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BAH v. NORDSON CORP.

August 1, 2005.

ISATOU BAH, Plaintiff,
v.
NORDSON CORP., Defendant. NORDSON CORP., Third-Party Plaintiff, v. PLAZA PACKAGING CORP., Third-Party Defendant.



The opinion of the court was delivered by: DEBORAH BATTS, District Judge

OPINION

Plaintiff Isatou Bah ("Plaintiff") brings this product liability action against Defendant Nordson Corporation ("Nordson") seeking damages for on-the-job injuries she suffered when she was burned by hot glue discharged from a machine designed and manufactured by Nordson. Nordson in turn brings a third-party negligence claim against Plaintiff's employer, Plaza Packaging Corporation ("Plaza"), seeking indemnification and/or contribution for any judgment that Plaintiff obtains against Nordson. Presently before the Court are Nordson's motion to exclude the testimony of Plaintiff's expert on design defects and inadequate warnings, and motions for summary judgment on Plaintiff's claims against it and on its third-party claim against Plaza. For the following reasons, Nordson's motion to exclude Plaintiff expert's testimony is GRANTED IN PART AND DENIED IN PART, and its motions for summary judgment are DENIED.

I. BACKGROUND

  A. Plaintiff's Accident and Nordson's Glue-Dispensing Machine

  Plaintiff began working for Plaza in 1990, where she helped to assemble and pack cardboard boxes at Plaza's factory in the Bronx, New York. (Def. 56.1 Stmt ¶¶ 2; 17-18, 20; Pl. 56.1 Stmt ¶¶ 2, 17-18, 20; Continued Deposition of Isatou Bah ["Bah Cont. Dep."] at 61). One of Plaintiff's box-assembly tasks was to remove glued cardboard boxes from a moving conveyor and insert a platform inside each of them. (Def. 56.1 Stmt ¶¶ 17, 20; Pl. 56.1 Stmt ¶¶ 17, 20; Deposition of Isatou Bah ["Bah Dep."] at 54).

  The boxes were automatically glued together by a Nordson Model 2300 glue dispensing machine mounted on the conveyor. (Def. 56.1 Stmt ¶ 6; Pl. 56.1 Stmt ¶ 6; Deposition of Luis Altamirano ["Altamirano Dep."] at 14-16). Nordson is one of only three American companies that manufacture hot glue dispensing machines. (Def. 56.1 Stmt ¶¶ 6-7; Pl. 56.1 Stmt ¶¶ 6-7).*fn1 When a cardboard box was placed on the moving conveyor, it passed over an electrical sensor that triggered the Nordson 2300 dispenser to discharge hot melt glue out of nozzles on an extrusion gun mounted above the conveyor and into the box at a temperature that was never lower than the boiling point of water. (Def. 56.1 Stmt ¶¶ 8-9, 11; Pl. 56.1 Stmt ¶¶ 8-9, 11; Altamirano Dep. at 14-16; Deposition of Greg Gabryszewski ["Gabryszewski Dep."] at 10-11). Before being dispensed, the glue traveled from a reservoir tank located underneath the conveyor, through a hose, into the extrusion gun. (Pl. 56.1 Stmt ¶ 15, Ex. B (Expert Report of Dr. Anthony Storace) at 2). During her employment at Plaza, Plaintiff herself never operated or maintained a conveyor or Nordson 2300 glue dispensing machine. (Pl. 56.1 Stmt ¶ 20; Reply Affidavit of Howard Strongin ["Strongin Reply Aff."] ¶ 5).

  The Nordson 2300 unit in use at Plaza's factory on the day of Plaintiff's accident — hereinafter, the "subject machine"-*fn2 was manufactured in 1987. (Def. 56.1 Stmt ¶ 10; Pl. 56.1 Stmt, Ex. C (Affidavit of Anthony Storace ["Storace Aff."]) ¶ 7). The machine contained several warning labels. At the bottom, underneath the reservoir tank, was a label that directed the user to "remove pressure before opening" the machine's filter flush*fn3 and removing the adhesive filter, and warned that "failure to follow" such instructions "may result in serious burns." (Def. 56.1 Stmt ¶ 15; Pl. 56.1 Stmt ¶ 15, Ex. B, Photograph 10; Gabryszewski Dep. at 22). The same label also warned that the exposed metal area underneath the reservoir tank was greater than 60 degrees Celsius. (Pl. 56.1 Stmt, Ex. B, Photograph 10; Gabryszewski Dep. at 21). The hose meanwhile contained a red paper tag warning that "[f]ire, injury or equipment damage" could result if "cleanout materials" did not meet certain "requirements." (Pl. 56.1 Stmt ¶ 15, Ex. B, Photograph 14).*fn4

