JACOB P. HART, Magistrate Judge.
Plaintiff, Karen Maneri, commenced this action by filing a Complaint in the Philadelphia Court of Common Pleas on May 15, 2017, which was removed to this court on August 29, 2017. Plaintiff asserted claims of negligence, product liability, and breach of warranty against Defendant, Starbucks, for serving hot tea which spilled on Plaintiff after she purchased the tea at Defendant's drive-thru window. She alleges that after she purchased the tea and placed it into her car's built-in cupholder, she drove home and as she turned into her driveway the lid popped off, causing the tea to spill on her leg and resulting in severe burns.
The parties consented to proceed before the undersigned and approval of the Consent was signed by the Honorable Berle M. Schiller on May 13, 2019. (Doc. No. 17). Currently pending before this Court are Defendant's Motion to Exclude the Testimony of Plaintiff's Liability Expert (Doc. No. 23) and Defendant's Motion for Summary Judgment (Doc. No. 24). Plaintiff has filed a Response to both Motions (Docs. No. 26, 27) and Defendant has filed Replies to Plaintiff's Responses (Docs. No. 28, 29).
Federal Rule of Evidence 702 states:
Fed. R. Evid. 702. The Supreme Court held in
The Third Circuit has held that Rule 702 requires the proponent of the testimony to demonstrate by a preponderance of the evidence: (1) the proffered witness is qualified as an expert (2) the expert is testifying about matters requiring scientific, technical or specialized knowledge; and (3) the expert's testimony will assist the trier of fact.
To determine the reliability of the proposed evidence, the court may consider factors including:
The court will consider both academic training and practical experience to determine if the expert has "more knowledge than the average lay person" on the subject.
Starbucks moves to exclude the testimony of Plaintiff's expert, Jeffrey C. Lolli, Ed.D, CHE, CHIA. Defendant does not dispute that Lolli has education and experience in hotel and restaurant management. Lolli has a Bachelor of Science degree in Hotel and Restaurant Management, a Master of Science in Human Resources, and a Doctorate of Education in Higher Academic Leadership. He has over 20 years of experience in the hospitality industry working for companies such as Wyndham Hotels, Sands Casino Hotel and Harrahs Entertainment. He has held management and supervisory positions in large hotels and casinos, including positions as Director of Hotel Operations, Director of Rooms, Director of Guest Services, Director of Housekeeping, Assistant Director, Food and Beverage, Food Court Manager, and Senior Food and Beverage Operations Analyst. He also holds a certificate in food safety. Lolli Report at 1. However, as Defendant notes, he has not worked in a Starbucks or similar establishment. He does not cite to or rely upon any food safety rules or regulations relevant to this case as a basis for his opinions. His opinions are not based on comparison with accepted industry standards and are not testable. For the reasons that follow, I find that his opinions fail to satisfy the Daubert standard.
As Defendant argues, Lolli does not set forth any materials which establish an industry standard in this case. He also does not connect his opinions to any specialized training or knowledge regarding relevant standards. Therefore, his opinion that the tea was "too hot" is based on his own personal opinion. He does not reference any materials which set forth an industry standard for brewing and serving temperatures for tea. Instead, he references Starbuck's manual which indicates this type of tea is brewed at between 190 to 200 degrees Farenheit; Laloganes and Schmid (`) The Beverage Manager's Guide to Wines, Beers and Spirits, which he states indicates that teas, depending upon variety, require brewing temperatures ranging from 175 to 200 degrees Farenheit; and Keurig Brand Hot Beverage Brewer ('), stating that the optimal temperature for brewing coffee, tea and hot cocoa is 192 degrees Farenheit. He also cites a 2008 article by Brown and Diller which focuses on the preferred temperature at which to serve coffee, which it states is 140 degrees +/- 15 Farenheit for a population of 300. The article does not focus on tea and does not set forth the industry standard for serving a hot beverage. (Doc. No. 23-9). Finally, he cites the Burn Foundation to set forth the temperature at which skin burns (ranging from 133 to 156 degrees Farenheit, depending on the time it is on the skin.) Lolli report at 6.
Plaintiff relies upon the following portion of Lolli's report in support of his finding that although the temperature is unknown, the tea was excessively hot:
Lolli Report at 7 (emphasis added).
Lolli may not testify that the tea was "served well above recommended industry standards and norms" since he has not set forth any industry standards or recommended norms for the temperature at which hot tea should be served. Lolli's finding that the tea was "too hot" is based upon nothing more than the fact that Plaintiff was burned and the testimony that the employees "double cupped" the tea as an extra layer of protection against the heat. Lolli fails to set forth any evidence of an industry standard that tea should be served at a temperature below that which would burn the skin if spilled. In fact, the documents he references, including Starbuck's manual and the Keurig manual, indicate that tea should be brewed at a temperature in excess of that which would cause the skin to burn.
