DECISION and ORDER

GLENN T. SUDDABY, Chief District Judge.

Currently before the Court, in this products liability action filed by C.C., an infant, by and through her guadian ad litem, Paul M. Deep ("Plaintiff" or "C.C.") against Polaris Industries, Inc. ("Defendant" or "Polaris"), are three motions filed by Defendant: (1) a motion to dismiss Plaintiff's demands for future medical expenses, lost income, and lost earning capacity, for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for partial summary judgment with respect to those demands pursuant to Fed. R. Civ. P. 56 (Dkt. No. 74); (2) a motion for partial summary judgment with respect to Plaintiff's demand for punitive damages pursuant to Fed. R. Civ. P. 56 (Dkt. No. 82); and (3) a motion to preclude Plaintiff's expert from testifying with respect to Defendant's intent or state of mind (Dkt. No. 83). For the reasons set forth below, Defendant's motions are granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, in her Complaint, Plaintiff alleges that she suffered a severe injury while operating a Polaris Ranger XP 900 ("Ranger"), a motorized utility task vehicle ("UTV"). (See generally Dkt. No. 1 [Plf.'s Compl.].) Plaintiff alleges that, while she was properly operating the subject Ranger, it unexpectedly rolled over and the driver's side roll bar-a bar running straight and flush along the driver's side of the Ranger-landed on her left arm, severing her hand above the wrist. (Id. at ¶¶ 10-13.) Because this Decision and Order is intended primarily for the review of the parties, the Court will not recite in detail the remaining factual allegations of Plaintiff's Complaint; rather, the Court refers the reader to the Complaint in its entirety. (Id.)

Based on these factual allegations, Plaintiff's Complaint asserts three claims under New York State law: (1) a strict liability claim for defective design; (2) a strict liability claim for failure to warn of the Ranger's "defects or unreasonably dangerous conditions"; and (3) a claim that Defendant negligently designed, engineered, manufactured, assembled, tested, inspected, and sold the Ranger, and negligently failed to warn of its "defects and dangerous conditions." (Id. at ¶ 21-57.)1

B. Undisputed Material Facts Regarding Defendant's Motion as to Plaintiff's Claims for Future Medical Expenses, Lost Income, and Lost Earning Capacity

Unless otherwise noted, the following facts were asserted and supported by Defendant in its statement of material facts ("Rule 7.1 Statement A") and expressly admitted by Plaintiff in her response thereto ("Rule 7.1 Response A"). (Compare Dkt. No. 74, Attach. 2 [Def.'s Rule 7.1 Statement A] with Dkt. No. 76 [Plf.'s Rule 7.1 Response A].)

1. This action was commenced on July 31, 2014.

2. The action arises out of a September 29, 2013, incident in which C.C., an infant, was injured while operating a Polaris Ranger XP 900 vehicle.

3. On September 29, 2013, C.C. was eleven years old.

4. In this action, Plaintiff seeks damages for, inter alia, physical disfigurement, pain and suffering, mental anguish, and loss of enjoyment of life.

5. In this action, Plaintiff also seeks damages for the following: (a) future medical expenses, including medical treatment and durable medical goods and products; (b) lost income; and (c) lost earning capacity.

6. Section C of Plaintiff's initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1) provides in pertinent part: "Economic damages will be calculated once sufficient data, including but not limited to past and future medical bills of C.C's and loss of future income and earnings, has been collected and Plaintiff will timely supplement."

7. Plaintiff did not supplement her initial disclosures.

8. The medical records provided by Plaintiff, as well as those obtained through the use of authorizations, contain no information concerning the cost of any future treatment or related goods and services for C.C.

9. The deadline for the completion of discovery, as amended, expired on May 20, 2016.

10. The deadline for submission of Plaintiff's expert disclosure, as amended, expired on November 20, 2015.

11. Plaintiff's expert disclosures do not designate an economist, a life care planner, or a vocational rehabilitation specialist.

12. Plaintiff's expert disclosures designate certain medical experts pursuant to Fed. R. Civ. P. 26(a)(2)(C).2

13. Plaintiff deposed Dr. Walter H. Short, M.D. ("Dr. Short"), on July 9, 2015.

14. Dr. Short was the surgeon who treated C.C. following the September 29, 2013, incident. He last saw C.C. on October 25, 2013.

