The opinion of the court was delivered by: Seybert, District Judge
Pending before the Court is Defendants' motion for summary judgment. For the reasons that follow, the Court GRANTS summary judgment for both Defendants.
Somewhere in the years 1996 or 1997, Plaintiff Mr. Michael Delehanty ("Mr. Delehanty") purchased a 24-foot-fiberglass-extension ladder manufactured by KLI from a local Home Depot. (Defs' 56.1 Stmt ¶ 3.) Several years after its purchase, on October 26, 2006, Mr. Delehanty was using the ladder to paint the rear of his home. Mr. Delehanty set up the ladder with its feet resting on his deck and its top resting against the side of his house. Suddenly, after ascending the ladder, Mr. Delehanty felt a "jolt," the ladder collapsed, and Mr. Delehanty fell onto his patio. As a result, he suffered injuries to his hip and wrist/arm. (Id. ¶¶ 1, 35.) Mr. Delehanty has testified that he does not know why the accident occurred and there were no witnesses. He had used the same ladder to seal/paint his home three and a half times from the ladder's purchase until his fall, and last used it without incident two weeks before his fall. He never had a problem with the ladder until his fall, and he knew how to set up the ladder properly before using it. (Id. ¶¶ 6, 11-24.)
The ladder has two foot pads that help prevent it from slipping while in use. Each foot pad is attached to a foot pad housing, which is bolted to the ladder. Each foot pad housing has two slots which run perpendicular to the rubber pad at the bottom of the foot pad housing. When the ladder feet are operating properly, the foot pad housings move axially (i.e., clockwise and counter clockwise) using the bolts as a pivot point. The housings are also capable of moving the length of the slots. (Id. ¶ 26.)
Sometime after the accident, Plaintiffs retained counsel. Plaintiffs' counsel sought out Mr. Stanley Fein, an engineer ("Fein") to determine the cause of the accident. Approximately three or four months after the accident occurred, Fein inspected the ladder. Based on this inspection, Plaintiffs' asserted product liability claims based on the theories of design defect, failure to warn, and breach of implied warranty. Plaintiffs' theories center on the bolt in the right foot pad housing ("Bolt"). Fein theorizes that the collapse could have been caused as follows: 1) If the Bolt was rusted and frozen, it may not have allowed the ladder foot housing to adjust properly. 2) The jolt felt by Mr. Delehanty may have been the Bolt slipping to the bottom of the housing under Mr. Delehanty's weight. 3) The sudden shift of the Bolt, caused the ladder to shift and Mr. Delehanty to fall. To prevent rust from forming on the Bolt, Mr. Fein testified that the Bolt should have been made from cast aluminum or stainless steel, and that failure to make the Bolt from the described materials is a design defect. Fein also states that Defendants should have warned purchasers that the ladder should be stored in a dry location, so as to prevent the Bolt from rusting; without the warning, Fein theorizes, the Bolt could cause a dangerous condition.
Defendants do not offer their own theory,*fn2 but point out that Mr. Fein's opinion is based solely on conjecture. Because Fein did not inspect the ladder until January 29, 2007, approximately three months after the accident, there is no evidence that rust existed on the Bolt at the time of the accident, let alone that it was so rusty that it could cause the foot housing to seize. Fein did not perform any tests or calculations to determine whether the Bolt contained rust on the date of the accident which might have prevented the housing from operating correctly. Moreover, Fein did not perform any tests or calculations to determine whether the hypothetically rusted Bolt could give way under Mr. Delehanty's weight and cause the ladder to slide out or collapse. Finally, Mr. Fein testified that his theory of defect and the theory of causation between the Bolt and the ladder sliding out could not be reproduced by engineering methodology.*fn3 In short, Plaintiffs offer no evidence that rust existed on the Bolt at the time of the accident, that the claimed rust caused the Bolt to freeze and prevent the foot housing from working properly, that the Bolt suddenly gave way, or that these circumstances caused the ladder to slide out or collapse.
On April 2, 2007, Plaintiffs commenced this action in Supreme Court, Suffolk County, and Defendants removed the action to this Court on May 18, 2007. Essentially, Mr. Delehanty seeks to recover for his injuries and lost wages based on three theories:
(1) design defect, (2) failure to warn, and (3) breach of implied warranty. His wife, Catherine Delehanty ("Mrs. Delehanty"), also a Plaintiff, was not personally injured by the ladder; she seeks to recover for loss of consortium and companionship. Both Defendants, represented by the same counsel, seek to bar Fein from being qualified as an expert and also seek summary judgment. For the reasons that follow, the Court GRANTS both of Defendants' motions.
DISCUSSION I. Rule 56 Standard for Granting Summary Judgment "Summary judgment is appropriate where there are no Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).
"The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970). "In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134. But while the moving party bears the initial burden, "once such a showing is made, the non-movant must 'set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). "Mere conclusory allegations or denials will not suffice." William v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Similarly, "unsupported allegations do not create a material issue of fact." Weinstock, 224 F.3d at 41.
II. Rule 702 of the Federal Rules of Evidence
Defendants seek to preclude Fein from testifying at trial pursuant to Rule 702 of the Federal Rules of Evidence, arguing that Fein is not qualified to render the opinions that (a) the housing Bolt is defective, and (b) there is a proximate cause between the lack of stainless steel/cast aluminum bolts and Mr. Delehanty's fall. Furthermore, Fein's opinion that proximate cause exists between the claimed Bolt design defect and the ladder's slip-out is unreliable.
Federal Rule of Evidence 702 provides: 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 ...