The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Shawn Hunt ("Plaintiff") sustained injuries in a farming accident, when the tractor he was operating was struck from behind by another tractor, after the second tractor's brakes failed. Plaintiff is asserting claims for negligence and strict products liability against CNH, Inc. ("Defendant"), the manufacturer of the tractor which struck him. Now before the Court are the following applications: 1) Defendant's motion for summary judgment (Docket No. [#18]); 2) Defendant's motion [#23] to exclude the testimony of Plaintiff's expert; 3) Plaintiff's cross-motion [#26] to strike the testimony of Defendant's expert; and 4) Defendant's motion [#32] to strike supplemental evidence and testing by Plaintiff's expert. Defendant's motions are granted, Plaintiff's cross-motions are denied, and this action is dismissed.
Unless otherwise noted, the following are the facts of this case, viewed in the light most-favorable to Plaintiff. On May 15, 2006, Plaintiff was an employee of a dairy farm in Corfu, New York. The farm utilized several tractors, including a Steiger CA-325 tractor ("the Steiger"), and a much smaller International Harvester tractor ("the International Harvester"). Plaintiff's employer, Dan Miller ("Miller"), had purchased the Steiger, in used condition, several years earlier.
The Steiger, which was manufactured by Defendant in 1982, had a braking system consisting of a single "air actuated" "power screw air disc brake." Affidavit of Timothy Rhoades ("Rhoades Aff") at Ex. C, p. 9. More specifically, the brake is a "sliding-caliper-syle" brake, which Plaintiff's expert witness, Orla L. Holcomb, Jr. ("Holcomb"), described as follows:
[T]here's two ways that you can -- you can apply brakes on a disc brake.
. . . On a fixed caliper brake, you have pistons on both sides of the disc. One set of pistons actuates the outboard lining, and another set operates the inboard lining[.]
Now, to get away from having to put an apply mechanism on each side of the disc, they went to a [sliding] caliper brake. Sometimes its called an anvil brake. That means that all you need on the outboard end is some little mechanism to hold it.
Sliding-caliper brakes, then, have only one apply system, be it a hydraulic piston or be it an air-applied piston, air-actuated piston.
When you put the brakes on a [sliding] caliper brake, you are first
applying the brake to the inboard side of the disc, and then the
caliper head is
reacted by the other end of the hydraulics, and it pulls*fn1
the anvil into contact with the disc.*fn2 [The
type of brake on the Steiger tractor is] a sliding caliper. I -- I
call it a rail slider. There's two types of sliding calipers. One is a
-- a pin slider.
Pins -- the brake slides on pins, and it pretty well controls the -- the freedom of the disc -- of the caliper to move. It pretty well guides the caliper, let's say. The other is a rail slider. The rail slider is just an abutment upon which the brake head abuts and transfers the force from the lining to the anchor or, in the case of the Goodrich brake, to the brake support.
Holcomb Dep. at 172-174 (emphasis added). Prior to the accident in this case, it appeared that the Steiger's brakes operated properly. In fact, Plaintiff indicates that the brakes were highly effective. Plaintiff's Deposition ("Pl. Dep.") at 94.
Shortly before May 15, 2006, the Steiger's transmission failed, while being used for plowing at a neighboring farm, located about ten miles from Miller's farm. Because the Steiger's transmission was damaged, it could not be driven. Miller decided to have the disabled Steiger towed back to his farm, rather than attempting to repair it where it had broken down. Consequently, on May 15, 2006, Miller directed Plaintiff and a co- worker, Larry Carter ("Carter"), to take the smaller International Harvester to the neighboring farm and tow the much larger Steiger back to Miller's farm, using a large steel chain.
The Steiger's owner's manual warns against towing the tractor, to avoid damage to the tractor's transmission:
If a problem should arise requiring repairs that cannot be done in the field, it is required that this tractor be transported on another vehicle and not towed.
