Opinion

Marcellin

Court
District Court, W.D. New York
Filed
Jul 23, 2026
Cited by
0 cases
Authority
More cited than 42.1%

The opinion

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

CAROL 8, MARCELLIN, individually, and)

as Co-Administrator of the Estate of Charles)

E. Hollowell, deceased, and JESSICA )

HOLLOWELL-MCKAY, as Co- )

Administrator, of the Estate of Charies E. )

Holiowell, deceased, )

)

Plaintiffs, )

)

Vv. ) Case No. 1:21-cv-00704-GWC

)

HP, INC,, and STAPLES, INC.,, )

}

Defendants. }

ORDER GN MOTIONS TO EXCLUDE EXPERT TESTIMONY, DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT, PLAINTIFFS’ CROSS-MOTION FOR

PARTIAL SUMMARY. JUDGMENT, AND DEFENDANTS’ MOTION TO STRIKE

(Does. 67, 68, 71, 73, 85)

This is a personal injury case in which Plaintiffs Carol Marcellin and Jessica Hollowell-

McKay have filed suit against Defendants HP, Inc., (HP) and Staples, Inc. (Staples), the

manufacturer and retailer, respectively, of an HP Pavilion DV6 Laptop computer purchased by

Marcellin in 2011, Their claims concern a fire that broke out at Marcellin’s Ceres, New York

residence on January 24, 2020, injuring Marcellin and killing her partner Charles Hollowell. Ms.

Marcellin and Ms, Hollowell-McKay are co-administrators of Mr. Hollowell’s Estate. Plaintiffs

allege the house fire occurred after cells in the laptop’s lithium-ion battery experienced “thermal

runaway,” causing them to expel flaming components that ignited paper stored in a closet of the

home’s office. They seek to recover under theories of negligence and strict products liability,

claiming (1) manufacturing and (2) design defects in the HP laptop, (3) that HP failed to warn of

unreasonable dangers associated with the laptop’s use, and (4) that HP negligently breached a

post-manufacture duty to warn of such dangers. HP has moved for summary judgment on all of

the plaintiffs’ claims. Plaintiffs have cross-moved for summary judgment on the issue of the

fire’s cause, Defendants have further moved to strike as untimely this cross-motion for summary

judgment. This order addresses these motions in turn.

FACTS

The following facts are not in dispute unless otherwise noted. Carol Marcellin purchased

an HP Pavilion dv6-3200 laptop computer from Staples shortly after February 7, 2011. (Doc. 68-

2 § 1.) She registered the warranty for the laptop with HP on March 5, 2011, under her own

name, address, and email address, (Doc, 83-1 21.) The laptop as sold was packaged with a

User Guide, which contained the following warning: “To reduce potential safety issues, use only

the battery provided with the computer, a replacement battery provided by HP, or a compatible

battery purchased from HP,” (Doc. 69-4 at 11), as well as a Notebook Essentials manual which

contained a similar warning and a Maintenance Guide listing authorized HP replacement

batteries, (Doc. 68-2 ff] 7-8.)

HP’s specifications required that batteries authorized for use in Pavilion laptops be

equipped with battery management systems (BMS) including safety features that operate to

prevent overcharge, overvoltage, and imbalance of the battery’s cells, (Doc. 83-1 § 26.) These

features were designed to reduce the risk of thermal runaway, a chemical reaction in which

lithium-ion battery cells generate more heat than they can dissipate, Gd.) The reaction begins

when the battery cell’s internal cell temperature exceeds 90—100° Celsius, and becomes

itreversible when the internal cell temperature reaches 200° Celsius. Ud. ¥ 17.) Thermal

runaway can occur due to overcharge of the battery’s cells or mechanical damage to the cells

from an external heat source, Ud. J 18.) Thermal runaway reactions can cause the battery ceil to

rupture and eject its internal components at temperatures in excess of 600° Celsius. Ud. 7.17.)

HP’s BMS systems required that batteries installed in its laptops be manufactured with

certain microprocessors called “fuel gauges.” Eight different types of fuel gauges were approved

by HP for use in authorized Pavilion batteries. Six of these fuel gauges were manufactured by

Texas Instruments, and were compatible with various authentication systems. (Doc. 83-1 { 23.)

These systems would allow the device in which the battery was installed to verify that the

installed battery was authorized for use in the device. One such system, which was implemented

in some portable electronic devices at the time of the HP laptop’s manufacture, employed a

Secure Hash Algorithm 1 (SHA-1). Under SHA-1 authentication, the host device can

automatically query the installed battery to determine whether it is authorized for use in the

device. The host device can be programmed to cease operating if the installed battery is

incapable of SHA-1 authentication. In this way, SHA-1 authentication reduces the risks of using

unauthorized batteries in the host device. (See Doc. 66-5 at 14-16.)

David Pipho, an engineer in HP’s quality assurance department, testified in deposition

that by 2014, the company knew that unauthorized batteries lacking the safety features described

above were being used in its laptops, and considered incorporating authentication systems into its

laptops in response. (Doc. 82 at 32-33.) HP later retained Donald Galler, an electrical engineer

and expert witness in this case, to investigate numerous incidents of laptop fires that resulted

after an unauthorized battery experienced thermal runaway. (See Doc. 78 at 26-35.) HP did not

program Pavilion laptops with SHA-1 or similar battery authentication systems until 2019.

(Doc, 83-1 | 27.) HP has never issued post-manufacture warnings regarding the risk of fire from

the use of unauthorized batteries to registrants of warranties for Pavilion laptops, such as Carol

Marcellin. Ud. 4 38.)

Marcellin denies replacing the battery of the HP laptop she purchased in 2011 and has no

knowledge that any other individual ever did so. (Doc. 66-8 13.) In 2015, Marcellin made a

purchase in the amount of $16.17 from an online electronics retailer. She originally testified that

this purchase was for a replacement battery for a different laptop manufactured by Compaq.

