BAEC Bulletin | January/February 2023 | 33
permits a defendant to rely on an absence of evidence concerning actual notice and the creation of the condition to satisfy its burden under Rule 56. The Court found that plaintiff failed to raise a triable issue of fact concerning whether defendant created the alleged hazard or observed the hazard before the incident and, therefore, plaintiff could not establish at trial that defendant had actual notice or created the condition. Plaintiff also failed to establish a triable issue of fact concerning whether defendant had constructive notice because there was no evidence that the condition was visible and apparent and had existed for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it. Daubert and Products Liability In Hernandez v. Pitco Frialator, Inc., 15-cv-1079- RJA (Mar. 30, 2022)—a products liability lawsuit asserting design defect, negligence, and failure to warn claims—plaintiff sustained injuries when a deep fryer manufactured by defendant tipped over while he was moving the equipment to clean behind it. The Court granted defendant’s motion to disqualify plaintiff’s expert witness. The Court first held that the expert, who had a Ph.D. in mechanical engineering, was sufficiently qualified as an expert even though he lacked experience with commercial fryers and a professional engineering license. Although well credentialed, his opinion was subject to disqualification because he failed to articulate the scientific or technical basis for his opinion. The expert testified that he performed no tests, built no prototypes, did no calculations, performed no risk analysis, and conducted no inspection of the fryer. Although any of those shortcomings on its own would not preclude the expert from testifying, when viewed together the Court concluded there was no discernible method to the expert’s allegedly feasible alternative designs and, therefore, his opinions were unreliable. Without that expert’s testimony, plaintiff could not demonstrate the existence of a feasible alternative design and could not show that the lack of such a design rendered the fryer unreasonably safe and a substantial factor in causing his injuries, resulting in the dismissal of his design defect claim. For similar reasons, the Court concluded the negligence claim also must be dismissed because there was no evidence the deep fryer’s alleged top heaviness rendered the fryer unreasonably dangerous. The Court held that the failure to warn claim also was subject to dismissal because plaintiff admitted he did not read two warnings located on the fryer and did not propose an alternative warning that would have caused him to take notice and prevented the accident. Attorneys’ Fees under 28 U.S.C. § 1927 In Jackling v. Brighthouse Life Ins. Co., 20-cv-06899- MJP (Mar. 21, 2022), defendant moved for an award of attorneys’ fees under 28 U.S.C. § 1927, arguing that plaintiff’s counsel’s actions forced defendant to engage in unnecessary motion practice to secure the dismissal of certain unnecessary defendants from the action. Prior to making the motion, defendant presented plaintiff’s counsel with evidence that those defendants
should not have been named in the lawsuit, and offered additional opportunities for plaintiff’s counsel to dismiss the unnecessary defendants, but those requests went unanswered. Thereafter, the Court dismissed the unnecessary defendants and held a hearing in connection with defendant’s request for attorneys’ fees. Noting that 28 U.S.C. § 1927 requires a showing that the challenged claim was without a colorable basis and was brought in bad faith, the latter of which can be inferred when the actions taken “are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose,” the Court found that plaintiff’s counsel lacked evidentiary support for the factual contention that the unnecessary defendants needed to be included in the lawsuit. Thus, based on the repeated failures to remove those defendants, the Court inferred bad faith and determined that assessing attorneys’ fees on plaintiff’s counsel was warranted. As for the amount of fees to be awarded, defendant sought $5,610.00 and the Court analyzed the request under the “loadstar method,” in which courts calculate the appropriate amount by multiplying the number of hours reasonably expended by a reasonable hourly rate. In doing so, the Court found the requested hourly rate of $300.00 was reasonable, but determined that some of the hours logged were redundant or unnecessary and could have been performed by a more junior lawyer. As a result, the Court applied a 30% reduction “as a practical means of trimming fat,” and awarded $3,927.00 to defendant •
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