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Michelle Mathis-Kay, Individually and As Administratrix of the Estate of Earl v. Mcneilus Truck & Manufacturing

September 24, 2011

MICHELLE MATHIS-KAY, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF EARL A. KAY, PLAINTIFF,
v.
MCNEILUS TRUCK & MANUFACTURING, INC., MCNEILUS TRUCK & MANUFACTURING, CO., MCNEILUS COMPANIES, INC., OSHKOSH TRUCK CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

In this diversity action, Plaintiff Michelle Mathis-Kay, claims that Defendants McNeilus Truck & Manufacturing, Inc., McNeilus Truck & Manufacturing, Co., McNeilus Companies, Inc., and Oshkosh Truck Corp., are strictly liable for the design and manufacture of an allegedly defective exterior riding step and grab bars, which were part of the garbage truck from which decedent Earl. A. Kay fell, suffering injuries resulting in his death. Ms. Mathis-Kay further brings claims against McNeilus on the basis of inadequate warning, breach of warranty, and negligence. Jurisdiction is proper pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441. Presently before this Court is Defendants' Motion for Summary Judgment. Also before this Court is Defendants' Motion to Exclude Expert Testimony.*fn1 For the following reasons, Defendants' Motion to Exclude Expert Testimony will be denied. Defendants' Motion for Summary Judgment will be granted in part and denied in part.

II. BACKGROUND

A. Facts

Much of the relevant background is undisputed. Plaintiff Michelle Mathis-Kay was the decedent's lawfully wedded wife and was appointed Administratrix for the Estate of Earl

A. Kay by the Erie County Surrogate's Court on February 28, 2006. (Notice of Removal, Docket No. 1, Ex. B ("Complaint"), ¶¶ 2-3.) Now and at all times relevant, Mathis-Kay has been a resident of Erie County, New York. (Id. at ¶ 4.) The McNeilus Defendants are foreign corporations registered and authorized to do business in Minnesota, with their principal place of business in the same state. (Id. at ¶ 7-9.) Defendant Oshkosh Truck Corporation is incorporated under the laws of Wisconsin, with its principal place of business in Wisconsin, and is the parent corporation of the McNeilus defendants. (Notice of Removal, Docket No.1, ¶ 4.)

Decedent was an employee of BFI Allied Waste, Inc., a corporation in the business of refuse collection. (Comp. ¶ 5.) Decedent worked as part of a refuse pick-up crew, consisting of a driver and an assistant. (Id. at ¶ 27; Defendants' Statement of Material Facts in Support of Defendants' Motion for Summary Judgment ("Defs.' Statement"), Docket No. 15, ¶ 13.)*fn2 As the assistant, Decedent would ride the exterior of a garbage truck and periodically get off the truck to collect garbage. (Defs.' Statement ¶ 13.) The vehicle to which Decedent was assigned was a rear loader garbage truck equipped with an external riding step along both sides of the vehicle. (Id. at ¶ 18.) This external step was approximately ten inches in width, with a surface area of 330 square inches, and a slip-resistant surface. (Id.) In addition to the external step, the truck also had grab handles capable of withstanding a pull of at least 500 pounds. (Id. at ¶ 20.) Finally, the truck bore warnings alerting users that the exterior riding step should not be used when the vehicle was operated in reverse, traveled at speeds in excess of 10 miles per hour, or for distances greater than two tenths of a mile. (Id. at ¶ 21.) The grab handles, riding step, and rear loader garbage truck were all designed and manufactured by Defendants. (Id. at ¶¶ 17-18, 20.)

On November 8, 2004, Decedent was riding the truck's external step. (Plaintiff's Statement of Facts ("Pl.'s Statement"), Docket No. 21, ¶ 4.) Two other riders positioned on the passenger's side external step. (Id.) The team was driving through a small subdivision when the truck rounded a corner by making a right turn at approximately 5 miles per hour. (Id. at ¶¶ 4, 11.) The driver heard one of the riders yell "whoa, whoa," and upon looking back saw that decedent was no longer onboard. (Id. at ¶ 4)

Decedent was subsequently found lying at the edge of the grass a few hundred feet past the curve. (Defs.' Statement ¶ 15.) Decedent had sustained a head injury and was taken to DeGraff Hospital, and, subsequently, the Erie County Medical Center trauma unit. (Pl.'s Statement ¶¶ 14-16.) Decedent died a number of days later, still in the medical center's care. (Id. at ¶ 16.)

Throughout this time, decedent's head injury rendered him unintelligible. Decedent was neither able to communicate nor answer questions about his accident. (Defs.' Statement ¶ 16.) In addition, neither the driver, nor the other riders knew when decedent fell from the truck, whether his hands or feet came loose first, or how decedent struck the ground. (Id. at ¶ 15.) Plaintiff now seeks to hold Defendants strictly liable for manufacturing a defectively designed riding step and grab bars, as well as inadequately warning users of danger, breach of warranty, and negligence.

B. Procedural History

Plaintiff commenced this action on November 9, 2006 by filing a complaint in the New York Supreme Court, Erie County against Defendants alleging strict product liability, breach of warranty, and negligence. (Id. at ¶ 2.) The action was subsequently removed to the United States District Court for the Western District of New York on December 12, 2006. (Id.)

On January 29, 2009 Defendant filed a motion for summary judgment seeking dismissal of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 56, or, in the alternative, exclusion of expert testimony by Plaintiff's experts Gabriel Alexander and Rober Sugarman pursuant to Federal Rule of Evidence 702. Plaintiff opposes both motions.

III. DISCUSSION

A. Motion to Exclude Plaintiff's Expert Witnesses

Before this Court can consider Defendants' Motion for Summary Judgment, it must determine whether testimony from Plaintiff's experts Gabriel Alexander and Dr. Robert Sugarman is admissible. Plaintiff relies on the testimony of both experts to make out a prima facie case for defective product design. See Toole v. Toshin Co., Ltd., No. 00-CV-821S, 2004 WL 2202580, at *7 (W.D.N.Y. Sept. ...


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