The opinion of the court was delivered by: Townes, United States District Judge
Plaintiffs Moses and Barbara Landau brought this diversity action against defendants Spenuzza, Inc., d/b/a Imperial Manufacturing Company ("Imperial"), and White-Rodgers, Division of Emerson Electric Co. ("White-Rodgers"), seeking recovery for injuries to Moses Landau and loss of consortium by Barbara Landau. Moses Landau was injured when a deep fryer manufactured by Imperial and containing a gas valve manufactured by White-Rodgers caught fire while he was lighting it. The plaintiffs allege that the White-Rodgers gas valve was defectively manufactured, the Imperial deep fryer was defectively designed, and Imperial failed to provide adequate warnings on the deep fryer. Defendants Imperial and White-Rodgers move for summary judgment.
Moses Landau was the proprietor of a restaurant in a building owned by Sandor and Shifra Grunwald. The restaurant had a convection oven, a regular oven, a gas grill, and three deep fryers. (Barbara Landau Dep., White-Rodgers Ex. G, at 10). The deep fryer at issue in this action was first used on June 26 or 27, 2002 (Moses Landau Dep., White-Rodgers Ex. D, at 108), and was used without incident until July 9, 2002, when the restaurant closed for a holiday break (Moses Landau Dep., White-Rodgers Ex. D, at 127--30). During the break, the gas for the equipment and the pilot light of the deep fryer were turned off. (White-Rodgers 56.1 Statement ¶ 11; Moses Landau Dep., White-Rodgers Ex. D, at 127--30).
When the store reopened on July 20, 2002, Moses Landau was injured by a fire that started when he turned on the gas line and lit the deep fryer pilot with an igniter. (Moses Landau Dep., White-Rodgers Ex. D, at 140--142). Believing the pilot light to be an improper color, Landau tested the fryer by turning the temperature to 350 degrees. (Moses Landau Dep., White-Rodgers Ex. D, at 142--43). The oil in the fryer ignited, and Landau was injured by the flames. (Moses Landau Dep., White-Rodgers Ex. D, at 143, 151).
Moses and Barbara Landau brought an action in the Supreme Court of Kings County against their landlords, Sandor and Shifra Grunwald, alleging that the gas lines and gas cooking appliances had been installed improperly and that the premises had been maintained in an unsafe condition. (Complaint, White-Rodgers Ex. H). The plaintiffs submitted an expert report by George Friedell, who concluded that the fire had been caused by improperly installed gas piping. (Friedell Report, White-Rodgers Ex. K, at 2). According to Friedell, the piping was composed of bent and crimped flexible copper tubing instead of rigid or semirigid material, and the deficiency caused a gas leak. (Friedell Report, White-Rodgers Ex. K, at 2--3). The action against the Grunwalds settled for $100,000. (Moses Landau Dep., White-Rodgers Ex. D, at 163--64). The Landaus did not disclose to the defendants in the present action that Friedell had inspected the premises. (Pl. Interrogatory, Imperial Ex. J, ¶¶ 41--44; Barbara Landau Dep., Imperial Ex. K, at 80).
While the action against the Grunwalds was pending, the Landaus filed this action in the Supreme Court of Kings County alleging that (1) White-Rodgers defectively manufactured the gas valve in the deep fryer; (2) Imperial defectively designed the deep fryer; and (3) Imperial failed to provide adequate warnings on the deep fryer. The action was removed to this Court on the basis of the Court's original diversity jurisdiction pursuant to 28 U.S.C. § 1332.
The plaintiffs rely on an expert report by Dr. Donald Lynch, whom they retained to inspect the fryer after it had been moved from the restaurant to a storage facility. (Lynch Report, White-Rodgers Ex. O, at 1--2). Dr. Lynch removed the gas supply and distribution components of the fryer on April 3, 2003, and conducted gas flow tests on the White-Rodgers gas valve on June 27, 2003. (Lynch Report, White-Rodgers Ex. O, at 1). When Dr. Lynch conducted the tests, he initially subjected the gas valve, rated for a pressure of 0.5 pounds per square inch ("psi"), to a pressure of 12.5 psi and adjusted the pressure downward to 0.5 psi for the testing itself. (Lynch Report, White-Rodgers Ex. O, at 3; Lynch Dep., White-Rodgers Ex. E, at 50, 146). The test indicated a small leak in the gas valve. (Lynch Dep., White-Rodgers Ex. E, at 120).
