The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
Melissa Castaldi sues Land Rover North America, Inc. and Land Rover (collectively "Land Rover") in this tort action, which is before me pursuant to the Court's diversity jurisdiction. While Castaldi was working as a receptionist in a Land Rover dealership, a vehicle being moved on the showroom floor sprang forward and struck her desk, pushing Castaldi and her chair through the plaster wall. Castaldi alleges that a defective brake light switch and brake shift interlock system allowed the car to shift into drive mode without the brake being engaged, causing the car to accelerate rapidly and strike her before the employee moving the car could react. She alleges that Land Rover is strictly liable for a defectively designed product; liable for marketing a product with a manufacturing defect; and liable for breach of warranty. Land Rover moves for summary judgment and to preclude three of Castaldi's proposed witnesses from giving expert testimony. For the reasons set forth below, the motions to preclude are granted and the motion for summary judgment is denied.
On August 30, 2004, Melissa Castaldi was working as a receptionist in a showroom of the car dealership Manhattan Automobile Company, located at 787 11th Avenue in Manhattan. It is undisputed that Jeremiah O'Leary, a 64-year-old employee of the dealership, was attempting to move a 2004 Land Rover Discovery Series II vehicle located on the showroom floor when the car accelerated sharply and struck Castaldi's desk, propelling the desk into Castaldi and Castaldi and her chair partly through the plaster wall behind her.
The circumstances of the accident are disputed. A police accident report made on August 30, 2004 records that O'Leary stated that when he put the car in drive, it "jumped into gear and progressed forward and struck the victim and pushed her and the vehicle through the wall." Pl.'s Mem. Opp. Summ. J. Ex. C. O'Leary claims, in signed statements made on September 1, 2004 and September 28, 2004, that he put his foot firmly on the brake while switching from Park to Drive, that as soon as he lifted his foot from the brake the vehicle sprang forward sharply, and that he immediately braked with all his strength but could not prevent the vehicle from striking Castaldi's desk. Def.'s Mem. Supp. Summ. J. Ex. C. O'Leary died several months after the incident and was never deposed.
Three dealership employees provided roughly similar versions of the incident. Richard Capetta and Jeff Drajin, who were in an adjacent room, testified at their depositions that they heard a loud engine roar (which Capetta described as consistent with someone pressing the accelerator to the floor) and then a collision. Capetta Dep. 17, 25-26; Drajin Dep. 11-12. Capetta also reports the sound of tires screeching after the engine roar began and before the collision. Capetta Dep. 17. Ted Houvouras, who was seated at a desk in the showroom, claimed in a written statement that he saw O'Leary driving the vehicle at a typical showroom speed in his peripheral vision when the car suddenly "revved strongly" and veered into Castaldi's desk.
Def.'s Mem. Supp. Summ. J. Ex. G. 1.
Howard Bristow, a mechanic retained by the dealership's property insurer, and Richard Pederson, an engineer retained by the dealership's liability insurer, examined the vehicle on September 16, 2004. Bristow Dep. 12; Pederson Dep. 13-14. They both noted that the brake lights were illuminated while nobody was in the vehicle and that the vehicle could be switched from park mode to drive mode without pressing the brake pedal. Bristow Dep. 15-17; Pederson Dep. 25, 32. This is irregular, because ordinarily the brake lights will illuminate only when the brake is engaged and the brake shift interlock system will allow the car to switch modes only while the brake is engaged. Bristow Dep. 17; Pederson Dep. 31-32.
