Hilaire v. DeWalt Industrial Tool Co. (54 F. Supp. 3d 223, 2014)

MEMORANDUM AND ORDER

GLASSER, District Judge:

Pending before the Court are objections to an extensive Report by Magistrate Pol-iak and her Recommendation (R & R), which that Report essentially compelled that the defendant’s motion for summary judgment and to preclude the testimony of the plaintiffs proposed liability expert be granted.

The event that gave rise to this action is the severance of a portion of the plaintiffs left hand while he was attempting to cut wood using a table saw manufactured by the defendant. He alleges that the table saw was defectively designed and did not contain adequate warnings and that his serious injuries were caused entirely by the negligence of the defendant.

Sought to be excluded is the testimony of one. “liability expert” proposed to be offered by the plaintiff who will opine that the saw was defectively designed and that warnings of potential danger inherent in its use were inadequate.

In a motion to preclude an expert from testifying, a court plays the role of a gatekeeper — determining whether he should be permitted to pass through the testimonial gate or whether that gate should remain closed to him. In making that determination, the court is guided by two seminal cases, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The rest (thousands of cases which followed in their wake), is commentary. Those cases teach that the discharge of the gatekeeping responsibility requires an answer to two questions: (1) is the proposed expert qualified to testify by virtue of his specialized “knowledge, skill, experience, training or education?” Fed. R. Ev. 702; and (2) if deemed qualified, is his testimony reliable and will it assist the fact finder in deciding the issue? Both questions must be answered in the affirmative if the testimonial gate is to be opened. Magistrate Judge (MJ) Poliak’s 48 page R & R is a virtual monograph on the law governing that determination in all of its nuances.

The facts to which the law was to be applied were meticulously distilled from the report of the testimony the proposed expert, Mr. Lewis Barbe, would give and from his deposition. A summary of the expert’s qualifications gleaned from his re-sumé is as follows:

He has a Bachelor of Science degree from the Illinois Institute of Technology in Fire Protection and Safety Engineering. He has consulted as a “licensed safety engineer” for more than 35 years. He is registered and “certified” as a safety engineer in several states and by a number of Boards identified as C.S.P., C.P.S.M., C.H.C.M., H.S.P. with little or no information as to the qualifications for membership in or function of them. He is employed by 3 companies as a “Risk Manager” in one, and a “Safety Engineer” in another. Whether he has responsibility for designing products or for assessing products for safety and performance is unclear. His resumé reflects that he has taught safety engineering and compiled a reference manual for OSHA. He could remember only one article he wrote that was published. He is a “participating member” in various professional organizations that develop safety standards for various products and industries. He stated that he is applying for a patent on a safety device to be used on table saws and portable table saws, but for reasons of confidentiality refrained from discussing its details.

He testified on deposition that he testified at approximately 100 trials, was deposed approximately 400-500 times and was unable to recall any case in which he testified for a defendant. He has no training or experience in designing table saws. He has neither lectured on nor taught courses on the design or manufacture of table saws. He never owned a table saw, only used one within the last 2 years, and never worked as a carpenter. His report concluding negligence in design and manufacture given the many safety devices and safety technology available but not used on the offending saw is confidently asserted despite his admission that he never saw a marketed table . saw equipped with the safety devices and the technology he describes; nor has he ever designed table saws incorporating those safety devices. His qualifications as discerned from his resumé and deposition testimony that has any relevance to the issue in this case is extensively discussed in the R & R at pages 231-33 and 235-42. In the light of that discussion the MJ’s recommendation, albeit made reluctantly, that he is “barely” qualified to testify, is magnanimously charitable.

The balance of the R & R, pages 242-53, can only be described as an incisive, logical analysis of the proposed expert’s qualifications which compels the conclusion that they are patently inflated and that his proposed testimony is based on facts, methods and principles which are insufficient and unreliable and which will provide no meaningful help to “the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Ev. 702(a)-(c).

The R & R is, accordingly, adopted in its entirely.

SO ORDERED.

REPORT AND RECOMMENDATION

CHERYL L. POLLAK, United States Magistrate Judge.

On November 3, 2010, the above captioned case was removed to the Eastern District of New York from the Supreme Court of the State of New York, Queens County. In this case, plaintiff Cleant Hi-laire seeks damages for personal injuries that he allegedly sustained on August 24, 2007, while operating a DW745 Heavy Duty 10" Job Site Table Saw, bearing serial number 2006 46-CT 041971 (hereinafter, the “Saw”), during the course of his employment with Harper Design Build, Inc. (Compl. ¶¶ 2, 9,10 13).

By Notice of Motion dated February 21, 2014, defendant DeWalt Industrial Tool Co. (hereinafter, “Black & Decker”) moves for summary judgment, pursuant to Federal Rule of Civil Procedure 56, and seeks to preclude the testimony of plaintiffs proposed liability expert, Lewis C. Barbe, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). (See Def.’s Mem. at 1, 3).

On referral from the district court, the undersigned held a Daubert hearing on May 7, 2014, and submits this Report and Recommendation, respectfully recommending that defendant’s motion to preclude the proposed expert testimony of Mr. Barbe be granted and that defendant’s Motion for Summary Judgment be granted in its entirety.

FACTUAL BACKGROUND

A. The Accident

On August 24, 2007, plaintiff was attempting to cut a section of cabinet wood, using the DeWalt DW745 Heavy-Duty 10" Job Site Table Saw, bearing serial number 2006 46-CT 041971, when a portion of his left hand was severed by the Saw’s blade. (Compl. ¶ 10; Def.’s Mem. at 1-2). At the time of the incident, plaintiff was employed by Harper Design Build, Inc. (“Harper”) as a carpenter and he was working with the Saw at a construction site, located at 381 11th Street in Brooklyn, New York. (Compl. ¶¶8, 9). According to plaintiff, Harper had previously acquired the Saw through an authorized Black & Decker dealer. (Id. ¶ 6).

The Saw is a “portable light weight job-site table saw,” manufactured in November 2006. (Defs. Mem. at 3-4 (citing Schafebook Dep. at 24-26; Defs Ex. E )). According to defendant, the Saw is designed to allow an operator to make a variety of cuts, including rip cuts, cross cuts, angled cuts, and non-through cuts. (Id. at 4). Defendant asserts that the Saw was designed in conformity with industry standards and includes a variety of safety features as standard equipment, including a splitter-mounted blade guard assembly, which is designed to reduce the risk that the operator will come into contact with the blade while using the Saw. (Id. (citing Schafebook Dep. at 54-55)). The Saw also includes warnings on the Saw itself and in the instruction manual. (Id. at 5 (citing Def.’s Mem. Exs. E, H)). The warnings advise the user to always use the blade guard during cutting operations. (Id. at 5). However, defendant ' acknowledges that certain cuts, such as non-through cuts, cannot be performed while the guard is in place. (Id.)