On July 22 and 23, 2003, Dr. Lynch disassembled the gas valve to determine the cause of the leak. (Lynch Report, White-Rodgers Ex. O, at 1). The disassembly of the valve and one of two leak tests was videotaped. (Lynch Aff., ¶ 40). Upon disassembling the gas valve, Dr. Lynch discovered that the elastomeric seal ("flapper") of the valve was stuck in a cocked position. (Lynch Report, White-Rodgers Ex. O, at 4). Dr. Lynch later popped the flapper back into position. (Lynch Dep., White-Rodgers Ex. E, at 65--66). He concluded that the improperly positioned flapper represented a manufacturing defect in the White-Rodgers gas valve. (Lynch Report, White-Rodgers Ex. O, at 5). He also concluded that the Imperial fryer contained two design defects: 1) the lack of a flame shield; and 2) the placement of the thermostat control inside the door of the fryer near the floor, which forced the user to assume a prone position. (Lynch Report, White-Rodgers Ex. O, at 5--6).
Summary judgment is appropriate only when "there is no genuine issue as to any material fact and... the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that there is no genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "[T]he burden on the moving party may be discharged by 'showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If the movant meets this burden, the non-movant must "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); accord W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). The non-movant cannot "'escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,' or defeat the motion through 'mere speculation or conjecture.'" W. World, 922 F.2d at 121 (citations omitted). Moreover, the disputed facts must be material to the issue in that they "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).
First, New York law applies. Second, this Court does not consider the affidavit of Ernest Niles because the plaintiffs failed to identify Niles as an expert during discovery. Third, the plaintiffs have failed to establish a genuine issue of material fact with respect to the manufacturing defect claim against White-Rodgers, the design defect claim against Imperial, and the failure to warn claim against Imperial.
In a diversity action, this Court applies the choice of law principles of the forum state, in this case New York. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). New York employs an interest analysis, which "gives controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation." Babcock v. Jackson, 191 N.E.2d 279, 283 (N.Y. 1963). Here, New York has the most significant interest in this case because it is both the plaintiffs' domicile and the site of the accident.
In opposition to the defendants' motions for summary judgment, the plaintiffs submit an affidavit of Ernest Niles, a safety consultant. In his affidavit, Niles opines that Dr. Lynch used proper methods to test the gas valve (Niles Aff., ¶ 14), a remotely controlled thermostat and a flame shield are feasible alternative designs (Niles Aff., ¶¶ 11--13), and a warning about potential flame escape should have been placed on the fryer (Niles Aff., ¶ 18). The defendants argue that the plaintiffs should be precluded from offering the testimony of Niles because the plaintiffs did not produce his testimony during discovery. This Court agrees and declines to consider the Niles affidavit.
Federal Rule of Civil Procedure 26(a)(2)(C) requires that expert testimony be disclosed at the time required by court order. "If a party fails to provide information or identify a witness as required by Rule 26(a)..., the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). A showing of bad faith is not required before evidence may be excluded under Rule 37(c)(1). Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006). Even when no substantial justification exists and the failure to disclose is not harmless, preclusion is not mandatory. Id. at 297. Instead, the court has discretion to impose lesser sanctions. Id. at 298.
The plaintiffs' failure to disclose Niles as an expert was unjustified. Magistrate Judge Pohorelsky notified the parties as early as March 23, 2005, that failure to make required disclosures could result in the imposition of sanctions (Order of 3/23/05), and he set a discovery schedule on May 23, 2005 (Order of 5/23/05). Magistrate Judge Pohorelsky ordered that expert discovery be completed before the parties requested permission to file a dispositive motion. (Order of 5/19/06). The defendants requested permission to file motions for summary judgment in July 2006, at which time discovery was complete. The plaintiffs, however, did not identify Niles as an expert until April 27, 2007, in their response to the defendants' motions for summary judgment.
The plaintiffs' disregard for the discovery process prejudiced the defendants. Prior to the defendants' motions for summary judgment, the plaintiffs presented no meaningful evidence regarding the design defect and failure to warn claims. As a result, the defendants' motions for summary judgment focused on the plaintiffs' failure to present evidence. Because Rule 37(c)(1) was designed to prevent the "sandbagging" of adverse parties, this Court does not consider the Niles affidavit. See Ebewo v. Martinez, 309 F. Supp. 2d 600, 607 (S.D.N.Y. 2004) (citing Ventra v. United States, 121 F. Supp. 2d 326, 331--32 (S.D.N.Y. 2000); FDIC v. Wrapwell Corp., No. 93-CV-859, 2000 WL 1576889, at *2--3 (S.D.N.Y. Oct. 23, 2000); R.C.M. Executive Gallery Corp. v. Rols Capital Co., No. 93-CV-8571, 1996 WL 30457, at *1--2 (S.D.N.Y. Jan. 25, 1996)); see also Constellation Brands, Inc. v. Arbor Hill Assocs., Inc., 535 F. Supp. 2d 347, 367 (W.D.N.Y. 2008); Arnold v. ...