  The subject machine's extrusion gun and nozzles did not contain any warning labels. However, the Nordson 2300 Technical Manual, a copy of which was kept in the Plaza factory at the time of Plaintiff's accident, provided safety instructions for cleaning the machine's nozzles. Specifically, the Manual warned that "failure to relieve system pressure could result in serious burns when the nozzle is removed." (Pl. 56.1 Stmt ¶¶ 12-13, Ex. A (Nordson 2300 Technical Manual) at 5-6; Def. 56.1 Stmt ¶ 12). The Manual further instructed that the nozzles were to be cleaned by removing them from the extrusion guns, placing them in a cleaning solvent, and then cleaning their bores with a "pin-type probe inserted into the nozzle in a direction opposite to the flow of adhesive." (Pl. 56.1 Stmt, ¶ 13, Ex. A at 5-6). Alternatively, the Manual specified, the nozzle could be heated with a flameless electric heat gun and wiped with a clean cloth, or submerged in ultrasonic or chemical cleaner. (Id.). More generally, the Manual also warned that the extrusion guns "contain[ed] energized electrical components with potentials that could be fatal," and that machine users should "[d]isconnect and lock out input electrical power before maintenance on this equipment." (Strongin Reply Aff., Ex. P, Attachment E at 1).

  While Plaintiff herself never received a copy of the Manual or any training concerning the operation and safety of the subject machine (Def. 56.1 Stmt ¶ 20; Pl. 56.1 Stmt ¶ 20), she was aware prior to her accident of just how hot the glue in the machine was. In 1995, while Plaintiff was placing a box on the conveyor to feed under one of Plaza's Nordson glue dispensing machines,*fn5 the back of her right hand was burned by glue from the machine. (Def. 56.1 Stmt ¶ 18; Pl. 56.1 Stmt ¶ 18).

  On the morning of September 27, 1999, Plaintiff was working next to the subject Nordson 2300 machine, removing automatically-glued boxes from the conveyor and inserting a platform inside each of them. (Def. 56.1 Stmt ¶ 17; Pl. 56.1 Stmt. ¶ 17). After returning from a break at around 10:30 AM, Plaintiff and several of her co-workers discovered that one of the subject machine's two working nozzles*fn6 was not working properly, at which point one of them called for Luis Altamirano, a Plaza mechanic, who discovered that the nozzle was clogged. (Deposition of Fara Castillo ["Castillo Dep."] at 27-28; Altamirano Dep. at 91; Bah Cont. Dep. at 55).

  By September of 1999, Altamirano had been a mechanic at Plaza for fifteen years. (Altamirano Dep. at 12, 49). During his tenure at Plaza, he had never read any of the maintenance instructions in the Nordson 2300 Technical Manual but instead learned how to repair and clean Nordson glue dispensing machines exclusively through on-the-job training. (Id. at 33-34, 47-48, 51, 84-85).*fn7 Moreover, the procedure Altamirano followed when cleaning clogged nozzles was different from the one described in the Manual. Rather than removing the nozzle from the extrusion gun and submerging it in a cleaning solvent, Altamirano would simply unscrew the "clean out screw" at the top of the nozzle*fn8 while the nozzle was still attached to the machine and the machine was still turned on, and then clean the clogged glue out of the nozzle with a needle. (Id. at 19-20, 23, 33, 85-86; Def. 56.1 Stmt ¶ 30; Pl. 56.1 Stmt ¶ 30). Plaza mechanics used this alternative cleaning procedure because it only took a short time, while turning machine off during cleaning would result in long delays afterwards as the machine took time to reheat. (Altamirano Dep. at 19, 86; Def. 56.1 Stmt ¶ 31; Pl. 56.1 Stmt ¶ 31).