According to plaintiff, he is a high school graduate, with seven years of carpentry and heavy construction experience prior to the accident. (Pl.’s Dep. at 9, 31-33). Plaintiff testified that he had used table saws “hundreds of times” and knew that the blade guard was used to help prevent a person’s hands from coming into contact with the blade. (Id. at 62-65, 67, 75-77, 95). Plaintiff also testified that when he started working for Harper, he noted that the Saw did not have the blade guard assembly in place and he was concerned about its absence. (Id. at 94-97). He read the warning labels on the Saw and in particular, read the label that stated: “Danger! Keep hands away from the blade.” (Id. at 129-130; Def.’s Ex. E).

On the date of the accident, plaintiff was using the Saw, which had been placed in a makeshift table, set on top of a cabinet. (Id. at 100-103, 126). As plaintiff was in the process of performing a rip cut, using a push stick to push the wood into the Saw blade, the wood got stuck on a lip between the table saw top and the table. (Id. at 115). Without turning off the Saw, plaintiff reached his left hand over the blade to get the wood, while continuing to push the push stick with his other hand. (Id. at 115-119). The force of the blade caused the wood to “kick back” and the blade pulled plaintiffs left hand into the Saw. (Id.) Defendant contends that it is undisputed that the type of cut being performed by plaintiff could have been done with the guard assembly in place, and had the blade guard been in place, the accident would not have occurred. (Def.’s Mem. at 9 (citing Schafebook Dep. at 94-95; Barbe Tr. at 179, 245-246)).

In his Complaint, plaintiff appears to allege that the product was defectively designed and did not contain adequate warnings. (See Compl. ¶ 12 (alleging that defendant “was careless and negligent in the design, testing, inspection, manufacture, distribution, labeling, sale and promotion of the [Saw]”)). Plaintiff alleges that he sustained “serious personal injuries” “solely due to the negligence of defendant.” (Compl. ¶¶ 11, 13). Plaintiff alleges that as a result of this incident, he has incurred various medical expenses and is no longer able to engage in his usual occupation. (Id. ¶¶ 13, 14). Plaintiff also claims that defendant Black & Decker is liable under theories of strict liability and breach of warranty. (Id. ¶¶ 17-21).

B. The Expert Opinion of Lewis C. Barbe

To establish his claim that the accident was caused by a design defect, plaintiff seeks to offer the testimony of a single liability expert, Mr. Lewis Barbe, who claims that the Saw has a design defect (Barbe Rep. at 13), and inadequate warnings. (Barbe Tr. at 165-66). In his expert report, dated June 11, 2013, Mr. Barbe states that “[t]he Saw was defective at the time of sale, due to the lack of proper interlocks, safety guards/proper guarding,” and that “the unsafe acts and unsafe conditions created by” Black & Decker are the only cause of plaintiffs injury. (Id.) Mr. Barbe contends that “a proper permanent guard or other design” would have prevented plaintiffs injury and that plaintiff “did not misuse or abuse the saw.” (Id. at 14). He further states that “the Saw lacked a proper guard necessary to prevent injury” and “[t]he unsafe conditions ... of the Saw [thus] violated the commonly accepted rules, recommended practices and well-known safety standards within the industry.” (Id. at 15).

During his deposition, held on August 28, 2013, Mr. Barbe explained that, based on accepted industry standards, the removable “barrier” accompanying the Saw did not constitute a “guard,” given that the Saw became “inherently unsafe when the barrier that was put on it [was] taken off.” (Barbe Tr. at 20-21, 27). According to Mr. Barbe, data from the Consumer Protection Safety Commission (“CPSC”) indicates that table saws are responsible for approximately ten finger amputations each day (Barbe Rep. at 14; Barbe Tr. at 27-28), and therefore, “something is [inherently] wrong with the machine.” . (Barbe Tr. at 28).

Mr. Barbe postulates that “an alternative design .... was available when the Saw was designed, manufactured and sold,” and he suggests several alternative designs. (Barbe Rep. at 14). For example, Mr. Barbe suggests that “a trap saw[ ] ... would eliminate the hazard of an unguarded table saw.” (Id. at 16). He explains that a trap saw “has its blade covered when it is in motion either by a guard from above or a well below the table.” (Id. at 16; see also Barbe Tr. at 58-59) (explaining that a trap saw is a commercially available device, in the shape of a half moon, that prevents a saw operator from coming into contact with the blade). During his deposition, Mr. Barbe explained that a trap saw is not a mechanism that could be added to the Saw’s design; it is an entirely separate product. (Barbe Tr. at 63). A trap saw is designed so that the blade “moves through the work piece, the work piece does not move through the blade;” that is, the operator of the saw places the wood to be cut on the device and then pushes a button, which causes the blade to move and cut the wood. (Id. at 59-60). He maintains, however, that a trap saw is designed to perform the same function as the table saw at issue in this case. (Id. at 63).

Mr. Barbe also suggests that “flesh-detection technology” (commonly referred to as “SawStop”) could have been used; such technology allows “table saws to detect flesh and stop blades before they can cut into it.” (Barbe Rep. at 14; see also Barbe Tr. at 88 (stating that the Saw was defective given that SawStop technology was available but not used)).

Further, Mr. Barbe contends that interlocks and safety barriers are known and accepted mechanisms used in the industry to prevent body parts from coming into contact with a table saw blade. (Barbe Rep. at 15; Barbe Tr. at 49, 52). According to Mr. Barbe, an interlock can be designed so that when such a protective device is removed from the Saw, “it shuts off the electricity of the machine.” (Barbe Tr. at 50). He asserts that “[t]he state of the art of the industry, together with reasonable care, would have required the Saw’s vendors and designer to recall or implement a retrofit program to warn and correct the unsafe conditions” caused by the absence of these types of safety features. (Barbe Rep. at 15).

In addition to claiming that the Saw is defectively designed, Mr. Barbe asserts that the safety warning on the Saw does not meet standards promulgated by ANSI, due to the fact that the word “warning” was used, as opposed to the word “danger.” (See Barbe Tr. at 165-66). Mr. Barbe also suggests that the warning label should have alerted consumers to the frequency with which the Saw “cuts off hands and body parts.” (Id. at 175-76, 178). Further, Mr. Barbe asserts that the Saw lacks any instruction or warning that explains the way in which removal of the blade guard can result in a condition known as “kickback.” (Id. at 179).