(Doc. 42-1 § 13.) She later revised this testimony based on her belief that the amount of the

purchase was too small to have been for a replacement battery. (Doc. 70 { 6.) Marcellin stated

that she did purchase and install a replacement battery in the Compaq laptop (Doc. 66-6 at 100),

but she has no records to confirm this purchase. (Doc. 66-8 at 17.) According to Marcellin, she

had stored the Compaq laptop in the office closet of her residence, where it was destroyed by the

fire,

On the night of January 19, 2020, Marcellin left the HP laptop powered on and charging

on an armoire in the office of her home while it downloaded an anti-virus software update.

(Doc. 83-1 9 4.) She testified that this was the first instance in which she had left the laptop

charging overnight. (id.) Shortly after 4:00 a.m. on the morning of January 24, she was awoken

by a smoke alarm located in the hallway outside her bedroom, (/d. { 1; Doc. 66-6, 168-69.) She

left the bedroom, where Mr. Hollowell remained asleep, and proceeded to silence the smoke

alarm and search for the source of the smoke. (Doc. 66-6 at 124.) The home’s furnace was

located behind a door in the hallway. Marcellin opened the door and determined the furnace was

not the source of the smoke. (Doc. 66-18 72.) She preceeded down the hallway toward the

office. (Doc. 66-6 at 124.) Marcellin originally testified to having first seen “the giow of the

fire” emanating from the office, retreating to the kitchen to retrieve a fire extinguisher, then

returning to the doorway of the office, where she observed the laptop emitting flaming projectiles

or “fireballs” toward the ceiling. Ud.) In a subsequent declaration, she stated she witnessed these

flaming projectiles before returning to retrieve the fire extinguisher. (Doc, 66-18 at 1-2.)

The office had a linen closet to the left of the doorway, where Marcellin testified she

stored the Compaq laptop. Ud. 47.) Upon reaching the office doorway, she detected no smoke or

heat from the closet. Ud. 74.) She did not enter the room due to the flaming projectiles emitted

from the HP laptop, and did not attempt to use the fire extinguisher to quell the blaze. (/d. □□ 5—

6.) She then returned the bedroom, where she discovered that Hollowell had fallen while trying

to get out of the bed. (Doc. 66-6 at 126.) Marcellin tried and failed to lift Hollowell into his

wheelchair, (/d. at 127.) She was unable to find her cell phone to call for emergency assistance,

Ud. at 167.)

Marcellin managed to escape by crawling to the home’s elevator and taking it down to

the garage floor, at which point she drove her car approximately 1.5 miles from the house before

using her OnStar service to reach emergency operators, (/d. at 127-28.) Per the report of the

Alleghany County Fire Investigation Team (ACFIT), after first responders controlled the fire,

EMS personnel attempted lifesaving procedures to revive Hollowell. He was then transported to

Olean General Hospital, where he was pronounced dead early on the morning of January 24.

(Doc. 74 at 13.)

Later that morning, ACFIT investigators inspected the scene of the fire. The scene

included the damaged remains of the HP laptop. Lead investigator Jeff Luckey interviewed

Marcellin at Olean General Hospital later that day. Ud.) ACFIT’s final report, signed by Luckey

on February 21, 2020, came to the following conclusion regarding the source of the fire:

Based upon our observation and ruling out other probable causes it

is our hypothesis that the cause of the fire is the HP laptop. The HP

laptop battery or components near the battery caused the battery to

overheat and explode, sending sparks and flammable material that

ignited light weight fuels in the office area of the computer cabinet

or closet.

(id. at 14.)

On February 27, 2020, representatives of both parties conducted a scene inspection of

Matcellin’s home. Jason Karasinski, Plaintiffs’ fire expert in this case, and Greg Gorbett, a fire

investigator retained by HP, attended the inspection along with representatives from Marcellin’s

home insurer, Farmers Insurance, and Jeff Luckey of ACFIT. (Doc. 83-1 { 12.) The

investigators took photographs of the scene and collected and labeled fragments and debris from

the office. (/d. | 13.) Karasinski’s report states that the investigators present concluded, in

accordance with the ACFIT report, that the office was the fire’s likely origin and the HP laptop

its likely source of ignition. (Doc. 70-1 { 4.)

Karasinski and HP’s battery expert Donald Galler examined evidence collected from the

scene inspection at a subsequent investigation conducted at the Fire Research & Technology

(FRT) laboratory in Sodus Point, New York on October 30, 2020. Ud. 47.) Both Galler and Dr.

Steve Martin, a battery expert retained by Plaintiffs who later reviewed the evidence from the

laboratory investigation, concluded that the battery installed in the HP laptop at the time of the

fire was not the original battery, nor a replacement authorized by HP. (Doc. 77-1 at 16; Doc, 67-

3 at 6.) Markings on the circuit board indicated the battery was manufactured in 2015, years after

the laptop was manufactured. (Doc. 67-3 at 6.) The installed battery lacked the safeguards

against overcharge and overyoltage required of those authorized by HP. Ud. at 17.)

It is undisputed that the scene inspection revealed no evidence of the Compaq laptop,

which Marcellin testified was stored on the floor of the office closet on the night of the fire.

(Doc. 66-6 at 94.) To this day, the Compaq laptop has never been found.

The parties’ experts disagree as to the nature of other evidence recovered at the February

2020 scene inspection, and as to the conclusions that can be drawn from that evidence. Dr.

Martin, concluded that “{t]he fire at issue in this case was caused by cell overcharge or

overvoltage causing one or more ceils in the battery pack to reach excessive temperatures and

prompting a thermal runaway reaction.” (Doc. 67-3 at 22.) Karasinski reached the same

conclusion:

Based on the totality of the investigation, the cause of the fire was a

failure of the HP Pavilion laptop system, to include the battery pack.

This failure resulted in the ejection of hot battery material that

ignited combustibles located within the room of origin, to include

the office closet.

(Doc. 66-13 at 45.)

