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CACCIOLA v. SELCO BALERS
January 2, 2001
FRANK CACCIOLA, PLAINTIFF,
SELCO BALERS, INC., JOHN DOE, INC., THE HARRIS WASTE MANAGEMENT GROUP, INC., DEFENDANTS.
The opinion of the court was delivered by: Glasser, District Judge.
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
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
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
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.
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
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
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 ...