why he stuck his fingers into the area where the handrail entered the
balustrade of the escalator. The parents
were able to shut off the escalator and took the child to the emergency room of
a local hospital where the friction burn injuries on the child’s fingers and
palm were cleaned and bandaged. The
child was treated by a plastic surgeon for third degree burns on his long and
index fingers. A second plastic surgeon performed surgical revision of scars
with full thickness skin grafts 15 months after the initial injury.
The area where the handrail entered the balustrade was
protected by a finger guard. On
behalf of Schindler, Mr. Johnston successfully argued that a clearance was
required between the moving handrail and the stationary guard to permit
operation of the escalator and that the operating clearance between the handrail
and guard was part of the design of the escalator.
Plaintiffs supported their claims by expert opinion from
Richard A. Kennedy who opined that the minimum
clearance tolerance between handrail and finger guard was not maintained during
regular maintenance visits and the failure to maintain the minimum clearance
tolerance was the cause of the accident.
Mr. Johnston deposed Mr. Kennedy and used the transcript to support a
Daubert Motion to preclude the expert opinion.
The court concluded that Mr. Kennedy's opinion did not satisfy Daubert's
reliability requirement. Mr. Kennedy conducted no testing of the finger guard,
including whether a smaller clearance was feasible, and admitted he was not
qualified to do so. The court also found the expert’s qualifications provided no
reassurance that his opinion was reliable.
In granting Schindler’s motion for summary judgment, the
court concluded that the child’s injury was not caused by negligence on
defendant's part. Plaintiff failed to produce any evidence that the finger
guard, as originally designed, could have prevented the injury and there was no
evidence that the injury was caused by a failure to maintain the finger guard.
