The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This case is before the Court on defendant's motion (# 39) seeking an Order pursuant to Federal Rule of Evidence 702 precluding admission of testimony by plaintiff's liability expert, Dennis A. Toaspern ("Toaspern"), and granting summary judgment dismissing plaintiff's complaint. For the reasons that follow, the Court grants defendants' application for summary judgment.
Plaintiff Evelyn M. Brock was injured in a motorcycle accident on August 11, 2001 near the intersection of Lake Avenue and Driving Park Boulevard in Rochester, New York. At the time of the accident, she was operating a Harley-Davidson 1996 model FXSTSB Softail Springer "Bad Boy" motorcycle, and she contends that a part failed causing the front wheel to lock up. Plaintiffs filed suit against defendants in State court, and defendants removed the case to this Court on July 29, 2003. Plaintiffs' complaint asserts claims in negligence, strict products liability, breach of warranty and a manufacturing defect, the last claim being added following Toaspern's deposition. Specifically, plaintiffs allege three causes of action:
The Defendants,., were careless and negligent in the manufacture, design, testing, and inspection of its motorcycles, and more particularly, the motorcycle used by the Plaintiff and other motorcycles manufactured by the defendant [sic] of similar make, model and design.
The motorcycle manufactured and/or distributed by defendant . . . was defective.
Defendants impliedly and/or expressly warranted to Plaintiffs that the motorcycle was of good workmanship and suitable for the purpose for which it was intended.. Defendants breached their implied and/or express warranty. (Compl. ¶¶ 9, 12, 15 & 16.) Toaspern filed a report in which he concluded that Ms. Brock's accident was caused by the failure of a mounting bolt, referred to by the parties as a "pivot shaft." He further concluded that the pivot shaft failed prior to the accident, causing the front fender to rotate into the tire and lock up the front wheel.
Defendants argue in their Rule 702 application that Toaspern lacks the proper qualifications to be an expert in this matter and that he failed to utilize reliable methodology in reaching his opinions. (Defs.' Mem. of Law at 3.) Specifically, defendants argue that Toaspern did nothing to establish what caused the pivot shaft to fracture, that his report does not assert a design or manufacturing defect, and that he does not propose an alternative design for the motorcycle's front fender assembly or its component parts. (Id. at 3-4.)
In their Statement of Disputed Facts, plaintiffs contend that Mr. Brock never disassembled or modified any portion of the front fender prior to the accident, and that neither he nor Anthony Cenzi*fn1 disassembled the right "dog bone" assembly and reassembled it after the accident. Further, plaintiffs state that prior to the accident, Ms. Brock rode the motorcycle on Lake Avenue for about one mile while that road was under construction, and encountered an extremely rough ride.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986).
Once that burden has been met, the burden then shifts to the non--moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. ...