The opinion of the court was delivered by: James S. GWIN,*fn2 United States District Judge
[Resolving Docs. No. 25, 28, 34 & 35]*fn1
In this personal injury case, Defendants H.J. Heinz Co. ("Heinz"), Owens-Brockway. ("Owens"), and Borgata Hotel Casino Spa ("Borgata") each move this Court for summary judgment. [Doc. 25, 28, 35.] In addition, Defendant Owens moves this Court to exclude Plaintiff Eleanor Tedone's expert witness Steven Lerman. [Doc. 25.]
Plaintiff Tedone opposes these motions and also moves this Court for summary judgment. [Doc. 34.] Moreover, Plaintiff Tedone asks this Court to exclude Defendant Owens's expert witness William Kilpatrick. [Doc. 34.] Finally, Plaintiff Tedone seeks a remedy for the Defendants' alleged spoliation of evidence. [Doc. 34.]
For the following reasons, the Court: DENIES the Defendant's motion to exclude the Plaintiff's expert Lerman and DENIES the Plaintiff's motion to exclude the Defendant's expert Kilpatrick; DEFERS consideration of the issue of spoliation until trial; DENIES Defendant Owens's motion for summary judgment; DENIES Defendant Borgata's motion for summary judgment; DENIES Defendant Heinz's motion for summary judgment; and DENIES Plaintiff Tedone's motion for summary judgment.
This case arises out of personal injuries sustained by Plaintiff Eleanor Tedone when she attempted to open a glass bottle of ketchup. Although the parties dispute the cause, the bottle broke in its neck area and shards of glass drove into her hand, injuring her. Defendant Owens-Brockway manufactured the glass bottle, Defendant H.J. Heinz filled the bottle with ketchup, and Defendant Borgata Hotel Casino & Spa served the bottle to the Plaintiff with her room-service meal.
A. The Incident at the Borgata
Plaintiff Tedone says that the Defendants each produced, marketed, or damaged a ketchup bottle that broke in her hands. She also says that, with knowledge that she had been injured by the broken bottle, Defendants Borgata and Owens destroyed crucial evidence-initially major pieces of the broken bottle and ultimately the entire bottle itself.
In February 2005, Plaintiff Tedone and her friend Margarete Foley went to Atlantic City, New Jersey, for a weekend at the Borgata Hotel Casino & Spa. [Tedone Deposition at 23-24.] On February 20, 2005, a Sunday afternoon, Tedone and Foley ordered room service. [Tedone Dep. at 19-20.] During the meal, Plaintiff Tedone wanted ketchup with her scrambled eggs and picked up the 2.25 oz. glass bottle of Heinz ketchup that the Borgata had provided with the meal. [Tedone Dep. at 22.] After removing the protective plastic seal from the bottle, Tedone attempted to twist off the cap. [Tedone Dep. at 22-24.] Before she could open it, however, the bottle broke apart, cutting her hands. [Id.]
Specifically, Plaintiff Tedone held the bottle in her left hand and attempted to screw off the cap with her right. [Tedone Dep. at 23-24] She did not use any utensils in an attempt to pry the cap off nor did she strike the bottle against the table to loosen it. [Tedone Dep. at 24, 116.] Instead, she twisted the cap and the bottle in opposite directions and the bottle broke within seconds. [Id.]
After the bottle broke, Tedone got up and went to the bathroom to wash her hands, tossing a fragment of the bottle toward a nearby chair. [Tedone Dep. at 27.] Other pieces of the bottle fell to the floor. [ Id.] At the sink, Plaintiff Tedone tended to cuts to fingers on both her right and left hands. [Tedone Dep. at 27-28.]
After several minutes, Borgata security officer Carl Crossman arrived in the room and listened to the women's story. [Tedone Dep. at 31-32.] Crossman then took Tedone and Foley to the hotel nurse. [Id. at 32.] There, the nurse cleaned Tedone's cuts, placing a butterfly bandage on the small finger of her left hand and a band-aid on the right hand. [Id. at 34.] The nurse also informed Tedone that she would need stitches to the small finger of her left hand. [Id. at 35.] While Tedone received treatment, Foley filled out a Customer Injury Report that Tedone later corrected and signed. [Tedone Dep. at 36.]