15. During his deposition, Dr. Short was not asked, and did not opine, about the amount of money that could reasonably be expected to be required for C.C.'s care and treatment in the future.3

C. Undisputed Material Facts Regarding Defendant's Motion for Partial Summary Judgment With Respect to Plaintiff's Claim for Punitive Damages

Unless otherwise noted, the following facts were asserted and supported by Defendant in its statement of material facts ("Rule 7.1 Statement B") and expressly admitted by Plaintiff in her response thereto ("Rule 7.1 Response B"). (Compare Dkt. No. 82, Attach. 22 [Def.'s Sealed Rule 7.1 Statement B] with Dkt. No. 86, Attach. 1 [Plf.'s Sealed Rule 7.1 Response B].)4

General Background Regarding the Incident

1. C.C.'s claims arise out of a 90-degree lateral overturn crash involving a 2013 Polaris Ranger XP 900 ("Ranger").5

2. On September 29, 2013, Nicholas Camarata ("Camarata") gave C.C. permission to drive the Ranger on roads with a 12-year-old passenger, M.H., and a 5-year-old passenger, J.B.

3. The warning label depicted in the photograph below is located on the Ranger:

4. Camarata saw the warning label depicted in paragraph 3 above prior to the accident.

5. Camarata understood that the warning label depicted in paragraph 3 above meant that people under age 16 should not operate the Ranger.

6. Camarata allowed C.C. to operate the Ranger despite having seen the warning label that people under age 16 should not operate the vehicle.

7. During her deposition in this case, C.C. testified that she saw but "didn't pay attention to" the warning label when she got into the Ranger to drive it, and had not read the label before the incident at issue.6

8. During her deposition, C.C. testified, "I don't pay attention to anything that says warning."

9. C.C. was driving down Lower James Road at the time of the crash.7

10. M.H. testified as follows during her deposition in this case:

11. Defendant retained Graeme Fowler ("Fowler") as an accident reconstruction expert in this case.

12. Fowler testified as follows during his deposition in this case:

13. Fowler testified as follows during his deposition:

14. Defendant retained William Newberry ("Newberry") as an expert to offer opinions in the areas of biomechanics, occupant kinematics, injury mechanics, and occupant responses during recreational off-highway vehicle ("ROV") riding, as well as the relationships between these issues and the Ranger's occupant protection system.

15. Newberry opined that, during the overturn of the Ranger, C.C. placed her hand between the B-pillar portion of the rollover protection structure ("ROPS") and the ground, resulting in her hand being amputated mid-palm as the vehicle slid across the ground.8

The Ranger

16. The Ranger has an occupant-protection system that includes a rigid roll bar structure, seat belts, hip restraints, helmet rests, a non-slip floor surface, side netting, and an outboard passenger hand hold as depicted in the image below:

17. The Ranger has a label that advises riders to "always keep hands and feet inside" and warns that "serious injury or death" could result from a failure to do so.

18. Plaintiff retained Robert Nobilini ("Nobilini") as an expert to address the biomechanics of how C.C.'s injury occurred, her occupant kinematics, and the mechanisms of her injury.

19. Nobilini testified as follows during his deposition in this case:

20. Polaris retained Newberry as an expert to offer opinions in the areas of biomechanics, occupant kinematics, injury mechanics, and occupant responses during ROV riding, as well as the relationships between these issues and the Ranger's occupant protection system.

21. Newberry offered the following opinion in this matter:

Plaintiff's Complaint

22. This action was commenced on July 31, 2014.

23. This action arises out of the September 29, 2013, incident in which C.C., an infant, was injured while operating the Ranger.

24. Plaintiff's Complaint asserts three counts against Polaris: one for strict liability; one for failure to warn; and one for negligence.

25. Each count of Plaintiff's Complaint asserts a demand for punitive damages.

Design of the Ranger

26. Polaris's internal code name for the Ranger project was Titan.

27. Brent Erspamer ("Erspamer") is an engineer employed by Polaris.

28. Erspamer was the program leader for the Ranger project beginning at the end of 2011.

29. Erspamer testified as a corporate representative of Polaris during a deposition in this action.

30. Erspamer testified as follows during his deposition:

31. Kenneth d'Entremont ("d'Entremont") has a Ph.D. in mechanical engineering.

32. d'Entremont was the Manager of Corporate Product Safety at Polaris from 2002 through November 2012.

33. d'Entremont testified during his deposition in this case that, while employed at Polaris, he [REDACTED\]

34. d'Entremont testified as follows during his deposition in this case:

35. d'Entremont is currently an adjunct professor at the University of Utah.

36. d'Entremont teaches product safety to both undergraduate and graduate students at the University of Utah.

37. d'Entremont testified as follows during his deposition in this case:

38. d'Entremont testified as follows during deposition in this case:

39. Jeffrey Eyres ("Eyres") testified as a corporate representative for Polaris in this case.

40. Eyres testified during his deposition that Polaris was aware of studies relating to the issue of whether occupants' limbs would come out of vehicles during rollovers.

