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