Plaintiff Tedone and Foley then returned to their room with a disposable camera. [Tedone Dep. at 44.] Finding the room just as they had left it, Foley began taking pictures of the floor, bottle fragments, Tedone's hands, and the sink. [Id. at 46.] Once they had finished, Tedone and Foley took a taxi to the nearby Atlantic City Medical Center. At the Medical Center, Plaintiff Tedone received four stitches to the small finger of her left hand and three stitches on her right middle finger. [Tedone Dep. at 61.]
While Tedone and Foley were at the hospital, the staff of the Borgata cleaned her room and removed all the fragments of the broken bottle. After returning to the hotel, Tedone and Foley remained at the hotel overnight and left for home the next day as scheduled. [Tedone Dep. at 61-62.] While driving home, the fingers on Tedone's left hand began tingling, with the sensation migrating through her hand and up to her elbow. [Tedone Dep. at 66-67.] As a result, Plaintiff Tedone saw a hand surgeon and underwent physical therapy for nerve damage in her left hand. [Tedone Dep. at 67-69.] Despite this therapy, Tedone says that her hand still tingles, gets numb, and ultimately causes her pain and difficulty working. [Tedone Dep. at 84-85.]
B. The Amazing Disappearing Ketchup Bottle
When the three-inch-tall Heinz ketchup bottle fell apart in Plaintiff Tedone's hands, it apparently "broke in half." [Tedone Dep. 26.] The cap remained attached to a small portion of the bottle's neck while the remaining portion broke into several larger fragments. [Tedone Dep. at 28.] Besides dropping the piece that broke off in her hand, Tedone says she did not touch any of the bottle fragments. [Tedone Dep. at 117.]
Tedone and Foley did, however, take several photographs of their room before Borgata staff cleaned it. One shows the top portion of the bottle with the cap intact. [Tedone Dep. at 48.] A second shows the plastic "safety seal" on the floor near the dining table.*fn3 [Tedone Dep. at 50-51, 105-106.] The final picture shows various pieces of the bottle inside a drinking glass on a table. [Tedone Dep. at 47-48, 53.]
While Tedone received medical treatment at the Atlantic City Medical Center, Borgata security officer Crossman returned to Tedone's room and retrieved all the pieces of the ketchup bottle he could find. [Doc. 38 at 8-9.] Apparently aware that a claim might be made, Crossman says he placed the pieces in a cup and brought them to the hotel's security office for storage. [Id. at 9.] Additionally, Crossman says he did not discard any pieces of the bottle. [Id.]
Two years later, February 17, 2007, Plaintiff Tedone filed this lawsuit in the New York State Supreme Court and the Defendants removed the case to this Court. On December 21, 2007, representatives for the Plaintiff, Defendant Heinz, and Defendant Borgata met to examine the bottle fragments. [Doc. 34-15 at 7.] The Plaintiff's expert Steven Lerman also attended the meeting to examine and photograph the bottle. [Doc. 34-15 at 7-8.] Although none of the parties offer an explanation, the Borgata only had three pieces of the original ketchup bottle: the top portion with the cap intact and two pieces forming the bottom. [Doc. 34-22 at 4.] The Borgata apparently lost or discarded other pieces of the broken bottle that security officer Crossman had taken to the hotel's security office. Nevertheless, Lerman inspected what remained of the bottle and ultimately concluded that it had fractured because of stress induced by improper manufacturing. [Doc. 34-14 at 4.]
After this meeting, counsel for Defendant Borgata shipped the pieces to counsel for Defendant Owens. [Doc. 34-8 at 3.] Before Owens's counsel could send these fragments to Owens's expert William Kilpatrick, however, a member of the office cleaning crew threw them away. [Doc. 34-8 at 4.] Thus, Kilpatrick never had the opportunity to physically examine any portion of the original bottle. [Doc. 34-18 at 6.]