41. Eyres testified during his deposition in this case as follows:

42. The Society of Automotive Engineers ("SAE") published an article in 2012 entitled "Biomechanics of Occupant Responses during Recreational Off-Highway Vehicle (ROV) Riding and 90-degree Tip-Overs."

43. The SAE paper "Biomechanics of Occupant Responses during Recreational Off-Highway (ROV) Riding and 90-degree Tip-Overs" states the following conclusion:

44. The SAE paper "Biomechanics of Occupant Responses during Recreational Off-Highway (ROV) Riding and 90-degree Tip-Overs" states the following conclusion:

45. The SAE paper "Biomechanics of Occupant Responses during Recreational Off-Highway (ROV) Riding and 90-degree Tip-Overs" states the following conclusion:

46. The SAE paper "Biomechanics of Occupant Responses during Recreational Off-Highway (ROV) Riding and 90-degree Tip-Overs" states the following conclusion:

47. Newberry is an author of "Biomechanics of Occupant Responses during Recreational Off-Highway (ROV) Riding and 90-degree Tip-Overs."

48. Newberry testified as follows during his deposition in this case about the testing described in "Biomechanics of Occupant Responses during Recreational Off-Highway (ROV) Riding and 90-degree Tip-Overs":

49. Newberry testified as follows during his deposition about the testing described in "Biomechanics of Occupant Responses during Recreational Off-Highway (ROV) Riding and 90-degree Tip-Overs":

50. Newberry testified as follows during his deposition about the testing described in "Biomechanics of Occupant Responses during Recreational Off-Highway (ROV) Riding and 90-degree Tip-Overs":

51. Plaintiff retained Robert Cunitz ("Cunitz"), a human factors psychologist, to offer expert opinions in this case.

52. Cunitz testified during his deposition in this case as follows:

53. Cunitz testified during his deposition in this case as follows:

ROV Design Standards

54. Prior to the introduction of the Ranger, design standards for ROVs had been developed and instituted through the American National Standards Institute ("ANSI").13

55. The Recreational Off-Highway Vehicle Association ("ROHVA") was the sponsoring association for the design standards for ROVs developed in connection with ANSI and through the ANSI process.14

56. The Consumer Product Safety Commission ("CPSC") is the federal agency in the United States with jurisdiction over off-road products.

57. The CPSC was involved in the ANSI process in developing standards for ROVs.15

58. Individuals and associations had a chance to be involved in the development of standards for ROVs as part of the ANSI standard process.16

59. The ANSI-ROHVA design standards include a standard for the ROPS of ROVs.17

60. The ANSI-ROHVA design standards include a standard for occupant retention in ROVs.18

61. The ANSI-ROHVA design standards include standards for warning labels and owner's manuals of ROVs.19

62. The ROPS on the Ranger complied with the applicable ANSI-ROHVA standard.20

63. The occupant retention system of the Ranger complied with the applicable ANSI-ROHVA standard.21

64. The warning labels and manual of the Ranger complied with the applicable ANSI-ROHVA standard.22

65. Eyres testified about the ANSI-ROHVA standards during his deposition.

66. Eyres testified during his deposition as follows:

67. d'Entremont testified as follows during his deposition:

68. d'Entremont testified as follows during his deposition in this case:

69. Polaris retained Kevin Breen ("Breen") as an expert to address the design of the Ranger.

70. Breen opined that the Ranger's ROPS and occupant retention system complied with the applicable ANSI-ROHVA standards.23

71. Polaris retained Nathan Dorris ("Dorris") as an expert to address human factors and warnings issues.

72. Dorris opined that the warning labels and manual for the Ranger complied with the applicable ANSI-ROHVA standard.24

73. Plaintiff retained Stephen Batzer ("Batzer") as an expert to offer design opinions about the crashworthiness of the Ranger.

74. Batzer testified as follows during his deposition in this case:

D. Parties' Briefing on Defendant's Motions

1. Defendant's Motion to Dismiss, or for Partial Summary Judgment With Respect to, Plaintiff's Claims for Future Medical Expenses, Lost Earnings, and Lost Earning Capacity

a. Defendant's Memorandum of Law

Generally, in its memorandum of law, Defendant asserts three arguments: (1) Plaintiff's claim for future medical expenses must be dismissed because (a) she has not adduced any expert testimony establishing the costs of her future medical care with reasonable certainty and (b) given that Dr. Short has not treated her since October 2013 (nearly two years before his deposition), his lack of familiarity with her medical treatment during that time renders his general testimony about the likely need for future care insufficient to support this claim; (2) Plaintiff's claim for lost earnings must be dismissed because (a) she was 11 years old at the time of the incident and therefore did not incur any lost earnings, and (b) in any event, she has not adduced any evidence establishing any lost earnings with reasonable certainty; and (3) Plaintiff's claim for lost earning capacity must be dismissed because (a) she has not adduced any evidence establishing the amount of her lost earning capacity with reasonable certainty, and (b) she has not disclosed any experts who could provide competent evidence supporting her claim, such as economists, vocational rehabilitation experts, or life care planners (Dkt. No. 74, Attach. 3, at 3-6 [Def.'s Memo. of Law].)