Defendant challenges both Mr. Barbe’s qualifications and expert conclusions, seeking to preclude his testimony in its entirety. Defendant contends that Mr. Barbe “does not have the necessary expertise in mechanical engineering, electrical engineering, and the design of portable table saws to render expert opinions” about them. (Def.’s Mem. at 10). Moreover, defendant asserts that Mr. Barbe’s opinions “are exactly the type of opinions meant to be excluded by Rule 702 and by the Supreme Court in Daubert as unreliable and irrelevant.” (Id.) In response, plaintiff claims that Mr. Barbe is qualified to render an expert opinion in this matter, that his opinions rest on facts and data, and that the principles and methods he used to reach his conclusions are reliable. (PL’s Mem. at 3).

DISCUSSION

I. Admissibility of an Expert’s Opinion Under Daubert

A. Federal Rule of Evidence 702

The standards governing the admissibility of expert testimony are set forth in Rule 702 of the Federal Rules of Evidence, and are further clarified by Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Federal Rule of Evidence 702 governs the admissibility of expert witness testimony. Under Rule 702, “[a] witness ... qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if ... the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. The text of Rule 702 makes it clear that there are two prerequisites that must be met before the testimony of an expert witness can be admitted into evidence. First, the trial court must ensure that the witness is properly qualified as an expert to testify on matters that are scientific, technical, or specialized in nature, see Hodder v. United States, 328 F.Supp.2d 335, 345 (E.D.N.Y.2004) (citing Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81 (2d Cir.1997)); and second, the trial court must determine that the expert’s testimony will assist the trier of fact in understanding the evidence or determining an issue of fact. See Campbell ex rel. Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 184 (2d Cir.2001) (noting that determining whether expert testimony will assist the fact finder “ ‘entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue’ ”) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 592-93, 113 S.Ct. 2786); TC Sys. Inc. v. Town of Colonie, N.Y., 213 F.Supp.2d 171, 176 (N.D.N.Y.2002) (citing United States v. 31-33 York Street, 930 F.2d 139, 141 (2d Cir.1991) (excluding expert testimony that would only complicate, not assist, the jury’s decision on “a simple question for which the jury needed no help”)).

In other words, the trial court functions as a “gatekeeper” and must ensure “that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., 509 U.S. at 597, 113 S.Ct. 2786 (explaining that district courts play a gatekeeping function in determining whether the testimony of an expert should be excluded); see also Lidle ex rel. Lidle v. Cirrus Design Corp., No. 08 CV 1253, 2010 WL 2674584, at *2-3 (S.D.N.Y. July 6, 2010); Gould Paper Corp. v. Boise Cascade Corp., No. 95 CV 9771, 2000 WL 1099941, at *1 (S.D.N.Y. July 10, 2000). Moreover, the trial court’s gatekeeping obligation, “applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 141, 147, 149-50, 119 S.Ct. 1167 (finding Daubert applies to the admissibility of an engineering expert’s testimony and noting that “[ejngineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases” and “there are many different kinds of experts, and many different kinds of expertise” to which the Daubert analysis applies); see also Cayuga Indian Nation of N.Y. v. Pataki, 83 F.Supp.2d 318, 321 (N.D.N.Y.2000) (determining that witnesses were qualified as experts based on their experience as real estate appraisers, as demonstrated by their respective curriculum vitae and testimony).

The question of admissibility of expert testimony is for the trial judge to resolve and the court has “broad discretion” in making that determination. United States v. Feliciano, 223 F.3d 102, 120 (2d Cir.2000); Palazzetti Import/Export, Inc. v. Morson, No. 98 CV 722, 2001 WL 793322, at *2 (S.D.N.Y. July 13, 2001).

B. Standards Under Daubert & Kum-ho Tire

The standard governing the admissibility of expert testimony is liberal and flexible. Houlihan v. Marriott Int’l, Inc., No. 00 CV 7439, 2003 WL 22271206, at *3 (S.D.N.Y. Sept. 30, 2003) (citation omitted); see Krause v. CSX Transp., 984 F.Supp.2d 62, 73-74 (N.D.N.Y.2013) (explaining that to assess “whether a proposed expert is ‘qualified,’ the trial judge should remember the liberal purpose of Fed.R.Evid. 702, and remain flexible] in evaluating the proposed expert’s qualifications”) (internal quotations and citations omitted). The Second Circuit has held that under the Federal Rules of Evidence, there is a general “presumption of admissibility of evidence,” Borawick v. Shay, 68 F.3d 597, 610 (2d Cir.1995), and indeed, the “rejection of expert testimony is ‘the exception rather than the rule.’ ” Fed.R.Evid. 702 advisory committee’s note; see also Melini v. 71st Lexington Corp., No. 07 CV 701, 2009 WL 413608, at *5 (S.D.N.Y. Feb. 13, 2009) (internal quotations and citations omitted).

C. Qualification as an Expert

The trial court’s first step is to determine whether the proffered expert is qualified by virtue of some specialized “‘knowledge, skill, experience, training or education.’ ” Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir.1998) (quoting Fed.R.Evid. 702). Although Daubert itself addressed scientific testimony, “any such knowledge might become the subject of expert testimony.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 147, 119 S.Ct. 1167; see also McCullock v. H.B. Fuller Co., 981 F.2d 656, 657 (2d Cir.1992) (holding that proposed expert who lacked relevant training and experience was not qualified to testify as to the adequacy of a warning label); Cayuga Indian Nation of N.Y. v. Pataki, 83 F.Supp.2d at 321.

Moreover, while the threshold issue of whether a particular witness qualifies as an expert is one for the judge to determine, it is for the jury to decide what weight should be given to the testimony. See Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir.1990); TC Systems Inc. v. Town of Colonie, New York, 213 F.Supp.2d 171, 175 (N.D.N.Y.2002) (citing Valentin v. New York City, 94 CV 3911, 1997 WL 33323099, at *15 (E.D.N.Y. Sept. 9, 1997)). Once the testimony has been found to be admissible, the adverse party is free to challenge any “shaky or unreliable” testimony before the jury using the “traditional’ devices of ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.’ ” In re Joint Eastern & Southern Dist. Asbestos Litig., 52 F.3d 1124, 1132 (2d Cir.1995) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 596, 113 S.Ct. 2786); see also Jarvis v. Ford Motor Co., 283 F.3d 33, 48 (2d Cir.2002) (holding that disputes over the conclusions to be drawn from the expert’s analysis are “properly the province of the jury”) (citations omitted); B.F. Goodrich v. Betkoski, 99 F.3d 505, 525 (2d Cir.1996), overruled on other grounds by United States v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998); Khairkhwa v. Obama, 793 F.Supp.2d 1, 10 (D.D.C.2011).

