ELIZABETH A. WOLFORD, District Judge.
Plaintiff Cristono Almonte ("Plaintiff") has sued Defendant Averna Vision & Robotics, Inc. ("Defendant") for damages for personal injuries he sustained during the course of his employment with Brunner International, Inc. ("Brunner" or "Plaintiff's employer") while working on the "Brake Shoe Inspection and Classification System" (the "Inspection System") designed by Defendant. Plaintiff's Complaint against Defendant alleges claims for negligence (first cause of action); breach of implied warranty (second cause of action); strict products liability (third cause of action); and breach of express warranty (fourth cause of action). (Dkt. 1-1).
Defendant moves for summary judgment in its favor under Rule 56 of the Federal Rules of Civil Procedure as to all of the claims in Plaintiff's Complaint. (Dkt. 35). In addition, Defendant moves to exclude the testimony of Plaintiff's expert, John Coniglio, pursuant to Rule 702 of the Federal Rules of Evidence. (Dkt. 35-3 at 4). Plaintiff moves for summary judgment under Rule 56 only on the issue of liability as to the negligent failure to warn claim. (Dkt. 33).
For the reasons set forth below, Defendant's motion for summary judgment (Dkt. 35) is granted in part, insofar as Defendant seeks summary judgment on Plaintiff's breach of implied warranty claim (second cause of action), and on Plaintiff's negligence (first cause of action) and strict products liability (third cause of action) claims but only to the extent they are based upon an alleged manufacturing defect. Defendant's motion for summary judgment (Dkt. 35) is otherwise denied. Defendant's motion to exclude the testimony of Plaintiff's expert (Dkt. 35-3 at 4) is granted in part, insofar as Defendant challenges Plaintiff's expert's reliance upon Occupational Safety and Health Administration ("OSHA") regulations; American Society of Mechanical Engineers ("ASME") industry standards governing emergency-stop devices, which are set forth in ASME B20.1-2003, 5.11; and the Conveyor Equipment Manufacturer Association ("CEMA") document entitled "Safety Label Brochure," No. 201, Second Edition (2006). Defendant's motion to exclude is otherwise denied. Plaintiff's motion for summary judgment (Dkt. 33) is denied.
On November 19, 2008, while working as a machine operator
As a result of the accident, Plaintiff sustained a large laceration around the circumference of his left thumb where his thumb meets his hand, as well as broken tendons, which required three surgeries and therapy and continues to cause him pain. (Dkt. 33-16 at 18-25, Almonte Dep.). Plaintiff is presently unable to perform the kind of heavy-lifting work that he did before his injury. (Id. at 24-25).
The Conveyor is part of the Inspection System that Defendant
In 2004, Defendant installed the system in Brunner's facility. (Dkt. 35-4 at ¶ 16; Dkt. 42 at ¶ 16). The Inspection System was installed next to the E-Coat line. (Dkt. 35-4 at 6; Dkt. 42 at 6). At the time the Inspection System was sold and installed, Defendant knew that there was a possibility that if proper adjustments were not made, the brake shoes would sometimes flip over. (Dkt. 33-1 at ¶ 24; Dkt.
When Defendant designed and delivered the Inspection System, Defendant did not provide Brunner with any explicit instructions or warnings prohibiting operators from working or standing on the side of the Conveyor that was adjacent to the E-Coat line (the "Left Side" of the Conveyor). (Dkt. 33-5 at 76, Cormier Dep.). Defendant did not install any physical guards over the Conveyor unit. (Dkt. 35-4 at ¶¶ 9-20; Dkt. 42 at ¶¶ 19-20). Defendant did not instruct Brunner to install guards around the Conveyor unit. (Dkt. 33-1 at ¶ 28; Dkt. 37-2 at ¶ 28). Instead, Defendant asked Brunner "to approve the [S]ystem and [to] make sure it me[t] their rules — their safety rules." (Dkt. 33-5 at 76, Cormier Dep.).
Following Plaintiff's accident, Brunner installed a guard over and around the Conveyor. (Dkt. 35-4 at ¶¶ 19-20; Dkt. 42 at ¶¶ 19-20). The guard was made onsite by Brunner, probably by its maintenance department. (Dkt. 35-4 at ¶¶ 19-20; Dkt. 42 at ¶¶ 19-20).
At the time of Plaintiff's injury, the Conveyor was "live," in that it was powered by a power source, and the power was turned on. (Dkt. 35-8 at 56, Coniglio Dep.). The Conveyor itself has two chains, and in between the two chains are plastic rollers that hold the brake shoes in place. (Id. at 43).
The Conveyor is flanked on the Left Side by a series of "pushers," which are attached, and positioned perpendicular, to the Conveyor. The ram of the pusher extends and pushes the moving brake shoes off of the main Conveyor. (Dkt. 35-4 at ¶ 8; Dkt. 42 at ¶ 8). Plaintiff's injury occurred on the Left Side of the Conveyor, where the pushers are located. (Dkt. 35-4 at ¶ 27; Dkt. 42 at ¶ 27).
The Conveyor is flanked on the right side by a corresponding series of "gravity conveyors," which are also attached, and positioned perpendicular, to the Conveyor. Each pusher faces a corresponding gravity conveyor, which work in tandem together. (Dkt. 35-4 at ¶ 8; Dkt. 42 at ¶ 8). The ram of the pusher pushes the moving brake shoes off of the main Conveyor and onto the corresponding gravity conveyor, which then moves the brake shoes down the conveyor by the force of gravity. (Dkt. 35-4 at ¶ 41; Dkt. 42 at ¶ 41).
