The opinion of the court was delivered by: William M. Skretny United States District Judge
In this action, Plaintiff Jeffrey T. LaBarge alleges that he was electrocuted on March 1, 2000, while repairing an axle hardening machine manufactured by Defendant Tocco, Inc. ("Tocco"), which had been outfitted with a vacuum contactor manufactured by Joslyn Clark Controls, Inc. ("Joslyn"). Plaintiffs assert that the Tocco Machine and the Joslyn Contactor were defectively designed and manufactured, and that Defendants were negligent in failing to warn of those defects. Currently before this Court are Defendants' Motions for Summary Judgment. In addition to summary judgment, Defendants also seek dismissal of the Complaint based on Plaintiffs' spoliation of key physical evidence and exclusion of the proffered testimony of Plaintiffs' expert. For the reasons set forth below, Defendants' Motions are denied insofar as they seek to dismiss the Complaint based on spoliation and granted in all other respects.
On March 1, 2000, Plaintiff,*fn1 a machine repairman at the American Axle facility in Buffalo, New York, was asked to repair a piece of equipment manufactured by Tocco, which was used to harden steel axles. (Def. Joslyn State., ¶¶ 6, 7).*fn2 Plaintiff alleges that he and other employees with specialized electrical training followed Tocco's instructions for electrically isolating the machine for purposes of carrying out the repair. (Compl., ¶ 8). However, while undertaking repair of the Tocco Machine, Plaintiff suffered electrical shock, which he alleges has left him permanently injured. (Compl., ¶ 9). The Tocco Machine, which was manufactured in the 1960s, had been substantially modified with a new power supply and a programmable logic controller. (Def. Tocco. State., ¶ 4).*fn3 At the time of the accident, the Tocco Machine was outfitted with a vacuum contactor manufactured by Joslyn, which replaced the Square D contactors that were installed on the Tocco Machine when it was manufactured. (Def. Joslyn State., ¶ 7). After the accident, when a new contactor was put onto the Tocco Machine, the machine functioned normally. (Pl.'s State., ¶ 9).*fn4
Following the accident, employees of American Axle, Robert Arnst and Frank Tominich, arranged to have the Joslyn Contactor sent offsite to Grand Eagle Services ("Grand Eagle") for testing. (Def. Joslyn State., ¶ 9). Grand Eagle was asked to report on the condition of the Joslyn Contactor. (Def. Joslyn State., ¶ 20). At Grand Eagle, the Joslyn Contactor was subjected to electrical testing for approximately one-half hour by technician Timothy Monroe. (Def. Joslyn State., ¶ 21). Mr. Monroe attempted to physically separate one of the contacts in the Joslyn Contactor by hand and concluded that it was "fused closed." (Def. Joslyn State., ¶ 22). At no time was the Joslyn Contactor disassembled or subjected to electrical testing to verify that the contact had in fact fused. (Def. Joslyn State., ¶ 22). Mr. Monroe acknowledged several potential causes for the fused contact, including excessive heat due to a loose connection of the electrical cables to the Joslyn Contactor, the application of excessive current to the unit, and/or the continued operation of the unit after losing the "vacuum" surrounding the contacts. (Def. Joslyn State., ¶ 23).
Grand Eagle returned the Joslyn Contactor to American Axle to the attention of Frank Tominich. (Def. Joslyn State., ¶ 10; Pl.'s State., ¶ 1). Mr. Tominich did not receive the Joslyn Contactor personally, but he assumed the part that failed had been replaced, and the device was returned to service. (Pl.'s State., ¶ 2). Another American Axle employee, Michael Cinelli, saw the shipping box for the Joslyn Contactor in the "parts crib" at the American Axle plant in late 2000 or early 2001. (Pl.'s State., ¶ 3; Def. Joslyn State., ¶ 10). Plaintiff returned to work in August of 2000, approximately. (Def. Joslyn State., ¶ 11). To the best of Plaintiff's knowledge, the Joslyn Contactor had been removed and sent to the manufacturer to examine. (Pl.'s State., ¶ 5). Plaintiff never made a request of American Axle to secure or preserve the Joslyn Contactor. (Def. Joslyn State., ¶ 15). In late 2002, the "parts crib" was cleaned out and its contents disposed of. (Def. Joslyn State., ¶ 14). Because American Axle disposed of the Joslyn Contactor, Joslyn has not had an opportunity to examine the device to determine the cause of the alleged failure. (Def. Joslyn State., ¶ 25).
