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March 16, 2004.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  The above-captioned product liability action was removed from the New York State Supreme Court to this court by the defendant, based on diversity of citizenship. Before the Court are cross-motions for summary judgment made pursuant to Fed.R.Civ.P. 56. The defendant contends that the plaintiffs amended complaint should be dismissed because: (1) it was not reasonably foreseeable that the plaintiff would be a user of the meat grinder that is the subject of this action and, therefore, the defendant owed no duty to the plaintiff, the breach of which was a proximate cause of the plaintiffs injury; (2) the record is barren of evidence that supports the plaintiffs contention that the defendant's failure to issue post-sale warnings concerning the cylinder component of the subject meat grinder was a proximate cause of the injury the plaintiff suffered; (3) opinions expressed by the expert engaged by the plaintiff are unreliable and may not be presented to the trial jury; (4) the plaintiff cannot establish that the meat grinder cylinder, Page 2 which is at issue in the instant case, was either manufactured or sold by the defendant; (5) all claims made by the plaintiff concerning the defendant's failure to warn potential users of the danger associated with its 2 1/2-inch cylindered meat grinder are without merit, inasmuch as the defendant owed no duty to the plaintiff because he was not a foreseeable user of the defendant's meat grinder; and (6) the plaintiff failed to retain the meat grinder cylinder that is the focus of this litigation and his spoliation of that evidence warrants dismissal of the complaint.

  For his part, the plaintiff alleges that the defendant's reliance upon Article 16 of New York's Civil Practice Law and Rules ("CPLR") which, in an action involving multiple tort-feasors, entitles a defendant to several liability status if that defendant is found to be 50% or less culpable for the non-economic damages suffered by a plaintiff, is misplaced because the plaintiff could not obtain jurisdiction in this action over the vendor of the meat grinder and the persons whom the defendant contends are additional tort-feasors are not. The parties' respective motions are addressed below.


  In July 1987, Jose Ramirez ("JR") purchased a used electrically-powered meat grinder from a restaurant equipment vendor located on the Bowery in Manhattan. JR does not know the name of the vendor, and there is no competent evidence before the Court from which the identity of the vendor can be gleaned. JR is unaware whether the vendor from whom he purchased the meat grinder rebuilt that apparatus or did any repairs, modifications or alterations on it. The meat grinder that JR purchased had three components: a plate or feed tray, a motor unit and a cylinder into which meat would be placed so that it could be ground. JR also purchased a plastic stick from the restaurant equipment vendor that was to be used to push meat through the cylinder Page 3 to facilitate its grinding. According to JR, a seal located near the power switch on the meat grinder contained the word "Enterprise." Defendant Avery Berkel, Inc. is the successor to a company known as the Enterprise Manufacturing Company ("EMC"), which manufactured meat grinders. However, JR does not know who manufactured the motor unit or the cylinder component of the meat grinder he purchased. In the amended complaint that was filed, the plaintiff alleged, based upon information and belief, that: (a) the defendant manufactured and/or sold the relevant meat grinder's cylinder and/or its feed tray; or (b) these components were substantially similar to those that were sold or manufactured by the defendant. However, the plaintiff did not identify the source of his information or the grounds for his belief.

  JR did not let his children operate the meat grinder he purchased because it could be dangerous for them. On September 3, 1987, while JR was alone in his kitchen, he placed the meat grinder on a one-foot-high stool or table so that he might grind meat for a family meal. JR recalls that he had previously told the plaintiff, Robinson Ramirez ("RR"), who was then four years old, to remain in the bedroom of their apartment, where RR was watching cartoons on a television. RR's siblings were watching television in another room of the apartment.

  After JR began grinding meat, he turned his back to the grinder and reached for a shopping bag to retrieve additional meat. JR did not turn the meat grinder off when he did this. His back was approximately six to seven feet away from the meat grinder. When he turned back toward the meat grinder, he saw that RR had joined him in the kitchen. At that point, RR lifted his arm, revealing that his left hand, which RR had placed in the meat grinder's cylinder, had been severed. JR did not see RR place his hand in the meat grinder's cylinder. JR turned the meat grinder off and sought medical attention for RR. Page 4

  JR testified, during a deposition, that he knew that it was dangerous to put a hand in the meat grinder's opening because, among other things, it would be cut up like hamburger meat. However, according to JR, the opening on the meat grinder he purchased, into which meat was fed to be ground, was too narrow for his hand to fit into it.

  After RR's injury, JR removed the meat grinder from his apartment to the basement of the apartment building where his family was residing. According to JR, the meat grinder remained locked in the basement of the apartment building and unused for approximately two years, until he decided to loan it to a friend, Leonel Rosario ("Rosario"), who managed a store called the Academy Food Center.

  Rosario recalls that he obtained the meat grinder from JR in approximately 1994. He used it to grind meat at the Academy Food Center for more than a year. However, a health department inspector had Rosario "throw away" the cylinder component of JR's meat grinder because it was oxidized and old, and it presented a sanitary hazard. When Rosario discarded the cylinder component of JR's meat grinder, he was unaware that JR had a son who had suffered an injury involving the meat grinder's cylinder. Rosario continued to use the remaining components of JR's meat grinder after the health inspector had him "throw away" the cylinder component because he had another meat grinder in the store and its cylinder fit into the motor unit of JR's meat grinder.

