United States District Court, Western District of New York
March 29, 1999
WILLIAM BROOKS, AS PARENT AND NATURAL GUARDIAN OF MATTHEW BROOKS, PLAINTIFF,
OUTBOARD MARINE CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Skretny, District Judge.
1. By Order filed with the Clerk of the Court on October 28,
1997, this Court referred this case to the Honorable Carol E.
Heckman, United States Magistrate Judge, to hear and report on
all dispositive motions and directed Magistrate Judge Heckman to
issue a Report and Recommendation to this Court pursuant to
28 U.S.C. § 636(b)(1)(B).
2. On May 26, 1998, Defendant filed a Motion for Summary
Judgment pursuant to Federal Rule of Civil Procedure 56.
3. By Report and Recommendation filed October 22, 1998,
Magistrate Judge Heckman recommended that Defendant's Motion for
Summary Judgment be denied, finding that Defendant's motion was
premature in several respects and that genuine issues of material
fact precluded summary judgment.
4. On November 10, 1998, Defendant filed objections to the
Report and Recommendation of Magistrate Judge Heckman.
5. On January 21, 1999, this Court heard oral argument on
Defendant's objections to the Report and Recommendation of
Magistrate Judge Heckman.
6. This Court has carefully reviewed Magistrate Judge Heckman's
Report and Recommendation and thoroughly considered the pleadings
and materials submitted by the parties, as augmented by oral
argument before this Court, under the standards set forth in
28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 56, and
the relevant case law.
IT HEREBY IS ORDERED that this Court accepts Magistrate Judge
Heckman's Report and Recommendation in its entirety, including
the authorities cited and the reasons given therein, and that
Defendant's Motion for Summary Judgment is DENIED.
FURTHER, counsel for the parties shall appear before this Court
on Wednesday, April 21, 1999, at 9:00 a.m. in Part IV, United
States Courthouse, 68 Court Street, Buffalo, New York for a
FURTHER, out-of-town counsel may appear at this status
conference by telephone provided that they contact my chambers at
(716) 551-3086 with a telephone number at which they may be
reached for the conference by 4:00 p.m. on Monday, April 19,
REPORT AND RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. William
M. Skretny for pretrial matters, and to hear and report on
dispositive motions, in accordance with 28 U.S.C. § 636(b).
Defendant Outboard Marine Corporation has moved for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. For the reasons that follow, it is recommended that
defendant's motion be denied.
On November 11, 1996, plaintiff William Brooks filed the
complaint in this action on behalf of his minor son Matthew
Brooks against Harry Klopp (d/b/a Harry's Boat Shop), Andrew
Scott May and Outboard Marine for damages sustained by Matthew as
a result of an accident which occurred on June 25, 1996 (Item 1).
Jurisdiction was based on diversity of citizenship. On January
16, 1998, a stipulation of discontinuance was filed dismissing
the action against non-diverse defendants Klopp and May, leaving
Outboard Marine as the sole remaining defendant (Item 42).
The complaint sets forth the following causes of action against
1. Strict products liability;
2. Breach of implied warranty of fitness for a
3. Negligent design;
4. Failure to warn; and,
5. Manufacturing defect.
The complaint does not contain any specific allegations about the
details of the accident, nor does it identify any specific defect
in the design of the outboard motor. Instead, the details of
plaintiff's claims have emerged during the course of discovery,
and the undisputed facts are as follows:
On June 25, 1996, Theresa Brooks drove her 14-year-old son
Matthew and his 15-year-old friend Andrew May to Harry's Bait
Shop, located on Old Orchard Creek in Waterport, New York, to
rent a boat for the boys to go fishing. Ms. Brooks rented a
14-foot aluminum boat equipped with an Evinrude six-horsepower
outboard motor from Harry Klopp at Harry's bait Shop. Matthew and
Andrew set out in the boat unsupervised.
Not long after they set out, Matthew's fishing line became
entangled in the propeller of the boat's outboard motor. Matthew,
who had been running the outboard, wrapped his fishing line
around his right hand several times to get a better grip on the
line, and reached down into the water in an attempt to free the
line from the propeller. His right hand got caught in the blades
of the propeller, causing traumatic amputation.
In response to Outboard Marine's first set of interrogatories,
The motor was either in idle or forward [gear] prior
to the fishing line coming into contact with the
[propeller] blades. Somehow the throttle entered
reverse, pulling the line with Matthew['s] right hand
into the propeller blade. . . . At this time the
plaintiff is alleging that the throttle mechanism
allowed the propeller to enter from neutral or a
drive gear into reverse with minimal pressure. In
addition, the plaintiff is alleging that the boat
motor was defective and that there was inadequate
warnings [sic] affixed to the engine.