Furthermore, Lolli does not have any expertise which would allow him to opine as to the temperature of the tea based upon the injuries Plaintiff sustained. In Plaintiff's response to the motion, Plaintiff directs the court to the photographs of the burn as "demonstrable evidence of the intensity of the heat of Ms. Maneri's tea product." (Doc. No. 26 at 10). Clearly, Lolli is no more qualified to offer an opinion as to the correlation between the burn and the temperature of the tea than the jury would be.
Lolli also references Bryn Karr's testimony that she was unaware of when the Bunn Unit (machine that dispensed hot water) was last calibrated and the fact that Starbucks did not produce any records regarding calibration. However, he fails to offer any evidence of an industry standard or protocol requiring such calibration. Therefore, this court will not allow Lolli to testify as to the alleged excessive temperature of the tea.
Lolli's opinion that double-cupping prevented the lid from being secured properly is also not connected at all to his training or any industry standard set forth in his report. As Defendant states, Lolli does not reference any industry standard regarding double cupping. The only support he offers for his opinion is Starbuck's operating procedures, which provide that double cupping is not necessary for a venti-sized drink. He notes that the procure provides that a short cup should be double cupped because the cup sleeve does not fit on the cup, but for tall, grande and venti-sized cups, they are not to be double cupped unless requested by the customer. However, there is no indication that this standard is a safety precaution. In fact, Bryn Karr testified that she was unaware of any concerns Starbucks had regarding Venti cups being double cupped as it pertains to the integrity of the lid or that the policy was designed to prevent the lids from popping off. Dep. of Bryn Karr at 17:21-18:17. She testified that the purpose of the policy was to save resources.
Dep of Andrew Reusche at 19:7-16. Lolli does not indicate that he has any personal experience serving hot beverages which are double cupped and also fails to reference the testimony of the three Starbucks store partners with experience as baristas who testified that they always use double cups when serving tea and have had no problem securing the lids to double cupped beverages. While Plaintiff would be free to argue that Defendant deviated from its own operating procedures by double cupping a Venti-sized tea, there is no need for an expert to do this.
Lolli's report includes the following:
Lolli report at 5. Lolli does not point to anything in Starbuck's recommended procedures regarding the proper fit of the lid being affected by double cupping. There is no indication that the policy or procedure is at all related to safety or the fit of the lid, especially in light of the fact that the procedure specifically calls for double cupping "short" cups and also permits double cupping for any size beverage if requested by the customer. In fact, the first sentence under the heading "Cup Sleeves and Double-Cupping" indicates that the "[t]he following standards help reduce waste and ensure consistent execution from store to store." Starbucks Manual at 14.
Lolli also does not refer to any test he conducted to determine if double cupping prevents the lid from being secured or any specific methodology he used in reaching his conclusion, other than maybe running his finger along the rim of the cup. Nothing in Lolli's CV, in his report or even in Plaintiff's response to the motion indicates that he has any experience double-cupping beverages or any specialized knowledge in this area. As Defendant argues, Lolli's opinion is based upon nothing more than his own observations when examining the cups after being hired in this case. We agree that Lolli is not qualified to offer an expert opinion regarding the fit of the lid or the impact of double cupping,
Lolli's conclusion that Plaintiff turning into her driveway in no way contributed to the dislodging of the lid of the cup is also clearly outside of his area of expertise. He has not provided any evidence demonstrating any personal knowledge or experience above that of a lay person in this area. Lolli offers an opinion based upon his personal inspection that turning into the driveway could not have "caused enough motion to dislodge the cup from the cup holder, causing it to tip over in the car." Lolli report at 8. He also provides measurements of the cup holder in her car and describes the fit of the cup in the holder, stating that the fit was "snug" and that he was only able to place "the tip of [his] index finger in the small space between the cup and the edge of the cup holder."
Lolli does not possess any specialized skills or knowledge which enables him to conduct such a "test" or reconstruction. Clearly, this "test" was not performed in a way that can be repeated or challenged. As Defendants note, he does not even indicate whether there was liquid in the cup. His opinion also does not address whether movement from Plaintiff driving may have caused motion to dislodge the lid or whether it impacted the quantity of tea which spilled or splashed out of the cup once the lid was off, but only addresses whether the cup itself could tip. Plaintiff even admits that Lolli's opinions are in no way scientific and that they are based upon observations that a lay person could make in the absence of expert testimony (Doc. No. 26 at 13-14). Therefore, the court will not allow Lolli's opinions in this regard to be admitted to the jury as "expert" evidence.
