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Freeman v. Ruby Tuesday, Inc.

United States District Court, Third Circuit

August 12, 2013



CYNTHIA M. RUFE, District Judge.

Plaintiffs filed this negligence action after Plaintiff Stafford Freeman was burned by hot beef queso dip he ordered at a Ruby Tuesday restaurant on July 21, 2012. The parties have completed fact and expert discovery. Presently before the Court is Defendants' Motion to Exclude the Testimony of Plaintiffs Expert Witness Barry Parsons and Defendants' Motion for Summary Judgment. For the reasons set forth below, the Court will grant the Motion to Exclude Testimony, and deny the Motion for Summary Judgment.

I. Stipulation of Material Facts[1]

Mr. Freeman ordered and was served beef queso dip, a hot appetizer which he knew was served hot, while dining at a Ruby Tuesday in Lansdale, Pennsylvania. The dip is served with tortilla chips. Mr. Freedman scooped some dip onto a tortilla chip to eat it. The dip burned his mouth, causing him to drop dip on his forearm, causing second degree bums to his arm. He jerked backward when the hot dip fell on his arm, causing injuries to his shoulder, neck and back.

Ruby Tuesday's policy is to separately microwave the beef and queso (cheese dip) components of the beef queso dip after it is ordered by a customer, and to combine and serve the dip soon after the components are heated to a minimum of 165 degrees.[2] Plaintiffs have produced an expert report from Barry E. Parsons, offered as a food safety specialist, who visited a different Ruby Tuesday location on October 6, 2012, and measured the temperature of a queso dip appetizer at 166 degrees. Defendant produced an expert report from Ruby Tuesday's Vice President of Culinary & Beverage, Emerging Brands, Pat Peterson.

II. Motion to Exclude Testimony[3]

A. Standard of Review

Federal Rule of Evidence 702 reads:

[I]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient fact or data, (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts.

The Third Circuit has distilled this rule to two essential inquiries: 1) is the proffered expert qualified to express an expert opinion; and 2) is the expert opinion reliable?[4]

Under the Third Circuit framework, the focus of the Court's inquiry must be on the expert's methods, not his conclusions. The fact that Plaintiffs' experts and Defendants' experts reach different conclusions does not factor into the Court's assessment of the reliability of their methods.[5] To meet the Daubert standard, an expert must demonstrate that he has good grounds for the opinion (i.e., the opinion is based on methods and procedures of science, not subjective belief) and a reasonable degree of scientific certainty regarding the opinion.[6] An expert need not necessarily use the best grounds or unflawed methods.[7]

Expert evidence must be relevant and reliable to be admissible. The Court must consider: 1) whether the expert's theory can be tested; 2) whether studies have been subject to peer review and publication; 3) the potential for error in a technique used; and 4) the degree to which a technique or theory (but not necessarily a conclusion) is generally accepted in the scientific community.[8]

B. Discussion

Plaintiff has produced an expert report from Barry E. Parsons, and wishes to offer his expert testimony at trial. Mr. Parsons is a "food safety specialist" with an associates degree in Science-Business Management from Pierce Junior College. Mr. Parsons has provided a report which provides data about the length of time it takes a person to sustain second degree bums from water at various temperatures, and draws the conclusion that by serving the dip at 165 or 166 degrees, rather than at 135 degrees, Ruby Tuesday created a dangerous condition. He opines that the dip was excessively hot, that Mr. Freeman was unexpectedly and unreasonably exposed to the excessively hot dip by Ruby Tuesday, that Ruby Tuesday's failure to allow the dip to cool to a safe temperature before serving was unreasonable and created an extremely dangerous ...

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