De Larancuente v. American Airlines, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MIRTHA OZUNA DE LARANCUENTE,

Plaintiff, OPINION & ORDER

- against - 18-cv-4939 (NG)(RER)

AMERICAN AIRLINES, INC.,

Defendant.

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GERSHON, United States District Judge:

Mirtha Ozuna De Larancuente, an 82-year-old resident of the Dominican Republic, brings

this action against American Airlines, Inc. for negligence. The claim is based upon allegations

that she tripped while exiting an American Airlines flight in Las Vegas, Nevada on August 23,

2017. Defendant has moved to exclude consideration of plaintiff’s expert under Federal Rule of

Evidence 702, and for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the

reasons discussed, below, both aspects of defendant’s motion are granted.

I. Factual Background

Except as otherwise noted, the facts set forth below are undisputed for purposes of this

motion.

Plaintiff’s claim arises from a trip and fall incident on August 23, 2017, that occurred in

Las Vegas, Nevada, while disembarking from a flight that originated at John F. Kennedy Airport

in Queens, New York. On that day, plaintiff was traveling with her daughter, her granddaughter,

and her son-in-law, who required a wheelchair because of issues with his hip and spinal column.

Though plaintiff does not have any medical condition that causes her to have difficulty

walking, Plaintiff’s Deposition at 12:4–9, she requested a wheelchair from the airline because she

“get[s] tired of walking for a long period of time,” as is often the case in airports, id. at 14:4–12.1

Typically, when Ms. De Larancuente uses a wheelchair in an airport, she will get out of the

wheelchair on the jet bridge and enter the aircraft on her own. Id. at 26:14–24.2 That is what

happened when she entered the airplane at JFK on August 23, 2017, and it was her expectation

that she would likewise exit the aircraft on her own when she reached Las Vegas, and then go sit

in a wheelchair to navigate the airport. Id.

On the day in question, all four members of plaintiff’s party boarded the plane without

incident and sat in the last row. When the flight arrived in Las Vegas, plaintiff and her family

were the last passengers to exit the plane. The other members of plaintiff’s family walked to the

front of the plane without assistance and without incident. Plaintiff’s son-in-law exited the aircraft

first, by crossing the threshold of the airplane on his own and sitting in a wheelchair that was

waiting for him on the jet bridge. Plaintiff’s granddaughter and daughter then exited the airplane

without incident.

Plaintiff also walked on her own to the front of the plane. When she reached the passenger

door to exit, however, she realized that there was no wheelchair waiting for her on the jet bridge.

One flight attendant told plaintiff that she would go up the jet bridge and check on the wheelchair.3

1 In her opposition to defendant’s Local Rule 56.1 Statement of Undisputed Material Facts,

plaintiff argues that these facts are controverted by pages 12 and 13 of her deposition because she

is “infirmed.” However, I find that defendant has accurately cited plaintiff’s own deposition

testimony. The pages cited by plaintiff mention that she takes medication for her blood pressure,

but do not state that she is otherwise “infirm.”

2 Plaintiff also argues that these facts are controverted by pages 18 through 25 of her deposition

testimony. There is nothing in those pages of plaintiff’s testimony that contradicts defendant’s

description. I find that defendant has accurately cited plaintiff’s deposition testimony and accept

that version of events.

3 Flight attendants Amanda Lutz and Brianna Rose were working on the subject flight, though

neither flight attendant recalls the accident in question.

In the absence of a flight attendant, plaintiff stepped off the aircraft and onto the jet bridge. In the

process of doing so, plaintiff tripped over the threshold of the aircraft doorway and fell onto the

jet bridge, fracturing her right wrist.4 Plaintiff believes that she tripped over a piece of metal that

was a part of the aircraft door and that she may not have raised her foot high enough as she stepped

off the aircraft. In opposition to summary judgment, plaintiff’s brief concludes that the metal

object she tripped on was one of two fuselage hooks that protrude from the floor at the threshold

of the airplane.

Plaintiff and defendant have each engaged engineers to provide expert reports in this

matter. Defendant’s proffered expert, Michael Cronin, identifies the fuselage hooks as sitting

outside the 30-inch width of the door. Plaintiff’s proffered expert, Harold Krongelb, testified that

he did not measure, and was unaware of the measurements of, the airplane doorway or the distance

between the fuselage hooks. Each expert concluded that there are no defects in the aircraft itself,

which was a Boeing 737-800. I therefore treat as undisputed that the fuselage hooks were outside

the 30-inch width of the doorway.