Lolli does not have any training or experience relevant to the alleged disruption in the ability to seal the drink with a lid caused by double cupping, the slope of Plaintiff's driveway, or the fit of the cup in her cup holder. These are matters that could have conceivably been addressed by an expert in engineering or accident reconstruction. As Plaintiff even admits, Lolli's opinions are based upon his personal observations, not specialized training. A jury would be able to consider the evidence and come to its own conclusion with regard to these issues, but Lolli's opinions, which are not based upon any related specialized training may not be presented to the jury as "expert" opinions. The matters as to which he seeks to testify are those which lay persons on the jury could pass judgment without assistance from someone with specialized knowledge.
Lolli will also not be permitted to testify regarding the other opinions he expresses in his report, which are unrelated to the cause of the incident. We agree that Starbuck's failure to create an incident report in this case is irrelevant to the issue of liability. Defendant's failure to document the incident, which was later reported by Plaintiff did not result in any injury to Plaintiff. Expert testimony would also not be necessary to establish that Defendant did not create such a report. As Defendant notes, Plaintiff was not injured on the Defendant's premises, but rather the injury occurred after she left and was in her own driveway. Therefore, it is not clear whether such a report would even be the type contemplated by Starbucks' procedures. Regardless, we agree that it is not relevant to Plaintiff's claims and Lolli's opinions on this issue will also not be permitted.
Lolli has also included the following in his report:
Lolli Report at 8. This statement is not at all relevant to the instant case since it involves Plaintiff's daughter and not Plaintiff and was at a different Starbuck's location. It also involves a different beverage, does not involve a double cup, and does not involve a drive-thru transaction. While this is also not an issue requiring an expert, this testimony coming from any witness is not relevant, would serve no purpose except to unfairly prejudice the jury, and will therefore, not be permitted.
For the reasons stated herein, this court will grant Defendant's motion to exclude the testimony of Dr. Lolli in its entirety. Plaintiff relies on the fact that his opinions are not "scientific", but are based upon extensive personal knowledge and experience in the food and beverage industry as set forth in his CV. However, the gatekeeping requirements of
Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. The moving party has the burden of demonstrating the absence of any genuine issue of material fact.
When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party.
Defendant seeks summary judgment dismissing all Counts of Plaintiff's Complaint. In Plaintiff's Response to the Motion for Summary Judgment, she withdrawals her claims of product liability (Count III) and breach of warranty for a particular purpose (Count V). Doc. No. 27 at 11, 18. Plaintiff opposes summary judgment as to Counts I (vicarious liability), II (negligence) and IV (breach of implied warranty of merchantability) of the Complaint.
To succeed on a negligence claim, Plaintiff must prove that (1) Defendant owed a duty of care, (2) Defendant breached that duty, (3) Plaintiff incurred actual loss or damages, and (4) there is a causal connection between Defendant's breach and plaintiff's damages.
"[T]he mere existence of a harmful condition in a public place of business, or the mere happening of an accident due to such a condition is neither, in and of itself, evidence of a breach of the proprietor's duty of care to his invitees, nor raises a presumption of negligence."
Plaintiff alleges that Defendant breached a duty owed to Plaintiff by serving her excessively hot and dangerous tea. This district has recognized that according to Pennsylvania case law, the fact that a hot beverage such as tea is hot enough to cause second degree burns, should be obvious.
In addition, the cup and lid in this case both provided a warning that the contents were hot. Finally, in this case, Plaintiff also admits that she knew the tea was hot and according to her testimony she was even aware that the tea was "too hot". Plaintiff argues in the response to summary judgement that the tea which spilled upon her leg "was similar in feel and temperature to those cups of tea purchased by Ms. Maneri on prior occasions which she deemed to[o] (sic) dangerous to drink." (Response to SJ-Doc. No. 27-2 at 10). Plaintiff's testimony that the tea from this Starbuck's had previously been "too hot" demonstrates that she was aware of the alleged extreme temperature of the tea prior to this incident.
The only remaining theory of negligence is that Starbucks breached its duty to Plaintiff because the barista improperly placed the lid on the tea or did not adequately check to make sure the lid was secure, possibly as a result of there being two cups stacked together. However, Plaintiff's claim is based on mere speculation. While we must consider the evidence in the light most favorable to Plaintiff, she has not presented any actual evidence of Starbuck's negligence.