b. Plaintiff's Opposition Memorandum of Law

Generally, in opposition to Defendant's motion, Plaintiff asserts three arguments: (1) Plaintiff's claim for future medical care expenses should not be dismissed because Dr. Short testified with a reasonable degree of medical certainty-based on his 35 years of practice in the area of orthopedic hand surgery and his treatment of Plaintiff-that she would need physical therapy, occupational therapy, counseling, and prostheses in the future; (2) Plaintiff "withdraws her specific request relating to lost earnings"; and (3) Plaintiff's claim for lost earning capacity should not be dismissed because her "obvious and severe disability" renders it reasonably certain that she "will suffer a loss of future earnings[] and is entitled to compensation for that loss[.]" (Dkt. No. 75 at 3-5 [Plf.'s Opp'n Memo. of Law].)

c. Defendant's Reply Memorandum of Law

Generally, in reply to Plaintiff's opposition, Defendant argues as follows: (1) Dr. Short's testimony "broadly expound[ing] on various therapies, treatments, and medical devices for patients suffering injuries similar to those alleged by" Plaintiff is insufficient to establish with a reasonable degree of medical certainty that Plaintiff will actually require, all, some, or any of those interventions; (2) Dr. Short offered no opinion with regard to the costs that could be incurred in connection with Plaintiff's future medical care; (3) Plaintiff has not adduced any evidence in support of, or identified any expert whose testimony will be offered to support, her claim for damages for lost earning capacity; and (4) Plaintiff's time to disclose any additional expert witnesses has closed pursuant to Fed. R. Civ. P. 26(a)(2)(D), and she acknowledges that she has not supplemented her expert disclosures. (Dkt. No. 77 at 2-4 [Def.'s Reply Memo. of Law].)

2. Defendant's Motion for Partial Summary Judgment with Respect to Plaintiff's Claim for Punitive Damages25

a. Defendant's Memorandum of Law

Generally, in its memorandum of law, Defendant asserts that it is entitled to summary judgment with respect to Plaintiff's claim for punitive damages for three reasons . . . (Dkt. No. 82, Attach. 21 [Def.'s Sealed Memo. of Law].)

First, Defendant argues that Plaintiff has failed to adduce admissible evidence to support the conclusion that Defendant acted recklessly or with conscious disregard for the rights or safety of others. (Id. at 8-11.) More specifically, Defendant argues that the record evidence, including the deposition testimony of its engineers, establish that [REDACTED\] and (d) it was aware of peer-reviewed, published studies concluding that "ROV designs that included ROPS and seatbelts" (like that used in the Ranger's design) were effective in avoiding crush injuries, even without side netting, but it made side netting a standard feature on the Ranger anyway. (Id. at 8-10.) In sum, Defendant argues that this evidence supports the conclusion that it "acted in good faith in developing" the Ranger, "considered the risk of limb-crush," and employed a reasonable design with this risk in mind, and that Plaintiff has failed to adduce record evidence supporting the reasonable inference that Defendant's conduct was "grossly negligent, intentional, wanton or reckless" such that punitive damages may be appropriate. (Id. at 10-11.)

Second, Defendant argues that Plaintiff has failed to adduce admissible evidence that any of its superior officers (such as an officer or director) knew of and participated in, endorsed, or ratified any grossly negligent or other sufficiently severe conduct that could serve as a basis for the imposition of punitive damages against it (i.e., a corporate entity). (Id. at 11-12.)

Third, Defendant argues that the record evidence supports the conclusion that it complied with then-existing industry design standards applicable to the Ranger, including standards for ROPS, nets, the occupant retention system, and warnings. (Id. at 12-14.)

b. Plaintiff's Opposition Memorandum of Law

Generally, in opposition to Defendant's motion, Plaintiff asserts that Defendant is not entitled to summary judgment on her claim for punitive damages for five reasons. (Dkt. No. 88, Attach. 4 [Plf.'s Sealed Opp'n Memo. of Law].)

First, Plaintiff argues that genuine issues of material fact exist as to whether Defendant recklessly and consciously disregarded the safety of others because record evidence establishes that (a) [REDACTED\]

[REDACTED\]26

Second, Plaintiff argues that the record evidence on which Defendant relies [REDACTED\]) provide no factual basis for concluding that it did not act recklessly and with conscious disregard for the safety of others. (Id. at 4.)

