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RAMIREZ v. BERKEL

United States District Court, S.D. New York


March 16, 2004.

ROBINSON RAMIREZ, Plaintiff, -against- AVERY BERKEL, INC., AS SUCCESSOR TO THE COMPANY KNOWN AS ENTERPRISE MANUFACTURING CO., Defendant

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

REPORT AND RECOMMENDATION

THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  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.

  II. BACKGROUND

  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 the defendant's specific knowledge of amputations involving meat grinders that occurred prior to the sale of the meat grinder that was involved in the instant case.

  Robinson is expected to testify that, prior to RR's injury, the industry knew that one way to minimize amputations was to decrease meat grinder cylinder openings below 2 1/2-inches. In addition, Robinson will state that in the 1970's, some members of the industry changed the design of their 2 1/2-inch meat grinder cylinders by reducing the size of the cylinder opening. However, 2 1/2-inch meat grinder cylinders and used meat grinders that were originally sold with 2 1/2-inch cylinders were still being sold in the 1980's. Robinson is also expected to testify that some companies took affirmative steps, such as authorizing the return of 2 1/2-inch meat grinder cylinders when they determined to reduce the size of their meat grinder cylinder openings. Robinson is expected to testify further that the original design of the meat grinder that is the subject of the case at bar included a 2 1/2-inch cylinder, and that the defendant neither issued an advisory on 2 1/2-inch cylinders nor issued any post-sale warnings or recall of the type of meat grinder involved in the instant case. Robinson will opine that the defendant should have issued advisories and post-sale warnings regarding 2 1/2-inch cylinders because they are unsafe and can Page 9 cause amputation. These warnings, according to Robinson, could have advised users of meat grinders not to employ 2 1/2-inch cylinders or to do so only with a reducer sleeve that would narrow the cylinder opening to two inches.

  The defendant contends that Robinson should be precluded from offering opinion evidence at the trial because he lacks the specialized knowledge required to permit him to present opinion testimony to the jury. Furthermore, the defendant argues that the methodologies used by Robinson, in reaching his conclusions and formulating his opinions for this case, were inadequate. The defendant notes, inter alia, that Robinson did not conduct any tests or experiments and did not attempt to reconstruct RR's accident. Moreover, Robinson did not rely upon any learned treatises, texts or periodicals or consider RR's physical attributes, such as the size of his hand at the time of the accident, in formulating his opinions and reaching his conclusions.

  In addition, the defendant notes that Robinson has never designed a component part for a meat grinder that was commercially sold and has never taught design to anyone in the meat processing industry. Robinson has neither created meat grinder design protocols nor meat grinder warning protocols. Furthermore, Robinson told the parties, during a deposition, he did not know whether any protocols for testing design existed. He also told the parties that, although protocols do exist for product warnings, he did not employ those protocols in this case. According to the defendant, since Robinson has not demonstrated that he used reliable methods and procedures to support the opinions he has formed and the conclusions he has reached, his testimony would be nothing more than speculation and should not be permitted to be presented to a jury. Page 10

  Through the motion the plaintiff has made, he seeks to have the defendant's defenses premised upon CPLR Article 16 dismissed because the defendant has not identified any other tort-feasors over whom the plaintiff, by exercising due diligence, could obtain personal jurisdiction or any other person who actually committed a tort for which he would be liable to RR.

  The defendant maintains that the plaintiff is wrong. It contends that JR negligently entrusted a commercial meat grinder he purchased to RR and, therefore, is a tort-feasor. The defendant also contends that Brady, while acting as the plaintiffs agent, had a duty to preserve evidence, once it was foreseeable that litigation would ensue. According to the defendant, Brady's breach of that duty makes him a tort-feasor. In addition, the defendant has asserted that the restaurant equipment vendor, from whom JR purchased the meat grinder, is a tort-feasor because he is in the distribution chain of an alleged defective product. Based upon the conduct described above, the defendant maintains that the jury should be permitted, if warranted under CPLR Article 16, to apportion non-economic damages among all tort-feasors who are identified to them during the trial.