Sometimes, brake shoes flipped over, especially smaller ones due to the force of the pusher. (Dkt. 35-4 at ¶ 41; Dkt. 42 at ¶ 41). The brake shoes flipped at the point where the pushed brake shoes were about to go from the main Conveyor onto the gravity conveyors. (Dkt. 35-4 at ¶ 41; Dkt. 42 at ¶ 41). When a brake shoe flipped over onto the gravity conveyor, the flipped shoe prevented subsequent shoes from moving forward, thereby interrupting the cycle time for the Inspection System, which then created a backlog on the E-Coat line. (Dkt. 33-1 at 23; Dkt. 37-2 at ¶ 23).
The stackers, who were stationed on the right side of the Conveyor, had the job of correcting the position of the brake shoes
Richard Palone, Plaintiff's supervisor, testified that he had observed people from time to time manually reposition brake shoes from the Left Side of the Conveyor while the Conveyor was moving. (Dkt. 33-14 at 10, 18, Palone Dep.). Mr. Palone testified that he "imagine[d] it happened a lot." (Id. at 18). Mr. Palone testified that he observed "the Vision guy," i.e. apparently Defendant's representative, manually reach over the Conveyor from the Left Side to adjust a brake shoe. (Id.) Plaintiff testified that before the date of the accident, he had been assigned to flip brake shoes from the Left Side of the Conveyor on two or three previous occasions. (Dkt. 33-16 at 17, Almonte Dep.).
Nevertheless, Mr. Palone, Plaintiffs supervisor, testified that other than maintenance workers, employees were not supposed to flip brake shoes over from the Left Side of the Conveyor because it was unsafe. (Dkt. 33-14 at 18, Palone Dep.).
If brake shoes were flipping over, employees could make an adjustment to the air pressure on the pushers to reduce the frequency of the problem by adjusting the valves on the pusher. (Dkt. 35-4 at ¶ 46; Dkt. 42 at ¶ 46). The adjustments would be made on the Left Side of the Conveyor by a maintenance employee or a supervisor. (Dkt. 35-4 at ¶ 47; Dkt. 42 at ¶ 47). There is no testimony as to the frequency of the adjustments. (Dkt. 35-4 at ¶ 47; Dkt. 42 at ¶ 47). To adjust the valves on the pushers, the E-Coat line would be shut off briefly (for a minute) so that the employee could access the Left Side of the Conveyor and quickly make the adjustments. (Dkt. 35-4 at ¶ 48; Dkt. 42 at ¶ 48).
Plaintiff's supervisor, Richard Palone, testified at his deposition that he believed that Brunner had an unwritten safety policy that employees were not supposed to walk between the racks on the E-Coat line. (Dkt. 33-14 at 14, Palone Dep.). According to Mr. Palone, due to the racks on the E-Coat line, employees were not permitted to walk from the E-Coat line to the Left Side of the Conveyor. (Id. at 18).
An employee of Brunner and Defendant's representative, Pascal Cormier, testified that nobody was needed to work on the Left Side of the Conveyor. (Dkt. 33-5 at 44, Cormier Dep.; Dkt. 33-15 at 21, Wagner Dep.).
Plaintiff testified that he was assigned to work on the Left Side of the Conveyor on the date of the accident (and that he had been previously assigned to work there two or three times). (Dkt. 33-16 at 10, 13, 17, Almonte Dep.).
On top of the pushers or rams on the Inspection System were warning labels, which had the words "Danger" and "Watch Your Hands and Fingers" (in English) and showed a picture of one's fingers being pinched in moving gears. (Dkt. 35-4 at ¶ 52; Dkt. 42 at ¶ 52; Dkt. 35-1 at 21).
Plaintiff commenced this products liability/personal injury action against Defendant in New York State Supreme Court, Erie County, on March 18, 2011. (Dkt. 1 at ¶ 1). Defendant removed this action on December 23, 2011. (Dkt. 1). The Notice of Removal alleges diversity jurisdiction, in that Plaintiff is an individual and a citizen of the state of New York, Defendant is a foreign business corporation and a citizen of Canada, and Plaintiff has demanded more than $10 million in damages. (Id. at ¶¶ 4-6). The Notice of Removal was timely filed within thirty days of Defendant having learned of the amount in controversy. (Id. at 8).
Plaintiff filed a motion for summary judgment on May 5, 2014. (Dkt. 33). Defendant filed a motion for summary judgment and a motion exclude the testimony of Plaintiff's expert, John Coniglio, on May 16, 2014. (Dkt. 35; Dkt. 35-3 at 4). Responses were filed on June 16, 2014 and June 17, 2014. (Dkt. 37-39).
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. Rule 702 provides as follows:
Fed.R.Evid. 702. Under Rule 702, the trial court acts as a gatekeeper with respect to expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The district court is charged with "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir.2002) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Once the moving party has met its burden, the opposing party "`must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec., 475 U.S. at 586-87, 106 S.Ct. 1348) (emphasis in original). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).
During the course of this litigation, Plaintiff retained an expert, John Coniglio, to render opinions about the allegedly defective design of the Conveyor and the adequacy of the warnings on the pushers adjacent to the Conveyor. Mr. Coniglio produced an Affidavit (Dkt. 25-2) and testified at a deposition (Dkt. 35-8) concerning his opinions. Defendant now moves to exclude Mr. Coniglio's testimony pursuant to Rule 702 of the Federal Rules of Evidence. (Dkt. 35-3 at 4).
