The opinion of the court was delivered by: Siragusa, J.
This diversity personal injury case is before the Court for consideration of four motions: Docket No. 63, motion filed by Woodcliff Associates LLC, d/b/a The Lodge at Woodcliff ("Woodcliff") for summary judgment; Docket No. 64, motion filed by M-F Athletic Company, Inc. ("M-F Athletic") for partial summary judgment on its indemnification claim and for preclusion of testimony of Plaintiffs' expert, Charles H. Pittman ("Pittman"); Docket No. 69, motion filed by ProMaxima Manufacturing, Ltd. ("ProMaxima") to preclude testimony by Plaintiffs' expert, Pittman; and Docket No. 79, cross-motion filed by Plaintiffs to preclude testimony by defense expert Francis Cosgrove ("Cosgrove"), and one opinion of defense expert Jeffrey Schwalje ("Schwalje"). For the reasons stated below, Woodcliff's motion (Docket No. 63) for summary judgment is granted; M-F Athletic's motion (Docket No. 64) for partial summary judgment on its indemnification claim and for preclusion of expert testimony is denied. ProMaxima's motion (Docket No. 69) to preclude testimony by Plaintiff's expert, Pittman, is denied. Plaintiff's motion (Docket No. 79) to preclude expert testimony is granted.
On May 16, 2004, at approximately 7:30 a.m., Plaintiff Louis Bloom, was working out at the fitness center located at The Lodge at Woodcliff. He was using a Roman chair manufactured by ProMaxima and sold to Woodcliff by M-F Athletic in August 2000. The Roman chair was a piece of equipment Plaintiff had previously used without incident. However, on this occasion, when Plaintiff put his legs under the foot rest T bar on the Roman chair, the T bar came out, and Plaintiff fell head first to the floor sustaining injuries.
Plaintiff had been a member of the health club at Woodcliff since January 1995 and maintained that membership through the date of the incident at issue in this lawsuit. (Bloom Dep. at 14.) At the beginning of his membership, Plaintiff was given an orientation to the equipment by a certified personal trainer. (Id. at 15.) Customarily, Plaintiff's three to four day per week workout routine took him from the Gravitron, stair stepper, or treadmill, and then the Roman chair. (Id. at 17.) Plaintiff recalls that the Roman chair was not initially in Woodcliff's health club when he first joined, but it had been there two or three years by May 2004 and that he "walked in one day and a friend of [his] was working on it . and [Plaintiff} started working on it from that day forward." (Id. at 18.) It was that friend, Joe Testa, who showed Plaintiff how the Roman chair worked. (Id. at 19.)
ProMaxima had assembled, wrapped, and shipped the chair directly to Woodcliff by truck. ProMaxima did not provide any instruction manual, user guide, or written information on the use of the Roman chair. ProMaxima designed the Roman chair in 1981 or 1982, and as designed, it has a foot rest bar that is capable of being raised or lowered into a sleeve to fit the user's personal preference. A pin is slid into one of the holes on the sleeve and one of the holes on the bar to lock the bar in position. However, the design of the chair precludes the user from actually seeing the hole in the restraint bar, and thus, the user must rely on the audible "click" of the spring-loaded pin to know it has gone into a hole. Unfortunately, it is possible to put the restraining pin into a hole in the sleeve that is below the bottom of the last hole in the restraint bar and still hear the "click" as the spring pushes into place. In such position, though, the pin does not engage the restraint bar. Woodcliff contends that this is what Plaintiff must have done.
From the time of its receipt, Woodcliff had no complaints from users of the Roman chair and no modifications or repairs had been made to it. Once per year, Woodcliff had all the equipment in its fitness center, including the Roman chair, inspected by an independent company owned by Pittman. During his annual inspections, Pittman never found that the pin was in need of repair.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986).
Once that burden has been met, the burden then shifts to the non--moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. Fed. R. Civ. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Woodcliff's Motion for Summary ...