According to Plaintiff's testimony, she did not notice anything unusual during the transaction when she purchased the tea at the drive-thru, taking it from the barista and placing it into her cupholder in her car. Dep. of Karen Maneri at 80:21-23. She admits that she did not notice the lid being loose when she took the cup or when she placed it in the cup holder. She also admits that no tea spilled onto her hand and she did not recall any tea coming out of the lip or spilling out between the lid and the cup when the barista handed it to her.
Plaintiff has presented no evidence of any negligence on the part of the defendant, other than the simple fact that she was burned when the tea spilled as she pulled into her driveway. According to Plaintiff's testimony, she was driving and didn't know the lid was off of the tea until she felt her leg burning.
Although Plaintiff does not remember the details of the transaction, including with which hand she took the cup, in an attempt to demonstrate that she did not touch the top of the cup, Plaintiff relied upon the testimony of Reusche, who testified that they are trained to hand the cups to the customers so the customer can grab it where the sleeve is located. Dep. of Andrew Reusche at 23:23-24:7. However, even if she took the cup from the barista by holding it at the sleeved area, Plaintiff testified that she does not recall details of placing the cup in the holder, such as whether she transferred the cup to her other hand when placing it into the cup holder. Even considering the testimony in the light most favorable to Maneri, there is simply no evidence to prove that the barista did not properly secure the lid or even that plaintiff did not touch the top of the cup.
Plaintiff admits that her only basis for her claim that the lid was not properly on the cup is that she "can't imagine why else it would come off." Dep. of Karen Maneri at 80:4-11. This mere speculation that because the tea spilled the employee had to have been negligent is simply not sufficient to survive summary judgment.
In response to Defendant's motion as to Count III, alleging a claim of product liability, Plaintiff states that she withdrawals her claim. Doc. No. 27 at 18. She also withdrawals Count V, which alleges breach of warranty for fitness for a particular purpose. Doc. No. 27 at 19. However, Plaintiff does not withdrawal her claim of breach of warranty of merchantability.
"The implied warranty of merchantability arises by operation of law,
The Third Circuit has recognized that the implied warranty of merchantability and the rule of strict liability in the Restatement (Second) of Torts 402A are essentially the same.
In Count IV of her complaint, Maneri alleges that Defendant breached its warranty of merchantability because the "hot beverage and tea it sold and provided to Plaintiff was not of merchantable quality because the hot beverage was not provided in an adequate container, to wit: the lid of the provided container failed to stay affixed thereto under foreseeable, reasonable and normal use, causing the container to suffer structural failure and spill its contents onto Plaintiff." Complaint at ¶ 43. Plaintiff has not presented any evidence that the construction or design of the cup or lid were defective or not fit for the ordinary purpose for which they were intended and she does not even respond to that issue in her response to the motion.
Although Count IV of the Complaint (warranty of merchantability) addresses the cup and lid, in Plaintiff's response to the Motion for Summary Judgment, she now alleges that the tea itself was the defective product because it was served too hot. In response to the Motion for Summary Judgment, Plaintiff argues that Starbucks violated the implied warranty of merchantability because they "produced to her a defective and dangerous product-excessively overheated tea" which spilled on her causing severe burns. Doc. No. 27 at 18. In support of the claim, she relies upon the deposition testimony of Starbucks employees, Karr, Reusche and Gisladottir and claims that they testified that they were aware of the excessive heat of the product and often compensated by serving tea products in double cups with sleeves on top of same.
As discussed herein, the baristas testified that they used an extra cup as extra protection from the heat of the tea. However, they did not testify that the tea was served at an "excessive" or unreasonably dangerous temperature or at a temperature above any industry or even internal standard. None of this is sufficient to maintain a claim that the tea in this case was not merchantable, i.e. defective or unreasonably dangerous for its intended use, i.e. human consumption. Plaintiff has also not presented evidence that the tea was served in a manner that was not fit for its intended purpose of drinking it. The fact that the tea was hot enough to produce burns if spilled on the skin or that it made the cup hot to the touch does not demonstrate that the tea was an unreasonably dangerous product. As Plaintiff seems to recognize by withdrawing Count V of the Complaint, there is no evidence to sustain her claim that the tea was not fit for its intended purpose of human consumption. Furthermore, while there is certainly a risk that hot tea may cause injury if spilled, this alone does not make it an unreasonably dangerous product. Furthermore, Defendant in this case provided a printed warning on both the lid and the cup. Plaintiff's claim of breach of warranty of merchantability must also be dismissed.
For the reasons stated herein, Plaintiff's claims of negligence and breach of warranty of merchantability will not survive summary junction. Therefore, summary judgment will be entered in favor of Defendant and the action will be dismissed. An appropriate order follows.