Plaintiff is alleging that the boat motor was
defectively dangerous due to a lack of a propeller
(Responses to Interrogatory Nos. 8, 18, Item 50, Ex. E).
On April 16, 1998, after the March 31, 1998 discovery cutoff
(see Item 37)*fn1 but prior to the filing of defendant's
judgment motion, plaintiff filed a motion for an extension of
time to conduct expert witness discovery (Item 46). Plaintiff's
counsel contended in this motion that he needed more time to
retain a new expert because it became evident during the
deposition of Robert Gilham, the expert originally retained by
plaintiff, that Mr. Gilham was not qualified to provide expert
testimony at trial about the design of the outboard or the cause
of the accident. On May 13, 1998, this court issued a scheduling
order for briefing and argument of plaintiff's motion for an
extension of time, directing defendant to respond to plaintiff's
motion by May 22, 1998, and scheduling argument for June 1, 1998
On May 26, 1988, Outboard Marine moved for summary judgment on
the following grounds:
1. Plaintiff has failed to proffer expert testimony
sufficient to establish a prima facie case of
product defect or causation;
2. The testimony of Mr. Gilham actually demonstrates
that the gear shift mechanism was not defective;
3. Even if Mr. Gilham was qualified to give expert
testimony, plaintiff has failed to establish that the
gear shift mechanism was defective;
4. Plaintiff's propeller guard claim is preempted by
5. Plaintiff cannot establish the requisite elements
of a failure to warn claim; and,
6. Plaintiff's breach of warranty claim is barred by
the statute of limitations.
(See Item 51).
On June 1, 1998, this court heard argument on plaintiff's
motion for additional time to retain an expert, and reserved
decision. The court also at that time scheduled briefing and
argument of defendant's summary judgment motion. Plaintiff was
directed to respond to the summary judgment motion by June 15,
1998, and to submit with that response the report of plaintiff's
newly-identified expert witness.
On June 15, plaintiff's counsel submitted an "Opposition
Affidavit" attaching as exhibits the one-page curriculum vitae
for Robert R. Warren, a Marine Engineering Consultant from
Williamsburg, Virginia (Item 54, Ex. A), and Mr. Warren's
one-page report (id., Ex. B). In the concluding paragraph of
the report, Mr. Warren states that "an installed propeller guard
would have prevented the accident, and a properly installed and
used emergency shut-off device would have either prevented the
accident or lessened its severity" (id). Also on June 15, 1998,
plaintiff's counsel submitted a "Responding Affidavit" further
detailing events pertaining to the designation and deposition of
Mr. Gilham, and again requesting additional time to obtain
discovery from another expert witness, Robert Swint (curriculum
vitae attached as Ex. F to Item 55).
On June 17, 1998, this court conducted a telephone conference
with counsel. The court gave defendant permission to depose Mr.
Warren, but denied the request of plaintiff's counsel to depose
defendant's expert pending a ruling on the summary judgment
motion. Mr. Warren's deposition took place in Williamsburg on
June 30, 1998.
On July 10, 1998, plaintiff submitted a memorandum in
opposition to defendant's summary judgment motion. According to
plaintiff, Mr. Warren's deposition testimony establishes not only
his qualifications as an expert, but also that material issues of
fact remain for trial as to whether defendant should have
equipped the outboard with a lanyard-activated emergency ignition
shut-off or "kill" switch device,*fn2 which
would have prevented or lessened Matthew's injuries.
On July 13, 1998, defendant filed a reply (Items 63 & 64), and
also moved to strike plaintiffs' responding papers as untimely
(Item 62).*fn3 Defendant contends that plaintiff is "expert
shopping," that Mr. Warren's opinion relates to an entirely new
theory of the case (i.e., absence of a "kill switch" device),
and that the opinion is not scientifically valid. Defendant also
contends that, even if the court accepts Mr. Warren's
qualifications and opinion, and allows plaintiff to proceed on
this new theory, plaintiff has failed to establish that the
absence of a kill switch device rendered the outboard motor
unreasonably dangerous or proximately caused the accident.
On July 20, 1998, oral argument was held on defendant's summary
judgment motion. Plaintiff's counsel advised the court on the
record that plaintiff was abandoning the "defective gear shift"
and "propeller guard" theories of the case, and was now
proceeding solely on the theory that the outboard motor was
unreasonably dangerous because it was not equipped with a
lanyard-activated "kill switch" device.
