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January 2, 2001


The opinion of the court was delivered by: Glasser, District Judge.

    Memorandum & Order

Plaintiff brings this negligence and strict products liability action seeking compensation for injuries he allegedly suffered while operating a baler manufactured by defendant Selco Balers, Inc. Defendant Harris Waste Management Group has moved to exclude certain expert testimony, and also for summary judgment. For the reasons that follow, defendant's motions are granted.


Plaintiff Frank Cacciola was injured while operating a baler, a hydraulic machine used to compact cardboard boxes. The injury occurred at approximately 4:15 p.m. on December 3, 1996, during plaintiff's seventeenth year working as a bottler at a Pepsi Cola plant in Brooklyn. Plaintiff was injured when he inserted a box, measuring 40 inches in length and 50 inches in width, into the baler's compaction chamber. The baler was acquired by plaintiff's employer in the early 1990's and was equipped with an interlock device that powered a safety gate which, when closed, blocked access to the interior of the baler. The interlock switch was located on the machine at a height of nine feet from the floor. At the time plaintiff was using the baler, it is undisputed that the safety interlock switch had been disabled with wire, causing the baler to behave as though the safety gate were in the closed position and permitting access into the compaction chamber. The accident occurred when plaintiff's right forearm was caught underneath the baler's ram or "platen," a piece of steel that compresses material placed inside the compaction chamber.

On the day of his accident, plaintiff was familiar with the operation of the baler, as he had used it between 50 to 75 times. (Cacciola Dep., Pl.Ex. A at 16-18) Though he purportedly believed that the machine would only start with the safety gate in the closed position, plaintiff acknowledges having pushed the machine's start button with the safety gate in the open or "up" position. (Id. at 15, 22, 23, 38) After pushing the start button, plaintiff heard the noise that the machine typically makes when it begins to operate. (Id. at 41) Plaintiff nonetheless inserted his arm into the baler's compaction chamber, only realizing that the platen was descending into the chamber when he began to feel pain in his arm. (Id. at 42, 43)

Plaintiff acknowledges that on the day of his accident, and indeed for as long as he could remember, a sign (which he acknowledges he understood) was displayed prominently on the baler warning employees to: "Stand Clear. Keep all body parts out of the machine during operation." (Id. at 68-70) It also is undisputed that plaintiff himself remembers a sign on the machine that cautioned: "Under no circumstances must safety switches be bypassed under this machine."*fn1 (Id. at 71, 72) However, Robert Furey, a Pepsi foreman who inspected the baler on the day of plaintiff's accident, did not recall seeing the following warning sign until after the accident. (Furey Dep., Def. Ex. H at 18-19) Plaintiff acknowledges, moreover, having read memoranda concerning safety issues that were distributed by at least one of his supervisors, plant manager Ron Kimmey. (Cacciola Dep. at 66)*fn2

Plaintiff filed this action against Selco Balers, Inc., John Doe, Inc., and Harris Waste Management Group, Inc. (hereinafter "Harris"). Because Selco Balers is an unincorporated trade name used by Harris, not a separate corporate entity (Vita Aff. ¶ 1), Harris is the only defendant with which the court need be concerned in deciding this motion.*fn3 Plaintiff's complaint sounds in strict products liability and negligence. Plaintiff first asserts that Harris failed to use reasonable care in designing and manufacturing a baler with an easily modifiable safety device. Plaintiff contends, moreover, that Harris breached its duty to warn operators of the dangers of bypassing the baler's safety switch. Finally, plaintiff alleges that defendant failed to use a safer design alternative for the baler, in which the interlock device would not be bypassed as easily as it was here.

Defendant Harris now moves for summary judgment on all of plaintiff's claims pursuant to Fed.R.Civ.P. 56(c), arguing that, as a matter of law, a manufacturer cannot be held liable for injuries caused when the product in question has been substantially modified or altered. Defendant further moves to exclude a report prepared by plaintiff's expert, on the grounds that the report is inadmissible under Fed.R.Evid. 702. For the reasons stated below, defendant's motion to exclude expert testimony and motion for summary judgment should be granted.