  II. DISCUSSION

  Summary judgment may be granted in favor of the moving party "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 judgment as a matter of law." See Fed.R.Civ.P. 56(c); see also D'Amico. v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911, 118 S.Ct. 2075 (1998). When considering a motion for summary judgment, "[t]he court must view the evidence in the Page 11 light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L. B. Foster Co. v. America Piles. Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 [1986]).

  The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986).

  In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586,106 S.Ct. at 1355. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).

 Duty Owed to the Plaintiff

  The defendant contends that it owed no duty to the plaintiff, the breach of which was the proximate cause of the plaintiffs injury, because it was not reasonably foreseeable that a four-year-old child would use a "commercial" meat grinder. In support of its position, the defendant Page 12 relies upon: (1) New York Labor Law Section 133(1)(c) ("NYLL"), which proscribes the employment of or the enlisting of assistance from a person under 16 years of age in the operation of, inter alia, grinding machinery. See also Darsan v. Globe Slicing Machine Co., 200 A.D.2d 551, 552, 606 N.Y.S.2d 317, 318 (App. Div.2d Dep't 1994); and (2) case law that establishes that a child, older than RR was at the time he suffered his injury, was not a foreseeable user of a "commercial" meat grinder. See Cramer v. Toledo Scale Co., 158 A.D.2d 966, 967, 551 N.Y.S.2d 718, 720 (App. Div. 4th Dep't 1990) (eight-year old boy not a reasonably foreseeable user of meat grinder manufactured and distributed for commercial use).

  By its express terms, NYLL § 133(1)(c) applies to the employment of one who is under 16 years of age or the active recruitment of such a person's participation in the use of grinding machinery. RR was neither employed by his father nor was his assistance enlisted by JR as he ground meat for a family meal on September 3, 1987. Therefore, the Court finds that this statute is not relevant to this case.

  The defendant states repeatedly, in its submissions, that the meat grinder at issue in the case at bar was a "commercial" meat grinder. However, no competent evidence in the record before the Court supports such a categorization. While the defendant has submitted advertisements that suggest that the subject meat grinder was marketed for use in commercial establishments, the plaintiff has countered with advertisements suggesting that meat grinders of similar capacity and horse power were marketed for household use. The plaintiff contests vigorously the defendant's assertion that the meat grinder at issue was a "commercial" meat grinder; he also questions what the adjective "commercial" means. Page 13

  Whether the meat grinder JR purchased was a "commercial" meat grinder such that, as the Cramer court noted, it would not be reasonably foreseeable to a commercial meat grinder manufacturer that a four-year-old child would use its product, is not an issue that can be determined as a matter of law.

  Furthermore, the plaintiff maintains that the defendant knew, prior to RR's injury, or should have known, based upon data it compiled as well as data compiled by another meat grinder manufacturer, that amputations involving adults and children who came into contact with meat grinders whose cylinder openings were 2 1/2 inches in diameter occur. Therefore, it was foreseeable that a child like RR would be a plaintiff in a litigation such as this.

  The scope of the amputation data that Was or should have been known to the defendant is not certain. Neither is it certain what, if anything, an analysis of such data would have shown to the defendant such that the defendant would reasonably have been on notice that a child of approximately four years of age would come into contact with its meat grinder. These are issues of fact that must be resolved by a jury.

  The plaintiff also contends that foreseeability will be of no import in this case once he proves that the meat grinder had a design defect because, under New York law, a manufacturer of a defective product may be held strictly liable for an injury caused by its product regardless of foreseeability. See Sprung v. Mtr. Ravensburg, Inc., 99 N.Y.2d 468, 472, 758 N.Y.S.2d 271, 273 (2003). According to the plaintiff, the 2 1/2-inch opening in the cylinder component of the meat grinder that the plaintiffs father purchased on the Bowery is a design defect. The plaintiff alleges that this is so because a cylinder opening of that size poses extra risk without offering Page 14 extra utility.*fn1 While there is evidence in the record before the Court that a witness, William C. Schlieper, whose opinion testimony the defendant will seek to offer at the trial, has testified at a deposition that a meat grinder cylinder with an opening of approximately 2 inches would allow essentially the same quantity of meat to be ground as a cylinder with an opening of 2 1/2 inches, whether the plaintiff can establish that the larger 2 1/2-inch cylinder opening poses a greater risk to a meat grinder user, must await a determination by the finders of the fact at the trial. That question cannot be resolved as a matter of law in this case. Moreover, whether the defendant manufactured the meat grinder at issue in this case is a material issue of fact in dispute.