In her motion papers, plaintiff attempts to establish a question of fact regarding the duties

and responsibilities of flight attendants based upon the testimony of Flight Attendant Amanda

Lutz. Her testimony, however, is unambiguous. Flight Attendant Lutz testified that her

responsibility when passengers are deplaning is “to monitor the door and monitor the passengers

leaving.” Deposition of Amanda Lutz at 35:5–36:1. She did not testify that it was her duty to help

4 Plaintiff challenges defendant’s statement of facts on this topic, though it is not entirely clear

why. It may be because, as written by defendant, plaintiff “injur[ed] her hand” whereas plaintiff

alleges that she fractured her wrist in the fall. Assuming that is plaintiff’s point of contention, I

have accepted her version of events for the purposes of this motion and accept that she fractured

her wrist in the fall. In any event, the outcome of the fall does not affect the question of liability.

passengers deplane. On the contrary, she testified that, if she were to stand at the passenger door

while passengers deplaned, it would interfere with her duty. Id.

II. Choice of Law

This court’s jurisdiction is premised upon diversity of citizenship, as defendant is a citizen

of Delaware with a principal place of business in Texas, while plaintiff is a citizen of the

Dominican Republic who resides in New York State. Plaintiff also alleges that her damages are

greater than the jurisdictional minimum of $75,000.

In federal diversity actions, state law governs substantive issues while federal law governs

procedural issues. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The parties do not dispute that

the elements of a negligence claim are the same under Nevada and New York laws. Compare

Sanchez v. Wal-Mart Stores, Inc., 125 Nev. 818, 824 (Nev. 2009) (“It is well established that to

prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence of a duty

of care, (2) breach of that duty, (3) legal causation, and (4) damages.”) with Pasternack v. Lab.

Corp. of Am. Holdings, 807 F.3d 14, 19 (2d Cir. 2015) (“The elements of a negligence claim under

New York law are: ‘(i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and

(iii) injury substantially caused by that breach.’” (quoting Lombard v. Booz-Allen & Hamilton,

Inc., 280 F.3d 209, 215 (2d Cir. 2002))). Therefore, I will apply the substantive law of the forum

state, New York. See J. Aron & Co. v. Chown, 231 A.D.2d 426 (1st Dept. 1996) (when there is

no conflict between the substantive laws, New York will dispense with a choice of law analysis).

Plaintiff, however, argues that, because New York’s and Nevada’s rules of evidence are in

conflict with respect to the level of deference given to expert testimony, Nevada’s rules of evidence

apply. Plaintiff is mistaken. Rules of evidence, including Federal Rule of Evidence 702, which

governs expert testimony, are generally considered procedural in nature. See Salsburg v.

Maryland, 346 U.S. 545, 550 (1954); Aspen Eyewear, Inc. v. Altair Eyewear, Inc., 485 F. Supp.

2d 310, 318 (S.D.N.Y. 2007), aff’d in part and rev’d in part on other grounds, 288 Fed. Appx.

697 (2d Cir. Aug. 1, 2008) (“the admissibility of expert testimony is a procedural issue that arises

in an array of substantive areas . . .”); but cf. Fed. R. Evid. 501 (“in a civil case, state law governs

privilege regarding a claim or defense for which state law supplies the rule of decision”). As a

result, the Federal Rules of Evidence, rather than state evidentiary laws, apply here. See Fed. R.

Evid. 1101(b) (“[The Federal Rules of Evidence] apply in . . . civil cases and proceedings.”).

III. Plaintiff’s Expert Testimony Is Excluded

In opposition to the motion for summary judgment, and in support of her claim of

negligence, plaintiff has submitted the report of a licensed professional engineer and home

inspector, Harold Krongelb, whom she has proffered as an expert witness. Krongelb’s report

reaches four conclusions, based on his “professional opinion, with a reasonable degree of

Engineering certainty,” upon which plaintiff relies in arguing that defendant owed plaintiff a duty

of care. Krongelb Report at 7–8. Krongelb’s report concludes: “it is a good and accepted practice

to make sure pedestrian use of potentially hazardous doors and walkways is constantly

supervised;” “it is reasonably foreseeable that a passenger will attempt to exit an airplane at an

airport if they feel they have been left alone on the airplane;” “it is reasonably foreseeable that a

passenger who attempts to exit unassisted through the Boeing 737 passenger door will trip and

fall;” and finally, “a passenger cannot safely cross the threshold [of] the exit door of the Boeing

737 unassisted.” Id.

It is undisputed that Krongelb’s opinion in this matter is based solely upon a telephone call

with plaintiff’s counsel and his review of a single photograph “that reportedly represented the

Boeing 737 passenger door at the time [plaintiff] tripped and fell.”5 Id. at 4. He did not examine

5 Notably, the one photograph upon which Krongelb relied in reaching his opinions depicted the

interior of a 737 aircraft whose door was shut—not open as the door was when plaintiff fell.

the subject aircraft, has no professional experience with aircraft, has neither undertaken nor

reviewed any relevant studies, and he proffers no methodology for how he reached his opinion in

this case. Defendant now moves to exclude Krongelb’s testimony, arguing that he is unqualified

and that his opinions are speculative, unreliable, and irrelevant.