The tractor CANNOT be towed to start the engine. Even though the transmission output shaft would be turning, the transmission internal oil pump would not. In this situation the transmission could not be lubricated or pressurized and severe transmission damage will result.
Affidavit of Vivian Quinn ("Quinn Aff."), Ex. H.*fn3 The tractor itself, though, did not bear any warning label cautioning users not to tow the tractor. Additionally, the Steiger's owner's manual, in the section entitled "Safety," advised operators to use the tractor's engine to assist in braking when going down hills: "Do use the braking power of the engine; always downshift to lower gear before descending a steep grade. Brakes should always be properly maintained and adjusted." Rhoades Aff., Ex. C at p. 6. However, because the Steiger's transmission was disabled, its engine could not be used to assist with braking. See, Rhoades Aff. at ¶ 12 ("[G]iven the condition of the Steiger tractor transmission/drive train, Mr. Carter and Mr. Hunt could not rely on engine braking.").
In any event, despite these warnings and conditions, Plaintiff and Carter reluctantly followed Miller's order to tow the Steiger and attached plow along the chosen route, which included many large hills. In that regard, Carter understood that towing the tractor in that fashion could be dangerous, "if something went wrong." Carter Dep. at p. 59. Nonetheless, Carter indicated that he was not worried about the Steiger's ability to brake on hills. Id. at p. 63 (Indicating that he was not concerned about coming down hills). Similarly, Plaintiff indicated that he had general misgivings about towing the Steiger, but "didn't think it would turn out as bad as it did." Pl. Dep. 115.
As noted above, the road between Miller's farm and the neighboring farm included a number of large hills. Carter wanted to keep the towing chain between the two tractors taut while descending the hills, so he told Plaintiff not to use the brakes on the International Harvester, and to let him do the braking for both tractors using just the Steiger's brakes, and not its engine.*fn4 Carter Dep. at 63 ("I just told him, when we get to a hill, you just let me do the stopping, don't touch your brakes, because the chain will get slack, let me do the braking, I'll slow us both down."). Immediately prior to attempting this operation, Carter examined and adjusted the Steiger's brakes, and he believed that they were in good working condition.*fn5 Plaintiff and Carter then set out, with Plaintiff operating the International Harvester and towing the Steiger, and with Carter steering the Steiger and applying the brakes.
A few minutes into the journey, partway down a steep hill, Carter felt the Steiger's brakes fail. At deposition, Carter stated that his braking "foot went to the floor," and "the brakes let loose." Deposition of Larry Carter ("Carter Dep.") at pp. 89-90; see also, id. at p. 97 ("I held my foot right on them, but there was nothing there."). Unable to slow down, the Steiger rammed into the back of the International Harvester, causing both tractors to turn over onto their sides. Carter was uninjured, but Plaintiff, who was not wearing his seatbelt, sustained serious injuries to his right leg when he was partially ejected from the International Harvester's cab.
Immediately following the accident, Carter examined the Steiger's brakes, and concluded that the cause of the accident was "self-explanatory." According to Carter, "[t]he brakes came apart. The equipment malfunctioned." Carter Dep. at 133. More specifically, Carter stated that, "The brake pads had come apart. . . . The shoes came off the backing." Id. at 128 (emphasis added). Carter did not observe anything else unusual about the brakes, although he did observe that the brake disc was still warm. Id. at 128-129. Plaintiff later spoke to Carter about the accident, and Carter reiterated that the brake pads had "fallen apart": "[He said that] [t]he brakes got hot, they disintegrated; therefore, it wouldn't stop. . . . He said he pressed on the pedal and there was nothing there, they fell apart." Pl. Dep. at 203-204.