I. Defendant's Motion to Exclude Expert Testimony

Defendant moves to exclude the testimony of plaintiff's expert, Thomas O'Donnell. This court has recently had occasion to address this issue in Borgognone v. Trump Plaza, 2000 WL 341135 (E.D.N.Y. March 9, 2000), and the consideration of it discussed there is fully applicable here and was as follows: It is appropriate for a district court to decide questions regarding the admissibility of evidence, including expert opinion evidence, on a motion for summary judgment. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997). This is so because on a summary judgment motion, a "district court properly considers only evidence that would be admissible at trial." Nora Beverages v. Perrier Group of America, 164 F.3d 736, 746 (2d Cir. 1998). Evidence contained in an expert's report therefore must be evaluated under Fed.R.Evid. 702 before it is considered in a ruling on the merits of a summary judgment motion. If a proffer of expert testimony in the form of an expert report is excluded as inadmissible under Rule 702, the summary judgment determination is made on a record that does not include that evidence. Raskin, 125 F.3d at 66-67.

A. Admissibility of Expert Testimony under Rule 702

Federal Rule of Evidence 702 governs the admissibility of expert testimony, and provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The Supreme Court has characterized the admissibility standard under Rule 702 as imposing a two-fold task of "ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In applying this standard, "the district court functions as the gatekeeper for expert testimony." Raskin, 125 F.3d at 66. A district court should be particularly mindful of the relevance standard articulated by Daubert: "[e]xpert testimony which does not relate to any issue in the case is not relevant and ergo, non-helpful." Daubert, 509 U.S. at 591, 113 S.Ct. 2786. The Court also has recently held that Rule 702 extends to expert testimony based on technical or other specialized knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

In Daubert, the Supreme Court articulated four factors pertinent to determining the reliability of an expert's reasoning or methodology: (i) whether the theory or technique relied on has been tested; (ii) whether the theory or technique has been subjected to peer review and publication; (iii) whether there is a known or potential rate of error and the existence and maintenance of standards controlling the technique's operation in the case of a particular scientific technique; and (iv) whether the theory or method has been generally accepted by the scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. In Kumho Tire, the Court emphasized that this list is non-exclusive, and its application must be flexible — particularly where, as here, the proffered testimony is based on "technical" or "other specialized" (rather than "scientific") knowledge. Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167.

Expert engineering testimony may rest on scientific foundations, the examination of which invokes the Daubert factors directly, but may also rest on the personal knowledge or experience of the engineer. Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. In the latter cases, the Daubert factors may nevertheless be useful in the assessment of reliability. It may, for example, be appropriate for the trial judge to ask "how often an engineering expert's experience-based methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering community." Kumho Tire, 526 U.S. at 151, 119 S.Ct. 1167.

B. Admissibility of O'Donnell's Proffered Testimony

Plaintiff's expert O'Donnell has a Ph.D. in mechanical engineering, and is licensed as a professional engineer in Pennsylvania. (O'Donnell Dep., Pl.'s Ex. E, at 4-5, 18) He has no professional experience with baler machines (id. at 17), nor does his past work experience suggest that he has had any significant experience with interlock switches. (Id. at 6-10) There is no suggestion that he was ever qualified as an expert in any state or federal court, although he has served as an expert consultant to litigants in several cases. (Id. at 13-17 and Pl.'s Ex. F) He has never previously served as an expert consultant in a case involving a baler machine. In its capacity as a gate-keeper regarding the admissibility of expert testimony, the Court is urged to preclude O'Donnell from testifying.

Before turning to the opinion to which the plaintiff would have him testify at trial and the factors upon which that opinion is based, it should be noted that O'Donnell has never physically examined the machine in question. He never interviewed Mr. Cacciola, relying only upon his deposition. (See Pl.'s Ex. G, Investigation of Baler Machine Accident, 2). In addition to the materials to which he referred cited there, he also referred to photographs of the machine. (Id. at 19-20).

The conclusions reached are stated on p. 6 of his report, Pl.'s Ex. G and are as follows:

1. The interlock switch designed to prevent the machine to operate when the safety gate is open was bypassed by a piece of baling wire by an unknown person.

2. The design of the baler safety gate interlock is not adequate for its intended function.

3. The interlock does not meet the requirements of OSHA. In the as-sold condition, the baler machine effectively has no safety interlock for prevention of platen motion when the safety gate is open.

4. The interlock was not designed to industry standards at the time of fabrication. Similar balers offered by competitors include a more tamper-resistant interlock.

5. The interlock does not satisfy ANSI requirements. The interlock is easily bypassed with readily available baling wire.

6. The lack of an adequate safety gate interlock as defined by National and International Codes and Standards, was the cause of Mr. Cacciola's accident.

An examination of O'Donnell's report and his deposition testimony is revealing and drives this Court to conclude that the motion to preclude him from testifying as an expert must be granted.

That conclusion becomes inescapable upon an examination of the bases upon which his opinion was formed.

• The design of the safety gate interlock is not adequate for its ...

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