Third, Plaintiff argues that there is no record evidence supporting the conclusion that Defendant knew of, and relied on, the single study cited in its memorandum of law in the development of the Ranger. (Id. at 5.)

Fourth, Plaintiff argues that a rational fact-finder could reasonably infer from the record evidence that Defendant's management authorized, participated in, consented to, or ratified the conduct that may give rise to punitive damages. (Id. at 6-7.) More specifically, Plaintiff argues that d'Entremont, who was Defendant's Manager of Corporate Product Safety, [REDACTED\] [REDACTED\] held a "sufficiently high enough" position to "also render [Defendant] blameworthy." (Id. at 6-7.)

Fifth, Plaintiff argues that compliance with industry standards does not foreclose the imposition of punitive damages as a matter of law. (Id. at 7-8.)

c. Defendant's Reply Memorandum of Law

Generally, in reply to Plaintiff's opposition, Defendant reiterates the arguments set forth in its memorandum of law and, moreover, argues as follows: (1) because Plaintiff has not submitted his "own statement of facts" and has admitted nearly every fact asserted in Defendant's Rule 7.1 Statement B, the evidentiary record before the Court is "limited to those pleadings"; (2) because Plaintiff has admitted many of the facts asserted by Defendant (e.g., that Defendant considered relevant scientific literature when designing the Ranger, and that the Ranger complies with applicable regulatory standards), there is no evidence supporting the conclusion that Defendant acted with the level of culpability necessary to impose punitive damages; (3) Defendant made the "reasonable engineering decision" to use a standard net system rather than a full net system (i.e., a net running from the base of the Ranger to the top of the ROPS) based on an analysis of the benefits and drawbacks of using a full net system, and that decision does not support the conclusion that Defendant consciously disregarded the safety of users; (4) the evidence demonstrates that Defendant was aware of studies indicating that vehicle occupants "will attempt to brace within the confines of the vehicle" during a rollover rather than "extend an arm outside the vehicle"; (5) the video relied upon by Plaintiff (a) was not approved, authorized, or distributed by Polaris, (b) constitutes an inadmissible hearsay statement made by a former Polaris salesman, and (c) does not "negate[] the design and safety analyses Polaris performed"; and (6) Plaintiff has failed to identify a "superior officer" who participated in or ratified conduct amounting to a conscious disregard for the rights or safety of others, and d'Entremont does not qualify as a "superior officer" because he was not an officer, director, or executive-level employee for Polaris, had no subordinates, and reported to another manager. (Dkt. No. 89, Attach. 6, at 1-10 [Def.'s Sealed Reply Memo. of Law].)

3. Defendant's Motion to Preclude Expert Testimony with Regard to Defendant's State of Mind or Intent

a. Defendant's Memorandum of Law

Generally, in its memorandum of law, Defendant asserts that Cunitz, a human factors psychologist retained by Plaintiff, should be precluded from testifying about Defendant's "design and design intentions" regarding the Ranger for four reasons. (Dkt. No. 83, Attach. 7 [Def.'s Sealed Memo. of Law].)

First, Defendant argues that Cunitz is not qualified to testify about its "mindset or intentions in designing an ROV," because he is not an engineer and has no expertise, experience, or specialized knowledge regarding "designing or testing any portion of an ROV." (Id. at 3-4.)

Second, Defendant argues that there is no factual basis for Cunitz's opinion that it "willfully exposed" operators of the Ranger to an "unreasonable risk," because Cunitz did not review the only record evidence concerning Defendant's designed intentions (i.e., deposition testimony of Polaris witnesses and Polaris's design documents). (Id. at 4.)

Third, Defendant argues that Cunitz's opinion is not the product of the reliable application of scientific principles or methods to the facts of the case, because, as asserted in its second argument, Cunitz did not review the record evidence concerning Defendant's "design processes and intent." (Id. at 4-5.) Moreover, Defendant argues that Cunitz's opinion is undercut by the record evidence, specifically, (a) [REDACTED\] (Id. at 4-6.)

Fourth, Defendant argues that, for each of the reasons supporting its first three arguments, Cunitz's opinions about its "mindset and intentions" will be unhelpful to the jury in considering these issues. (Id. at 6-7.)

b. Plaintiff's Opposition Memorandum of Law

Generally, in opposition to Defendant's motion, Plaintiff asserts that Cunitz's opinion that Defendant has willfully exposed "ROV riders and passengers to an unreasonable risk of bodily harm" should not be precluded for four reasons. (Dkt. No. 87, Attach. 2 [Plf.'s Sealed Opp'n Memo. of Law].)