Although the accident occurred on March 1, 2000, Plaintiff did not contemplate consulting with an attorney until late in 2002, at which time he took photographs of the Tocco Machine. (Pl.'s State., ¶ 6; Def. Joslyn State., ¶ 17). At that juncture, Plaintiff was aware that the production line using the Tocco Machine was being replaced and would eventually be scrapped. (Def. Joslyn State., ¶ 16). Approximately six months after Plaintiff photographed the Tocco Machine, it was taken out of service by American Axle. (Pl.'s State., ¶ 6).
Plaintiffs claim that at the time Defendants received notice of the lawsuit and removed the matter to federal court, the Tocco Machine was available for inspection. (Pl.'s State., ¶ 7).*fn5 Sometime shortly thereafter, the Tocco Machine was scrapped such that the parties have been unable to inspect it. (Def. Tocco State., ¶¶ 3, 5). None of Plaintiff's photographs of the Tocco Machine show its serial number or the full extent of its modifications. (Def. Tocco State., ¶ 4).
On March 27, 2005, Plaintiffs' expert, Robert Kremens, Ph.D., rendered a report in which he opined that "[t]he most likely cause of the accident was the fused [Joslyn Contactor] that allowed the current to flow in the alternate station. . . ." (Def. Joslyn State., Ex. K, p. 1). Specifically, Dr. Kremens testified that the "over travel spring" located inside the Joslyn Contactor vacuum bottle "may have failed" causing fusion of the contacts, and that this was the "most likely cause" of the accident. (Def. Joslyn State., ¶ 35). Dr. Kremens did not render an opinion as to the electrical isolation of the Tocco Machine or the adequacy of the warnings on the machine or the contactor. (Def. Tocco State., ¶ 7). Dr. Kremens never examined the Joslyn Contactor, and has never seen a contactor of the model and style at issue in this case, other than in photos. (Def. Joslyn State., ¶¶ 28, 29). Moreover, Dr. Kremens never examined the Tocco Machine or its component parts, other than in the photos taken by Plaintiff. (Def. Joslyn State., ¶ 31).
Defendant Joslyn's expert, John W. Olsen, opined that Mr. LaBarge's accident would not have occurred "[h]ad the machine been designed so that high voltage conductors were not routed through the area where [he] was working." (Def. Tocco Supp. State., ¶ 3). Mr. Olsen determined, among other things, that: (1) the lockout procedures of American Axle did not meet minimum industry standards at the time of the accident and, if proper procedures would have been implemented, the accident would not have occurred (Def. Joslyn State., ¶ 47); (2) there was insufficient tangible evidence to determine the cause of the alleged fused contact, but that the most reasonable cause would be the electrical conditions to which the Joslyn Contactor was subjected (Def. Joslyn State., ¶ 48); and (3) ultimately, the precise cause of the alleged failure could not be determined without seeing the machine or the contactor. (Def. Joslyn State., ¶ 50).
Plaintiffs filed this action on February 7, 2003, in the New York State Supreme Court, County of Genesee. On March 3, 2003,Defendants removed this case to the United States District Court for the Western District of New York. On October 26, 2005, Defendant Tocco filed a Motion for Summary Judgment. In addition to summary judgment, Defendant Tocco's Motion also sought dismissal of the Complaint based on Plaintiffs' spoliation of the evidence.*fn6 On October 31, 2005, Defendant Joslyn filed a Motion for Summary Judgment, which also sought to dismiss the Complaint on ...