In order for a witness to render opinion testimony at trial, he or she must be "qualified as an expert by knowledge, skill, experience, training, or education." Fed.R.Evid. 702. To determine whether a witness is qualified to render an expert opinion, the Court engages in a two-part inquiry:
TC Sys. Inc. v. Town of Colonie, N.Y., 213 F.Supp.2d 171, 174 (N.D.N.Y.2002). In assessing expert qualifications, "[l]iberality and flexibility in evaluating qualifications should be the rule; the proposed expert should not be required to satisfy an overly narrow test of his own qualifications." Lappe v. Am. Honda Motor Co., Inc., 857 F.Supp. 222, 227 (N.D.N.Y.1994), aff'd, 101 F.3d 682 (2d Cir.1996). "An expert must, however, stay within the reasonable confines of his subject area, and cannot render expert opinion on an entirely different field or discipline." Id.
As to his educational background, training, and experience, Mr. Coniglio received a Bachelor's degree in Industrial Technology from the "SUNY System," a Master's degree from Columbia Southern
Having considered Mr. Coniglio's background, the Court now considers the particular opinions that Mr. Coniglio seeks to offer. Mr. Coniglio seeks to offer an opinion in support of Plaintiff's design defect claim under New York law. To show that a product was not reasonably safe and thus defectively designed, a plaintiff must show that: "(1) the product as 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 ex rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53, 83 (S.D.N.Y. 2001) (citing Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108-09, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983)). Mr. Coniglio seeks to offer an opinion on the first and third elements, and regarding the second element, Mr. Coniglio has opined that the fixed guard installed by Plaintiff's employer made the Conveyor a safer product.
Based upon Mr. Coniglio's background, the Court concludes, rather easily, that Mr. Coniglio is qualified to render opinions in support of Plaintiff's claim that the Conveyor in this case posed a substantial likelihood of harm and caused Plaintiff's injury and that the addition of the fixed guard made the Conveyor safer. His expertise in the area of safety engineering is capable of assisting a trier of fact. While Defendant questions Mr. Coniglio's qualifications because he is not a mechanical engineer and has never designed a conveyor system or any other mechanical equipment, Mr. Coniglio does not seek to offer a proposed alternative guard that could be used on the Conveyor. There is no dispute that Mr. Coniglio has not designed such a device for the Conveyor. Rather, Mr. Coniglio offers an opinion that the lack of guarding surrounding the main Conveyor was unsafe and caused Plaintiff's injury. (Dkt. 25-2 at ¶¶ 17, 20). His opinion focuses on the safety concerns associated with the lack of a guard in the system that existed at the time of Plaintiff's injury. In addition, during his deposition, Mr. Coniglio pointed to the permanent guard designed and installed by Plaintiff's employer as a safer alternative than the absence of any guard at all.
Mr. Coniglio's considerable training and experience as a safety engineer — in general and with respect to the specific area of conveyors — qualifies him to opine as to the safety of conveyors. It is not necessary that Mr. Coniglio be a mechanical engineer or have design experience to opine on questions relating to the safety of the unguarded Conveyor. King v. Brandtjen & Kluge, Inc., No. 94-CV-411C(M), 2001 WL 1804345, at *6 (W.D.N.Y. June 20, 2001) (holding that safety professional's training and experience qualified him to offer an opinion on the adequacy of the subject press's safety and guarding even though he "[wa]s not an academically trained engineer"); Hilaire v. DeWalt Indus. Tool Co.,
Defendant's challenges to Mr. Coniglio's academic training and his other alleged shortcomings, concern the weight and credibility of his testimony (not admissibility) and may be explored at trial on cross-examination. See McCulloch v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir.1995) ("Fuller's quibble with Woolley's academic training in fume dispersal and air quality studies, and his other alleged shortcomings (lack of knowledge regarding the chemical constituents of the fumes or the glue vapor's concentration level), were properly explored on cross-examination and went to his testimony's weight and credibility — not its admissibility.").
For these reasons, the Court concludes that Mr. Coniglio is qualified to offer an opinion on the essential issues of whether the product as designed posed a substantial likelihood of harm, whether the defective design was a substantial factor in causing Plaintiff's injury, and whether the guard installed by Plaintiff's employer provides overall improved safety.
The Second Circuit has summarized the gatekeeping role the Court undertakes in assessing whether an expert's testimony is reliable, as follows:
Amorgianos, 303 F.3d at 265-66 (citations, brackets, quotation marks, and ellipsis omitted).
Here, the Court finds that Mr. Coniglio's conclusion that the unguarded Conveyor was unsafe is based, at least in part, upon a reliable methodology. In preparation for his on-site inspection, Mr. Coniglio reviewed approximately twenty-five documents, including the original design and specifications for the machinery and photographs, as well as the depositions of Plaintiff and Pascal Cormier, the
In reaching his conclusion, Mr. Coniglio relied upon the following safety regulations and standards: (1) OSHA regulations governing "Machinery and Machine Guarding," which are set forth in 29 C.F.R. § 1910.212(a)(1)-(3); (2) ASME industry standards governing "Safety Standard for Conveyors and Related Equipment," which are set forth in B20.1-2003; and (3) a CEMA document entitled "Safety Label Brochure," No. 201, Second Edition (2006). (Dkt. 35-8 at 82, 94). The reliability of Mr. Coniglio's utilization of these regulations and standards as applied to the facts of this case is examined below.