In contrast, Dr. Quinn Horn, whom HP has retained as their fire expert in place of Greg

Gorbett, produced a report which arrives at the following conclusion: “While the subject battery

pack was of unknown origin and lacked protection features that could prevent abuse of the

included battery cells, the evidence is consistent with the subject battery pack experiencing

thermal runaway due to external heat attack from the fire.” (Doc. 77 at 32.)

These divergent theories about the cause of the fire result from the parties’ disagreement

ovet both the evidence adduced in this case and the general nature of the thermal runaway

process in lithium-ion battery cells. Crucially, the parties disagree as to whether a component of

one of the batteries’ cells was found in the office closet at the February 2020 scene inspection.

Dr. Horn, having reviewed the photographs taken by Gorbett, opined that “no winding remnants

from the cells that experienced thermal runaway in the Subject Notebook were found in the

closet during the scene inspection.” (/d. at 35.) Karasinski, in his rebuttal report, claims that two

of Gorbett’s photographs show a fragment of one of the cell’s copper windings on the floor of the

office closet. (Doc, 66-15 at 16.) In a subsequent declaration, Dr. Horn testified that the material

of this fragment “has a textured, mesh pattern that is not consistent with a copper foil from a

lithium-ion battery, and is not consistent with the shape of an electrode winding assembly,” and

opined that the photographs “do not depict a copper foil from a lithium-ion battery cell.”

(Doc. 92-4 at 3.) As both parties agree that the fire originated in the office closet, the presence of

cell components in that closet would support Plaintiffs’ theory that a thermal runaway reaction of

one of the cells was the cause of the fire; the absence of any ce{l components in that closet

supports HP’s position that the outbreak of fire in the closet was caused by a different ignition

source,

The parties’ experts also disagree as to the nature of the thermal damage to the laptop’s

housing. Dr. Horn concluded that damage to the plastic housing of the notebook suggested

exposure to radiant heat from a thermal gas layer emanating from the office ceiling, itself the

result of a pre-existing fire. (Doc. 77 at 34.) Dr. Martin’s rebuttal report contends that the limited

damage to the upper portion of the laptop, in contrast with severe thermal damage to the battery

pack itself, cannot be explained by an external fire source, and thus is consistent only with the

theory that the fire originated with the thermal runaway reaction of the battery’s cells. (Doc. 67-

5 at 6-7.)

In addition, the parties’ experts disagree over (1) the propensity of lithium-ion cells

experiencing thermal runaway due to overcharging to eject their contents and (2) the length of

time it took for the thermal rmmaway reactions to unfold on the night of the fire. (Compare

Doc. 77 with Doc. 66-5.)

MOTIONS TO EXCLUDE EXPERT TESTIMONY (Docs. 67, 71)

A, LEGAL STANDARD

Federal Rule of Evidence 702 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 the proponent

demonstrates to the court that it is more likely than not that: 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’s opinion reflect a reliable application of the principles

and methods to the facts of the case.

The Supreme Court has ruled that the district’s court’s “gatekeeping” fanction under Rule 702 is

to “ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the

task at hand,” Daubert v. Merrell Dow Pharms., Inc., 509 U.S, 579, 597 1993).

In determining 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.” Rutledge v. Walgreen Co., WL 2015284 at *9 (2d Cir. July 13, 2026)

(quoting United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004)), When making this

determination, “[t]he words ‘qualified as an expert by knowledge, skill, experience, training or

education’ must be read in light of the liberalizing purpose” of Rule 702. United States v. Brown,

776 F.2d 397, 400 (2d. Cir. 1985). Accordingly, “fe}xperts need not conduct studies of their own

in order to opine on a topic.” Rutledge, WL 2015284 at 9* (quoting fn re Mirena IUD Prods.

Liab. Litig., 169 F. Supp. 3d 396, 412 (8.D.N.Y, 2016).

In assessing the reliability of an expert’s testimony, the district court may consider

“(1) whether a theory or technique could be, and has been, tested; (2) whether it has been

subjected to peer review; (3) its error rate; and (4) its degree of acceptance within the relevant

scientific community.” Jd. at 593-94. But “the test of reliability is flexible,” and “the law grants

a district court the same broad latitude when it decides how to determine reliability as it enjoys in

its ultimate reliability determination.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).

In some cases “the relevant reliability concerns may focus upon personal knowledge or

experience” of the expert at issue. Jd. at 149. In determining 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.” Rutledge v. Walgreen

Co., WL 2015284 at *9 (2d Cir, July 13, 2026) (quoting United States v. Tin Yat Chin, 371 F.3d

31, 40 (2d Cir. 2004)). When making this determination, “[t]he words ‘qualified as an expert by

knowledge, skill experience, training or education’ must be read in light of the liberalizing

purpose” of Rule 702. United States v. Brown, 776 F.2d 397, 400 (2d. Cir. 1985).

In undertaking the Rule 702 inquiry, “the district court must focus on the principles and

methodology employed by the expert, without regard to the conclusions the expert has reached

or the district court’s belief as to the correctness of these conclusions.” Amorgianos vy, Nat’l RR.

Passenger Corp., 303 F.3d 256, 266 (2d. Cir. 2002). That said, “conclusions and methodology

are not entirely distinct from one another,” Gen. Elec. Co. v. Joiner, 522 US. 136, 146 (1997),

and thus “when an expert opinion based on data, a methodology, or studies that are simply

inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of

that unreliable opinion testimony.” Amorgianos, 303 F.3d at 266.

10

As the Second Circuit has clarified, though, “[t}his is not to suggest an expert must back

his or her opinion with published studies that unequivocally support his or her conclusions.”

Amorgianos, 303 F.3d at 266, Where an expert’s testimony is otherwise reliable, “lack of textual

support may go to the weight, not the admissibility” of that testimony. Jd. (citation and internal

quotations omitted). Consistent with the liberal thrust of the Federal Rules of Evidence, “[a]

minor flaw in an expert’s reasoning or slight modification of an otherwise reliable method will

not render an expert’s opinion per se inadmissible.” Instead, the district court “should only

exclude the evidence if the flaw is large enough that the expert lacks ‘good grounds’ for his or

her conclusions.” Jd. (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 746 Gd Cir. 1994)).

