The opinion of the court was delivered by: Feuerstein, J.
On June 10, 2005, plaintiff Irene Sorto-Romero ("Plaintiff" or "Sorto-Romero") commenced this products liability action against defendant Delta International Machinery Corp. ("Defendant" or "Delta"), in New York State Supreme Court, County of Nassau. On November 4, 2005, Defendant timely removed the case to this Court pursuant to 28 U.S.C. § 1332. Defendant now moves for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, Defendant's motion is granted in part and denied in part.
The product at issue is a Delta 2-Speed Heavy Duty Wood Shaper, Model No. 43-375, manufactured by Delta in 1988. A wood shaper is a router (i.e., a woodworking tool used to hollow out an area in the face of a piece of wood) on a table, and is generally classified as an embellishment tool, the primary function of which is to put decorative edges on wood. Wood shapers have a vertical spindle that rotates in either a clockwise or counterclockwise direction, upon which different sized cutting blades, or "cutters," can be attached.*fn2
The shaper had a split-style fence guard consisting of two separate metal plates, covered by a wood facade, that straddled the spindle and cutter. After a cutter is mounted on the spindle, the fence halves can be adjusted to create an opening just large enough to clear the cutter and used to guide, or introduce, the piece of wood into the cutter and move it past the cutter. The fence guard protects approximately two-thirds (2/3) of the cutter and is designed to prevent inadvertent contact with the cutter.
Originally, the shaper also came with a "Safeguard II" spindle guard, which was a colored plastic disc placed on the spindle above the cutter, with a diameter in excess of that of the cutter. The spindle guard provided a visual guide to also prevent inadvertent contact with the rotating cutter. The spindle guard could be installed/removed by loosening the spindle nut. The shaper can be operated with the spindle guard removed.
Sorto-Romeo used two (2) identical Delta wood shapers owned by his employer, the Walt Whitman Fence Company ("Walt Whitman"), to create fence components. He used these two (2) machines on a daily basis and does not know which shaper he was using at the time of his accident. The shapers were purchased by Walt Whitman from another business in used condition with a fence guard assembly but without the spindle guard. Deposition of Walt Drechsler, dated July 6, 2006 ("Drechsler Dep."), at 20-22. Walt Whitman also created custom-made wooden guards fabricated specifically for each type of shaper operation it performed.
As originally sold, the shaper came with an Instruction Manual, which contained safety instructions for the shaper, including a warning that the shaper was not to be used without the guards in place. The shaper also came with a "Safety First" placard in English. A warning label, also in English, is riveted to the shaper at knee height near the wheel used to angle the blade and does not contain all warnings on the safety placard.
Sorto-Romero is a native of El Salvador. The accident took place at Walt Whitman's headquarters in Melville, New York, where Sorto-Romero had been employed for over three (3) years. Walt Drechsler ("Drechsler") is the president of Walt Whitman.
Although Sorto-Romero did not change the blades in the shaper, he had been trained to use the machine including "how to cut the pieces of wood . . . [and] how to raise the blade or lower the blade," as well as "everything else that needed to be done." Deposition of Irene SortoRomero, dated June 9, 2006 ("Pl. Dep."), at 38-39.
Sorto-Romero's supervisor instructed him in the use of the machine and told him to always "be careful" when working on the wood shaper. Id. at 40. Asked if, prior to the date of his accident, he was aware that, if his hand came into contact with the blade he would be cut, Sorto-Romero responded: "Yes, of course, that is always on our minds. We were afraid cutting the wood [sic] because without protection you can always cut yourself." Id. 41-42.
The day before his accident Sorto-Romero was given an assignment to fabricate two hundred (200) "cookies," which are diamond-shaped wooden ornaments which are placed on a fence section as decoration. After receiving the assignment, Sorto-Romero fabricated approximately twenty five (25) before the accident occurred, as follows: First, either SortoRomero or co-worker, Miguel, used a hand-held Skil Saw to cut an eight (8) foot long board/plank into either four (4) or five (5) separate pieces. Id. at 43-44, 46-47. With the shaper running, Sorto-Romero would hold the section of wood against the two wood guides (i.e., fence guard); the cutting blade is located in between these wood guides. Id. at 81-82, 84. SortoRomero then would hold the board with both hands, continually applying pressure, and pushing the board from right to left. Id. at 89-90.
On the date of the accident, Sorto-Romero's right hand was to the right of the cutter, pushing the board forward, while his left hand was closer to the cutter, with his thumb pressing against the side of the board and his ring and pinkie finger curled as "they couldn't be straight." Id. at 91-92, 94-96. While pulling the board away from the blade with his left hand, the board broke and his right index finger made contact with the cutter, severing it. Sorto-Romero testified that "this was the very first day that [he] ever made cookies at Walt Whitman Fence Co." Id. at 74, 116.