Under New York law, the issue of whether a product is defectively designed is determined by examining "the industry standards in effect when it was manufactured." Gian v. Cincinnati Inc., 17 A.D.3d 1014, 1015, 794 N.Y.S.2d 215 (4th Dep't 2005). Here, Mr. Coniglio consulted OSHA regulations. Specifically, he heavily relied upon the regulation entitled "Machinery and Machine Guarding," which is set forth in 29 C.F.R. § 1910.212(a)(1), (3). The regulation governing machine guarding provides, in part, as follows:
29 C.F.R. § 1910.212(a)(1)-(2).
Defendant argues that Mr. Coniglio's reliance upon the OSHA regulation is inappropriate because OSTIA regulations are applicable only to employer-employee relationships. Mr. Coniglio readily conceded in his deposition that OSHA governs the employer's obligations to its employees. (Dkt. 35-8 at 64, Coniglio Dep.). As apparent from his concession, Mr. Coniglio does not rely upon the OSHA regulations based upon the premise that the regulations impose a duty on Defendant, but rather as evidence of the industry standard at the time of manufacture.
In support of its proposition that Mr. Coniglio cannot rely upon OSHA regulations as the industry standard, Defendant cites Jemmott v. Rockwell Manufacturing Co., 216 A.D.2d 444, 628 N.Y.S.2d 184 (2d Dep't 1995), for the proposition that OSHA regulations are not applicable in products liability actions against manufacturers. In that case, plaintiffs claimed that the product design was defective because it violated OSHA regulations and ANSI standards. Id. at 444, 628 N.Y.S.2d 184. The New York appellate court affirmed the lower court's order granting summary judgment for the manufacturer, holding that industry standards in general are not
While the Jemmott court's blanket prohibition against industry standards in products liability actions does not accurately reflect the state of the law in New York, see Church Ins. Co. v. Trippe Mfg. Co., No. 04 CIV. 6111(HB), 2005 WL 2649332, at *1 (S.D.N.Y. Oct. 17, 2005) ("Jemmot[t] appears to be against the weight of authority amongst the cases that have applied New York law."), the court's refusal to consider an OSHA regulation as evidence of the applicable industry standard in a products liability action against a manufacturer remains the law in New York, see Wesp v. Carl Zeiss, Inc., 11 A.D.3d 965, 967, 783 N.Y.S.2d 439 (4th Dep't 2004) (holding that plaintiffs failed to raise a triable issue of act because plaintiffs' expert "based his opinion largely on safety standards, not manufacturing standards"); Merritt v. Raven Co., 271 A.D.2d 859, 862, 706 N.Y.S.2d 233 (3d Dep't 2000) (concluding that plaintiffs expert's "reli[ance] upon the Occupational Safety and Health Administration (OSHA) standards regulating the safety practice of employers, not manufacturers, to support his opinion ... was woefully inadequate to raise a triable issue as to the design defect claim"); Zapata v. Ingersoll Rand Co., 36 Misc.3d 1230(A), 2012 WL 3553111 (Kings County Sup.Ct.2012) (refusing to consider OSHA regulations in strict products liability action against manufacturer); but see Rivera v. MKB Indus., Inc., 149 A.D.2d 676, 677-78, 540 N.Y.S.2d 316 (2d Dep't 1989) (finding that lower court erroneously refused to admit into evidence New York State Department of Labor regulations in products liability action against manufacturer).
Although there is no case from the Second Circuit Court of Appeals directly on point, federal district courts in this circuit have likewise suggested that a plaintiff should not be permitted to introduce OSHA regulations in actions against manufacturers, reasoning that "manufacturers would be unfairly held to standards that were not intended to be imposed upon them." Sundbom v. Erik Riebling Co., No. 89 CIV. 4660(JSM), 1990 WL 128920, at *1 (S.D.N.Y. Aug. 28, 1990); see also Byrne v. Liquid Asphalt Sys., Inc., 238 F.Supp.2d 491, 492 (E.D.N.Y.2002) ("[T]he admission of OSHA standards against the manufacturers in the present case would not assist the jury because OSHA standards were not intended to impose duties upon manufacturers and have no application against manufacturers of products."); Frazer v. ITW Food Equip. Grp. LLC, No. 11-CV-9699 CS, 2013 WL 6164486, at *3 (S.D.N.Y. Nov. 22, 2013) (finding that expert's opinion, which cited OSHA regulation governing machine guarding, was unreliable under Daubert). Here too, because "OSHA standards have federal backing and are widely known by lay people and thus the jury will likely give OSHA evidence great weight[,] ... [Mr. Coniglio's] testimony that the manufacturer[s] in this case `violated' these standards would likely be greatly prejudicial and minimally probative considering that OSHA standards do not apply to manufacturers." Byrne, 238 F.Supp.2d at 493.