B, ANALYSIS

1, HP’s Motion to Exclude the Testimony of Dr. Steve Martin (Doc. 67)

Plaintiffs assert that the HP laptop lacked a battery authentication system that would have

prevented the laptop from operating with an unauthorized battery pack, and that this defective

design was the proximate cause of the fire. To prevail on this claim, Plaintiffs must show that (1)

the fire resulted when the replacement battery pack’s cells experienced thermal runaway, and (2)

a feasible alternative design existed at the time of the laptop’s manufacture which wouid have

prevented the fire’s occurrence. In support, Plaintiffs have disclosed expert reports produced by

their expert Dr. Martin,

Martin’s initial report concluded, based on his prior experience with lithium-ion battery

cells of the type present in the replacement battery pack and evidence collected from the

February 27, 2020, inspection of Ms. Marcellin’s home, that the fire was caused “by cell

overcharge or overvoltage causing one or more cells in the [replacement] battery pack to reach

excessive temperatures and prompting a thermal runaway reaction.” (Doc. 66-5 at 22.) In

11

support of this opinion, Martin’s second report cited a peer-reviewed scientific study which

exposed lithium-ion battery cells to external heating to determine the conditions under which

cells experience thermal runaway. (See Doc. 67-5.)

Dy. Mattin’s first report concluded that the HP laptop was defectively designed because it

“lacked any battery authentication system or other design that would have prevented the user

from unknowingly operating the subject laptop with an unauthorized battery pack.” (Doc. 66-5

at 24.) Citing a 2005 publication by Texas Instruments, a manufacturer of microprocessors used

in the production of lithium-ion batteries authorized for use in HP laptops, Martin’s report

identified various battery authentication systems both (1) in use in various portable electronic

devices in 2010, the year of the HP laptop’s manufacture and (2) compatible with replacement

battery packs authorized for use in the HP laptop. Ud. at 13-15.) Martin concluded that a design

that implemented one of these systems would have prevented the laptop from operating with an

unauthorized battery pack. Martin’s report additionally described two other alternative designs

which he believed could have prevented the fire: a system which would have automatically

disconnected power if the battery pack’s thermistor malfunctioned, and a design which would

have required users to take the laptop to a qualified service provider in order to replace the

original battery pack. Ud. at 24-25.)

In moving to exclude Martin’s testimony, HP first contends that Martin is unqualified to

offer expert testimony in this case because he has “no education, training, or professional

experience in notebook computer design or manufacture,” and has not published peer-reviewed

studies specifically regarding notebook computers. (Doc. 67-1 at 6.)

The court rejects this argument. Martin has more than four decades’ experience

researching the design, properties, and manufacture of lithium-ion batteries, and is experienced

12

as a consultant in cases concerning fires and explosions resulting from the failure of lithium-ion

batteries. His report evidences a thorough understanding of battery authentication systems,

including the interface between battery components and host devices. To accept HP’s argument

against Dr. Martin’s qualifications would require a standard for the specificity of expertise

incompatible with the “liberalizing purpose” of Rule 702. Brown, 776 F.2d at 400,

Next, HP contends that Martin’s opinion as to the fire’s cause should be excluded because

it is based on his misinterpretation of the scientific study cited in his rebuttal report. In his

rebuttal report, Martin opined that, in order for an external fire source to have provoked the

replacement battery cells into thermal runaway, the laptop would need to have been exposed to a

thermal gas layer “in excess of 300 C (572 F) for a period of over an hour.” (Doc. 67-5 at 3.) HP

argues this opinion is “at variance” with the results of an “oven test” in which lithium-ion battery

cells were exposed to extreme external heat sources. Those results were reported in “Gas

explosions and thermal runaways during external heating abuse of commercial lithium-ion

graphice-LiCoO2 cells at different levels of aging,” by Fredrik Larsson, et al., an article

published in Journal of Power Sources and cited in Martin’s rebuttal report. (See Doc. 66-16.) In

contrast to Plaintiffs position, HP asserts that the battery cells entered thermal runaway due to an

external fire source. It argues that Martin’s opinion diverges from the results of the Larsson

study as to the intensity of an external fire necessary to induce thermal runaway. (Doc, 67-1 at

11-14.)

As this case demonstrates, it is common for opposing experts to disagree. In this case,

Martin traces the cause of the fire to a thermal runaway process that originates within a

replacement battery that fell short of HP’s standards. Martin concludes that HP’s design was

faulty because it did not include safeguards to recognize and disable an unsafe replacement.

13

HP’s expert Dr. Horn agrees that the HP computer experienced thermal runaway, but he attributes

the problem to overheating from an external source—a house fire sparked by some other cause.

Both sides rely on the Larsson study of thermal runaway in computer batteries. The

experiment involved heating various batteries in an oven. The batteries entered “Stage II thermal

runaway” between 188-205° Celsius, (Doc. 67-6 at 7, Table 4.) Neither side takes issue with the

experimental results. They simply draw different conclusions.

Martin notes that the batteries used in the experiment were placed in the oven without the

protection afforded by the cover of the laptop and other insulating material. He estimated that it

would take prolonged exposure of 300° Celsius to raise the battery temperature enough to

provoke thermal runaway in the laptop due to the protection of the cover and other insulating

elements. He concluded that the house fire was neither hot enough nor lasted long enough to

cause the explosion of the laptop Ms. Marcellin observed when she looked into the home office.

He believes that the fire started inside the computer.

Horn believes that the house fire caused the thermal runaway. He also relies on the 190°

Celsius starting point for thermal runaway. He notes that the plastic exterior of the laptop had a

melting point of 230- 270° Celsius, the point at which the material can be poured into a mold.

Since the plastic had melted, the temperature on the outside of the computer must have been in

that range and hot enough to trigger thermai runaway on the inside.