  Furthermore, "in order to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiffs injury." Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 402 (1983). However, in New York, the determination of whether a product was reasonably safe is a question for a jury to determine after weighing all the evidence presented by a plaintiff and a defendant. See Voss, 59 N.Y.2d at 108, 463 N.Y.S.2d at 402.

 Duty to Warn

  The plaintiff contends that, due to the defendant's knowledge of the meat grinder amputation data noted above, as well as its knowledge of the conduct of other members of its industry, the defendant had a duty to issue advisories and post-sale warnings directing users of its Page 15 meat grinder to: (a) use a guarded feed tray; (b) refrain from using a cylinder with a 2 1/2-inch opening; (c) keep a feed stick in the grinder's throat opening at all times during intervals in the grinding process, when meat was not being inserted into the cylinder; or (d) use a reducer sleeve. The defendant contests that it was duty-bound to issue advisories and post-sale warnings. In addition, the defendant maintains that even if the post-sale warnings urged by the plaintiff had been issued, the record does not establish that the warnings would have altered the outcome in this case. Furthermore, the defendant contends that the plaintiff has not established that a post-sale warning campaign, if undertaken, would have reached the seller of the meat grinder, whose identity is not known, or whether the purchaser, JR, would have followed the warning.

  The New York Court of Appeals has advised that, "although a product may be reasonably safe when manufactured and sold and involve no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn." Cover v. Cohen, 61 N.Y.2d 261, 275, 473 N.Y.S.2d 378, 385 (1984). However, that court has also explained that, "the nature of the warning to be given and to whom it should be given . . . turn upon a number of factors. . . . Generally, the issue will be one of fact for the jury whose function will be to assess the reasonableness of the steps taken by the manufacturer or vendor in light of the evidence concerning the factors . . . presented in the particular case, as well as any expert testimony adduced on the question." Cover v. Cohen, 61 N.Y.2d at 276-277, 473 N.Y.S.2d at 386 (citations omitted).

  The case at bar does not present any unique circumstance that would take it out of the general class of cases the New York Court of Appeals spoke about in Cover, The Court finds Page 16 that questions of fact exist in this case concerning the need for either an advisory(ies) or a post-sale warning(s). Questions of fact also exist in this case concerning the type of warning(s), if any, that should have been issued and what effect, if any, such a warning would have had upon the plaintiff or the purchaser of the meat grinder, JR. In such a circumstance, summary judgment is inappropriate.

 Plaintiffs Expert

  Rule 702 of the Federal Rules of Evidence provides the following:

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, if (i) the testimony is based upon sufficient facts or data, (ii) the testimony is the product of reliable principles and methods, and (iii) the witness has applied the principles and methods reliably to the facts of the case.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), the Supreme Court explained that a federal trial court has a gatekeeping responsibility when opinion evidence is sought to be presented to a jury. The court must ensure that the testimony to be presented to the jury is based upon methods and procedures that are reliable; that is, "more than subjective belief or unsupported speculation." Daubert, 509 U.S. at 590, 113 S.Ct. at 2795. The testimony of the witness whose opinion is sought to be presented to a jury must also be relevant to an issue that is the subject of the trial, since Rule 402 of the Federal Rules of Evidence makes clear that irrelevant evidence is not admissible at a trial.

  When a party seeks to elicit opinion evidence from a witness, an application should be made in accordance with Rule 104(a) of the Federal Rules of Evidence that the trial judge determine "whether the [witness] is proposing to testify to (1) scientific knowledge that (2) will Page 17 assist the trier of fact to understand or determine a fact in issue. [Such an application permits the trial judge to make an] assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and [] whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-593, 113 S.Ct. at 2796.