First, Plaintiff argues that Cunitz is a qualified expert because (a) he has "years of experience" teaching undergraduate and graduate courses in the areas of psychology, human factors, scientific method, and research design, (b) he "has had membership" in more than a dozen engineering, human factors, and psychology organizations, (c) he has held academic and research positions at numerous universities and government agencies, (d) he has testified as an expert in numerous federal and state courts as an accepted expert in human factors psychology, (e) he has almost 40 years of experience and specialized knowledge in the "study and application of [h]uman [f]actors," and (f) his specialized knowledge "enables him to assess the risks inherent in a product and the need and ability to warn against such risks and/or instruct in the use of the product." (Id. at 4.) Moreover, in conjunction with this argument, Plaintiff argues that the mere fact that Cunitz does not have an engineering degree and "has not himself designed an ROV" does not negate his specialized knowledge or otherwise render him unqualified to provide an expert opinion on the subject at issue. (Id. at 5.)

Second, Plaintiff argues that Cunitz's opinion is based on sufficient facts and data because he reviewed (a) deposition transcripts, (b) the owner's manual for the Ranger at issue, (c) videos of "ROV rollovers and tipovers," (c) publications regarding "arm injuries during a rollover," (d) a Polaris training video "acknowledging that riders naturally extend hands or arms to brace themselves in emergency situations," (e) images of Plaintiff's injuries, and (f) photographs of the Ranger's warnings. (Id. at 5-6.)

Third, Plaintiff argues that Cunitz's opinion is the product of a reliable methodology applied to the facts of this case because (a) he used a human factors methodology in forming his opinions, (b) human factors is a recognized field of scientific study concerned with human behavior and "the design and use of products, equipment and facilities that are intended for human use," and (c) he employed both his specialized knowledge in human factors and the "knowledge he gained from the experts on the product's uses and risks and various design alternatives to assess" the adequacy of the Ranger's warnings in forming his opinion. (Id. at 6-7.)

Fourth, Plaintiff argues that Cunitz's "specialized knowledge in the area of human factors dealing with the interaction between humans and machines and the effectiveness of warnings and warnings systems" will help the jury with "evaluating the adequacy of warnings and a framework for evaluating a warning." (Id. at 7-8.)

c. Defendant's Reply Memorandum of Law

Generally, in reply to Plaintiff's opposition, Defendant reiterates the arguments set forth in its memorandum of law and, moreover, argues as follows: (1) Plaintiff has failed to establish that Cunitz is qualified to testify about Defendant's intent or state of mind (i.e., "that Polaris willfully did anything"); (2) Plaintiff has failed to identify any facts or data that support Cunitz's opinions about Defendant's state of mind or design intentions; (3) Plaintiff's "discuss[ion of] human factors generally" (i.e., Cunitz's method "to predict how users of the ROV will recognize, assimilate and respond to the information provided by a warning") does not constitute a reliable methodology underlying his "opinions about [Defendant's] mindset or design intentions"; and (4) because a trial jury will have the opportunity to consider evidence that Cunitz did not review (i.e., deposition testimony of Polaris employees about design decisions related to the Ranger), it "will be in just as good-if not better-position as Cunitz to draw conclusions about" Polaris's state of mind and intent. (Dkt. No. 90 at 1-5 [Def.'s Reply Memo. of Law].)

II. RELEVANT LEGAL STANDARDS

A. Standard Governing a Motion for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is warranted if "he movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).27 As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law. . . . Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, "[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a),(c),(e).

Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute.28 Of course, when a non-movant willfully fails to respond to a motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Group, Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten the movant's burden.

For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement.29

Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have "consented" to the legal arguments contained in that memorandum of law under Local Rule 7.1(b)(3).30 Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possess facial merit, which has appropriately been characterized as a "modest" burden. See N.D.N.Y. L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein. . . ."); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).

B. Legal Standard Governing Plaintiff's Claims

Because the parties have (in their memoranda of law) demonstrated an adequate familiarity with the legal standards governing Plaintiff's claims and the parties' arguments on the pending motions, the Court will not recite in detail those legal standards in this Decision and Order, which is intended primarily for the review of the parties. Rather, the Court will discuss those legal standards only where necessary below, in Part III of this Decision and Order.

III. ANALYSIS

A. Whether Plaintiff's Claims for Future Medical Costs, Lost Income, and Lost Earning Capacity Must Be Dismissed31

After carefully considering the matter, the Court answers this question in the affirmative for the reasons set forth in Defendant's memoranda of law. (Dkt. No. 74, Attach. 3, at 3-6 [Def.'s Memo. of Law]; Dkt. No. 77 at 1-4 [Def.'s Reply Memo. of Law].) To those reasons, the Court adds the following analysis, which is intended to supplement, and not to supplant, those reasons.