I. Summary Judgment.
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching its
determination on a motion for summary judgment, the court must
assess whether there are any material factual issues to be tried
while resolving ambiguities and drawing reasonable inferences
against the moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Coach
Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67
(2d Cir. 1991). A dispute regarding a material fact is genuine if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., supra, 477 U.S. at 248, 106 S.Ct. 2505; see Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied,
502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). A factual dispute is
material only if it might affect the outcome of the suit under
governing law. Anderson, supra; see also Mc Duffie v. Watkins
Glen International, Inc., 833 F. Supp. 197, 200 (W.D.N.Y. 1993).
The moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact. Once the moving
party has met its burden, the nonmoving party must come forward
with enough evidence to support a jury verdict in its favor, and
the motion will not be defeated merely upon a "metaphysical
doubt" concerning the facts, or on the basis of conjecture or
surmise. Bryant v. Maffucci, supra (citing Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986)). In order to avoid summary
judgment, the nonmoving party is under the obligation to make a
sufficient showing on an essential element of its case with
respect to which it has the burden of proof. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991).
"Entry of summary judgment indicates that no reasonable jury
could return a verdict for the losing party."
Coach Leatherware Co., Inc. v. Ann Taylor, Inc., supra, 933
F.2d at 167. Stated slightly differently, when no rational jury
could find in favor of the nonmoving party because the evidence
to support its case is so slight, there is no genuine issue of
material fact and a grant of summary judgment is proper. Gallo
v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir.
As discussed above, plaintiff's products liability claim in
this case has been narrowed to the theory that the outboard motor
was defectively designed by defendant because it did not
incorporate a lanyard-activated kill switch, and that the lack of
this safety device proximately caused Matthew Brooks' injuries.
Correspondingly, defendant's summary judgment motion has been
narrowed to the argument that Mr. Warren's reports and deposition
testimony fail to establish either that the outboard motor
involved in the accident was defective, or that the alleged
defect — i.e., lack of a lanyard-activated kill switch — was
the proximate cause of Matthew's injuries.
II. Product Defect.
In general, a plaintiff seeking recovery under New York law for
injuries caused by an allegedly defective product may assert one
or more of the following theories of liability: (1) negligence,
(2) strict liability, (3) breach of express warranty, and (4)
breach of implied warranty. Pahuta v. Massey-Ferguson, Inc.,
942 F. Supp. 161, 164 (W.D.N.Y. 1996); Voss v. Black & Decker
Mfg. Co., 59 N.Y.2d 102, 106, 463 N.Y.S.2d 398, 450 N.E.2d 204
(1983). In this case, plaintiff's defective product claim is
based on theories of both strict products liability and
negligence. Under either theory, to establish a prima facie
case the plaintiff is required to show that the defectively
designed product caused his or her injury and that the defect was
the proximate cause of the injury. Voss, supra, 59 N.Y.2d at
108, 463 N.Y.S.2d 398, 450 N.E.2d 204; Micallef v. Miehle Co.,
Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 386-87,
384 N.Y.S.2d 115, 348 N.E.2d 571 (1976); 1 Weinberger, New York
Products Liability, § 21:06.
As noted by this court in Pahuta, strict liability may be
imposed upon a manufacturer who places a defective product on the
market, and the defect causes injury, provided that (1) the
product was used in the manner intended, (2) the injured user,
exercising reasonable care, would not have discovered the defect
and perceived its danger, and (3) the injured person would not
have averted his injuries by the use of reasonable care. Pahuta
v. Massey-Ferguson, Inc., supra, 942 F. Supp. at 164 (citing
Codling v. Paglia, 32 N.Y.2d 330, 342, 345 N.Y.S.2d 461,
298 N.E.2d 622 (1973)). To establish a prima facie case in strict
liability for design defect, the plaintiff must show that the
design was a substantial factor in causing the injury, and that
the product was not reasonably safe as designed. Id. at 165
(citing Voss, supra, 59 N.Y.2d at 108, 463 N.Y.S.2d 398,
450 N.E.2d 204). The proper standard is "whether it is a product
which, if the design defect were known at the time of
manufacture, a reasonable person would conclude that the utility
of the product did not outweigh the risk inherent in marketing a
product designed in that manner." Voss, supra.