Immediately after the accident, Miller had the Steiger repaired, with such repair consisting only of installing "new brake pads." Carter Dep. at 133, 135-136; see also id. at 136 ("I just asked [the mechanic] what he had to do, and he just said it needed new pads."). The repairman, Mr. Pfalzer ("Pfalzer"), "took the old pads, what was left of them." Id. at 135.*fn6 After the brakes were repaired, Carter and Miller continued to use the Steiger for farming. Id. at 134. Carter indicated that after the new brake pads were installed, the Steiger "work[ed] fine." Id. at 134; see also, Miller Dep. at 116 (Indicating that the tractor "operate[d] properly" after Pfalzer repaired the brakes). There is no indication that the Steiger's brakes failed at any other time. Nor is Plaintiff aware of any other instance of brake failure involving a Steiger CA-325 tractor.
On February 12, 2009, Plaintiff commenced this diversity action. Presently, there are claims pending, under theories of negligence and strict products liability, for: 1) manufacturing defect; 2) design defect; and 3) failure to warn.*fn7
On March 1, 2010, the Court issued a Scheduling Order [#16], directing Plaintiff to identify any expert witnesses, and to provide expert reports, by May 17, 2010. The Scheduling Order further directed that all expert discovery in this action be completed by August 31, 2010. Id. During discovery, the parties exchanged expert reports and deposed each other's experts.
As mentioned above, Holcomb is Plaintiff's retained expert. Holcomb is a mechanical engineer who, since 1969, has worked with air brakes, as a design engineer and consultant, for companies including Bendix and Clark Equipment Company. Holcomb Dep. at 176; Holcomb Aff. at ¶ ¶ 2-7. Plaintiff's counsel retained Holcomb in or about November 2009, which was approximately three-and-a-half years after the accident, during which time Miller had continued to use the Steiger. Affidavit of Vivian Quinn ("Quinn Aff."), Ex. E at 1. Plaintiff retained Holcomb solely and specifically to consider whether there was a "design problem" with the Steiger's brakes. Holcomb Deposition ("Holcomb Dep.") at 75-76; id. at 99 ("[Plaintiff's attorney] asked me if I could see any design flaws[.]")s.
When Plaintiff's counsel retained Holcomb, he provided Holcomb with
one of the brake pad carriers that Pfalzer had removed from the
tractor when he repaired it following the accident. Specifically, the
part was "the remaining Carrier from what had once been an inboard
Carrier and Lining [pad] assembly." Quinn Aff. Ex. E. at 1.*fn8
Such "carrier" is the metal backing to which the inboard
brake pad had been attached. Significantly, Holcomb was not able to
examine the outboard brake pad, because it had either been lost or
Upon examining the inboard brake pad backing, Holcomb observed that "[t]he lining material [i.e. the pad] was gone and the steel Carrier was misshapen and worn." Quinn Aff., Ex. E at 1. Holcomb concluded, from his "visual analysis" of the part, that the brake pad was worn out prior to the day of the accident.*fn10
Plaintiff's counsel also provided Holcomb with photographs of the Steiger's brake which were taken in January 2009, more than two-and-one-half years after the accident. Naturally, the brake pads depicted in the photos were not the same as those which were on the tractor at the time of the accident. Quinn Aff., Ex. E at 1. Nevertheless, according to Holcomb, the photographs "showed an inboard lining [pad] completely worn while the outboard lining was relatively unworn." Id. From these photographs and the worn inboard plate which he had been provided, Holcomb surmised, in his preliminary expert report, that the brake caliper was not sliding as it should, which prevented the outboard pad from engaging the disc. Holcomb Dep. at 175. ("I at first thought it was the failure of the caliper head to slide, which caused the inboard lining to take most of the . . . actuation of the brake."); id. at 194.*fn11
On April 20, 2010, Holcomb personally inspected the Steiger, and prepared a final inspection report. Affidavit of Vivian Quinn ("Quinn Aff."), Exhibit E, Holcomb Report, Appendix D, "Inspection of the Steiger C325 Brake on April 20, 2010." Such inspection occurred approximately four years after Plaintiff's injury. Holcomb initially noted that the inboard brake pad was contacting, or almost contacting, the disc, while the outboard pad was not. Id. at 1. In addition, Holcomb observed that the motion of the "brake head" was "very unusual," in that, when the parking brake was applied, the outboard lining moved, while the inboard lining and piston remained stationary. Id. at 1.*fn12
Upon examining the brake pads, Holcomb estimated that the outboard lining was 0.705 inches thick, while the inboard lining was 0.675 inches thick, though he did not actually make "direct measurements." Id. at 2. As for the brake disc, Holcomb visually observed that "the wear on the inboard side was insignificant compared to the wear depth at the outboard side," but did not measure the respective sides of the disc. Id. Holcomb also observed that a "guide bar," which had been factory-welded onto the brake mount, was missing, Id., and from this he concluded that the guide bar must have been broken off by "a counter-clockwise rotation of the rails [upon which the caliper moved]." Id. at 4.