Both opinions fall broadly within the range of plausible reconstructions of the origin of

the fire. The experts differ over issues such as how much protection the batteries received from

the structure of the computer, Martin believes enough that it would take a longer and hotter fire

than is likely to have occurred by the time Ms. Marcellin discovered the fire to cause thermal

14

runaway. Horn believes that the heat from a more limited external fire would have been

transferred to the batteries, raising their temperature to 190° Celstus and causing thermal

runaway at a relatively early stage. Martin describes the battery as the cause of the fire; Horn as

a victim.

As the Advisory Committee on the Rules of Evidence has discussed, “[i]t will often occur

that experts come to different conclusions based on contested sets of facts. Where that is so the

[rule] does not necessarily require exclusion of either side’s experts.” Fed. R. Civ. P. 702

committee note to 2023 amendment. Here, the dispute between Martin and Horn does not

require the exclusion of either expert. Rather, the dispute raises issues of fact and credibility that

can only be resolved at trial.

Finally, HP seeks to exclude Martin’s opinion that the HP laptop was defectively

designed because it lacked a system to authenticate an installed battery or prevent users from

operating the laptop with an unauthorized battery. (Doc, 66-5 at 24.) HP argues: (1) that Martin’s

report does not identify other laptop manufacturers who had implemented the battery

authentication systems discussed in his report as of 2010; (2) that Martin has not tested an

exemplar of his proposed alternative design; and (3) that Martin’s proposed alternative design

goes unsupported by “any peer-reviewed article.” (Doc. 67-1 at 15.) In support of this argument,

HP relies on Zaremba v. GMC, 360 F.3d 355 (2d. Cir. 2004), a case in which the Second Circuit

upheld the exclusion of an expert’s proposed alternative design of the roof of a Pontiac Trans

Am, after the district court found the expert had not tested an exemplar of his design, subjected

the design to peer-review, or identified any similar design in use by the automotive design

community, In addition, HP suggests that, because Martin “refused to opine whether any

15

alternate design concerning an on-screen warning would even change . .. Marcellin’s behavior,”

his design defect should be excluded. (Doc. 67-1 at 17.)

In contrast to the expert in Zaremba, Martin has not proposed an alternative design of the

product’s hardware created from scratch. Instead, he proposed the addition of different battery

authentication systems to the HP laptop as manufactured in 2010. These authentication systems

were cither a) in use by competing notebook manufacturers like Apple, (Doc, 66-5 at 26), or b)

implemented in other portable electronic devices and compatible with Texas Instrument-

manufactured gas gauges already in use by HP’s battery vendors in 2010. (Ud. at 25.) While

testing an exemplar of an alternative design may support the reliability of its expert proponent,

Daubert does not impose a fixed requirement that an alternative design be tested in order for the

expert opinion proposing it to be admissible—especially when an expert identifies a design

already in market use. Colon ex. rel. Molina v. BIC USA, Inc., 199 F, Supp.2d 53, 76 (S.D.N.Y.

2001). HP contends that some (though not all) of Martin’s proposed alternative designs had not

been implemented in laptop computers, specifically, as of 2010. But to exclude Martin’s opinion

on this basis would again require a standard of specificity for expert testimony at odds with the

both the liberalizing purpose of the Federal Rules and the flexible nature of the Daubert inquiry.

2. Plaintiffs’ Motion to Exclude Testimony of Drs. Quinn Horn and Chad Myers

(Doc. 71)

Both parties agree that on the night of the fire, the unauthorized replacement battery

installed in the HP laptop experienced a thermal runaway event. As discussed in the order

denying HP’s motion for sanctions and to strike the rebuttal reports of Plaintiffs’ expert

witnesses, however, the parties dispute whether the thermal runaway event was the cause of the

incident fire, or whether thermal rmaway occurred as a result of a pre-existing fire, (See

16

Doc. 101.) Dr. Quinn Horn, HP’s battery expert, has opined that thermal runaway was induced

by the heat of an external, pre-existing fire source, and thus that the replacement battery was not

the cause of the fire. (Doc, 77 at 32.) HP’s fire expert Dr. Chad Myers’ report, meanwhile,

concludes that evidence from the February 27, 2020, scene inspection of Marcellin’s Ceres, New

York home was insufficient to determine the cause of the fire under National Fire Protection

Association (NFPA) 921 forensic investigation standards. (Doc. 76 at 48.)

Plaintiffs contest the reliability of three premises of Dr. Horn’s theory of the fire. First,

Horn denies that a fragment of debris found in the office closet was the ejected winding of one of

the replacement battery’s cells, an opinion at odds with that of Plaintiffs’ fire expert Jason

Karasinski. (Doc. 92-4 at 3.) Second, based on his own publication on battery failure, Horn

opines that lithium-ion battery cells tend not to eject their contents unless exposed to an external

heat source, (Doc, 80-1 at 81.) Finally, Horn offered his opinion that thermal runaway events

tend to conclude in a matter of seconds, which, given Marcellin’s testimony that she witnessed

“fireballs” being expelled from the laptop only after being awakened by the home’s smoke

alarm, suggested to Horn that the fire was already in progress by the time the laptop’s battery

malfunctioned. (Doc. 77 at 36.) Plaintiffs similarly take issue with Dr. Myers’ conclusion, based

on Horn’s opinions and Myers’ application of NFPA standards, that the cause of the fire cannot

be determined from the evidence of the scene inspection. (See Doc. 76.)

While Plaintiffs purport to take issue with the methodology behind Drs. Horn’s and

Myers’ reports—characterizing both experts as having offered ipse dixit opinions untethered to

the evidence gathered at the February 2020 scene inspection-—their principal objection appears

to be the incompatibility of these experts’ conclusions with those of their own. Both sides have

retained similarly credentialed experts who have submitted reports based on the same physical

17

evidence, often applying the same standards of forensic analysis, and arrived at reasonable if

incompatible theories of the fire’s cause. A judgment of the relative merits of these theories is

properly left for the jury, not for the district court in exercising its gatekeeping function under

Daubert. Plaintiffs’ motion to exclude the testimony of Drs. Horn and Myers is DENIED.