The Court recognizes that not all federal courts in this circuit are in agreement on the relevance of OSHA regulations in a products liability action against a manufacturer. Some courts have permitted plaintiffs' experts to rely upon OSHA regulations as evidence of the industry standard in cases brought against manufacturers of allegedly defective products. Rupolo v. Oshkosh Truck Corp., 749 F.Supp.2d 31, 40 (E.D.N.Y.2010) (concluding that plaintiff's expert's methodology, including his reliance on ANSI and OSHA regulations, on the cause of plaintiff's injury in products
The presupposition underlying the decisions of the courts favoring the admissibility of OSHA regulations in actions against manufacturers appears to be that only well-known and widely-accepted safety standards in the industry give rise to OSHA regulations. Mustafa, 2007 WL 959704, at *9 (stating that the expert "relie[d] on OSHA regulations as evidence that it was well-known in the industry in and before 1990 that press brakes are not safe without guards at the point of operation and that these concerns were enough to give rise to industry standards, such as OSHA, which place the responsibility of installing guarding on the employer"). That may sometimes be the case. Yet, OSHA is not always constrained by industry standards in promulgating its safety regulations. See Am. Airlines, Inc. v. Sec'y of Labor, 578 F.2d 38, 41 (2d Cir. 1978) ("[W]e note that OSHA is not precluded from promulgating, after notice and comment, new and specific regulations requiring safety precautions beyond those considered reasonable in the industry.").
In this case, the issue of whether the OSHA machine guarding regulation set forth in 29 C.F.R. § 1910.212(a)(1) reflects the applicable industry standard is disputed. According to Defendant's expert, the ASME standard governing guarding for conveyors provides for more flexibility than the comparable OSHA regulation. (Dkt. 35-2 at 8-11).
Usually, when there is a factual question about the applicability of two competing industry standards, it is for the fact-finder to determine which standard applies. Rupolo v. Oshkosh Truck Corp., 749 F.Supp.2d at 43. Here, however, the dispute is not between two industry standards, but between a federal safety regulation imposed upon employers and an industry consensus standard. The determination as to whether the OSHA regulation or the ASME standard applies might be a fair task to give the fact-finder had Plaintiff's expert also pointed to some other evidence showing that the OSHA regulation was used by manufacturers as an industry standard at the time of manufacture. This he did not do. Instead, in his Affidavit (Dkt. 35-8 at 82), Mr. Coniglio blithely cited Defendant's violation of the OSHA regulation without anchoring it to any indication that the regulation accurately reflects the industry standard that existed at the time of manufacture.
Mr. Coniglio also bases his opinion on Defendant's alleged violations of ASME B20.1-2003, which contains safety standards for conveyors. Defendant's expert concedes that ASME B20.1-2003 is the applicable industry consensus standard. (Dkt. 35-2 at ¶ 20). For the reasons stated below, the Court concludes that Mr. Coniglio's methodology underlying his conclusion that Defendant violated the ASME standards governing proper guarding is reliable and admissible, but that his methodology supporting his conclusion that Defendant violated the ASME standards governing emergency stops is not reliable and is inadmissible.
The ASME safety standards provide the following best practices concerning the guarding of conveyors in general, in relevant part:
ASME B20.1-2003, Safety Standard for Conveyors and Related Equipment, ¶ 5.9.1.1, ¶ 5.9.2(a), ¶ 5.9.3.
In his Affidavit filed with the Court, Mr. Coniglio opined that Defendant violated the above-quoted ASME standards by manufacturing an unguarded Conveyor with "nip points." (Dkt. 35-8 at 82-94). Although, in his Affidavit filed with the Court, Mr. Coniglio failed to address whether the Conveyor was guarded by location under ASME B20.1-2003, ¶ 5.9.2,
The ASME safety standards provide the following best practices concerning the use of emergency stop devices for conveyors, in relevant part:
ASME B20.1-2003, 5.11(c)(1).
Plaintiff's expert opined that there were inadequate Emergency "E" Stops on the Inspection System in violation of ASME B20.1-2003, 5.11(c)(1). Defendant challenges the reliability of Mr. Coniglio's opinion because Mr. Coniglio could not accurately identify Plaintiff's exact location at the time of the accident and thus could not accurately assess the nearest E-Stops relative to Plaintiff's location. (Dkt. 35-3
The undisputed record shows that Mr. Coniglio did not observe any E-Stops on the side of the Conveyor where the gravity conveyors received the brake shoes coming from the main Conveyor. (Dkt. 35-8 at 41, Coniglio Dep.). However, it is undisputed by both parties that Plaintiff was standing on the Left Side of the Conveyor, not the side where the gravity conveyors are located, and it appears that Mr. Coniglio conceded that there were some E-Stops on the Left Side of the unit. (Dkt. 35-4 at ¶ 27; Dkt. 42 at ¶ 27). The record also shows that Mr. Coniglio did not take any measurements concerning the location of E-Stops. (Dkt. 35-8 at 55, Coniglio Dep.).
Due to the fact that Mr. Coniglio did not have accurate information regarding Plaintiff's location on the Conveyor relative to the nearest E-Stops, the Court finds that Mr. Coniglio did not reliably assess the accessibility and proximity of the nearest E-Stops on the Conveyor. Accordingly, the Court concludes that Mr. Coniglio's opinion on the adequacy of E-Stops on the Conveyor is inadmissible.
Mr. Coniglio relied upon a Conveyor Equipment Manufacturer Association ("CEMA") document entitled "Safety Label Brochure" No. 201, Second Edition (2006). (Dkt. 35-8 at 82, 94). It is undisputed that the Safety Label Brochure was issued after the time the Inspection System was manufactured. Because there is no evidence that the Safety Label Brochure reflected the industry standard at the time of manufacture, the Court concludes that Mr. Coniglio's reliance thereupon was not reliable.
Accordingly, given the present state of the record, the testimony of Plaintiff's expert, Mr. Coniglio, is excluded to the extent he purports to rely upon OSHA regulations, ASME industry standards governing emergency-stop devices, and the 2006 CEMA document. Plaintiff's motion to exclude Mr. Coniglio's testimony is otherwise denied.