In considering a witness’ practical experience and educational background as criteria for qualification, the threshold question is whether the expert’s knowledge of the subject is such that his opinion will likely assist the trier of fact in arriving at the truth. See Khairkhwa v. Obama, 793 F.Supp.2d at 11 (citing Mannino v. Int’l Mfg. Co., 650 F.2d 846, 850 (6th Cir.1981) (noting that an “expert need not have complete knowledge about the field in question, and need not be certain”)); Keenan v. Mine Safety Appliances Co., No. 03 CV 710, 2006 WL 2546551, at *2 (E.D.N.Y. Aug. 31, 2006) (explaining that for the “testimony to be admissible it need only assist the trier of fact in some way”) (citations omitted); Lappe v. Am. Honda Motor Co., Inc., 857 F.Supp. 222, 226 (N.D.N.Y.1994) (noting that the expert’s skill, knowledge, or experience should be such that the opinion will “probably aid the trier of fact in his search for the truth”).

Courts have looked at an expert’s “generalized qualifications,” finding that a “broad range of knowledge, skills and training qualify an expert as such.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir.1994), cert. denied, 513 U.S. 1190, 115 S.Ct. 1253, 131 L.Ed.2d 134 (1995). The totality of an expert’s qualifications should be considered in evaluating whether or not his or her testimony is admissible. Argonaut Ins. Co. v. Samsung Heavy Indus. Co. Ltd., 929 F.Supp.2d 159, 168 (N.D.N.Y.2013). An expert need not be precluded “from testifying merely because he or she does not possess experience tailored to the precise product or process that is the subject matter of the dispute.” Yaccarino v. Motor Coach Indus., Inc., No. 03 CV 4527, 2006 WL 5230033, at *9 (E.D.N.Y. Sept. 29, 2006) (citations omitted). Indeed, where an expert possesses qualifications in a “general field closely related to the subject matter in question, the court will not exclude the testimony solely on the ground that the witness lacks expertise in the specialized areas that are directly pertinent.” Deutsch v. Novartis Pharm. Corp., 768 F.Supp.2d 420, 425 (E.D.N.Y.2011) (quoting In re Zyprexa Products Liab. Litig., 489 F.Supp.2d 230, 282 (E.D.N.Y.2007)). Thus, a witness’ lack of particular' knowledge, education, or experience may go to the weight, not the admissibility, of the testimony. See, e.g., McCulloch v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir.1995) (finding that the expert’s alleged shortcomings in academic training in fume dispersal and lack of specific knowledge about the chemical constituents of the fumes, should be explored on cross-examination); Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 691 F.Supp.2d 448, 461 (S.D.N.Y.2010) (finding that while the expert “may not be the world’s leading expert” in the relevant field, plaintiffs’ arguments regarding his qualifications went to the weight and credibility of the testimony); Emig v. Electrolux Home Prods. Inc., No. 06 CV 4791, 2008 WL 4200988, at *5 (S.D.N.Y. Sept. 11, 2008) (finding the expert’s lack of a post-graduate degree in engineering and absence of experience in a particular area of consumer products went to the weight of the testimony).

1) Mr. Barbe’s Background

Mr. Barbe claims to “possess a considerable amount of particularized knowledge and expertise concerning the safety performance [and] design of the [Saw].” (Barbe Rep. at 1). He claims to be “familiar with the safety standards applicable to the Saw” and to have taken and taught courses concerning the risks associated with the use of saws, and the elimination of such risks. (Id.) Mr. Barbe asserts that as an expert in the field of safety engineering and loss control, he is well-positioned to assess the risks associated with the Saw at issue in this case. (Id.)

Mr. Barbe earned a Bachelor of Science degree from the Illinois Institute of Technology in Fire Protection Engineering and Safety Engineering. (Def.’s Ex. K; see also Pl.’s Mem. at 5; Barbe Tr. at 90). Mr. Barbe is a “licensed safety engineer with over 35 years of experience in private consulting.” (Pl.’s Mem. at 5; Barbe Rep. at 1). According to his curriculum vitae, Mr. Barbe is registered as a professional safety engineer in the Commonwealth of Massachusetts, the State of California, and Canada. (Def.’s Ex. K). He is also a Certified Safety Professional (“C.S.P.”) with the Board of Certified Safety Professionals; a Certified Product Safety Manager (“C.P.S.M.”) with the Board of Product Safety Management; a Certified Hazard Control Manager (“C.H.C.M.”) with the Board of International Hazard Control; and a Healthcare Safety Professional (“H.S.P.”) through the Board of International Health Care Safety Professionals. (Id.)

Mr. Barbe is currently employed by Occupational Safety & Health Services, Inc., where he has worked since the early 1970s. (Barbe Tr. at 5-6; see also Def.’s Ex. K). . At one time, Mr. Barbe had an ownership interest in the company. (Barbe Tr. at 6). Mr. Barbe is also employed by two other entities: 1) Shredfast, a manufacturer of shredding trucks, where Mr. Barbe serves as Risk Manager; and 2) Garlock, which makes roofing and construction equipment, where he holds the position of Safety Engineer. (Barbe Tr. at 8-11). Mr. Barbe testified that at Shred-fast, he is responsible for formulating and implementing a “safety program” which encompasses the construction, design, installation, and use of Shredfast’s products. (Id. at 11). He explained that at Garlock, where he serves as a safety engineer, he “deal[s] in the performance of a product to perform safely, based upon the foreseeable use and misuse of the product.” (Id. at 12). When questioned about whether he is involved with designing particular products or guards, Mr. Barbe explained that “design mechanical engineers do the design work.” (Id. at 15). However, he maintained that as a safety engineer, he is still involved in product design “but normally, restriet[s] [him] self to the performance of a product to perform safely doing fault-tree analysis, techniques for human-error projection, [and] job safety analysis.” (Id.)

From about 1969 to 1973, Mr. Barbe was employed by American Hoist and Derrick, during which time he “[fjormulated their safely program for products, facilities, equipment services and construction.” (Barbe Tr. at 105-06; Def.’s Ex. K). Mr. Barbe testified that he also worked at Westinghouse Electric for about three to four years, in the 1960s as Manager of Accident Prevention. (Barbe Tr. at 106-OS).