  Thus, when Altamirano discovered a clog in one of the subject machine's nozzles on September 27, 1999, he retrieved a screwdriver and pin and began to unscrew the clean-out screw from the top of the nozzle while the machine was still turned on. (Altamirano Dep. at 94). However, the conveyor was turned off. (Id. at 94-95). Altamirano quickly removed the screw, but while he was cleaning the nozzle with the pin, Plaza employee Fara Castillo turned the conveyor back on, and an unidentified employee then placed a box on it. (Def. 56.1 Stmt ¶¶ 24-26; Pl. 56.1 Stmt ¶¶ 24-26). Within a matter of seconds, the box moved over the subject machine's electronic sensor, activating the machine's pump. The pump in turn pressurized the glue in the machine and pumped it out of the opening on the top of the nozzle where the clean-out screw had been. (Def. 56.1 Stmt ¶¶ 27; Pl. 56.1 Stmt ¶ 27; Altamirano Dep. at 27). A stream of hot glue arched into the air and landed on Plaintiff, who was standing six feet away from the subject machine. (Def. 56.1 Stmt ¶¶ 27-28; Pl. 56.1 Stmt ¶¶ 27-28). Plaintiff sustained burns on the right side of her neck and her right arm. (Def. 56.1 Stmt ¶ 29; Pl. 56.1 Stmt ¶ 29; Bah Dep. at 14-15; Affidavit of Alan Sirota ["Sirota Aff."] ¶ 14, Exs. C-I (Examining Physicians' Reports)). Following Plaintiff's accident, part of a cardboard box was placed over the subject machine's extrusion gun to prevent hot glue from shooting upwards out of a nozzle clean-out opening. (Pl. 56.1 Stmt, Ex. B, Photograph 3; Storace Aff. ¶ 13) B. The Present Action

  On October 13, 2000, Plaintiff filed suit against Nordson in New York State Supreme Court, Bronx County, asserting causes of action for negligence, strict product liability, and breach of implied warranty based on the allegedly defective design of the subject glue dispensing machine and Nordson's alleged failure to provide adequate warnings about the danger of cleaning the nozzles while the machine was in operation. (Verified Complaint ["Compl."] ¶¶ 6, 8-10, 12-14; Plaintiff's Responses to First Set of Interrogatories, Response no. 7). Nordson removed the case to this Court on November 28, 2000, and filed its Answer on December 2, 2000.

  Thereafter, on March 29, 2001, Nordson filed a Third-Party Complaint against Plaza, alleging that Plaza had been negligent in its use and operation of the subject machine, in failing to provide adequate training and instruction in the safe use of the machine, in its inspection, maintenance, cleaning and repair of the machine, and in its hiring of individuals to inspect, maintain, and repair the machine. (3rd Party Compl. ¶¶ 17-20).*fn9 Thus, Nordson seeks indemnification and/or contribution from Plaza for any judgment that Plaintiff obtains against it in the present action. (Id. ¶ 27).

  C. Plaintiff Expert's Testimony

  Plaintiff has retained Dr. Anthony Storace to offer expert testimony on the alleged defectiveness of Nordson's design of the subject machine and the alleged inadequacy of Nordson's safety warnings concerning potential dangers associated with nozzle cleaning. Dr. Storace received his Ph.D. in Mechanical Engineering from the Polytechnic Institute of New York in 1977. He is licensed as a professional engineer in the State of New York, has taught a course in biomechanics at New York Medical College, and belongs to the American Society of Mechanical Engineers, Institute of Electrical and Electronic Engineers, and American Society of Safety Engineers. (Deposition of Anthony Storace ["Storace Dep."] at 60, 66-68; Affidavit of Howard Strongin ["Strongin Aff."], Ex. K (Storace Curriculum Vitae)).

  Since 1991 Dr. Storace has worked as an independent contractor for Inter-City Testing and Consulting Corporation in Mineola, Minnesota, rendering expert engineering opinions in several personal injury lawsuits involving machine failure and performing other non-litigation related engineering consulting work. (Strongin Aff., Ex. K; Storace Dep. at 20-21, 64-65). From 1993 to 1995, he was also Director of Research and Development for the Instrument/Sensor Division of Dresser Industries in Stamford, Connecticut, where he helped design sensor applications in machines used for hot adhesive dispensing, automobile paint spraying, coated paper spraying, wastewater processing, and hot asphalt liquid spraying. (Storace Aff. ¶¶ 6-7; Strongin Aff., Ex. K). From 1979 to 1985, Dr. Storace worked as the engineering manager of the Research and Development group of a Connecticut company called AMF, where he developed and performed safety and function evaluations for a variety of industrial and sports leisure products. (Strongin Aff., Ex. K.).