Under New York law, in order to have a product liability claim, at the time of injury "the product must have been used for the purpose and in the manner normally intended or in a manner reasonably foreseeable." Amatulli by Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525, 532, 569 N.Y.S.2d 337, 571 N.E.2d 645 (1991). "[T]he foreseeability of the misuse of a product is relevant to the issue of whether the manufacturer adequately designed the product to guard against the risk...." Del Cid v. Beloit Corp., 901 F.Supp. 539, 544 (E.D.N.Y.1995), aff'd, 101 F.3d 1393 (2d Cir.1996).
The Court finds that there is evidence in the record from which a jury could reasonably conclude that Plaintiff's manner of reaching over from the Left Side of the Conveyor to pick up a brake shoe that had fallen over and getting his glove pinched by the moving parts on the Conveyor was foreseeable. The undisputed evidence in the record shows that there was a known problem with brake shoes flipping over at the point where the shoes left the Conveyor and moved to the gravity conveyors. Defendant's representative, Pascal Cormier, conceded as much when he testified during his deposition that it was possible that brake shoes would flip over due to "bad adjustment." (Dkt. 33-5 at 55-56, Cormier Dep.).
There is also undisputed evidence in the record that when a brake shoe flipped over and did not proceed down the production line, it was not an inconsequential occurrence. Rather, a single flipped brake shoe prevented subsequent shoes from moving forward, thereby interrupting the cycle time for the Inspection System, which, in turn, created a backlog on the E-Coat line. (Dkt. 33-1 at ¶ 23; Dkt. 37-2 at ¶ 23).
Due to the problem of flipped brake shoes, it was part of the normal and expected activity of certain users of the Inspection System to pick up and move brake shoes that had flipped over onto the gravity conveyors. Specifically, the stackers performed that function on the opposite (and allegedly safer) side of the Conveyor. Yet, the evidence demonstrates that workers could and did access the flip-point and correct the time sensitive problem by reaching their arm across the Conveyor from the Left Side of the Conveyor, just as Plaintiff did in this case. (Dkt. 33-14 at 10, 18, Palone Dep.). Furthermore, at the time Defendant sold the Inspection System to Plaintiff's employer, Defendant was aware that there were "pinch points" and moving parts on the main Conveyor, and that those pinch points were within reach of a person who attempted to straighten a fallen brake shoe. (Dkt. 33-1 at ¶ 37; Dkt. 37-2 at ¶ 37; Dkt. 33-5 at 90, Cormier Dep.).
Given the record, the Court concludes that there is sufficient evidence for a reasonable jury to conclude that Plaintiff's use of the machinery was reasonably foreseeable.
Defendant's arguments in support of its contention that Plaintiff's manner of use was unforeseeable as a matter of law — that Plaintiff failed to follow his employer's safety policies by standing on the Left Side of the Conveyor and that there were was no need for any employees working on the Left Side of the Conveyor — are based upon disputed facts and are red herrings.
The issue of whether Plaintiff's employer had any kind of a safety policy in place that would have prevented employees from working on the Left Side of the Conveyor is disputed. Mr. Wagner, a manufacturing engineer at Brunner, testified at his deposition that he was not aware of any safety issues with having employees work on the Left Side of the Inspection System and that he did not know of any safety policy prohibiting employees from passing underneath or through moving conveyor lines. (Dkt. 33-15 at 20-21).
Aside from the factual disputes surrounding Plaintiffs employer's alleged safety policy, the Court questions whether a worker's failure to follow his employer's safety policy can relieve the manufacturer of its duty to design a safe product from the outset "as of the time the product leaves the manufacturer's hands." Hoover v. New Holland N. Am., Inc., 23 N.Y.3d 41, 54, 988 N.Y.S.2d 543 (2014) ("[T]he manufacturer is under a nondelegable duty to design and produce a product that is not defective ... as of the time the product leaves the manufacturer's hands." (internal citations and quotation marks omitted)). At a minimum, an employee's decision to contravene an employer's safety policy does not establish unforeseeable misuse as a matter of law. See Milliman v. Mitsubishi Caterpillar Forklift Am., Inc., 594 F.Supp.2d 230, 245 (N.D.N.Y.2009) (holding that employee's alleged misuse of machinery when he ignored his employer's policies to use safety tether and wear safety harness offered by manufacturer did not constitute unforeseeable misuse as a matter of law).
Defendant contends that Plaintiff's manner of use was unforeseeable because there was no need for any employees to be working on the Left Side of the Conveyor. The record contains conflicting evidence on the issue of whether employees worked on the Left Side of the Conveyor. Plaintiff testified at his deposition that his supervisor had actually stationed him to work on the Left Side of the Conveyor on the date
Moreover, as noted above, there is no evidence that at the time the Inspection System left Defendant's hands, there were any discussions between Defendant and Brunner regarding the presence of workers on the Left Side. There is no evidence in the record that Defendant specifically instructed Plaintiffs employer that employees should not be stationed on the Left Side of the Conveyor, or that Plaintiff's employer gave Defendant assurances that its staffing plan for the Inspection System did not include the presence of employees there. As a result, the Court cannot conclude that as a matter of law it was not foreseeable that Plaintiff would work on the Left Side of the Conveyor where his injury occurred.
Given the conflicting testimony in the record, the Court cannot conclude that Plaintiffs use of the machinery was somehow unforeseeable as a matter of law.