The determination of whether a product was defectively designed
involves balancing the likelihood of harm against the utility of
the product and cost of preventing the harm. Factors that may be
(1) the utility of the product to the public as a
whole and to the individual user; (2) the nature of
the product — that is, the likelihood that it will
cause injury; (3) the availability of a safer design;
(4) the potential for designing and manufacturing the
product so that it is safer but remains functional
and reasonably priced; (5) the ability of the
plaintiff to have avoided injury by careful use of
product; (6) the degree of awareness of the potential
danger of the product which reasonably can be
attributed to the plaintiff; and (7) the
manufacturer's ability to spread any cost related to
improving the safety of the design.
Voss, supra at 109, 463 N.Y.S.2d 398, 450 N.E.2d 204 (citing
Rainbow v. Albert Elia Bldg. Co., Inc., 79 A.D.2d 287, 291,
436 N.Y.S.2d 480, 483 (4th Dept. 1981), aff'd, 56 N.Y.2d 550,
449 N.Y.S.2d 967, 434 N.E.2d 1345 (1982)).
Where the plaintiff claims negligent design, the focus shifts
from the characteristics of the product to the conduct of the
manufacturer. Under New York law, a manufacturer has a duty to
use reasonable care in designing its product so as to avoid any
unreasonable risk of harm when the product is used in the manner
for which it was intended, as well as an unintended yet
reasonably foreseeable use. Micallef v. Miehle Co., supra, 39
N Y2d at 385-86, 384 N.Y.S.2d 115, 348 N.E.2d 571 (citations
omitted). Thus, the plaintiff must show not only that the product
was defective when it left the manufacturer's hands, but also
that the manufacturer could have foreseen the injury and
therefore acted unreasonably in designing its product. Voss,
supra, 59 N.Y.2d at 107, 463 N.Y.S.2d 398, 450 N.E.2d 204; see
also Robinson v. Reed-Prentice Div. of Package Mach. Co.,
49 N.Y.2d 471, 480, 426 N.Y.S.2d 717, 403 N.E.2d 440 (1980). A
manufacturer is not obligated to design a product that is
accident-proof, no matter how careless or reckless the ultimate
consumer might be. Micallef, supra at 386, 384 N.Y.S.2d 115,
348 N.E.2d 571; Bolm v. Triumph Corp., 33 N.Y.2d 151, 157,
350 N.Y.S.2d 644, 305 N.E.2d 769 (1973). If the product is designed
and marketed "in a condition safe for the purposes for which it
is intended or could reasonably be intended, the manufacturer has
satisfied its duty." Robinson, supra at 481, 426 N.Y.S.2d 717,
403 N.E.2d 440.
In Pahuta, the plaintiff was injured while using a
tractor-loader outfitted with a forklift attachment to lift a
twenty-foot length of corrugated steel pipe into a dump truck. As
he attempted to drop the pipe over the side of the dump truck,
the pipe rolled backward over the forks and down the loader arms,
landing on top of him. He sued the manufacturer of the tractor
under theories of strict products liability and negligent design,
claiming that his injuries would have been prevented or greatly
reduced if the tractor had been equipped with safety devices,
such as a rollbar or ROPS (roll-over protective structure), as
standard equipment. The manufacturer moved for summary judgment
on the ground that it had made such equipment available as safety
options, and made the purchaser aware of those options.
This court denied the summary judgment motion, finding that the
manufacturer "cannot escape liability for designing an unsafe
product merely by asserting that it provided the purchaser with
the option of making it safe." Pahuta, supra, 942 F. Supp. at
167. Instead, to be entitled to summary judgment on a product
defect claim based on either strict liability of negligence, the
manufacturer must initially demonstrate the absence of a genuine
issue of material fact as to whether the product is reasonably
safe if used in the manner intended. Id. (citing Jackson v.
Bomag, 225 A.D.2d 879, 883, 638 N.Y.S.2d 819, 823 (3rd Dep't))
(summary judgment record, including affidavits and deposition
testimony of several experts, reflects that defendant fulfilled
its duty of reasonable care when it designed product with safety
option and thereafter made such option available to consumer,
"who was in the better position to assess its need in light of
the use for which it was purchased"), appeal denied, 88 N.Y.2d 805,
646 N.Y.S.2d 985, 670 N.E.2d 226 (1996); Fallon v. Clifford
B. Hannay & Son, Inc., 153 A.D.2d 95, 101, 550 N.Y.S.2d 135, 138
(3rd Dep't 1989) (defendant submitted evidence in admissible form
sufficient to perform Voss "risk-utility" analysis establishing
product marketed without safety device was not unreasonably
dangerous); Rainbow v. Elia Bldg. Co., Inc., supra, 79 A.D.2d
at 291, 436 N.Y.S.2d 480(based upon record after six weeks of
trial, jury could not have concluded that defendant's product was
unreasonably dangerous when made or that it should have been made
with crash bars as standard rather than optional equipment);
Biss v. Tenneco, Inc., 64 A.D.2d 204, 207, 409 N.Y.S.2d 874,
876 (4th Dep't 1978) (manufacturer of product that did not
"differ in any material safety feature from products marketed
by the industry generally" fulfilled duty to exercise reasonable
care in designing product as a matter of law when it advised
purchaser that optional safety equipment was available).