According to his curriculum vitae, Mr. Barbe has taught courses in safety engineering at the United States Department of Labor (“DOL”), the International Brotherhood of Electrical Workers, and the University of California, Los Angeles, in addition to “numerous” private companies. (Barbe Rep. at 1; see also Pl.’s Mem. at 5). He also compiled a reference manual for the Occupational Safety & Health Administration (“OSHA”), which he claims sold 10,000 copies. (Barbe Tr. at 93; see also Pl.’s Mem. at 5). Additionally, an article concerning Mr. Barbe’s work, titled Critical Incident Techniques, was published in National Safety News magazine; it addresses how manufacturers can “accumulate knowledge ... [on] the frequency and severity of accidents in order to determine accident caus[ation].” (Barbe Tr. at 93-94). During his deposition, Mr. Barbe was able to recall only one published article that he himself had written. (Id. at 95).

In addition, Mr. Barbe is a participating member of “Underwriters Laboratory Standards UL 987 Standard for Stationary and Fixed Electric Tools,” “American National Standards Code Safety of Machinery General Requirements and Risk Assessment,” and “Construction safety standards and USNC/IEC TAG for IEC/TC 116, Safety of motor-operated electric tools.” (Barbe Rep. at 1; PL’s Mem. at 5).

According to Mr. Barbe, he is currently in the process of applying for a patent for a guard, which could be used on a woodworking table saw as well as a portable table saw. (Barbe Tr. at 15-16). Mr. Barbe claims that he has been developing this device over the last two years, and that it would “apply to the ability of the spinning blade not to come into contact with a person’s hand or fingers.” (Id. at 96). Mr Barbe contends that his guard, as well as a variety of other designs — including a trap saw, interlock device, and SawS-top (or, flesh-sensing) technology — are viable alternatives to the design of the Saw used in this case. (See Barbe Rep. at 14-15; Barbe Tr. at 49-50, 58-59, 61-64, 88). Mr. Barbe acknowledged that while he knows how to build an alternative design, for example, in the form of an interlock device, he has not done so to date. (Barbe Tr. at 65). Further, Mr. Barbe conceded that he is not aware of another table saw on the market that incorporates an interlock device and he conceded that the use of an interlock device would prevent certain cuts from being made. (Id. at 66, 68-69). Additionally, Mr. Barbe acknowledged that he was not aware of any portable bench-top saw on the market using flesh-sensing technology and that he has not personally done any design work to incorporate such technology into a bench-top saw. (Id. at 71, 74, 83). Instead, Mr. Barbe’s familiarity with flesh-sensing technology appears to rely primarily on the research of Dr. Stephen Gass, who invented SawStop. (Id. at 71-74).

Mr. Barbe maintains that the Saw used by plaintiff did not actually contain a guard, since once the “barrier” device was removed from the Saw, it no longer provided “positive protection” and thus allowed plaintiffs injury to occur. (See id. at 20-30, 48 (explaining that the Saw “is inherently unsafe when the barrier that was put on is taken off’)).

Mr. Barbe testified that he has been deposed approximately 400 to 500 times and has given trial testimony about 100 times. (Id. at 5). Mr. Barbe also indicated that he has provided deposition testimony on behalf of a manufacturer of a product, but did not recall the number of times or most recent time. (Id. at 99). He acknowledged that it is “probably correct” that over 90% of the times he has been deposed were on behalf of plaintiffs, but he maintained that he was not certain. (Id. at 100-01). Mr. Barbe indicated that he testified for a company called Zamboni “less than three” times in the last ten years. (Id. at 101-02). Mr. Barbe had worked as a safety engineer for that company for about 20 years. (Id.) Additionally, Mr. Barbe indicated that he has testified on behalf of various insurance companies that certain products were not defective. (Id. at 102-03). However, when presented with a three-page report prepared by Mr. Barbe’s secretary identifying his past testimony, Mr. Barbe was not able to identify any cases in which he testified on behalf of the defendant. (Id. at 104).

Mr. Barbe also testified that he has used table saws about 100 times over the last several decades, for the purpose of investigating and inspecting the saws to assess matters at issue in litigation as well as to enhance the safety features. (Id. at 55-58).

2) Analysis

Defendant first argues that Mr. Barbe is not qualified to render an expert opinion in this case because he is neither an electrical engineer nor a mechanical engineer and he has no education or experience in designing table saws. (Def.’s Mem. at 12). Although defendant contends that “[t]he design and manufacture of table saws, including specifically a blade guard for a table saw, falls under the discipline of mechanical engineering and the design of technology such as SawStop falls under the discipline of mechanical engineering, with electrical engineering concepts” (Def.’s Mem. at 12-13), defendant cites no authority for the assertion that only someone with this background is qualified to opine on the design of a guard for the Saw. Defendant further argues that Mr. Barbe has not lectured or taught courses on the design or manufacture of table saws, and he has not authored any-published writings on the design of saws or guards. (Id. at 13). Defendant also notes that it is only within the last two years that Mr. Barbe has ever used a table saw; he “admitted to never taking a woodworking class; never owning a table saw; never working as a carpenter with a table saw; and never operating a table saw (except perhaps in connection with a litigation matter).” (Id. (citing Barbe Tr. at 37-43, 104-105)). Although Barbe testified that he is a “participating member of the UL 987 standard” (Barbe Tr. at 133), defendant asserts that during his deposition, Mr. Barbe “dodged questions” regarding the specifics of table saw design, safety standards, and SawStop, leading defendant to argue that Mr. Barbe’s “lack of qualifications is readily apparent from even a cursory review of his deposition.” (Id.)

However, plaintiff argues that Mr. Barbe’s degree in Safety Engineering, licenses, certifications, publications and teaching experience qualify him to render an expert opinion as to the safety and design of the Saw, and that any arguments defendant may have as to his qualifications go to the weight to be given to his testimony and not its admissibility. (Pl.’s Mem. at 5, 7). As for the claim that Mr. Barbe is not qualified to render an opinion because he does not hold a degree in mechanical or electrical engineering, plaintiff argues that Mr. Barbe’s Bachelor of Science degree in Safety Engineering and the engineering courses that he took to earn his degree qualify him to render an opinion as to whether a product performs safely in light of its foreseeable uses and misuses. (Id. at 5). In addition, Mr. Barbe’s work experience, including his work at Shredfast, where he formulated and implemented a safety program for Shredfast’s products, and he “designed guards on Shredfast’s ... equipment,” includes analyzing whether various products perform safely. (Id. at 6).