To show that a product was defectively designed, a plaintiff must show that it was feasible to design the product in a safer manner. Colon, 199 F.Supp.2d 53 at 83. Defendant claims that without expert testimony regarding the feasibility of an alternative design, Plaintiff cannot prove his case. (Dkt. 35-3 at 15). Plaintiff counters by arguing that after the accident, Plaintiffs employer installed metal guards on the machine, which raises an issue of fact as to the element of a feasible alternative design. (Dkt. 38 at 15-20).
"To recover under a theory of strict products liability for sale of a defectively designed product, it is well established that a plaintiff must plead and prove that there was a feasible design alternative that would have made the product safer." In re Fosamax Prods. Liab. Litig., 924 F.Supp.2d 477, 485 (S.D.N.Y.2013) (quotation omitted). "Courts in this Circuit have consistently held that in a strict products liability case based upon an allegation of defective design, expert testimony alleging the existence of a reasonable alternative design must almost always either (1) point to the existence of such a design in the marketplace, or (2) test, or at least design in detail, a product incorporating the suggested modifications." Adeyinka v. Yankee Fiber Control, Inc., No. 05 CIV.0751 RJS, 2009 WL 3154319, at *2 (S.D.N.Y. Sept. 23, 2009).
Some courts, including a district court in this circuit, have held that a plaintiff
The Court agrees that the existence of a feasible alternative design may be established by pointing to the existence of a post-accident design at the plaintiffs workplace. Seeley, 2009 WL 2871170, at *3. In this case, Plaintiff presented evidence of feasibility by the fact that Plaintiff's employer, Brunner, installed and utilized a safety guard on the Conveyor in response to Plaintiff's injury. (Dkt. 33-7).
Defendant argues that Plaintiff's own expert testified that the safety guard that Plaintiff's employer installed on the Inspection System "actually is unsafe" (Dkt. 41 at 7), but that is a mischaracterization of Plaintiff's expert testimony.
On the contrary, there is evidence in the record that Plaintiff's expert believed that the guarding installed by Plaintiff's employer made the machine safer in that having the new guard was preferable to having no guard at all, as indicated in his deposition:
(Id. at 45). It is true that Plaintiff's expert believed that more guarding was needed because a potential hazard still existed and therefore that the new guarding was incomplete. (Id. at 45, 50). Yet, Plaintiff's expert opined that the new guarding installed by Plaintiff's employer "keeps [workers] from some distance getting near the ram" and "it's not the same as being drawn into [the ram]." (Id. at 45). Defendant's challenges to Mr. Coniglio's opinion on the issue of whether the new guard installed by Plaintiffs employer makes the Conveyor safer go to the weight of Mr. Coniglio's testimony and may be explored on cross-examination at trial.
At this juncture, based upon the evidence in the record, the Court finds that Plaintiff has adequately supported his design defect claim with sufficient evidence of a feasible alternative design that improved overall safety to raise questions of fact for submission to a jury.
"Liability for failure to warn may be imposed `based upon either the complete failure to warn of a particular hazard or the inclusion of warnings that are insufficient.'" Fisher v. Multiquip, Inc., 96 A.D.3d 1190, 1192, 949 N.Y.S.2d 214 (3d Dep't 2012) (quoting DiMura v. City of Albany, 239 A.D.2d 828, 829, 657 N.Y.S.2d 844 (3d Dep't 1997)). "An adequate warning or instruction is one that is understandable in content and conveys a fair indication of the nature and extent of the danger to a reasonably prudent person." Cooley v. Carter-Wallace, Inc., 102 A.D.2d 642, 646, 478 N.Y.S.2d 375 (4th Dep't 1984). "Generally, whether a warning is adequate is an issue of fact to be determined at trial." Figueroa v. Boston Scientific Corp., 254 F.Supp.2d 361, 370 (S.D.N.Y.2003).
Defendant maintains that the decals that were affixed to the pushers were conspicuous and easy to see and fairly warned against crushing injuries similar to the one sustained by Plaintiff. (Dkt. 35-3 at 19-20; Dkt. 37-1 at 4-5). In addition, Defendant contends that Plaintiff would not have read some other warning because
Defendant has provided the Court with a picture of the warning decal on the Inspection System. (Dkt. 35-12). The Court cannot conclude, based upon this image, that the warning was adequate as a matter of law. Duval v. Delta Int'l Mach. Corp., No. 1:13-CV-4270-GHW, 2015 WL 4522911, at *7 (S.D.N.Y. July 27, 2015) ("[T]he adequacy of the instruction or warning is generally a question of fact to be determined at trial and is not ordinarily susceptible to the drastic remedy of summary judgment." (citation omitted)). As the New York Court of Appeals has held:
Cover v. Cohen, 61 N.Y.2d 261, 276-77, 473 N.Y.S.2d 378, 461 N.E.2d 864 (1984) (internal citations omitted). Here, the reasonableness of the steps taken by Defendant in light of the evidence concerning these factors is an issue of fact for the jury to assess.
In addition, the mere fact that Plaintiff might not read English, which incidentally is not conclusively established by the present record, does not warrant summary judgment in Defendant's favor. Plaintiffs failure to read English may raise factual issues of its own, such as whether the word "Danger" should have also been written in Spanish, Arbaiza v. Delta Int'l Mach. Corp., No. 96-1224, 1998 WL 846773, at *7 (E.D.N.Y. Oct. 5, 1998) (finding Spanish-speaking plaintiff who admittedly did not read warnings raised an issue of fact whether the warning was inadequate because, among other things, it was in English only), and whether fellow employees might have conveyed the meaning of the warning to Plaintiff, Sorto-Romero v. Delta Int'l Mach. Corp., No. 05-CV-5172 SJF AKT, 2007 WL 2816191, at *12 (E.D.N.Y. Sept. 24, 2007) ("[I]n light of Plaintiff's inability to read the warnings, Plaintiff may be able to prove causation whereby a third party may have conveyed the warning to him." (citing New York case law)).
