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May 20, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


Defendant Time Manufacturing Company ("Time") has moved under Rule 56, Fed.R.Civ.P., to dismiss the complaint of plaintiff Rose Rypkema and Ted Rypkema ("Rypkema") (collectively, the "Rypkemas") alleging product liability. Third-party defendant Savvy Systems, Ltd. ("Savvy") has cross-moved to dismiss the third-party complaint of Time. For the reasons set forth below, the motion of Time is granted.

Prior Proceedings

The complaint in this action was filed on April 16, 2001, in the Supreme Court of the State of New York, County of New York, and removed to this Court on May 29, 2001. The complaint alleges three causes of action — personal injury, breach of warranty, and strict products liability arising out of an injury suffered by Rypkema while operating a "Versalift," a telescopic boom lift manufactured by Time and attached to a truck operated by Bell/Atlantic Nynex, the employer of Rypkema, now known as Verizon.

Time filed its second third-party complaint against Savvy on May 7, 2002, alleging negligence in the maintenance of the boom lift operated by Rypkema.

Discovery has taken place, including expert discovery and the pretrial order has been filed. The instant motion seeking to dismiss the complaint for failure of proof in view of the inadmissibility of the testimony of Nicholas Bellizzi P.E. ("Bellizzi"), the Rypkemas' expert, and the cross-motion of Savvy were marked fully submitted on May 7, 2003.

Although styled by Time as a motion for summary judgment under Rule 56, Fed.R.Civ.P., to dismiss the Rypkemas' complaint, Time's motion is bottomed on an application under Rules 104 and 702, Fed.R. Evidence, to exclude Bellizzi's expert testimony under the principles enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In the absence of Bellizzi's evidence, it is Time's position that there is insufficient evidence to sustain the Rypkemas' complaint warranting summary judgment.

The Facts

The facts are drawn from the Local Rule 56.1 Statement of Time,*fn1 an affidavit of Bellizzi, and certain of the discovery as set forth in Plaintiffs' Memorandum in Opposition.

On September 28, 2000, Rypkema, an experienced cable splicer, was assigned to a slicing repair job in Brooklyn by his employer Verizon. The performance of his duties required using an aerial lift truck. Time manufactured the aerial lift bucket which was fitted onto the GMC Verizon truck by Time's authorized dealer, Baker.

According to Rypkema, he sought to enter the bucket from the approach designed into the rear of the aerial lift truck, and while using the top portion of the bucket door as a hand hold to hoist himself up, the bucket door opened and he fell to the ground below as a consequence of which he suffered injuries. Time has attempted to obscure this fact, but Rypkema has always been consistent as to how this accident took place. Specifically, Rypkema testified that he had to hold the bucket door for leverage and he felt the jolt of the door popping open.

After Rypkema suffered his injury a co-worker used the aerial lift truck and operated the bucket latch without incident. Bellizzi did not examine or test the latch.

Time's expert, Marc Recard ("Recard"), did examine the latch, and determined that it was fully functional, years after the incident. Rypkema testified that he is unsure of whether he actually felt the latch give way at all, and that he did not hear a snap, crack or other sign of latch failure.

Rypkema's co-worker, Charles McCloskey ("McCloskey"), testified that he was able to use the latch immediately post-incident. Verizon records show no evidence of any post-incident repair to this latch.

Bellizzi's report stated that the latch design was improper; that a different latch would have prevented the accident; that a hand hold depicted in photographs should have been on the product at the time of the incident, and would have prevented the accident; and that Time should have provided installation instructions for the subject latch. Bellizzi did not propose an alternative design for the latch but testified, "One cannot design the subject latch differently, they need to use a different latch." Bellizzi has not tested a proposed alternative latch, or know of an alternative latch that is in use. Bellizzi did not simulate or reconstruct the accident and has not seen a report of a latch failure, a picture of a broken latch, or a repair record for a broken latch. Bellizzi testified that if his theory of latch failure were correct, the latch would have had to have been adjusted before the truck could be used again.

The latch in question is a quarter turn type latch. There is a tongue and a catch plate. Metal makes contact with metal, and the door is held locked by friction. The handle outside the bucket changes position when the door is locked, allowing the operator to discern whether he or she has locked the door. The 6 latch must be engaged to lock the door and disengaged to open the door.

The Testimony of Bellizzi Is Excluded

In Kumho Tire, 526 U.S. 137, the Supreme Court confirmed that a district court's "gatekeeper" obligation*fn2 extends not merely to "scientific" experts, but to "engineering" and ...

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