  In 1998, JR retrieved the meat grinder that he had loaned to Rosario several years earlier. According to Rosario, he gave JR the motor unit for JR's meat grinder and the cylinder that had been removed from a meat grinder in the Academy Food Center and used with JR's meat grinder after the health department inspector had Rosario "throw away" the cylinder that JR had loaned Page 5 him. Rosario cannot recall whether he also returned the feed tray component of JR's meat grinder to him.

  When JR retrieved the meat grinder from the Academy Food Center, he was assisted by an attorney named Enoch Brady ("Brady"). The record evidence does not establish unequivocally whether Brady was retained to provide legal services to the plaintiff. However, approximately two to three years after RR's hand came into contact with the meat grinder's cylinder, Brady and JR took photographs of the meat grinder while it was still being kept in JR's apartment building. At that time, using a wooden folding ruler, Brady also measured the dimensions of the opening of the meat grinder's feed tray as well as its cylinder opening. Brady determined that the opening of the feed tray and the cylinder opening were each 2 1/2 inches. Although Brady says that the openings on the two grinder components were the same size, he recalls that the feed tray opening fit snugly into the cylinder opening. Brady also measured the vertical portion or throat of the meat grinder's cylinder. He recalls that it was 4 1/2 inches in length. Brady made a contemporaneous written record of the measurements he made. However, that document is no longer available. Brady alleges that after he made the written record of the measurements, he dictated a memorandum and included the measurements in that document.

  Brady took the meat grinder from JR immediately after he retrieved it from Rosario. Brady transported the meat grinder to his home, which was then located in White Plains, New York. According to Brady, the meat grinder remained at his White Plains home in a green plastic bag for years, but he does not recall exactly how many years. In August 2000, Brady relocated from White Plains to Katonah, New York. He took the meat grinder with him. It remained at Brady's Katonah home until the Summer of 2002, when it was surrendered to RR's present Page 6 counsel. Before surrendering the meat grinder to RR's present counsel, Brady examined the contents of the bag in which it had been stored. When he did so, he learned that the cylinder that was in the bag was different from the one he had photographed years before at JR's apartment building.

  The instant action was commenced approximately 15 years after RR suffered his injury. The defendant has never had an opportunity to inspect the cylinder component of the meat grinder that JR purchased from a restaurant equipment vendor on the Bowery. The only measurements made of that cylinder, known to the defendant, are those that were made by Brady. However, as noted above, Brady cannot say where the contemporaneous written record he made of the measurements is located. The only images of the cylinder available to the defendant are those depicted in photographs taken by JR and Brady.

  The defendant maintains that Brady, as the plaintiffs agent, had a duty to protect the integrity of evidentiary materials once litigation was foreseeable. The defendant contends that Brady's failure to do so has prejudiced it since the defendant has been deprived of the opportunity to inspect, examine, test, photograph and measure the cylinder for itself, to determine whether it is an EMC product. Given that the identity of the manufacturer and designer of the meat grinder are contested issues in this action, the defendant maintains that the inability to examine the cylinder, because the plaintiff did not preserve it, has harmed its ability to defend itself against the plaintiffs claims. Furthermore, the defendant also contends that the delay in commencing this action, thereby giving the defendant notice of the injury to RR, has also prejudiced its ability to examine witnesses because, in many instances, the witnesses' memories have faded and they have been unable to recall facts that are pertinent to the litigation. Page 7

  The plaintiff alleges that the meat grinder JR purchased: (i) was made by EMC, negligently, without adequate guards over its 2 1/2-inch openings; and (ii) lacked a warning on its power unit, advising users to use a guarded feed tray and to refrain from using a cylinder with a 21/2-inch opening or to keep a feed stick in the meat grinder's throat opening at all times when operating the grinder, if meat was not being fed into the grinder's cylinder. The plaintiff also contends that the meat grinder, as originally designed and sold by EMC, presented an unreasonable danger, within the meaning of the doctrine of strict products liability, because the meat grinder's cylinder had a 2 1/2-inch opening that was large enough to permit a person's hand to come into contact with the apparatus' grinding mechanism. Moreover, according to the plaintiff, the meat grinder lacked any warnings, such as those described above. The plaintiff maintains that the defendant had a nondelegable duty running to foreseeable individuals, such as the plaintiff, to design, manufacture and sell a meat grinder that did not have dangerous deficiencies or that did not present an unreasonable danger to its user. The plaintiff alleges that the defendant's breach of its duty was, in part, a cause of the injury suffered by RR.

  The plaintiff also maintains that the defendant failed to take post-sale safety measures even though, years prior to RR's injury, the defendant was on notice of injuries involving EMC meat grinders as well as other meat grinders made by entities associated with the defendant. The plaintiff alleges that the defendant had a duty running to foreseeable individuals, such as the plaintiff, to eliminate or minimize the dangers that its meat grinder power units, feed tray assemblies or meat grinder cylinders with openings of a least 2 1/2 inches presented. The plaintiff alleges that the defendant's breach of its duty was one of the causes of the plaintiffs injury. Page 8

  The plaintiff intends to offer opinion evidence at the trial of this action from Gary Robinson ("Robinson"), a principal in Gary Robinson, Inc., a safety and engineering consulting firm. Robinson, who has an undergraduate degree in economics and has certificates and degrees from an unaccredited university, is not an engineer. He is a certified safety professional and a member of the American Society of Safety Engineers, The Certified Safety Professional Board of America and the World Safety Organization. The plaintiff wishes to have Robinson testify about, among other things, the meat grinder industry's knowledge, in general, and ...

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