The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of

Evidence, which provides:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if:

(a) 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; (b) the testimony is based on sufficient facts or data; (c) the testimony

is the product of reliable principles and methods; and (d) the expert has

reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702; see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993).

The proponent of the evidence bears the burden of establishing that Rule 702’s requirements have

been met. Daubert, 509 U.S. at 592 n.10.

Plaintiff has not met her burden. Although he is an expert engineer, Krongelb’s

engineering expertise is not in the field for which he was proffered. Indeed, Krongelb’s entire

understanding of how an aircraft is operated is based on his experience of flying as a passenger on

planes. Krongelb Deposition at 37:16–38:14. Insofar as Krongelb testified to having any

background in aviation or aircraft work, that background was limited to informally researching

plane crashes on his own. Id. at 17:19–20:18. Krongelb is therefore unqualified to testify as an

expert in this matter. See United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004) (“To

determine whether a witness qualifies as an expert, courts compare the area in which the witness

has superior knowledge, education, experience, or skill with the subject matter of the proffered

testimony.”).

Even if he were qualified to offer expert testimony in this case, his factual assumptions,

which are “based on conclusory statements of the expert’s client, rather than on the expert’s

independent evaluation[,] are not reasonable.” Supply & Bldg. Co. v. Estee Lauder Int’l, Inc., 2001

WL 1602976, at *4 (S.D.N.Y. Dec. 14, 2001). Furthermore, his opinions regarding the best

practices for flight attendants’ deplaning duties and responsibilities are wholly unsupported by

data, methodology, or studies. I therefore find “that there is simply too great an analytical gap

between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

In sum, the expert testimony proffered by plaintiff does not meet any of the requirements of Rule

702 and must be excluded.

IV. Summary Judgment Standard

Summary judgment is appropriate only where, considering “the record, including

depositions, documents, electronically stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only), admissions, interrogatory answers, or

other materials,” Fed. R. Civ. P. 56(c), “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).

In determining whether there is a genuine issue of material fact, a court resolves all ambiguities

and draws all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).

Once the moving party has asserted facts showing that the non-movant’s claims cannot be

sustained, “the nonmoving party must come forward with specific facts showing that there is a

genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original). Moreover, “[t]he mere existence of

a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

V. Defendant Is Entitled to Summary Judgment

Plaintiff argues that she has presented a “straight forward negligence case,” based upon

defendant’s breach of its “[d]uty to monitor and assist passengers” while exiting the airplane.

Opposition at 6. To support this conclusion, plaintiff relies upon the testimony of Flight Attendant

Amanda Lutz, who testified that her responsibility when passengers are deplaning is “to monitor

the door and monitor the passengers leaving,” Lutz Dep. at 35:5–36:1, and upon excluded expert

testimony, namely, that exiting a plane is hazardous and requires an undefined level of supervision

and assistance.

As to the testimony of Flight Attendant Lutz, she did not testify that it was her duty to stand

at the threshold of the plane to help every passenger deplane. On the contrary, it would interfere

with her duty to monitor the passengers and the aircraft. Lutz Dep. at 35:5–24. I therefore reject

plaintiff’s reading of her testimony as equating monitoring with standing at the threshold of the

aircraft and assisting passengers as they exit.6 Moreover, plaintiff has not established that, by

appropriately monitoring airplane doors and passengers, the flight attendants have could have

avoided the outcome present here. Indeed, plaintiff did not testify to requesting any assistance in

the deplaning process—a process she had successfully done many times before—and there was

therefore no reason for any flight attendant to offer assistance to her.

On the undisputed facts, there was also no defective condition—or notice of a defective

condition—that contributed to plaintiff’s fall.

6 Though Krongelb’s testimony has been excluded, I briefly address plaintiff’s reliance upon two

sections of the Code of Federal Regulations, 14 CFR §§ 121.391 and 121.394, which are cited by

Krongelb in his report. Plaintiff, in opposition to the motion for summary judgment, interprets

these sections as “requiring at least two flight attendants to be aboard to help with passenger

deplaning.” Opp. at 4. However, these sections neither contradict nor undermine the testimony

of Flight Attendant Lutz.

In the absence of a defective condition, or notice thereof, and in the absence of any request

by plaintiff for assistance in exiting, plaintiff can identify no duty of care owed to her by the airline

while she exited the airplane. In light of this, she cannot show a breach of any duty of care, nor

can she show that any breach caused her injury.

Having comprehensively reviewed the record in this case, and, having viewed the evidence

in the light most favorable to plaintiff, it is apparent that there are no genuine issues of material

fact and plaintiff has presented no evidence on which the jury could reasonably find for her at trial.

Defendant’s motion is therefore granted.

VI. Conclusion

For the reasons set forth above, defendant’s motions to exclude the testimony of Harold

Krongelb and for summary judgment are granted. The Clerk of Court is directed to enter judgment

accordingly.

SO ORDERED.

_________/s/____________

NINA GERSHON

United States District Judge

June 22, 2022

Brooklyn, New York