As an initial matter, the Court notes that, in Plaintiff's opposition memorandum of law, she expressly "withdraws her specific request relating to lost earnings[.]" (Dkt. No. 75 at 5 [Plf.'s Opp'n Memo. of Law].) In light of her explicit withdrawal of her demand for this category of damages (and her concomitant failure to advance any argument in support of her claim), the Court concludes that withdrawal of this demand is appropriate under Fed. R. Civ. P. 41(a)(2). Any demand for damages representing lost earnings is therefore dismissed with prejudice.32

With respect to future medical expenses, during his deposition, Dr. Short opined that Plaintiff would likely require physical therapy, occupational therapy, counseling, and prostheses in connection with her hand amputation. (Dkt. No. 75, Attach. 1, at 51-54 [Short Depo Tr.].) However, even assuming that Dr. Short's testimony constitutes evidence forecasting Plaintiff's future medical needs with a reasonable degree of medical certainty, Plaintiff's counsel has adduced no evidence with respect to the costs of this future medical care.33 Dr. Short's general explanations concerning occupational therapy, physical therapy, counseling, and the different types of available prosthetics do not provide guidance to a finder of fact with respect to the likely future costs of those services and/or devices for the injury that Plaintiff suffered; and Plaintiff's counsel does not argue that any other record evidence supports her claim for these damages. For this reason, as well as those set forth in Defendant's memoranda of law, Plaintiff's claim for future medical expenses must be dismissed.

Finally, with respect to Plaintiff's claim for lost earning capacity, her only argument in opposition to Defendant's motion is that she "has an obvious and severe disability" and that it is reasonably certain that, "due to the permanent and disfiguring loss of a hand, [she] will suffer a loss of future earnings[.]" (Dkt. No. 75 at 5 [Plf.'s Opp'n Memo. of Law].) The loss of Plaintiff's left hand is undeniably a severe and disfiguring injury. Moreover, the Court is mindful that, although "[t]he rule of certainty as applied to the recovery of damages . . . [requires] that the loss or damage be capable of ascertainment with reasonable certainty," Okraynets v. Metro. Transp. Auth., 555 F.Supp.2d 420, 444 (S.D.N.Y. 2008) (quoting Reichman v. Warehouse One, Inc., 173 A.D.2d 250 [N.Y. App. Div. 1st Dep't 1991]), "it is settled that loss of future earnings of an infant plaintiff is properly compensable" despite the fact that such damages are more difficult to ascertain. Kavanaugh v. Nussbaum, 129 A.D.2d 559, 563 (N.Y. App. Div. 2d Dep't 1987), aff'd as modified, 71 N.Y.2d 535 (1988). "[F]uture loss may be established using expert testimony that assesses future probabilities." Okraynets, 555 F. Supp. 2d at 444; see generally Sentowski v. Boulevard Hosp., 109 A.D.2d 878, 879 (N.Y. App. Div. 2d Dep't 1985) ("The courts in this State . . . have upheld general claims similar to that of the instant [infant] plaintiff [for future lost earnings due to an injury inflicted at birth] on the basis of incapacity and the testimony of economic experts[.]") (emphasis added).

However, in this case, Plaintiff's counsel identifies no proposed testimony or other evidence (expert or otherwise) quantifying her alleged lost earning capacity with reference to any pertinent social, educational, vocational, or economic considerations.34 Moreover, Plaintiff's counsel has not cited any case law or other authority supporting the proposition that the fact of an injury alone is sufficient to allow a finder of fact to ascertain an infant plaintiff's future lost earnings with reasonable certainty. Discovery has long been closed (and, in any event, Plaintiff's counsel does not suggest that any further evidence of Plaintiff's damages is forthcoming or that any grounds exist for reopening discovery). For each of these reasons, as well as those set forth in Defendant's memoranda of law, Plaintiff's claim for lost earning capacity as a result of the injury at issue is dismissed.

B. Whether Cunitz's Opinions Regarding Defendant's State of Mind or Intent Must Be Precluded

After carefully considering the matter, the Court answers this question in the affirmative for the reasons set forth in Defendants' memoranda of law. (Dkt. No. 83, Attach. 7, at 3-7 [Def.'s Sealed Memo. of Law]; Dkt. No. 90 at 1-5 [Def.'s Reply Memo. of Law].) To those reasons, the Court adds two points, which are intended to supplement, and not to supplant, those reasons.