3, Plaintiffs’ Motion to Exclude the Testimony of Dr. Donald Galler (Doc. 71)

Plaintiffs have also moved to exclude three opinions of Dr, Donald Galler, an electrical

engineer retained by HP to provide expert testimony in this case, under Federal Rule of Evidence

702.

First, Galler opined that battery authentication systems identified by Plaintiff’s expert Dr,

Martin were not generally employed by manufacturers of notebook computers in 2010, the year

of the HP laptop’s manufacture. (Doc. 77-1 at 20.) Galler based this opinion on the results ofa

test of 2010-vintage laptops made by Dell, Apple, and Lenovo. Each operated when installed

with replacement batteries made by off-brand manufacturers, ieading Galler to conclude that the

laptops were not equipped with systems that would prevent the laptops from functioning with an

unauthorized battery pack.

Plaintiffs contest the reliability of Galler’s methodology, arguing (1) that Galler failed to

ensure the tested laptops were in fact manufactured in 2010, and (2) that Galler unjustifiably

assumed that the replacement batteries used in the test were not in fact authorized for use in the

tested laptops. As with the testimony of Drs. Horn and Myers, Plaintiffs are free to attack the

credibility of this opinion before a jury. But Galler is qualified to opine on the availability and

functionality of battery authentication systems, and his opinion is a plausible and relevant

18

extrapolation from experimental data. Plaintiffs would hold Galler’s testimony to the sort of

rigid methodological standards that Daubert and its progeny explicitly reject.

Second, Plaintiffs move to exclude Galler’s opinion that counterfeit battery

manufacturers would be able to “defeat” the battery authentication systems contemplated in

Martin’s report, such that even if HP had implemented such a system into its laptops, that system

would not suffice to prevent the laptops from operating with unauthorized replacement batteries.

(Doc. 77-1 at 20.) Plaintiffs point to deposition testimony in which Galler admits this opinion

derives not from empirical research, but his estimate of the technological sophistication of

counterfeit battery manufacturers. (Doc, 71-2 at 16-17.) That admission is insufficient to justify

excluding Galler’s testimony. The opinion in question concerns a counterfactual hypothesis; it is

not, in other words, the type of claim conducive to experimental verification or peer-reviewed

study. Galler considered whether the authentication system (that was not installed) could be

fooled by counterfeit batteries (that he never tested). His prediction (yes) falls within the range

of engineering judgments that he is qualified to make. Since his opinion is untested and

theoretical, it can certainly be subjected to cross-examination. The fact that he cannot point to

empirical testing data in support may undermine the weight of his opinion, but does not, standing

alone, render this opinion inadmissible.

Last, Plaintiffs move to exclude Galler’s opinion that the Compaq laptop, which

Marcellin testified was stored in the office closet at the time of the fire, “would not have burned

up to the point of complete disappearance.” (Doc. 77-1 at 20.) The February 2020 scene

inspection revealed no remnants of the Compaq laptop, and Plaintiffs’ experts do not dispute

Galler’s opinion on this point. Plaintiffs thus contend that this opinion should be excluded not as

19

unreliable but as irrelevant, as both parties agree the Compaq laptop played no role in the origin

of the fire,

The mystery of the Compaq laptop does, however, bear on the causal element of

Plaintiffs’ failure to warn claims. The parties agree that an unauthorized replacement battery was

installed in the HP laptop at the time of the fire. Plaintiffs assert that (1) the fire would have

been prevented had the manuals packaged with the HP laptop contained warnings that spoke to

the specific risks of operating the laptop with an unauthorized battery, and (2) the fire likewise

would have been prevented had HP issued a post-manufacture warning to Marcellin, as a

warranty registrant of one of its laptops, of those risks. Marcellin has testified to purchasing a

replacement battery, albeit for a different laptop. The fact that that laptop cannot be located

naturally raises questions about what happened to the replacement battery Marcellin testified to

purchasing. It could be, for instance, that Marcellin was mistaken as to which laptop she

installed the replacement battery in, and this fact, if true, would implicate the likelihood that

additional or post-manufacture warnings could have prevented the fire. .

Accordingly, Plaintiffs’ motions to exclude Galler’s opinions is hereby DENIED.

20

I. MOTIONS FOR SUMMARY JUDGMENT (Does. 68, 73)

A. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there is no genuine issue

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

A genuine issue of material fact when “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 248 (1986). In

considering a motion for summary judgment, courts must examine all evidence in the light most

favorable to the nonmoving party, Sheppard v. Beerman, 317 F.3d 351, 354 (2d. Cir. 2003), and

“resolve all ambiguities and draw ail permissible factual inferences in favor of the party against

whom summary judginent is sought,” Sec. Ins. Co, of Hartford v. Old Dominion Freight Line

Inc,, 391 F.3d 77, 83 (2004). When the non-movant bears the burden of proof, summary

judgment is warranted if that party “fails to make a showing sufficient to establish the existence

of an element essential to [its] case.” Celotex v. Catrett, 477 U.S. 317, 322 (1986). The non-

movant “may not rely on ‘speculation or conjecture as to the true nature of the facts to overcome

a motion for summary judgment.” Asante-Addae v. Sodexo, JInc., 631 F. App’x 68, 68 (2d Cir.

2016) (quoting Knight v U.S. Fire Ins, Co., 804 F.2d 9, 12 (2d Cir, 1986)),

B. HP’s Motion for Summary Judgment (Doc. 68)

HP has moved for summary judgment on all four of Plaintiffs’ claims. The court

considers this motion with respect to each claim in turn, tn accordance with the substantive New

York state Jaw applicable in this case.

1. Manufacturing Defect

To prove a strict liability manufacturing defect, “the plaintiff must show that a specific

product unit was defective as a result of some mishap in the manufacturing process itself,

2k

improper workmanship, or because defective materials were used in construction, and that the

defect was the cause of plaintiff’s injury.” Oden v. Boston Sei. Corp., 330 F. Supp. 3d 877, 890

(E.D.N.Y. 2018) (citation and internal quotation marks omitted).