In response to defendant’s argument that Mr. Barbe has no experience with table saws or specifically with the Saw at issue in this case, plaintiff asserts that Mr. Barbe has gained particularized knowledge of this Saw because he read “all the material on the saw,” inspected the Saw, is familiar with applicable safety standards, and “his personal library contains numerous documents regarding the safety design, performance and safeguarding of the” Saw and the guards at issue. (Pl.’s Mem. at 6) (quoting Barbe Tr. at 157). Finally, plaintiff contends that Mr. Barbe has been qualified as an expert in “hundreds of cases,” testifying at trial approximately 100 times. (Id. at 8-9). Specifically, plaintiff cites the holding in Powers v. Husqvarna Forest & Garden Co., No. 00 CV 6490, 2004 WL 2202652, at *2 (W.D.N.Y. Sept. 28, 2004), where the court found Mr. Barbe qualified to testify as an expert relating to a defective chain saw. The court stated:

Mr. Barbe is a safety engineer. He is registered as a safety engineer in Massachusetts and California, has a Bachelor of Science degree in Safety Engineering from the Illinois Institute of Technology and has been employed in private industry as a Safety Engineer. While the defense has pointed out weaknesses in the methods Barbe used to form his opinions in this case and his alleged lack of experience in safety engineering of chain saws, ... I find these weaknesses go to the weight of his testimony and are not grounds for excluding his opinion altogether.

Id. at *2. Mr. Barbe also testified as an expert in Thompson v. Sunbeam Prods., Inc., No. 10 CV 98, 2011 WL 4502049, at *5 (S.D.Ohio Sept. 28, 2011), aff'd, 503 Fed.Appx. 366 (6th Cir.2012), providing testimony that the instructions that came with a hand mixer were defective and the proximate cause of the plaintiffs injuries because they did not warn against wearing jewelry around the moving parts of the mixer and did not contain some signal such as “danger” in a different col- or. Although the court in Thompson did not conduct a formal Daubert analysis of Barbe’s qualifications and the scientific basis for his testimony, it granted summary judgment in favor of defendant, rejecting Barbe’s testimony, since Barbe had agreed that the injury would not have occurred had the plaintiff heeded the warning. Id. at *11. The court noted that not only had Mr. Barbe failed to examine or test the mixer, but he also could not explain why the words “IMPORTANT SAFEGUARDS” in large print, the “literal equivalent of ‘danger,’ ” were not sufficient and why a warning to keep jewelry from coming into contact with the beaters was necessary when the warning explicitly warned that body parts and clothing should be kept away from the beaters during operation. Id. at *10; see also Humphrey v. Diamant Boart, Inc., 556 F.Supp.2d at 176 (finding that although the expert had no experience or education relating to the analysis of hand saws, he was qualified to render an opinion regarding the guarding mechanism on a saw by virtue of his Bachelor’s Degree and Master’s Degree in mechanical engineering and his Ph.D in Engineering Science, and his experience as an engineering consultant, which included designing various items, including guards on a stationary punch press and hand exerciser; “the expert’s lack of experience with saws goes to the weight of his testimony, not its admissibility”); Peretz v. Home Depot, Inc., 08 CV 4106, 2009 WL 3124760, at *2-3 (E.D.N.Y. Sept. 29, 2009) (finding expert “to be sufficiently. qualified to offer his opinion as an expert, albeit barely” regarding the guard in a grinder, even though he had not studied mechanical engineering, had limited knowledge of standards and never designed a grinder). But cf., Fernandez v. Cent. Mine Equip. Co., 670 F.Supp.2d 178, 183-84 (E.D.N.Y.2009) (finding expert in drilling accident case not qualified even though he had a B.S. and Masters degree in mechanical engineering, was employed with a forensic firm specializing in mechanical engineering, had taught courses in engineering, but had little expertise in geotechnical field, never operated any drilling rigs and never consulted for a drilling company); Quintanilla v. Komori Am. Corp., No. 04 CV 5227, 2007 WL 1309539, at *4 (E.D.N.Y. May 4, 2007) (precluding as not qualified an engineer with no experience with printing presses or design of machine guards, even though he had experience in mechanical design for electronics); Berry v. Crown Equip. Corp., 108 F.Supp.2d 743, 750-51, 755 (E.D.Mich.2000) (finding self-employed “safety consultant” with no graduate degrees, no published articles on forklifts, no leadership position in safety organization, who never designed a product related to forklifts, and had only worked as a forklift operator in a sit down model, not qualified to render opinion).

Having considered Mr. Barbe’s qualifications, the Court finds that it is not necessary that Mr. Barbe be an electrical or mechanical engineer in order to opine on questions of the safety elements of a product’s design. As a safety engineer, registered in two states, with the education and experience that he has obtained in the course of his career, he is qualified to render an opinion as to whether a product performs safely in light of its foreseeable uses and misuses. The Court acknowledges that he has very little experience with the table saw at issue, has not published any articles on saws, and although he claims to have designed a guard for a saw, he declined to provide any details that would allow the defendants and the Court to evaluate his expertise in this area. While Mr. Barbe’s knowledge of this particular table Saw appears to be limited, nevertheless, the Court concludes that he is qualified, “albeit barely,” to testify in this case, and his lack of knowledge and experience goes to the weight of his testimony.

D. Reliability of Testimony

1) Reliability Standards

Once the proposed expert has “crossed the foundational threshold of establishing his personal background qualifications as an expert, he must then provide further foundational testimony as to the validity and reliability of his theories.” Berry v. Crown Equip. Corp., 108 F.Supp.2d at 749 (citing Isely v. Capuchin Province, 877 F.Supp. 1055, 1064 (E.D.Mich.1995)). Thus, in addition to determining whether an expert witness is qualified to render an opinion regarding a specific issue or area of expertise, the court is required to exercise a “gatekeep-ing” function that revolves around the question of whether the expert’s testimony is reliable and will be of assistance to the trier of fact in evaluating the evidence. The standards for evaluating the reliability of an expert’s reasoning and methodology were first set out by the Supreme Court in 1993 in Daubert v. Merrell Dow Pharmaceuticals, Inc., where the Court rejected the test previously enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), as being at odds with the “liberal thrust” of the Federal Rules of Evidence. 509 U.S. at 588, 113 S.Ct. 2786; F.D.I.C. v. Suna Assoc., Inc., 80 F.3d 681, 686-87 (2d Cir.1996); see also Iacobelli Constr., Inc. v. Cnty. of Monroe, 32 F.3d 19, 25 (2d Cir.1994). The test set forth in Daubert requires the court to make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 592-93, 113 S.Ct. 2786. Among the factors to be evaluated by the court in its determination are: (1) the ability to test the expert’s methodology or reasoning; (2) whether the expert’s theory has been subjected to peer review and publication; (3) its potential rate of error; and finally, (4) its general acceptance in the relevant scientific community. See id. at 592-94, 113 S.Ct. 2786; see also Iacobelli Constr. Inc. v. Cnty. of Monroe, 32 F.3d at 25.

