The opinion of the court was delivered by: Brieant, J.
Before the Court in this removed product liability and personal injury case controlled by New York Law, is a Motion filed by Defendant filed on February 27, 2007 (Doc. 48) for Summary Judgment and to Exclude an Expert Witness Report.
The standards for granting summary judgment in this Circuit are so well known as to require no citation. Where, as here, on all the evidence presented, viewed most favorably to the non-moving party, no reasonable juror could find a duty of due care, its breach, or causation, summary judgment must be granted.
The following facts are either undisputed or presumed true for purposes of this motion only. At relevant times, plaintiff Juan Oquendo was a production employee of the Altman Stage Lighting Company in Yonkers, NY, (Altman) and an ordinary user of a "Cincinnati 90AFX8" hydraulic press brake ("Press Brake") manufactured by Defendant Cincinnati, Inc. ("Cincinnati"). The machine is used for the purpose of bending metal, and has a ninety ton capacity of pressure exerted between a bed/base and a "ram," which comes down producing the force needed to bend a metal product. Altman designs and manufactures industrial lighting equipment and uses the press brake in the course of its production. Altman purchased the Press brake new from Cincinnati in 1989.
William Bosak was an employee of Altman since 1989 and with Plaintiff was one of two individuals who was allowed at relevant times to work on the press brake. It was he who trained and supervised Mr. Oquendo's work with the press brake at Altman.
Defendant had no maintenance contract for the routine inspection or repair of the press brake, although such services were available for a fee. On occasion, repair work was done in house by Mr. Bosak assisted by Plaintiff. Cincinnati made regular "courtesy calls" at Altman's plant, usually, but not always including an inspection and/or service of the machine, and responded from time to time when requests for parts or service were issued by Altman.
Under familiar principles, to the extent that the Affidavit submitted by Plaintiff in opposition to the pending motion differs from his sworn testimony at his deposition held September 27, 2006, the deposition testimony controls. On July 6, 2003, Mr. Oquendo who had been employed at Altman since 1989 was operating the press brake. He had used the press brake for more than two years. At the time of his injury, he was bending metal to form a frame for a cue light measuring 6" x 6" x 6" and with a depth of 3/4 of an inch. He was cutting strips about 3/4 of an inch wide and 2 feet long on another machine, taking them to the press brake and bending them. This was the sort of work which Mr. Oquendo performed on a regular basis at Altman. He went to work at 8:30 A.M., and was injured mid-morning, when he alleges that as he was positioning a partially formed piece by pressing the piece against the back gauge, the gauge moved back, causing him to lose his balance and to lean forward into the point of operation. He alleges that without his operation of the footswitch, the press ram began to descend and that it trapped and crushed his left arm until he was able to reach a pushbutton control to stop and reverse the motion of the ram and free his arm.
Plaintiff testified that prior to the accident, the machine which was computer controlled would on occasion shut off by itself and while the screen remained on, the ram was inoperable. When the machine powered out, Oquendo's supervisors told him to turn it off, wait awhile and turn it back on and see what happens (Tr. at 58). He stated that he "kept stepping on the foot pedal and the ram would not come down. The pedal would stick and sometimes it would go down without touching it and sometimes would make the machine skip steps" (Tr. at 60). He described the foot pedal as operated by his right foot and that "[i]t has a covering. Your lift it up with your foot. You put your foot into the pedal. And you step on it. And it causes the ram to come down." He testified that on occasion prior to the accident "[y]ou would step on the pedal. It wouldn't go down. The ram wouldn't go down." (Tr. at 61).
Mr. Bozak ordered parts from Cincinnati to remedy the condition, but he himself repaired the foot switch and installed the parts prior to the accident. About a 1-1/2 months or 2 months after Mr. Bozak repaired the foot switch, the machine began shutting off and shaking the gauges or dials. The message on the computer screen would be "ram off." (Tr. at 70). Again, it became the practice to shut the machine down, wait, and restart it. The defect described by Mr. Oquendo seems to be that the ram would not move but when the machine shut off, it could be restarted after a lapse of time (Tr. at 70-71). On the day of the accident, immediately prior to his coffee break, the machine had shut down, but was operable when he returned to work. The machine operated for fifteen minutes prior to the accident. Mr. Bozak adjusted the gauges which were shaking shortly prior to the accident.
After Plaintiff's injury, the press brake was shut down until July 13, 2004, at which time Mr. Gary Remlinger of Cincinnati, inspected it, and reported problems requiring servicing and repair, including the notation: "Found top foot switch contact intermittent. Recommend replacement of the foot switch and cable. Foot switch on indicator light socket broken." 7/13/2004 Repair Report; Remlinger at 177. He also apparently found fifty "fault-error codes" listed on the computer of the press brake on that date, but determined that they were insignificant and didn't record them. Remlinger at 168, 177.
Mr. Gary Remlinger has been a service representative with Cincinnati since 1974. Around 1991 he became Altman's service representative and remained as such through July 2004. He continues to work for Cincinnati. Mr. Remlinger is apparently the only person who had an opportunity to inspect the press brake in the condition in which it existed immediately after the July 6, 2004 incident. Thereafter on August 5, 2004, the foot pedal of the machine was replaced. There is some dispute as to the chain of custody of the removed foot pedal and cable and whether the condition at the time it was presented for inspection in December 2006, with negative results, see infra, was the same as it was in July 2004.
In its motion papers, Defendant argues that Plaintiffs have failed to: (1) offer any reliable expert evidence of how the "intermittent contact" caused the ram to descend without the foot switch being depressed, in contrast to Defendant's expert evidence, or how the condition could cause an alleged delay of indeterminate duration; (2) raise a triable issue of fact regarding their claims of any duty to inspect or repair on the part of Defendant; (3) show causation because Altman, through Bozak, often performed maintenance service and repair without Defendant's involvement, and did so with respect to the foot switch shortly prior to the accident.
Defendants argue that Plaintiffs have failed to show evidence of any participation associated with the repair attributable to Defendant, rather than to Mr. Bosak, and "have not ruled out other potential causes of Mr. Oquendo's accident, including user error" and have relied instead "on unsupported speculation."
Prior to the accident, Mr. Bozak obtained a belt which he installed as a non-factory addon to the machinery, in order to prevent the gauges from undue movement. This may be regarded as a material modification of the machine as manufactured. The gauges continued to shake after the addition of the belt and a grinding sound was heard by the operator, but after the Bozak modification, the gauges "didn't shake as much." (Tr. at 109). Nobody from Cincinnati was called in to see or repair the machine between the installation of the belt by Mr. Bozak and the accident.
Mr. Oquendo testified that when the accident happened, the machine was positioned for Step 2 in the manufacturing process. Step 1 was a ninety degree bend down the full length of a narrow piece of metal and, following the first bend, in order to take the second step, the work piece is positioned perpendicular to the die (Tr. at 112). That is the position it was in at the time of the accident. For reasons not clear to the Court, in his recent Affidavit in Opposition to the Motion for Summary Judgment sworn to by Mr. Oquendo on March 13, 2007, long after his deposition, ...