Shown a "diamond cookie" at his deposition, Drechsler confirmed that there was a Walt Whitman fabricated wooden guard designed specifically for this type of cookie fabrication operation, "to keep someone's hands away from the blade . . . and to secure the board as it's . . . pushed along the back board." Drechsler Dep. at 34-35. When asked if he ever recalled a meeting or a conversation among the employees of Walt Whitman about guards for the cutter itself, Mr. Drechsler replied: "Absolutely, every day . . . and they are implemented, too. Before they cut a piece of wood, there is a guard that goes over the blade." Id. at 29. Drechsler also testified that he personally instructed workers that they were not to use the shaper without the fabricated guard. Id. at 38. Since Sorto-Romero could not speak English, Drechsler testified that he instructed his foreman Alberto Cruz Lopez ("Lopez") to convey the instructions to SortoRomero in Spanish. Id. at 38-39.
Lopez had fabricated the guard "[t]o be safety," or, "in order to keep somebody's hand from going underneath it into the blade." Deposition of Alberto Cruz Lopez, dated July 6, 2006 ("Lopez Dep."), at 33-34, 37 . Prior to the date of Sorto-Romero's accident, Lopez demonstrated to him how to fabricate cookies, with the guard in place, "[a] number of times," and explained to him "many times" why the guard had to be on the machine when shaping wood. Id. at 35-37.
According to Lopez, when Sorto-Romero trained other workers on the shaper prior to the date of his accident, he also instructed the workers that the machine was not to be used unless a guard was in place. Id. at 49.
Summary judgment is appropriate when "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. P. 56(c). A fact is material "if it might affect the outcome of the suit under the governing law." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). An issue of fact is genuine only if a jury could reasonably find in favor of the nonmoving party based on that fact. Id. The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to establish the existence of a factual question that must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The trial court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. Id. at 252; Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
In determining a summary judgment motion, a court may first need to determine the admissibility of expert testimony. See Raskin v. Wyatt Company, 125 F.3d 55, 66 (2d Cir. 1997). Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits submitted in support of and in opposition to a summary judgment motion "set forth such facts as would be admissible in evidence." Therefore, "it is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment," and "only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Raskin, 125 F.3d at 66.
IV. Defendant's Daubert Challenge
In support of its motion, Defendant asserts that the testimony of Plaintiff's expert witness, Dr. Irving U. Ojalvo ("Ojalvo"), is inadmissible and therefore, his expert report should be stricken and he should be precluded from testifying. The Court agrees.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702 which states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. In Daubert. v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993), the Supreme Court held that the determination of admissibility is a question of law. First, the trial judge must make an initial determination as to whether the proposed witness qualifies as an expert. See Nimely v. City of New York, 414 F.3d 381, 396 n.11 (2d Cir. 2005). If the proposed witness qualifies as an expert, the trial judge then has "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597-598.
The objective of the "gatekeeping" requirement of Daubert and Rule 702 is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). A trial judge's gatekeeping obligation applies not only to testimony based on "scientific" knowledge, but also to testimony based on "technical" or "other specialized" knowledge. Id. at 141. The proponent of expert testimony must establish its admissibility by a preponderance of the evidence. Daubert, 509 U.S. at 593 n.10. In determining the qualification of experts and the admissibility of their testimony, the trial court has broad discretion, see Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81 (2d Cir. 1997); Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996), although "[r]ejection of expert testimony, however, is still the exception rather than the rule, and the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system," Figueroa v. Boston Scientific Corp., 254 F. Supp. 2d 361, 366 (S.D.N.Y. 2003) (internal citations and quotations omitted).
Since Defendant apparently concedes that Ojalvo possesses the requisite knowledge and experience to be qualified as an expert, and that his opinion, if reliable, would be relevant, the Court will address only the reliability of his opinion.
The Supreme Court has emphasized that the test for reliability is "flexible." However, there are several factors that a court may consider when determining whether expert testimony is reliable: (1) whether a theory or technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) whether it has a high known or potential rate of error; and (4) whether it is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94.
"A district court should consider the Daubert factors where they are reasonable measures of the reliability of expert testimony; the list of factors neither necessarily nor exclusively applies to all experts or in every case." Zaremba v. General Motors Corp., 360 F.3d 355, 358 (2d Cir. 2004) (internal citations and quotations omitted). The Supreme Court has made it clear that "whether Daubert's specific factors are, or are not, reasonable measures of reliability in a ...