In Kumho Tire Co., Ltd. v. Carmichael, the Supreme Court made it clear that the Daubert gatekeeping analysis applies to “all expert testimony,” including “all ‘scientific,’ ‘technical,’ or ‘other specialized’ matters.” 526 U.S. at 147, 119 S.Ct. 1167 (quoting Fed.R.Evid. 702); see also Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir.2000). The Court emphasized, however, that any inquiry into reliability need not be limited to the four factors listed in Daubert. and these guidelines must be applied with flexibility, particularly when the expert is offering opinions based on specialized personal knowledge rather than scientific studies. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 150, 119 S.Ct. 1167; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 593-94, 113 S.Ct. 2786 (explaining that the list of factors is not exhaustive and no one factor is considered dispositive; and also emphasizing that “[t]he inquiry envisioned by Rule 702 is ... a flexible one”); Borgognone v. Trump Plaza, 98 CV 6193, 2000 WL 341135, at *3 (E.D.N.Y. March 9, 2000). Moreover, it is clear under Kumho that regardless of an expert’s experience and his expertise, the court must still perform its gatekeeping function and examine the methodology used by the expert in reaching his opinion in order to determine if it is “reliable” and will assist the jury. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 149, 119 S.Ct. 1167.

In addition, “an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 592, 113 S.Ct. 2786 (citing Fed.R.Evid. 702, 703). Under the Federal Rules of Evidence, if an expert opinion is based upon facts or data “that the expert has been made aware of or personally observed,” the opinion is admissible, even where the underlying facts and data are not, as long as “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed.R.Evid. 703. However, “if the facts or data [relied on in forming the expert’s opinion] would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Id.; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595, 113 S.Ct. 2786 (citations omitted). As the court in Baker v. Urban Outfitters, Inc., noted, “[t]hough the weight given to expert testimony should be left to the finder of fact, expert testimony should be excluded altogether if it is ‘speculative’ or ‘conjectural’ or if it is based on assumptions ‘so unrealistic and contradictory as to suggest bad faith.’” 254 F.Supp.2d 346, 353 (S.D.N.Y.2003) (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.1996)); see also Peretz v. Home Depot Inc., 2009 WL 3124760, at *1. Where the expert’s testimony is “connected to existing data only by the ipse dixit of the expert,” the court may determine that there is an insufficient analytical connection between the opinion offered and the supporting facts to warrant admission of the expert’s opinion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); see also Peretz v. Home Depot Inc., No. 08 CV 4106, 2009 WL 3124760, at *1 (E.D.N.Y. Sept. 29, 2009).

Finally, it is important to note that “[t]he proponent of the expert testimony bears the burden of establishing the admissibility of such testimony under the Daubert framework by a preponderance of the evidence standard.” Hollman v. Taser Int’l. Inc., 928 F.Supp.2d 657, 666 (E.D.N.Y.2013) (citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 592, n. 10, 113 S.Ct. 2786).

2) Reliability of Mr. Barbe’s Opinion

Apart from arguing that Mr. Barbe is not qualified to render an expert opinion in this case, defendant argues that his opinions should be precluded as inherently unreliable under Rule 702 and Daubert. (Def.’s Mem. at 14).

a) Mr. Barbe’s Report

Plaintiff presented a 16-page-long report prepared by Mr. Barbe; two pages discuss the plaintiffs experience and methodology, ten pages list materials in Mr. Barbe’s personal library, and only four pages are devoted to Mr. Barbe’s opinions in this case. Mr. Barbe’s report fails to adequately explain how he arrived at his conclusions. While Mr. Barbe explains in his “Methodology” section that he has “utilized the principles of engineering and safety engineering to arrive at my opinions” and proceeds to list four “principles” that he claims safety engineers follow “in rendering professional opinions as to the cause of injuries/incidents,” (Barbe Rep. at 2), he does not explain how he applied these principles in reaching the conclusions set forth in his “Opinions” section. (See Barbe Rep. at 13-14). Instead, Mr. Barbe’s opinions concerning the defective design of the Saw consist primarily of con-clusory statements, such as “[t]he Saw was defective at the time of sale, due to the lack of proper interlocks, safety guards/proper guarding at the point of operation of the machine” (id. at 13); and “[t]he Saw was unsafe as it was defectively designed and assembled for its foreseeable uses and misuses.” (Id. at 14).

Mr. Barbe’s conclusions concerning alternative designs are similarly without analysis or support. He asserts, for example, that “if a guard is placed at the point of operation on the Saw, the dangers of coming in contact with its moving parts will be eliminated” — an assertion that seems self-evident based solely on common sense. Moreover, in discussing alternative designs, Mr. Barbe’s report simply asserts that “if a proper permanent guard or other design had been used, the incident/injury would not have occurred.” (Barbe Rep. at 14). Although he asserts that there were feasible alternative designs available at the time of manufacture in 2006, he only mentions, but does not describe in detail, a “permanent guard,” interlocks, and “trap guards,” without further explanation, and the Saw Stop technology, which he conceded at his deposition had not been employed with this type of saw. (Id. at 13-14; Barbe Tr. at 84). More importantly, he provides no analysis of the feasibility or cost of installing any of these alternatives, nor does he address the effect that these designs would have on the utility of the Saw. (Barbe Tr. at 15).