Bristow and Pederson inspected the vehicle again on October 5, 2004 in the presence of a Land Rover representative, where they noted the same irregularity. Bristow Dep. 21; Pederson Dep. 38. They inspected the vehicle further and found a problem with the brake light switch, which activates the brake lights and the brake shift interlock. Bristow claims that the brake light switch was visibly misaligned, allowing the brake light to be on and the brake shift interlock to be deactivated without the brake engaged. Bristow Dep. 22-25. He also claims that by experimenting with an exemplar vehicle's brake light switch, he was able to misalign it by applying minimal pressure with his finger, due to the brake light switch being affixed only with a plastic peg. Bristow Dep. 25. Bristow opines that the risk of misalignment would be eliminated by mounting the brake light switch with a threaded stud and nut instead of a plastic peg. Id. at 25-26. Pederson did not state that the brake light switch was visibly misaligned, but stated that the brake light switch could be pulled rearward approximately 20 to 30 thousandths of an inch, which turned off the brake light, indicating an "overly sensitive mechanism." Pederson Dep. 39. Pederson claims that experimenting with an exemplar light switch revealed that movement of only approximately 30 thousandths of an inch would activate the switch. Id. at 40.
Three days prior to the accident, the dealership had performed a predelivery inspection which revealed no problems with the brake shift interlock. Def.'s Mem. Supp. Summ. J. Ex. A; Bianco Dep. 23-25. Four days after the accident and prior to Bristow's and Pederson's investigations, Jeff Nicholson, a Land Rover technician, inspected the vehicle and found no problem with the brake lights or the brake shift interlock. Nicholson Dep. 32-34. In 2005, the National Highway Traffic Safety Administration ("NHTSA") opened an investigation into brake light switch failures in 2004 Land Rover Discovery Series II vehicles, concluding that a defective plastic component inside the switch could cause the switch's plunger to move too freely along its axis, leading to brake lights that are constantly illuminated. Badash Letter, Nov. 16, 2007, at 2-3. According to the report, approximately 31% of the warranty claims paid to replace the brake lights switches in these vehicles occurred "before the vehicle was sold new, and approximately 88% occurred within the first 12 months of vehicle service." Id. at 4.
Castaldi filed suit in the New York Supreme Court in Queens County on January 11, 2006. Land Rover filed a notice of removal on February 16, 2006 based on the Court's diversity jurisdiction.*fn1 Castaldi retained Luka Serdar, an engineer, as an expert. Serdar opined that the vehicle's brake light switch was defective, thus rendering the brake shift interlock inoperative and allowing the vehicle to be switched from park to drive without enough pressure on the brake pedal to engage the brakes. He based this conclusion on the reports that the vehicle had accelerated unexpectedly toward Castaldi; Bristow's investigation report; his own test of the vehicle conducted on November 6, 2006, where he observed that the vehicle's replacement brake light switch was not functioning properly; the NHTSA investigation report; and his test of an exemplar vehicle where he found that light pressure on the brake pedal would enable the vehicle to be shifted from park to drive without sufficient brake pressure to slow the vehicle. Pl.'s Mem. Opp. Summ. J. Ex. H. He disregarded O'Leary's statement that he had his foot firmly on the brake when he switched from park to drive, claiming that if this was the case, the car would not have moved. Serdar Dep. 263-64.
While Serdar is currently Castaldi's only expert witness, Castaldi deposed Bristow and Pederson as non-party witnesses, and she now intends to call them at trial and have them testify as experts. Serdar and Pederson did not express any opinion on a feasible alternative design. Serdar Dep. 288-89. Bristow opined that mounting the brake light switch with a threaded stud and nut would be a feasible alternative design which would eliminate the problem. Bristow Dep. 25-26. At his deposition, Bristow did not know if the stud and nut should be mounted parallel to the brake light switch's plunger or perpendicular to it. Id. at 132- 33. Bristow believed that the light switch would either function properly or not at all, but would not malfunction intermittently. Id. at 121-22. Pederson and Serdar opined that the switch could function intermittently and could be knocked into or out of alignment by moving the vehicle around the dealership. Pederson Dep. 35-36, 43; Serdar Dep. 281-82.
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), a moving party is entitled to 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. P. 56(c); see also Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994) ("[T]he burden is on the moving party to demonstrate that no genuine issue respecting any material fact exists." (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975))). A fact is "material" within the meaning of Rule 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).
Once the moving party has met its burden, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). The nonmoving party cannot survive summary judgment by casting mere "metaphysical doubt" upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586. Summary judgment is proper when the moving party can show that ...