Plaintiffs claimed in their complaint that the HP laptop was not reasonably safe for its

intended use owing to a manufacturing defect which allowed the lithium-ion battery to

overcharge, leading to the thermal runaway event they allege caused the incident fire, (Doc. 1,

3) To date, though, Plaintiffs have not developed this theory in their filmmgs with the court, nor

introduced evidence supporting the existence of such a defect. In amended responses to HP’s

interrogatories disclosed on May 14, 2024, Plaintiffs stated they were not asserting a

manufacturing defect claim at the time, but suggested they may seek leave to amend their

complaint to include such a claim after further discovery. (Doc. 66-8 at 14.) They have not done

so to date, and nor have they addressed the original manufacturing defect claim in their

memoranda opposing HP’s motion for summary judgment. “[A] partial response arguing that

summary judgment should be denied as to some claims while not mentioning others may be

deemed abandonment of the unmentioned claims.” Jackson v. Fed. Exp., 766 F.3d 189, 195

(2d Cir, 2014), Such is the situation here. As Plaintiffs have not met their burden with respect to

their manufacturing defect claim, Defendants’ motion for summary judgment on this claim is

GRANTED.

2, Design Defect

Under New York law, “[a] defectively designed product is one which, at the time it leaves

the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer.”

McCarthy v. Olin Corp., 119 F.3d 148, 155 (2d. Cir. 1997) (citations omitted), In order to

establish a prima facie claim of a design defect, a plaintiff must show that “(1) the product as

22

designed posed a substantial likelihood of harm; (2) it was feasible to design the product in a

safer manner; and (3) the defective design was a substantial factor in causing plaintiff's injury.”

Colon v. BIC USA, Inc., 199 F, Supp. 2d 53, 83 (S.D.N.Y. 2001) (citations omitted).

Here, Plaintiffs claim the HP laptop was unreasonably unsafe for its intended or

reasonably foreseeable use owing to “a design defect which allowed the lithium-ion battery to

overcharge, ignite, and cause the fire,” leading to the injuries to Plaintiff Marcellin and the death

of decedent Charles Hollowell, (Doc. 1 at 4.) HP has moved for summary judgment on this

claim, As their memorandum in support of this motion acknowledges, the report disclosed by

Plaintiffs’ expert Dr. Martin includes opinions tending to support all three elements of their

design defect claim. Martin asserts the risks of overcharge from the use of unauthorized battery

packs in HP laptops, proposes an alternative design which would have prevented the laptop from

operating with such battery packs, and opines that this design would have prevented the incident

fire, (See Doc, 66-5.)

As HP’s motion to preclude Dr. Martin’s report has been denied, that report remains part

of the factual record in this case. Taken as true, it established the Plaintiffs’ prima facie case of a

design defect. As such, HP’s motion for summary judgment on Plaintiffs’ design defect claim is

DENIED.

3, Failure to Warn

Under New York law, a warning defect occurs “when the inadequacy or failure to warn of

a reasonably foreseeable risk accompanying a product causes harm,” McCarthy, 119 F.3d at 154

(citation omitted), To establish a prima facie claim of a warning defect, a plaintiff must show

that “(1) the manufacturer had a duty to warn; (2) the manufacturer breached the duty to warn in

23

a manner that rendered the product defective, i.e., reasonably certain to be dangerous; (3) the

defect was the proximate cause of the plaintiff’s injury; and (4) the plaintiff suffered loss or

damage.” Hollman v. Taser Int'l Inc., 928 F. Supp. 2d. 657, 672 (E.D.N.Y. 2013). Additionally,

while a product may not inhere known risks which require a warning at time of manufacture,

“visks thereafter revealed by user operation, and brought to the attention of the manufacturer or

vendor, may impose upon one or both a duty to warn.” Cover v. Cohen, 61 N.Y¥.2d 261, 275

(1984). Under New York law, “The elements of negligence claims based in ... [a] failure to warn

[theory is] the same as those under strict lability.” Miccio □ ConAgra Foods, Inc., 224 ¥. Supp.

3d 200, 208 (W.D.N.Y. 2016),

The existence of a duty to warn is determined by factors including:

[T}he harm that may result from the use of the product without notice, the reliability

and any possible adverse interest of the person, if other than the user, to whom

notice is given, the burden on the manufacturer or vendor involved in locating the

persons to whom notice is required to be given, the attention which it can be

expected a notice in the form given will receive from the recipient, the kind of

product involved and the number manufactured or sold, and the steps taken, other

than the giving of notice, to correct the problem.

Id. at 277. New York law imposes a presumption that a warning will be heeded if given, but

“where a defendant can show, via specific facts, that any given warning would have been

futile—either because any such warnings would not have been heeded or because the injury

would have occurred, regardless of the given warnings—a defendant will have successfully

rebutted the heeding presumption.” (citations and internal quotation marks omitted).

Plaintiffs have brought both strict liability and negligent post-manufacture failure-to-warn

claims. They allege that Marcellin’s injuries and Hollowell’s death resulted from HP’s failure to

adequately warn of unreasonable risks associated with the laptop’s use, and from HP’s negligent

breach of its post-manufacture duty to warn consumers of reasonably foreseeable risks of battery

24

overcharge and fire resulting from the use of unauthorized batteries. (Doc. 1 at 5-8.) HP has

moved for summary judgment on both claims.

With respect to the strict liability claim, the parties do not dispute that three user manuals

packaged with the HP laptop included warnings regarding the use of unauthorized replacement

batteries. The accompanying User Guide, for mstance, advises customers to “use only the

battery provided with the computer, a replacement battery provided by HP, or a compatible

battery purchased from HP.” (Doc. 69-4 at 11.) HP contends that these warnings were not

defective, citing the testimony of their expert, Dr. Sala, that the warnings “were reasonable and

adequate in terms of format, content, and location, and were consistent with the scientific

literature and guidance documents,” (Doc, 68-1 at 13.) HP claims summary judgment is

warranted because Plaintiffs “have not presented any evidence or expert testimony to refute” Dr.

