The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs Joseph Yaccarino ("Yaccarino") and Tracy Yaccarino, husband and wife, bring this action against Defendant Isringhausen, Inc. ("Isringhausen") to recover damages for back injuries Yaccarino suffered from an accident in which a bus operator seat, allegedly made by Isringhausen, became detached from its mounting and threw Yaccarino to the floor while he was driving a municipal bus.*fn1 Plaintiff Yaccarino alleges claims for negligence and strict liability for product defect. Under the negligence claim, Yaccarino alleges that Isringhausen failed to warn Plaintiffs of the potential dangers of its product, namely the weight limit of the seat.*fn2 Tracy Yaccarino also asserts a claim for lack of consortium.
Presently before the Court is Defendant Isringhausen's motion for summary judgment dismissing the complaint pursuant to Federal Rule of Civil Procedure 56.*fn3 For the reasons that follow, Defendant's motion is granted.
The following facts are drawn from the complaint, Local Rule 56.1 statements, depositions, and affidavits submitted in connection with these motions. Disputes are noted.
During all relevant times, Joseph Yaccarino ("Yaccarino") was employed by the New York City Transit Authority ("NYCTA") as a bus operator. Defendant Isringhausen is a Michigan corporation with its principal place of business in Michigan, and is engaged in the business of assembling and distributing finished driver's seats for installation on buses.*fn4 This Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1) since Plaintiffs and Defendant are citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs.*fn5
On March 21, 2003, Yaccarino was driving an NYCTA municipal bus, without passengers, to Staten Island, New York. As Yaccarino exited the Staten Island Expressway moving approximately 10 to 15 miles per hour, the bus operator seat malfunctioned, causing the top portion of the seat in which he was sitting to detach from the base at the slide assembly and lean toward the center of the bus.*fn6 Held in place only by his seatbelt, Plaintiff was able to stop the bus, at which point the seat and Plaintiff fell to the floor. Plaintiff sustained serious injuries to his back as a result of the fall.
Immediately after the incident, Plaintiff looked at the seat and observed that the tracks at the base of the seat, which were used for adjusting the seat forward and backward, were bent, especially on the left side.*fn7 Yaccarino then radioed the bus depot, and non-party Kevin Kolonkowski, an NYCTA investigator, reported to the scene and took photographs of the bus operator's seat. Kolonkowski noticed that four bolts used to fasten the driver's seat to its frame were missing. In his incident report, he attributed the fall to the bolts' absence.
The NYCTA replaced the broken seat later that day with a seat that was not manufactured or sold by Isringhausen. The whereabouts of the broken seat at issue are unknown to both parties and neither party has had an opportunity to inspect the seat since the accident. The parties dispute whether the bus operator seat involved in the accident was an Isringhausen seat, and if so which model of Isringhausen seat it was. While Plaintiff argues that the seat was an Isringhausen seat model 6801/517, Defendant argues the seat was either not made by Isringhausen or that it was an Isringhausen seat model 6800/338.*fn8
The weight limit for the model 6801/517 is not known, though the maximum weight load tested for that model is 264 pounds according to a test report filed on this motion.*fn9 The weight limit for the model 6800/338 is 290 pounds.*fn10 At the time of the incident, Yaccarino weighed 275 pounds. Since the bus involved in the accident was delivered to NYCTA in 1998, NYCTA mechanics performed a number of repairs on the bus operator seat. Maintenance records suggest, and NYCTA witness testimony affirms, that the original seat was replaced in 1999 because it was "broken."*fn11 During the course of much of this litigation, the photographs Kolonkowski had taken of the bus operator seat involved in Yaccarino's fall could not be found. Plaintiffs' counsel showed witnesses photocopies of photographs taken of a bus operator seat, but none of the witnesses, including Yaccarino, Kolonkowski, nor Vincent Gambardello (the NYCTA employee who removed the seat after the incident) could confirm that the seat in the photographs was the seat involved in the fall. In May 2005, the NYCTA produced photographs of a bus operator seat that had been found in an envelope with the name of a dispatcher and with a folder bearing Yaccarino's name, but these photographs have not been authenticated as the photographs Kolonkowski took of the damaged seat from which Yaccarino fell, nor have any witnesses identified the brand and model of the seat pictured in the photographs.
Notwithstanding the parties' numerous opportunities to supplement evidence, uncertainty remains about the identity of the broken seat at issue.*fn12 Since the Magistrate Judge granted Defendant's motion to exclude Plaintiffs' expert testimony on September 29, 2006, Plaintiffs have only submitted evidence concerning the weight load of 264 pounds tested on the Isringhausen seat model 6801/517.
Summary Judgment Standard
Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "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." FED. R. CIV. PRO. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the ...