The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiffs Mark Emig and Allison Emig ("Plaintiffs") filed this lawsuit against Defendants Electrolux Home Products Inc., Electrolux Home Products Inc., d/b/a Frigidaire Electrolux Home Products North America, Best Buy Co., Inc., and Best Buy Co, Inc., d/b/a Best Buy Company of Minnesota (collectively, "Defendants"), alleging negligence, strict liability, and breach of warranty, as well as a derivative claim for loss of consortium. On May 4, 2007, Defendants filed a Motion to Preclude Plaintiffs' Expert and a Motion for Summary Judgment. For reasons stated herein, Defendants' Motions are DENIED.
Plaintiffs allege that on July 31, 2004, Plaintiff Mark Emig was seriously and permanently injured while assembling the freezer door handle on a refrigerator "designed, and/or manufactured, and/or sold, and/or distributed" by Defendants. (Compl. ¶ 12.) Plaintiffs claim that the injury occurred, at least in part, because the refrigerator came with inadequate warnings and instructions for the freezer door handle installation. (Id. ¶¶ 14, 16, 18, 20, 22, 24, 26, 28.) The refrigerator came with an instruction sheet for assembling the door handle, which was included in the polybag in which the door handle was packaged. Further, the user manual for the refrigerator contained additional instructions for the installation of the door handle.
Plaintiffs have proffered Bruce Gorsak ("Gorsak") as their expert engineer "to provide expert testimony solely on the issue of assembly instructions and warnings provided by [Defendant] relating to the installation of a refrigerator freezer door handle." (Defs.' Statement of Facts ¶¶ 1-2 ("Defs.' SOF"); Pls.' Statement of Facts ¶¶ 1-2 ("Pls.' SOF").) Gorsak holds a Bachelor's degree in Mechanical Engineering Technology, and identifies himself as a Vehicle and Industrial Engineer in his Curriculum Vitae. (Affirmation of Paul E. Svensson, Esq. ("Svensson Affirm."), Ex. C ("Gorsak's CV").) Gorsak's CV outlines his automotive, engineering, and industrial experience. Most recently, Gorsak has been employed as a Mechanical Engineer at American Technical Analysis & Assistance, Inc. (from June 30, 1996, to present), and Robson Forensic, Inc., previously known as Robson Lapina, Inc. (from July 14, 2003, to November 15, 2006). For both of these jobs, Gorsak describes his duties as follows: "[to p]rovide technical investigations, analysis, reports, and testimony towards the resolution of commercial and personal injury litigation involving automotive, transportation vehicles, industrial equipment, and consumer products and failure analysis." (Id.) He also lists the various continuing education programs he has taken and the professional associations of which he is a member. (Id.)
In support of Plaintiffs' case, Gorsak prepared an expert report entitled, "Investigation of the Mark Emig Frigidaire Refrigerator Incident: Engineer's Report," dated December 7, 2004 ("the Gorsak Report"). The Gorsak Report states that the following information was available to Gorsak for his analysis: (1) Frigidaire Use and Care Manual; (2) Frigidaire "Installing Your Door Handles" instruction sheet (the instructions at issue); (3) Frigidaire "Consumers Tips" pages; (4) Frigidaire "To be removed by customer handling and set-up" sheet; and (5) Gorsak's site and equipment inspections on August 31, 2004, and November 22, 2004. (Gorsak Report 1.) From reading the Gorsak Report, it is clear that Gorsak also compared the Frigidaire instructions with instructions used by competitors and interviewed Plaintiff Mark Emig about how the accident occurred. (Id. 1-4.) Gorsak opined that Plaintiff, "follow[ing] the instructions in a foreseeable manner," was injured in the course of installing the freezer door when "he was pulling the handle upward and towards himself, [and] the handle unexpectedly separated from the freezer door [and struck his eye]." (Id. 2.) In the Gorsak Report, he also pointed out that the correct assembly instructions for the door handle were "buried" in the user manual for the refrigerator, "depriv[ing] Emig of the information he needed to safely assemble the product." (Id. 3.)
Gorsak's report reached the following conclusions regarding the assembly instructions and Plaintiff Mark Emig's injury:
a. The combination of component design and assembly instruction was defective because it was error provocative and was the cause of Emig's injury.
b. Emig followed Frigidaire's instruction, which exposed him to the hazard and led him into the injury. . . . (Id. 5.)*fn1
During his deposition, Gorsak elaborated on what in particular was "error provocative" about the assembly instructions that came in the polybag with the door handle. (Dep. of Bruce Gorsak 179-80, 193-95 ("Gorsak Dep.").) He explained that the instruction sheet shows the handle straight up and down with the door, instead of telling the consumer to "offset" the handle or at least depicting the handle offset. The refrigerator user's manual -- which contains what Gorsak describes as the "correct instruction" -- does use the word "offset" in the first sentence of its installation instructions, but nothing in the instruction sheet that was included in the polybag with the door handle refers the consumer to review the refrigerator user's manual before beginning assembly. (Gorsak Report 3; Gorsak Dep. 194-95.) According to Gorsak, the use of the word "offset" or an illustration showing the handle offset in the assembly instructions "would have made a difference" and, in fact, "would have avoided the accident." (Gorsak Dep. 179-80.)
Gorsak performed two site and equipment inspections of the accident scene and refrigerator for the purpose of preparing his expert report. (Gorsak Report 1.) During his deposition, Gorsak explained what he did during these inspections. On August 31, 2004, Gorsak went to Plaintiffs' home and spoke to Plaintiff Mark Emig about how the accident occurred. (Gorsak Dep. 134-35.) When asked whether, during the inspection, he attempted to work with the handle using the assembly instructions, Gorsak testified that he "mock[ed] it but [did] not . . . put it on[, because he] didn't want to damage the handle." (Id. at 155.) In November 2004, the second of the two inspections took place at Plaintiffs' home, during which Gorsak did not "do anything with respect to working with the handle while [he was] there," but he did "ask[ Plaintiff Mark Emig] to show [him] what [Plaintiff] did while [Plaintiff] was trying to put the handle on." (Id. at 155-56.)
Given the instruction sheet's depiction of the handle held straight up and down, as opposed to offset, and its alleged failure to use the word "offset" or at least refer the consumer to the user's manual, Gorsak found Plaintiff Mark Emig's interpretation of the instructions, ...