Sala’s opinion. Ud.) Alternatively, HP argues that, because Marcellin denies having replaced the

laptop’s battery, Plaintiffs have failed to introduce any evidence as to when or by whom the

battery was replaced. As such, they contend that Plaintiffs’ claim as to the inadequacy of the

included warnings must necessarily depend on speculation as to the ability of the unknown

individual who replaced the battery to read and understand those warnings.

The included warnings are part of the factual record in this case. Contrary to Dr. Sala’s

opinion, Plaintiffs assert that those warnings “did not properly describe the potential

consequences” of using the laptop with an unauthorized battery pack, and did not “provide

adequate information for the consumer to distinguish an unauthorized battery pack from an HP

authorized one.” (Doc. 83-3 at 13.) Dr. Martin’s report both describes one such consequence of

using the laptop with an unauthorized battery—the risk of overcharge-induced thermal

runaway-—and asserts: (1) that users would likely need to replace the battery pack at some point

25

in the laptop’s useful life; (2) that there existed at the time of the laptop’s manufacture a market

for unauthorized batteries; and (3), that overcharge of the unauthorized battery installed in the

laptop was the cause of the fire. (See Doc. 66-5 at 21-24.)

Plaintiffs have thus made out a prima facie case that the included warnings were inadequate

and that this warning defect caused the Plaintiffs’ injuries. Contrary to HP’s claims, this case

does not necessarily require speculation as to the unknown individual who replaced the battery.

A reasonable jury may find, in light of the text of the included warnings, that a warning more

explicit as to the risks of unauthorized batteries would have caused Marcellin to take additional

efforts to install an authorized one in the laptop. Alternatively, a reasonable jury could find the

warnings inadequate to prevent any user from operating the laptop with an unauthorized battery.

In either event, the adequacy of the warnings remains a genuine issue of material fact for the jury

in this case to decide.

With respect to the negligent post-manufacture failure to warn claim, HP emphasizes the

undisputed fact that Marcellin denies ever replacing the laptop’s battery. They argue this fact

rebuts the presumption, under New York law, that a warning, if given, will be heeded, and proves

that any additional warning would been futile “because, as far as Marcellin [was] concerned, the

battery was never replaced and thus there would have been nobody to warn.” (Doc, 91 at 7-8.)

As with their argument regarding the strict liability claim, HP reads too much into the mystery of

the replacement battery’s installation. That Marcellin denies replacing the battery does not mean

that she would have ignored an additional warning. It is now clear that she does not recall

replacing the battery. But someone did, because the replacement was manufactured years after

she purchased the laptop. Whether it was Ms. Marcellin (who has forgotten) or her late partner, a

visiting friend or a relative, plaintiffs remain free to argue that the person who purchased the

26

replacement battery did not receive an adequate warning. Viewing the evidence in the light most

favorable to the Plaintiffs, a reasonable jury could find that HP’s failure to issue additional

warnings constituted a breach of its duty to inform users of unreasonable risks associated with.

the use of its laptops, and that this breach was the proximate cause of the fire.

Accordingly, HP’s motion for summary judgment on both the Plaintiffs’ failure to warn

claims is DENIED.

C, Plaintiffs’ Motion for Partial Summary Judgment on Causation and HP’s Motion to

Strike (Does, 73, 85)

In opposing HP’s motions for summary judgment on the above claims, Plaintiffs have filed a

cross-motion for summary Judgment on the issue of the fire’s cause. HP has moved to strike this

motion as untimely under Federal Rule of Civil Procedure 6(b)(1)(A). Per the sixth amended

scheduling order of February 25, 2025, the deadline for dispositive motions was set for May 12,

2025. Plaintiffs did not file their cross-motion for summary judgment until June 9, 2025, (Doc,

73.) HP argues that Plaintiffs have offered no reason for this delay, and further that their delay in

filing prejudiced HP and its codefendant Staples. (Doc, 85-2 at 3.)

Plaintiffs contend that their delay in filing the motion was the result of HP’s delayed response

to Plaintiffs’ request to HP’s counsel, made on January 3, 2025, to produce the photographs and

notes taken by Greg Gorbett at the February 2020 inspection of Marcellin’s home. (Doc. 90, 3.)

According to Plaintiffs, HP did not produce those documents until April 28, 2025. Ud. at 4.)

Plaintiffs contend that their motion to exclude the testimony of Drs. Horn and Myers, and the

cross-motion for summary judgment on which that motion to exclude is based, were both filed

27

pursuant to their review of Gorbett’s notes and photographs, which they determined

demonstrated the unreliability of Horn’s and Myers’ testimony. (id)

Given the reasons Plaintiffs offer for their delay, and the court’s denial of their motion to

exclude Drs. Horn and Myers testimony as well as its disposition of their cross-motion for

summary judgment below, any prejudice to HP resulting from Plaintiffs’ delay is de minimis,

Their motion to strike Plaintiffs’ cross-motion for summary judgment is DENIED.

In support of their cross-motion for summary judgment, Plaintifis cite the report of their own

expert Jason Karasinski, as well as the investigation conducted by ACFIT, which concluded that

the fire resulted when, the replacement battery’s cells experienced thermal runaway, causing them

to eject flaming components into the office closet and igniting lightweight fuel stored there. As

mentioned above, HP has disclosed expert reports authored by Drs, Horn and Myers which

conclude, to the contrary, that the battery cells experienced thermal runaway only after and as a

result of an external fire source. For reasons stated above, Plaintiffs’ motion to exclude those

reports under Rule 702 has been denied. The cause of the fire remains an issue of genuine

dispute. Plaintiffs’ cross-motion for summary judgment on this issue is DENTED.

cs

Dated this A day of July, 2026,

Geoffrey W. Crawford, Judge

United States District Court

28

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.