"In claims involving manufacturing defects, a consumer may reasonably expect a product to be made in accordance with the manufacturer's standards and expect to be compensated for injuries resulting from the manufacturer's failure to meet them. The product is reasonably held defective because the manufacturer has not made the product as it intended." Denny v. Ford Motor Co., 87 N.Y.2d 248, 270, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995). Defendant contends that there is no evidence in the record before the Court that the Inspection System deviated in any way from the manufacturer's standards. Plaintiff seemingly concedes this point, having offered no argument in opposition to Defendant's motion for summary judgment as to this point. Because Plaintiff has failed to come forward with evidence of a manufacturing defect, the Court concludes that summary judgment in favor of Defendant on the manufacturing defect claim is warranted.
Defendant argues that it is entitled to summary judgment on Plaintiff's claim for breach of implied warranty because the claim is barred by the statute of limitations. (Dkt. 35-3 at 21). Defendant's argument is well-taken. "The statute of limitations for ... a cause of action [for breach of implied warranty] against a manufacturer or distributor is four years and accrues on the date the party charged tenders delivery of the product." Bristol Vill., Inc. v. Louisiana-Pac. Corp., 916 F.Supp.2d 357, 364 (W.D.N.Y.2013) (quotation omitted). In this case, it is undisputed that the Inspection System was delivered to Brunner in August 2004. This action was not commenced until March 18, 2011 (Dkt. 1 at ¶ 1), far outside the four year limitations period. Therefore, the Court grants Defendant's motion for summary judgment on the breach of implied warranty claim.
The sole basis for Defendant's motion for summary judgment on Plaintiff's breach of express warranty claim is that Plaintiff was not a party to the sales contract regarding the Inspection System and thus cannot have relied on any express warranty in deciding to purchase the Inspection System. (Dkt. 35-3 at 22).
DiBartolo v. Abbott Labs., 914 F.Supp.2d 601, 624-25 (S.D.N.Y.2012) (quotations and citations omitted); see also Koenig v. Boulder Brands, Inc., 995 F.Supp.2d 274, 290 (S.D.N.Y.2014) ("[U]nder New York law, privity is an essential element of a cause of action for breach of express warranty, unless the plaintiff claims to have been personally injured."). Because there is evidence in the record that Plaintiff was personally injured, the exception to the privity requirement applies.
Plaintiff seeks to hold Defendant liable for the conduct of its predecessor
Under New York's general tort rules, under certain circumstances, a person may be found negligent because he or she fails to warn another of known dangers or, in some cases, of those dangers which he had reason to know. Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 246, 464 N.Y.S.2d 437, 451 N.E.2d 195 (1983). The duty commonly is imposed because of some special relationship, frequently economic. Id. Where a special
As discussed above, there are genuine issues of material fact as to whether Defendant in fact failed to warn of dangers or defects associated with the Inspection System. As such, the Court need not reach the separate issue of whether a special relationship existed between Defendant and Plaintiffs employer involving economic advantage so as to impose upon Defendant an independent duty to warn, since to do so would amount to a mere advisory opinion. For these reasons, Plaintiff is not entitled to summary judgment on the failure to warn claim.
For the foregoing reasons, Defendant's motion for summary judgment (Dkt. 35) is granted in part, insofar as Defendant seeks summary judgment on Plaintiff's breach of implied warranty claim (second cause of action), and on Plaintiff's negligence (first cause of action) and strict products liability (third cause of action) claims but only to the extent they are based upon a manufacturing defect. Defendant's motion for summary judgment is otherwise denied, and Plaintiff's motion for summary judgment (Dkt. 33) is denied. Defendant's motion to exclude the testimony (Dkt. 35-3 at 4) of Plaintiffs expert, John Coniglio, is granted in part, but only insofar as Defendant challenges Plaintiffs expert's reliance upon OSHA regulations, ASME industry standards governing emergency-stop devices, and the CEMA document entitled "Safety Label Brochure," No. 201, Second Edition (2006). Defendant's motion to exclude is otherwise denied.
SO ORDERED.
The Court rejects the theory that the requirements imposed by OSHA regulations necessarily and inevitably become industry standards applicable to manufacturers based on the theory that manufacturers, at least to be successful in the marketplace, must produce products that meet their customers' needs (and their customers are employers subject to OSHA regulations). First, simply because employers are subject to OSHA regulations does not mean that they require their manufacturers to make OSHA-compliant products. Some employers choose to make OSHA-compliant modifications after the sale on their own (as allegedly occurred in this case). Second, the Court cannot assume that manufacturers voluntarily assume the responsibility of making OSHA-compliant products, especially where the industry standard might be less onerous than the OSHA regulation. The Court cannot believe that a methodology built upon such questionable assumptions could be considered reliable under Daubert.
Cavanagh v. Ford Motor Co., No. 13-CV-4584 JS WDW, 2014 WL 2048571, at *5 (E.D.N.Y. May 19, 2014) (citations and internal quotation marks omitted) (dismissing negligence claim for the same reasons that the strict products liability claims were dismissed).
