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Fernandez v. Central Mine Equipment Co.

November 23, 2009

ANDRES FERNANDEZ, PLAINTIFF,
v.
CENTRAL MINE EQUIPMENT COMPANY AND CENTRAL MINE EQUIPMENT COMPANY, INC., DEFENDANTS.
X CENTRAL MINE EQUIPMENT COMPANY AND CENTRAL MINE EQUIPMENT COMPANY, INC., THIRD-PARTY PLAINTIFFS,
v.
WARREN GEORGE, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the Court is the motion of the defendants, Central Mine Equipment Company and Central Mine Equipment Company, Inc. ("CME" or "defendants"), seeking the preclusion of plaintiff's expert, Clifford Anderson, as well as summary judgment, dismissing plaintiff's Complaint entirely. Plaintiff, Andres Fernandez ("plaintiff") opposes CME's motion. For the following reasons, CME's motion is granted in its entirety.

FACTS*fn1

This action arises out of injuries sustained by the plaintiff, Andres Fernandez, an employee of Warren George, Inc. ("Warren George"), on November 13, 2003, while he was assisting in soil penetration testing ("SPT") being conducted in Brooklyn, New York using a "CME 55" drilling rig manufactured by defendants (the "CME 55"). (Pl. R. 56.1 Statement ("Pl. 56.1") ¶ 1.)

The CME 55 is a SPT/geotechnical well-drilling unit that is mounted on a truck. (Pl. 56.1 ¶¶ 2, 27.) CME has been manufacturing the CME 55 since approximately 1961 and it is predominantly used in SPT and soil sampling projects. (Pl. 56.1 ¶ 27.) The CME 55 at issue herein was ordered by W.M. Walsh Company in May 1987 and built to specification. (Pl. 56.1 ¶ 29.) In May 2001, Warren George purchased the CME 55 at issue from W.M. Walsh Company for $70,000. (Pl. 56.1 ¶ 31.) CME was not involved in the resale of the CME 55 from W.M. Walsh Company to Warren George. (Pl. 56.1 ¶ 32.)

As manufactured, the CME is equipped with, among other things, a hydraulic hoist, a twenty-two foot mast and a manually operated cathead.*fn2 (Pl. 56.1 ¶ 2.) A cathead is a rotating steel drum around which rope is wrapped, with one end of the rope held by the drill operator and the other end extended over the top of the mast and attached to either pipes, drill bits, or hammers. (Pl. 56.1 ¶¶ 4, 34, 36.) As the drill operator pulls the rope, friction is created where the rope is wrapped around the rotating cathead, which aids the operator in lifting the items that are attached to the rope. (Pl. 56.1 ¶¶ 4, 35.) When the drill operator releases tension on the rope, the items attached to it are lowered. (Pl. 56.1 ¶ 4.) Although the cathead on the CME 55 can be used to hoist materials, its main purpose is to lift and drop a one-hundred and forty pound hammer in order to drive the standard penetration sample spoon to collect soil samples. (Pl. 56.1 ¶ 39.)

The CME 55 was originally equipped with two emergency kill switches that enable the drill operator to power down the drill rig engine electrically, which causes the cathead to stop rotating. (Pl. 56.1 ¶ 45.) One kill switch is located directly beneath the cathead and the other is located on the control panel. (Pl. 56.1 ¶ 46.) However, due to substantial post-sale modifications, both kill switches on the CME 55 at issue herein were removed. (Pl. 56.1 ¶ 64.)

On November 13, 2003, plaintiff, who was employed as a driller's helper with Warren George, was observing the drill operator, Greg Marney ("Marney"), lower an approximately sixty-foot string of drill rods into a hole using rope and the cathead.*fn3 (Pl. 56.1 ¶ 5.) As Marney lowered the drill rods, the drill bit at the bottom of the rods became caught on the inside groove on a piece of casing,*fn4 causing the rope being used to lower the rods to become slack and entangle on the cathead. (Pl. 56.1 ¶¶ 7, 131, 135.) Marney let go of the rope and the drill rods in the casing came out of the ground. (Pl. 56.1 ¶ 8.) Plaintiff attempted to grasp the drill rod string with his hands as it came out of the ground.*fn5 (Pl. 56.1 ¶¶ 9, 141.) Marney thereafter disengaged the clutch on the control panel of the CME 55 and plaintiff released his hold on the drill rods, allowing the drill rods to fall to the ground. (Pl. 56.1 ¶ 146.) However, the drill rod string did not fall straight down, but fell at an angle towards plaintiff, striking him in the foot and causing injury. (Pl. 56.1 ¶¶ 9, 149.)

Plaintiff commenced the within action in New York State Supreme Court, Kings County, on June 23, 2006, asserting claims for strict products liability, negligence and breach of warranty. (Sambursky Decl., Ex. A.) CME thereafter removed the action to this court on or about August 15, 2006.*fn6 (Sambursky Decl., Ex. B.) In support of his strict liability and negligence claims, plaintiff relies on the opinions of his expert witness, Clifford Anderson ("Anderson"), who posits that had the CME 55 been equipped with a "rope guide" or divider, the cathead would not have become entangled, therefore preventing plaintiff's accident from occurring. (Pl. 56.1 ¶ 165; Sambursky Decl., Ex. H.) CME now moves for summary judgment on the grounds that Anderson is not qualified to testify regarding the matters at issue in the instant litigation and accordingly, should be precluded from doing so. CME therefore urges the court to disregard Anderson's testimony in deciding its summary judgment motion, arguing that it is entitled to summary judgment on the grounds that plaintiff cannot establish a prima facie case of strict products liability or negligence without the aid of expert testimony.

DISCUSSION

I. Legal Standard for Admitting Expert Testimony

Expert testimony must be evaluated in accordance with Federal Rule of Evidence 702, which states:

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 principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 702 imposes a two-fold analysis on the trial court. First, the court must "make an initial determination as to whether the proposed witness qualifies as an expert." Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346, 352 (S.D.N.Y. 2003). If the court is satisfied that the proposed witness does indeed qualify as an expert, then the court "must inquire into whether the scientific, technical or other specialized testimony provided by that expert is both relevant and reliable." Id. at 352-53 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

The burden of establishing the admissibility of the proffered expert testimony weighs on the proponent of that testimony. See Baker, 254 F. Supp. 2d at 353. "Though the weight given to expert testimony should be left to the finder of fact, expert testimony should be excluded altogether if it is 'speculative' or 'conjectural' or if it is based on assumptions 'so unrealistic and contradictory as to suggest bad faith.'" Id. (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996)). Moreover, courts are not required to admit expert opinion evidence that is "connected to existing data only by the ipse dixit of the expert . . . A ...


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