Similarly, in this case plaintiff claims that Matthew Brooks'
injuries would not have occurred, or would have been greatly
reduced, if the Evinrude six-horsepower outboard motor had been
sold by defendant with a lanyard-activated kill switch as
standard equipment, rather than as an optional safety device.
Defendant argues that it is entitled to summary judgment because
plaintiff has failed to come forward with credible expert
evidence to show that the outboard was not reasonably safe as
Defendant has not proffered any credible evidence of its own by
which the court might assess the design defect claims. Instead,
defendant attacks the sufficiency of plaintiff's expert's
opinions expressed in his deposition. As discussed above,
plaintiff obtained an extension of the discovery period in order
to designate and depose a new expert witness. The new expert —
Mr. Warren — submitted a one-page "affidavit" as his expert
report, in which he concluded that a propeller guard or an
emergency shut-off device would have prevented or lessened the
severity of the accident. The affidavit provides no discussion of
the data or other information considered by Mr. Warren in forming
his opinion.*fn4 See Fed. R.Civ.P. 26(a)(2)(B). However, Mr.
Warren subsequently submitted a document entitled "Initial
Opinion Regarding the Matthew Brooks Boating Accident" in which
he states that he considered the following information:
Police and outboard motor test reports/videotape, Mr.
Brooks' and Mr. May's depositions, OMC parts and
outboard motor manuals, discussions with ATA
Associates personnel, and review of American Boat and
Yacht Council practices.
(Item 60, Ex. B).
Mr. Warren concluded that there were essentially three factors
contributing to the accident: (1) the failure of Matthew Brooks
or Andrew May to shut down the outboard, (2) the lack of a
propeller guard and/or emergency shut-off device, and (3) the
failure of Harry Klopp to provide the safest possible boat and
motor configuration (id). Mr. Warren summarized his opinion as
The 6 HP Evinrude outboard motor, as provided by the
rental organization to the consumer, appeared to
function within manufacturing tolerances. However,
manufacturers and dealers working with rental
organizations must take into account that their
product will be used by a varied and diverse customer
base, and that safety must accordingly be a primary
consideration in outfitting. (No specific warnings or
safety devices, such as those mentioned in this
report, were made available to the rental consumer.)
(Id). In addition, Mr. Warren testified at his deposition that,
although outboard motor manufacturers were not required by law,
Coast Guard regulation, or industry practice to provide a
lanyard-activated emergency kill switch device as standard
equipment (Item 60, Ex. C. pp. 99-100), in his opinion defendant
had a duty to notify the rental operation (i.e., Harry's Bait
Shop) of the availability of the device (id., pp. 130-31).
Considering all of the circumstances, I find that defendant's
summary judgment motion is premature in several respects. First
and foremost, defendant has not met its burden at this stage of
the proceedings of coming forth with "evidence in admissible form
establishing a prima facie defense" to plaintiff's product
defect claim under the standards discussed above. Fallon v.
Clifford B. Hannay & Son, Inc., supra, 153 A.D.2d at 101, 550
N YS.2d at 138. Due in large part to the problems encountered by
plaintiff during the course of expert discovery, defendant has
not had the opportunity to submit any evidence to rebut
plaintiff's "kill switch" claim. Instead, while plaintiff's
request for an extension of the discovery period was pending
before this court (and prior to the previously-scheduled date for
submitting dispositive motions), defendant moved for summary
judgment on the "defective gear shift" and "propeller guard"
claims. Now, defendant argues that Mr. Warren is not qualified to
testify as an expert in the case, that his opinion does not meet
the standards for establishing scientific validity set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that in any event, Mr.
Warren's testimony fails to establish that the Evinrude
six-horsepower engine, as marketed without a lanyard-activated
kill switch, is not reasonably safe.