In a products liability case, the “touchr stone” of an expert’s report should be a comparison of the utility and cost of the product’s design and alternative designs. Barban v. Rheem Textile Sys., Inc., No. 01 CV 8475, 2005 WL 387660, at *5 (E.D.N.Y. Feb. 11, 2005). This comparison should usually be supported by testing of the alternative design. Smith v. Herman Miller, Inc., No. 03 CV 5358, 2005 WL 2076570, at *4 (E.D.N.Y. Aug. 26, 2005); Kass v. West Bend Co., No. 02 CV 3719, 2004 WL at 2475606, at *6 (E.D.N.Y. Nov. 4, 2004). Mr. Barbe’s conclusions do not contain any such comparisons or testing. Thus, his report lacks sufficient detail for the Court to evaluate the reliability of his opinions.

b) CPSC Statistics

In addition to the overall vague and unsupported nature of his report, defendant raises specific objections to certain aspects of Mr. Barbe’s report and testimony. As an initial matter, defendant challenges Mr. Barbe’s opinion that the Saw is defective based on statistical accident data gathered by the Consumer Product Safety Commission (“CPSC”). (Id. at 18-19). Specifically, in his opinion, Mr. Barbe cites statistics from the CPSC that estimate that 10 finger amputations a day result “just from table saws,” at a cost to society, of almost $2 billion a year. (Barbe Rep. at 14). When questioned at his deposition about the guarding device that is supplied with the saw, Mr. Barbe disputed defendant’s contention that it was a “guard,” stating that such a notion was “ridiculous,” and, citing the CPSC statistics, he asked: “How can I amputate 10 people’s fingers a day and say that the machine is guarded .... ” (Barbe Tr. at 31). He further opined: ‘When the Consumer Product Safety Commission says 10 fingers amputated a day, something is wrong with the machine.” (Id. at 28). Defendant challenges Mr. Barbe’s reliance on this data and seeks to preclude Mr. Barbe’s testimony, arguing that Mr. Barbe, “without conducting any independent testing, engineering analysis or data analysis of his own,” reaches this opinion about the safety of the saw even though he conceded that he does not know how the CPSC data is collected, nor does he know whether there has ever been a non-defective table saw sold on the market. (Id. at 18,19).

According to defendant, the statistical accident data upon which Mr. Barbe relies is not reasonably relied upon by experts in the field. (Id. at 19-23). The data, according to defendant, is collected from the NEISS system, which records emergency room visits associated with particular consumer products, but the data is collected from only about 2% of emergency rooms across the country. (Id. at 20). From this limited sample of self-reported injuries, the CPSC extrapolates to determine the total number of injuries across the country that are related to a particular product (Id.) Defendant contends that the results are unreliable because they include various models and types of saws, as well as different types of accidents. Further, the conclusions rely on various levels of hearsay, starting with the patient, hospital staff, records, and statistical extrapolation. (Id. at 20-22). As defendant argues, not only does the CPSC advise against relying on this data, but plaintiff cannot demonstrate that experts in the field of table saw design would rely on it in concluding that the Saw was defectively designed, particularly since the statistics do not take into account the number of cuts successfully made with table saws where no injuries occur. (Id. at 22-23).

Courts have rejected testimony similar to Mr. Barbe’s opinion that the saw is inherently dangerous simply because there are so many injuries involving table saws. In Barban v. Rheem Textile Systems, Inc., the plaintiffs expert, a “self-proclaimed engineering consultant” with bachelors and masters degrees in mechanical and civil engineering, was offered to opine on the design of a laundry press that had lowered onto plaintiffs hand, causing serious injuries. No. 01 CV 8475, 2005 WL 387660, at *3 (E.D.N.Y. Feb. 11, 2005). He testified that the press was inherently dangerous even though it met all recognized standards and regulations. Id. at *4. The court held that his testimony, that if a machine injures someone, it is the defect of the machine, “contradicts the well-established principle in tort law that a manufacturer is not an insurer against injury, nor must the product be accident proof.” Id. at *6. The court further noted that the expert’s proffered testimony revealed a lack of scientific rigor, id., in that the expert had never designed any machines; never conducted studies or authored articles related to dry cleaning; had no familiarity with head guards; never saw the design documents or blueprints for the press; never ascertained if the machine had been repaired; offered no alternative designs; did not undertake a utility study in tandem with safety concerns; and ignored the fact that no other manufacturer had safety guards on this type of press. Id. at *5-7.

Mr. Barbe’s conclusion that all table saws are defective because, based on the CPSC statistics, so many people are injured every year is similarly without scientific rigor. As defendant notes, the data is not limited to specific manufacturers or models of saws, and there is no information to verify that the accidents reported were the result of the absence of a guarding mechanism — which is the heart of Mr. Barbe’s theory — or were caused by some other defect. Even if there was no question as to the reliability of the data, which is based on patient self-reporting, and the methods used to extrapolate from the reported data were appropriate, there is no evidence that the conclusions drawn from this data have been verified by or relied upon by other experts in the field of table saw design, and the CPSC explicitly advises against reliance on this data to determine the number of accidents caused by a specific product. (Def.’s Mem. at 22).

Thus, the Court finds that Mr. Barbe’s testimony, to the extent that it is based on the CPSC data, is not sufficiently reliable to satisfy Daubert and Kumho, and would not assist the jury in reaching a decision in this case.

- c) Mr. Barbe’s Alternative Design Theories

i) Permanent Guard or Interlock Device

Defendant also challenges Mr. Barbe’s overall conclusions in light of his inability to provide any meaningful details regarding the design of the Saw, and his failure to offer any proposed alternative design. (Id. at 24-29). As defendant points out, Mr. Barbe has no experience designing table saws or guards for table saws, and in fact, he admits he has never owned a table saw, nor has he worked extensively with one beyond his work on this case and his efforts to patent his own guard. (Barbe Tr. at 15-16, 97-99). Although he proposes that the Saw should have been designed with a permanent guard in place or with an interlock system that would have prevented the Saw from operating if the blade guard was not in place, Mr. Barbe admits that the interlock system has only been designed “in [his] mind;” he has not presented any design drawings, nor can he point to any table saws on the market that have this interlock design. (Id. at 49,64-65). Indeed, he has not shown that such an interlock device has ever been tested or evaluated in connection with this type of Saw. (Id. at 65, 68). Finally, he does not address the defendant’s argument that a permanent guard would reduce the utility of the Saw by preventing certain types of cuts, but he concedes that an interlock system would impede the utility of the Saw. (Barbe Tr. at 68-69).

In analyzing the opinions offered by Mr. Barbe as to alternative designs, the Court has considered the nonexclusive factors set forth in Daubert to determine if an expert’s opinion is grounded in scientific methodology. These are: 1) whether the preferred theory has or can be tested; 2) whether the theory has been subjected to peer review; 3) whether the theory has been evaluated in light of potential rates of error; and 4) whether the theory has been accepted in the relevant scientific community. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 593, 113 S.Ct. 2786. The “lack of testing, or more generally the failure to take any steps that would show professional rigor in the assessment of the alternative designs” has been, in several cases, fatal to the admissibility of the expert’s opinion. See, e.g., Dhillon v. Crown Co