First, "[e]xpert witnesses are not permitted to testify as to the `knowledge, motivations, intent, state of mind, or purposes' of others." Krause v. CSX Transp., 984 F.Supp.2d 62, 80 (N.D.N.Y. 2013) (Suddaby, J.) (holding inadmissible expert's opinion that foremen "`were devoid of concern for the health and welfare' of Plaintiff'") (quoting Fleischman v. Albany Med. Ctr., 728 F.Supp.2d 130, 167-68 [N.D.N.Y. 2010] [McAvoy, J.]); accord, In re Mirena IUD Prods. Liab. Litig., 169 F.Supp.3d 396, 479 (S.D.N.Y. 2016) (precluding expert's testimony "to the extent [that the expert] opines on the motives, intent or state of mind of an entity that is not set forth in documents or grounded in specific, objectively knowable facts"); In re Rezulin Prods. Liab. Litig., 309 F.Supp.2d 531, 547 (S.D.N.Y. 2004) (precluding expert's "opinion that [defendant's] conduct . . . potentially constituted `negligence' or `something more serious'" because "[i]nferences about the intent or motive of parties or others lie outside the bounds of expert testimony" and such an opinion "constitutes a legal conclusion") (footnotes omitted). Accordingly, Cunitz may not properly opine that Defendant "willfully exposed" riders of the Ranger to harm due to its allegedly defective design.

Second, the Court notes that Defendant's motion in limine is a "narrow" one that raises "the sole issue" of the admissibility of Cunitz's opinion about Defendant's state of mind (i.e., that it "willfully exposed" operators of the Ranger to an unreasonable risk of bodily harm). (Dkt. No. 90 at 1-2 [Def.'s Reply Memo. of Law] [emphasis added].) As a result, the Court has no occasion to consider Cunitz's qualifications as an expert in any other respect, or the admissibility of any other aspect of his opinions.

C. Whether Plaintiff's Demands for Punitive Damages Must Be Dismissed

After carefully considering the matter, the Court answers this question in the affirmative for the reasons set forth in Defendant's memoranda of law. (Dkt. No. 82, Attach. 21, at 7-14 [Def.'s Sealed Memo. of Law]; Dkt. No. 89, Attach. 6, at 1-9 [Def.'s Sealed Reply Memo. of Law].) The Court adds only that, perhaps because the parties have submitted only portions of deposition transcripts and other exhibits in support of their respective positions,35 Plaintiff has failed to identify any record evidence that would support a reasonable inference that Defendant acted with the requisite "willful or wanton negligence or recklessness" to justify the imposition of punitive damages. In re Methyl Butyl Ether (MTBE) Prods. Liab. Litig., 725 F.3d 65, 127 (2d Cir. 2013) (quoting Home Ins. Co. v. Amer. Home Prods. Corp., 75 N.Y.2d 196, 204 [1990]).

ACCORDINGLY, it is

ORDERED that Defendant's motion to dismiss and/or for partial summary judgment with respect to Plaintiff's demands for future medical expenses, lost income, and lost earning capacity (Dkt. No. 74) is GRANTED, and those demands are DISMISSED with prejudice; and it is further

ORDERED that Defendant's motion to preclude Plaintiff's expert from testifying with respect to Defendant's intent or state of mind (Dkt. No. 83) is GRANTED; and it is further

ORDERED that Defendant's motion for partial summary judgment with respect to Plaintiff's demand for punitive damages (Dkt. No. 82) is GRANTED, and those demands are DISMISSED with prejudice; and it is further

ORDERED that counsel are directed to appear on APRIL 13, 2017 at 11:00 a.m. in Syracuse, NY in chambers for a pretrial conference, at which time counsel are directed to appear with settlement authority, and in the event that the case does not settle, trial will be scheduled at that time. Plaintiff is further directed to forward a written settlement demand to Defendants no later than MARCH 20, 2017, and the parties are directed to engage in meaningful settlement negotiations prior to the conference; and it is further

ORDERED that this Decision and Order be filed under seal until further Order of this Court. The parties are advised that the Court has filed this Decision and Order under seal as a precaution due to the potential that it contains confidential information. The Court has highlighted those portions of the Decision and Order that it believes may contain confidential information. If either party believes that this Decision and Order contains confidential information different from that highlighted by the Court, the party shall file under seal, within TEN (10) DAYS of the filing of this Decision and Order, a letter-motion requesting a change in redactions via email to Lori_Welch@nynd.uscourts.gov with a copy to opposing counsel. Such a letter-motion must specifically identify the change in redactions, and explain why the information is or is not confidential pursuant to the Stipulated Confidentiality Agreement and Protective Order of January 5, 2015 (Dkt. No. 24) and/or the Confidentiality Agreement of May 5, 2015 (Dkt. No. 33) (and, if confidential, why the confidentiality has not previously been waived by the parties). After which time, the redacted decision will be publically filed on the docket.