On May 20, 2010, Holcomb prepared his expert report. Quinn Aff., Ex. E. As part of his report, Holcomb assumes that at the time of the accident, the inboard brake pad was significantly more worn than the outboard pad, as they appeared in the photos taken in January 2009, though there is no proof of that.*fn13 Quinn Aff. Ex. E at 1. Holcomb further made this assumption even though he did not report similar uneven pad wear when he personally inspected the tractor.*fn14 On this point, although Holcomb visually estimated, during his inspection, that the inboard pad was slightly thinner than the outboard pad (0.675 inches thick v. 0.705 inches thick), it is undisputed that inboard pads ordinarily receive more wear than outboard pads.*fn15 Moreover, Holcomb does not know whether the inboard and outboard brake pads, when new, are the same thickness. Holcomb Dep. at pp. 108-109. Nonetheless, Holcomb assumes, in his report, that the brake pads on the Steiger at the time of the accident had "grossly unequal wear" as depicted in the January 2009 photos. Quinn Aff., Ex. E at p. 1 ("This grossly unequal wear was assumed to exist at the time of the incident.").
Holcomb further contends that "[t]he usual cause of excess wear on the inboard lining of a sliding caliper disc brakes is impaired 'sliding' of the caliper." Quinn Aff. Ex. E at 1. Holcomb states that in considering the cause of the accident, he initially figured that such "impaired sliding" must have been caused by one or both of the following two factors: 1) "drag at the rails"; and/or 2) "unstable position of the rails." Id. However, Holcomb ultimately rejected the idea that the caliper motion was impaired, and concludes, in his final report, that the cause of the uneven wear on the inboard lining is that the "piston and inboard Carrier and Lining" became "hung up," due to the "unstable fixation of the rails to the Brake Mount." Id.
Holcomb further contends that because the piston was "hung up," or stuck in place, the inboard lining failed to retract after being applied, and essentially rested against the disc all the while the tractor was operating, which caused significant wear to the inboard lining, but not the inboard side of the disc:
When applying the air brake, the Brake Head Assembly moved fore and aft along the rails while the inboard Carrier and Lining and the Piston remained stationary -- seemingly locked to the rails. Another extraordinary condition observed was that nearly all of the disc wear occurred on the outboard face of the disc. These two factors revealed the cause of the grossly disproportionate lining wear, i.e., the lack of freedom of motion of the inboard lining.
When the brake is applied, the Brake Head and outboard lining are free to move, pushing the outboard lining against the disc and accomplishing the great majority of the stopping power. The inboard lining is pushed against the disc only when the apply force is large enough to overcome the restriction at the inboard Carrier-rail contact.
When the brakes are released, the inboard lining remains in contact with the disc, held by the restrained motion at the Carrier-rail interface. The disc, rotating at high speed (can be up to 1,000-2,000 rpm), wears away the inboard lining and heats up (thermal expansion of the disc potentially exacerbating the contact force on the inboard lining).
Thus the inboard lining is subjected to relatively continuous and variable wear factors while the outboard lining wears only when actual vehicle braking occurs.