  On August 18, 2000, Dr. Storace visited Plaza's factory where he spent two hours inspecting and photographing the subject machine and another Nordson 2300 unit. (Storace Dep. at 78-79; Pl. 56.1 Stmt, Ex. B at 1). Thereafter, Dr. Storace produced his expert report in which he opines that the Plaintiff's accident "was the result of design and warning defects in the subject glue dispenser." (Pl. 56.1 Stmt, Ex. B at 3). The subject machine was defectively designed, Storace argues, because it lacked "a means to prevent glue extrusion from the cleanout orifice." (Id.). Such means, he contends, could "take the form of an interlock switch that prevents the machine from being pressurized unless the cleanout screw is in place" or a "guard" over the cleanout screw orifice "to prevent inadvertent glue ejection." (Id.). Interlocks were, he contends, commercially available and economically and technologically feasible in 1987. (Storace Aff. ¶¶ 7-9).

  At his deposition Dr. Storace testified that the guard should be made of steel, and he discussed a third potential protective means, a diffuser placed over the nozzle's cleanout orifice that would cause any glue extruding from such opening to be diffused into a mist rather than "maintaining the integrity of a stream." (Storace Dep. at 185). As for the costs of his proposed safety devices, he testified that an interlock would cost "$5.00 to $10.00," a guard would cost "a couple of dollars" based on "the cost of steel," and the costs of the diffuser would be "minor" because Nordson "probably ha[d] the tooling in-house." (Id. at 188-189). His opinion that Nordson likely had the tooling for the nozzle diffuser "in-house" was in turn based on his knowledge of the equipment "generally found" in the machine shops of corporations. (Id. at 189). Storace also testified that the interlock switch had a rate of error of "one failure in 10 million applications" and that the error rate concept itself was inapplicable to a nozzle guard. (Storace Dep. at 167-169, 171). However, he was not asked about and did not provide any testimony on error rates for diffusers.

  Dr. Storace did not create prototypes or drawings of any of his proposed safety devices, nor did he test or review others' tests of any of these devices on a Nordson 2300 or similar hot glue dispensing machine. (Def. 56.1 Stmt ¶¶ 35, 37; Pl. 56.1 Stmt ¶ 35; Storace Dep. at 165, 170, 173, 175, 186). Storace also did not consult industry or OSHA standards concerning hot glue dispensing machines, inspect the glue application machines of Nordson's competitors, or obtain peer review of his or other engineers' opinions concerning his or similar proposed safety devices. (Def. 56.1 Stmt ¶¶ 38-40, 48; Pl. 56.1 Stmt ¶¶ 39-40, 48; Storace Dep. at 96-98, 166).

  Storace himself did previously employ both a sensor interlock and diffuser on nozzles with removable cleanout caps as part of a hot adhesive-dispensing machine*fn10 he helped design while at Dresser Industries. (Storace Aff. ¶¶ 6, 14; Storace Dep. at 186-187). Moreover, since 1980, Storace has "participated in the design of many successful sensor applications" for safety interlocks in machines that, like the subject machine, required the "pneumatic spraying of a viscous liquid through a nozzle." (Storace Aff. ¶¶ 7, 9). However, he is not aware whether a nozzle guard like the one he proposes has ever been employed on any glue applicator. (Def. 56.1 Stmt ¶ 47; Pl. 56.1 Stmt ¶ 47; Storace Dep. at 165-166). Rather, he based his conclusion about the guard's technical feasibility on the fact that, following Plaintiff's accident, Plaza fashioned a "crude version of such a device" by cutting a cardboard box to fit around the subject machine's extrusion guns. (Storace Aff. ¶ 13).

  As for the adequacy of Nordson's consumer safety warnings, Storace contends that a warning label should have been affixed to the subject machine's extrusion gun warning users that (1) nozzles should not be cleaned while still affixed to the gun, (2) no part of the machine should be removed before turning off the power, and (3) system pressure should be reduced to zero before removing nozzles from the gun. (Pl. 56.1 Stmt, Ex. B at 4; Storace Dep. at 139). However, he did not proffer any specific language for such ...


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