All that remains of the offending ketchup bottle in this case are the photographs taken the day of the incident by the Plaintiff's friend Margarete Foley, the photographs taken at the December 2007 meeting of the parties, and the descriptions of the bottle included in Lerman's report and deposition.
C. From Main Street Brockway to "American's Favorite Playground": A Bottle's Journey
Defendant Owens-Illinois d/b/a Owens-Brockway Glass Containers designed the 2.25 oz. glass bottle specifically for Defendant H.J. Heinz, beginning production in 1990 and continuing today. [Doc. 34-19 at 21.] Owens makes the bottles from a proprietary mold and sells only to Heinz. [Id.] Owens manufactured the bottle in this case at its Crenshaw, Pennsylvania, facility. [Doc. 34-19 at 32.]
Relevant to this motion, after an automated machine forms the glass ketchup bottles and places them on the production line, the bottles enter a large long tunnel called an annealing lehr. Using a computer-controlled system, the annealing lehr reheats several thousand bottles at a time to above 1050 degrees Fahrenheit. [Doc. 34-19 at 43.] Annealing allows the glass to relax and eliminates any thermally-induced stresses that the formation process may have caused. [Doc. 34-19 at 43.] For annealing to work properly, the bottles must reach this high relaxation temperature and then cool at a fairly constant rate. [Doc. 34-19 at 45-46.] The large lehr accomplishes these tasks by moving the bottles through various temperature-controlled sections, ultimately producing room-temperature bottles. [Doc. 34-19 at 45.] Afterwards, Owens inspects every bottle produced. [Doc. 34-19 at 36-37.]
After production and packing, Owens ships the pallets of bottles to an H.J. Heinz filling facility located in Fremont, Ohio. [Doc. 34-20 at 16.] Here the bottles are cleaned and then move to a filler where the machine's pockets grip the side walls of each bottle while a small tube fills it with cold ketchup. [Doc. 34-20 at 18-19, 59-61, 113-115.]
The bottles next move to an automatic capping machine. [Doc. 34-20 at 19.] This machine sets a cap on the top of each bottle then sends the bottle into two waiting belts. [Doc. 34-20 at 62- 63.] The top belt holds the cap flat on the bottle while the side belt grips the side wall of the bottle. [Doc. 34-20 at 63.] Together, these belts spin the bottle and torque the cap onto the threads of the bottle opening. [Doc. 34-20 at 62.] Finally, the machine places a date code on the cap of the sealed bottle.*fn4 [Doc. 34-20 at 19.]
After capping and coding, the conveyor moves the bottles through the sealing process. [Doc. 34-20 at 20.] Then, the conveyor moves the bottles to an accumulation laner, where an employee uses a vacuum head to lift sixty bottles at a time and pack them into cases for shipment to distributors. [Doc. 34-20 at 20-23.] Because the filling process can sometime cause breakage, Heinz conducts various inspections of the bottles. On January 25, 2005, Heinz recorded no bottles as cracked, chipped, broken or otherwise defective. [Doc. 34-20 at 163-189.]
Once inspected, Heinz ships the 2.25 oz. bottles to various distributors and retailers. In this case Defendant Borgata, purchased the bottle from US Foodservice in Bridgeport, New Jersey. [Doc. 44-6 at 6.] US Foodservice employees generally unload the shipment while Borgata employees transport it to an in-house warehouse. [Id.]
When Borgata's in-room dining department needs more bottles, a warehouse employee delivers them in small cardboard cases. [Doc. 44-7 at 26.] The department then stores some bottles on the shelves and places others on food trays in groups of 120. [Doc. 44-7 at 26.] When a food order requiring ketchup comes into the department, an employee removes the necessary bottles from the tray and places them on the room service dining cart. [Doc. 44-7 at 6, 23.] After the meal, the ...