Quinn Aff., Ex. E, Holcomb Report at 7. In short, Holcomb contends that the inboard lining remained in light contact with the disc, causing heat and excessive wear to the inboard lining, while simultaneously causing little wear to the inboard side of the disc. On the other hand, he posits that, although the outboard lining was providing all of the braking action, it was less worn than the inboard lining, yet caused greater wear to the outboard side of the disc.
Holcomb contends that this proposed scenario was caused by a defective brake design. Specifically, he states:
The Steiger installation of the Goodrich brake on the tractor does not provide a secure pathway for the Brake Head Assembly operation. The Steiger installation of the Goodrich brake could have been made secure by the simple relocation of the four mounting bolts. The insecure Steiger installation of the Goodrich brake causes restrained motion of the inboard lining on the rails, precipitating grossly excessive lining wear and excessive heat build-up in the brake disc.*fn16
Holcomb Report dated May 20, 2010, at p. 2. That is, he maintains that improper design of the bolt placement allowed the brake assembly to move, which caused the inboard lining to become "hung up" on the rail. Id. at 3. Again, Holcomb arrived at his conclusion concerning bolt placement in his report by performing a mathematical equation concerning "the braking forces transmitted from the brake carrier and linings to the support bracket," but did not test the theory. Id. at 3-7.
Holcomb's report does not opine that this "hanging up" of the inboard carrier and piston, by itself, caused the Steiger's brakes to fail on the day of the accident. To the contrary, Holcomb's report indicates that even with the inboard piston "hung up" as he describes, the brake continued to function, with the outboard brake pad doing essentially all of the work. Instead, Holcomb posits that the total loss of braking power occurred when the outboard brake pad also became disabled. Significantly, Holcomb does not maintain that the outboard pad became disabled because it fell apart, as Carter's observations following the accident would indicate.*fn17 Instead, Holcomb states that the outboard pad failed in the following manner:
As the tractor was traveling down the increasing grade, the tractor operator began to apply the brake. The braking action was accomplished by the outboard lining only, as the inboard Carrier and Lining was 'hung up.' Increasing brake pressure caused the force on the piston to finally reach the level to move the inboard Carrier.
This sudden ratcheting motion of the inboard Carrier released the force on the outboard lining, thus ceasing braking action.
Id. at 10-11. (emphasis added). At the time he completed his report, Holcomb had not performed any testing to support this "sudden ratcheting" theory . Holcomb Dep. at 155-156.
At deposition, Holcomb reiterated and clarified the opinions in his report. More specifically, he testified to the following points: 1) the inboard lining was worn and warped prior to the incident, Holcomb Dep. at 207-208; 2) the inboard lining was damaged by "non-braking action" - it was "just sitting there against the disc, getting worn and hot, id. at 208-209; 3) the outboard lining was "intact and functioning" prior to the accident, id. at 205-206, 218; 4) without the outboard lining, the tractor would have had "practically no brakes," id. at 206, see also id. at 216 ("the inboard lining was not doing hardly any braking, and the outboard was."); and 5) the outboard lining was still intact after the accident, id. at 122-123. On this last point, Holcomb assumes that the outboard lining was intact and functioning following the accident, since it was not retained following the accident. Id. at 122-124. Again, however, Holcomb has never actually seen the outboard brake pad that was on the tractor at the time of the accident. Nor, apart from speculation, is there any reason to believe that the failure to retain the outboard pad was intentional.
In any event, Holcomb further testified at deposition concerning the cause of the brake failure, as follows:
A. The [inboard] carrier plate, because it is not free to move [because it is "hung up"], does very little braking. . . . [W]hen the brake is applied, this [inboard plate] is still stuck, so this plate does not move towards the disc, but the reaction apply [sic] system moves the caliper towards the disc, and the . . . caliper outboard lining then contacts the disc. When . . . the brake was cycled on and off, the outboard lining moved back and forth. It . . . opened up a . . . clearance between it and the disc* ...