  A motion for summary judgment is an inappropriate vehicle through which to obtain a determination under Daubert concerning the admissibility, at trial, of opinion evidence that a party wishes the jury to consider. The purpose of a motion for summary judgment is not to delve into the reliability of the methods and procedures employed by a proffered opinion witness. A motion for summary judgment is designed to determine whether there are material issues of fact in dispute that must be resolved at a trial or whether, as a matter of law, a party to a litigation is entitled to judgment. Therefore, the Court finds that the defendant's challenge, through the instant motion, to the plaintiffs proposed opinion witness is inappropriate and should be addressed through a pretrial application to the trial judge in accordance with Rule 104(a) of the Federal Rules of Evidence. See, e.g. Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir. 2000). Identification of the Cylinder's Manufacturer

  Under New York law, in a product liability case, a plaintiff must establish that the product at issue is that of the defendant. See Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487, 504, 541 N.Y.S.2d 941, 945 (1989). The defendant contends that, inasmuch as the meat grinder cylinder that was purchased by JR is no longer available, the plaintiff cannot establish, as it must, that the defendant manufactured that cylinder. Page 18

  However, circumstantial evidence may be used to show the identity of a manufacturer of a product alleged to be defective. See Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601, 640 N.Y.S.2d 860, 862 (1996). Here, there is evidence in the record that EMC's cylinders were embossed with the name "Enterprise" and had straight flutes. The record establishes that JR and Brady took photographs of the component parts of the meat grinder that JR purchased. Some of the photographs show that the cylinder component had spiral flutes and none of the photographs reveal that the name "Enterprise" was embossed on the cylinder. This is circumstantial evidence upon which the defendant may rely in attempting to convince the jury that the plaintiff cannot prove that EMC made the cylinder component of JR's meat grinder.

  The plaintiff argues that it need not prove that EMC manufactured the cylinder because other companies utilizing EMC's design created cylinders that fit the motor unit component of the meat grinder purchased by JR. According to the plaintiff, it would be sufficient to impose liability on the defendant if the subject cylinder was fabricated based on an EMC design. Whether the cylinder purchased by JR is an EMC manufactured cylinder or whether it was one that was fabricated based upon EMC's design is an issue of fact for the triers of fact and does not permit summary judgment to be granted to the defendant.

 Spoliation of Evidence

  Spoliation is "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). A party to litigation has an obligation to retain evidence that it knows or reasonably should know may be relevant to actual or foreseeable litigation. See Kirkland v. New York City Housing Authority, 236 A.D.2d 170, Page 19 174, 666 N.Y.S.2d 609, 612 (App. Div. 1st Dep't 1997); Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). Sanctions may be imposed for both the intentional and negligent loss or destruction of evidence. See Squitieri v. City of New York, 248 A.D.2d 201, 203, 669 N.Y.S.2d 589, 590 (App. Div. 1st Dep't 1998); Kirkland, 236 A.D.2d at 173, 666 N.Y.S.2d at 611: Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir. 2002).

  Here, the defendant maintains that JR and Brady, the attorney who assisted the plaintiff, had a duty to preserve the components of the meat grinder because they knew litigation was foreseeable. From JR and Brady's conduct in photographing and measuring the meat grinder's components, one can infer that they realized that litigation was foreseeable and that a need existed to preserve the meat grinder or at least to record information about it in photographs and in written form. However, the record evidence indicates that JR never told Rosario of the need to preserve the meat grinder's components because of the injury that his son suffered to his left hand. Therefore, when a health inspector directed Rosario to get rid of the cylinder because it posed a sanitation risk, he took no steps to retain that cylinder. The defendant contends that because it is unable to do any independent inspection, analysis or measurement of the cylinder, it has been prejudiced by the plaintiffs failure to retain that item. This is particularly so because of the contested issue of product identification. The defendant maintains that the appropriate sanction for the plaintiffs negligent loss of the meat grinder's cylinder is dismissal of the plaintiff's complaint. See Mudge. Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp., 221 A.D.2d 243, 633 N.Y.S.2d 493 (App. Div. 1st Dep't 1995)(plaintiff's negligent loss of key piece of evidence warrants dismissal of complaint). Page 20

  The plaintiff contends that the defendant has not been prejudiced because it can rely upon circumstantial evidence, to attempt to establish its contention that there is no proof that the cylinder that is lost was an EMC manufactured cylinder or one that was fabricated based on EMC's design.