Rulings on expert witness qualification or admissibility of
expert opinion testimony usually occur at a considerably more
advanced stage of the litigation, and on a more complete record.
See, e.g., Bogosian v. Mercedes-Benz of North America, Inc.,
104 F.3d 472, 476 (1st Cir. 1997) (ruling made at trial, after
extensive voir dire); Cummins v. Lyle Industries,
93 F.3d 362, 366 (7th Cir. 1996) (ruling made after extensive hearings on
motion in limine during trial); Meyerhoff v. Michelin Tire
Corp., 70 F.3d 1175, 1182 (10th Cir. 1995) (ruling made during
trial); Tokio Marine & Fire Insurance Co., Ltd., 958 F.2d 1169,
1173-74 (1st Cir. 1992) (ruling made at trial); Diviero v.
Uniroyal Goodrich Tire Co., 919 F. Supp. 1353, 1356 (D.Ariz.
1996) (ruling made after Fed.R.Evid. 104(a) hearing on motion in
limine), aff'd, 114 F.3d 851 (9th Cir. 1997); Smith v. Ford
Motor Co., 882 F. Supp. 770, 771 (N.D.Ind. 1995) (ruling made
after Fed.R.Evid. 104(a) hearing). Considering the very recent
shift in the focus of plaintiff's expert testimony and theory of
the case, and in the absence of any request or support for a Rule
104(a) hearing, this court will refrain from engaging in an
examination of Mr. Warren's qualifications, or the scientific
validity of his opinion, on the present record.
In addition, as defendant points out, the opinion elicited from
Mr. Warren at his deposition is that defendant had a duty to
market its six-horsepower outboard motor with a lanyard-activated
kill switch because it knew, or should have known, that a
considerable number of those products would be used in rental
applications (see, e.g., Item 60, Ex. C, pp. 75-67, 126-27,
134-35). Defendant argued in its reply brief, and at oral
argument, that no such duty exists under New York law. However,
no cases have been cited in support of this argument, and this
court has not found any.
Defendant also argues that Mr. Warren's deposition testimony
directly contradicts plaintiff's claim that the absence of a kill
switch rendered the motor defective, citing the following
Q: Is it your opinion, then, that every outboard
engine . . . that did not include a kill switch as
standard equipment manufactured after 1984, is
defective and unreasonably dangerous?
A: No. No.
(Warren Dep., Item 60, Ex. C, p. 75).
Q: All right. And should — is it your opinion, based
upon a reasonable degree
of engineering probability, that the kill switch
should have been made a mandatory part of all
6-horsepower Evinrude engines in 1985?
(Id. at p. 127).
Q: [H]ave manufacturers of 6-horsepower tiller
engines offered kill switches as standard equipment
on their products at any time, to your knowledge?
A: I don't believe that the documentation would
(Id. at p. 135).
According to defendant, this testimony is sufficient to
establish that the engine, as manufactured and marketed by
Outboard Marine, was not defective. Defendant cites Pigliavento
v. Tyler Equipment Corp., 248 A.D.2d 840, 669 N.Y.S.2d 747, 748
(3rd Dep't 1998), in support of this assertion. However, in
Pigliavento, the court found that the defendant had met its
burden of establishing, "[t]hrough evidentiary facts in
admissible form . . . which went unrefuted by plaintiff . . .,"
the absence of genuine issues of material fact with respect to
the design defect claim, entitling the defendant to summary
judgment. Id. at 748-49, 248 A.D.2d 840. Here, as already
discussed, defendant has not come forward with evidence of its
own to refute plaintiff's claim that the Evinrude six-horsepower
engine should have been equipped with a kill switch device for
its anticipated use in the rental market.
Finally, absent a showing of bad faith, or a showing that any
prejudice suffered by defendant as a result of plaintiff's
"expert shopping" cannot be cured by allowing a reasonable
opportunity for expert rebuttal, this court will not impose the
"severe sanction" of exclusion of plaintiffs evidence, or worse,
granting summary judgment in favor of defendant, based on the
present record. Lithuanian Commerce Corporation, Ltd., supra,
177 F.R.D. at 254.
Accordingly, I find that defendant has not met its burden of
demonstrating the absence of a genuine issue of material fact as
to whether the product was reasonably safe when used in the
manner intended, and that defendant is not entitled to summary
For the foregoing reasons, it is recommended that defendant's
summary judgment motion (Item 50) be denied.
Defendant's motion (Item 62) to strike plaintiff's memorandum
and affidavit is denied as moot (see note 3, infra).