  The Court finds that the defendant has been prejudiced by the plaintiffs failure to retain the cylinder component of the meat grinder that JR purchased on the Bowery. It cannot perform its own inspection and analysis on the absent cylinder in order to obtain evidence to support its defense. However, the fact that the plaintiff failed to preserve the cylinder does not by itself mean that the plaintiffs action must be terminated. See Treston v. Allegretta, 181 A.D.2d 470, 471, 581 N.Y.S.2d 289, 290 (App. Div. 1st Dep't 1992); Otis v. Bausch & Lomb Inc., 143 A.D.2d 649, 650, 532 N.Y.S.2d 933, 934 (App. Div.2d Dep't 1988). Dismissal of an action as a sanction for failing to preserve evidence is a drastic sanction. Where, as here, product identification is at issue, dismissal need not be imposed as a sanction for lost or destroyed evidence if circumstantial evidence is available to address that issue. See Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d at 601, 640 N.Y.S.2d at 862. As has been discussed above, there is circumstantial evidence available to the defendant upon which it can rely in its defense to the plaintiffs claim that the cylinder was either manufactured by EMC or fabricated based on EMC's design. Therefore, the harsh sanction of dismissal is not warranted based on the facts and circumstances in this case.

 CPLR Article 16

  CPLR Article 16, in pertinent part, provides the following: Page 21

 

Notwithstanding any other provision of law, when a verdict or decision in an action or claim for personal injury is determined in favor of a claimant in an action involving two or more tort-feasors jointly liable or in a claim against the state and the liability of a defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed that defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss; provided, however that the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action (or in a claim against the state, in a court of this state); and further provided that the culpable conduct of any person shall not be considered in determining any equitable share herein to the extent that action against such person is barred because the claimant has not sustained a "grave injury" as defined in section eleven of the workers' compensation law.
CPLR § 1601(1)

  In essence, CPLR Article 16 forces a plaintiff to join in an action all culpable parties over whom a court may exercise personal jurisdiction. This is so because the relevant culpability of nonparties must be considered by the trier of fact when determining how to apportion liability unless the plaintiff is able to demonstrate an inability despite the exercise of due diligence to obtain personal jurisdiction over a nonparty.

  In this case, the defendant contends that third-party tort-feasors include: JR, who it is alleged negligently entrusted the meat grinder to the plaintiff; the vendor of the meat grinder, whose identity JR was unable to provide to the parties; and Brady, who it is alleged breached his duty to safeguard the lost cylinder component of the meat grinder. For his part, the plaintiff asserts that the defendant is wrong when it claims that third parties caused his injury. According to the plaintiff, his injury was caused by defendant's 2 1/2-inch meat grinder cylinder. In making this claim, the plaintiff appears to have overlooked completely JR's conduct. By placing the Page 22 meat grinder on a stool or table that was low to the ground and turning his back on the meat grinder while it was operational, JR created a situation in which RR could access the meat grinder and use it to injure himself by inserting his hand into its grinding mechanism via the cylinder.

  In Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340 (1978), the New York Court of Appeals stated that "a parent owes a duty to third parties to shield them from an infant child's improvident use of a dangerous instrument, at least, if not especially, when the parent is aware of and capable of controlling its use." Id at 338, 344. The court also explained that the harm to third parties includes the financial harm that results from exposure to liability. Whether a particular object is a dangerous instrument depends on several factors. Those include the characteristics of the object and the age, intelligence, disposition and prior experience of the person who uses the instrument. See Larsen v. Heitmann, 133 A.D.2d 533, 519 N.Y.S.2d 904, 905 (App. Div. 4thDep't 1987)(quoting Alessi v. Alessi, 103 A.D.2d 1023, 1024, 478 N.Y.S.2d 396, 397 [App. Div. 4th Dep't 1984]).

  Based on the facts in the instant case, the Court finds that RR's age (four years old), intelligence, disposition and prior experience at the time he suffered his injury made the electrically-powered meat grinder, while in his hands, a dangerous instrument. However, the tort of entrusting or permitting the use of an instrument made dangerous by the age, intelligence, disposition and experience of the user requires that a parent be aware of and capable of controlling the object's use. In the case at bar, JR was unaware that his son had entered the kitchen and used the meat grinder, although he was capable of controlling its use. Therefore, JR cannot be said to have entrusted the meat grinder to RR negligently. Consequently, CPLR Page 23 Article 16 cannot be invoked with respect to JR's conduct.

  The plaintiff alleges that CPLR Article 16 cannot be invoked with respect to the vendor from whom JR purchased the meat grinder because the vendor was a New York corporation. Therefore, the plaintiff maintains he could not, with due diligence, obtain jurisdiction over the vendor in this action because diversity of citizenship would be destroyed and the action would be dismissed. This, of course, presupposes that the entity from whom JR purchased the meat grinder, and which he cannot identify, is or was a New York corporation over which the plaintiff alleges personal jurisdiction cannot be obtained with the requisite diligence. Since no competent evidence is before the Court that identifies the vendor of the meat grinder, the citizenship of the vendor is unknown. Whether personal jurisdiction over the vendor could be obtained is also unknown.

  In any event, the plaintiff contends that even if the vendor could have been brought into the action, it would be of no use to the defendant because the vendor, as the seller or distributor of a defective product, would have an implied right of indemnification against the defendant manufacturer of the product. See Godoy v. Abamaster of Miami, Inc., 302 A.D.2d 57, 62, 754 N.Y.S.2d 301, 306 (App. Div.2d Dep't 2003).

  However, CPLR Article 16 does not state that a defendant is barred from taking advantage of the statute when an implied right of indemnification may exist. Moreover, the implied right of indemnification would only be available to a distributor who has no culpability. In the case at bar, a used meat grinder was purchased. JR testified that he does not know whether the vendor altered or modified the cylinder component of the meat grinder before it was sold to him. However, Brady stated that the feed tray opening fit into the cylinder opening "snugly," Page 24 even though he measured the openings and determined that each was the same size. This fact may indicate that either Brady's measurements were incorrect or that the openings were altered to enable the two components to fit "snugly." If the meat grinder's cylinder was substantially altered or modified by the vendor, such that the altered or modified cylinder was the proximate cause of the plaintiffs injury, that fact would have a bearing on the implied right of indemnification, to which the plaintiff points and also on the defendant's liability under the strict products liability theory being advanced by the plaintiff. See Hernandez v. Biro Manufacturing Co., 251 A.D.2d 375, 376, 674 N.Y.S.2d 72, 74 (App. Div.2d Dep't 1998). Under these circumstances, a fact question exists for a jury to resolve concerning whether the vendor was a tort-feasor whose conduct caused any non-economic loss the plaintiff may have suffered and whether personal jurisdiction over the vendor could have been obtained by the plaintiffs exercise of due diligence.

  The record evidence does not establish definitively the relationship that existed between Brady and the plaintiff when he rendered assistance to him by photographing and storing JR's meat grinder. It is not clear whether Brady was ever retained to represent the plaintiff and, if so, when. In any event, the defendant's claim that the spoliation of evidence in this case is, in part, attributable to Brady and makes him a tort-feasor is baseless. This is so because New York has not recognized third-party spoliation of evidence as a tort. See Metlife Auto & Home v. Joe Basil Chevrolet, Inc., 2004 N.Y. Slip Op. 01145, 2004 WL 330073 (Feb. 24, 2004). Therefore, CPLR Article 16 could not be invoked by the defendant with respect to Brady's conduct.

  Based on the above analysis, the plaintiffs motion for summary judgment, through which he seeks to bar the defendant from taking advantage of the provisions of CPLR Article 16, should Page 25 be denied because material issues of fact concerning the vendor exist that preclude determining, as a matter of law, that the defendant cannot take advantage of the benefits of CPLR Article 16.

  IV. RECOMMENDATION

  For the reasons set forth above, the defendant's motion for summary judgment should be denied and the plaintiffs cross-motion for summary judgment, seeking to bar the defendant from invoking the provisions of CPLR Article 16, should also be denied because material issues of fact abound which make it inappropriate to enter judgment as a matter of law for either party.

 

V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, United States District Judge, 500 Pearl Street, Room 1340, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WELL PRECLUDE APPELLATE REVIEW. See Thomas v. Am. 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Page 26 Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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