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Jason Congilaro and v. Crown Equipment Corporation

September 1, 2012


The opinion of the court was delivered by: Scullin, Senior Judge



Plaintiffs Jason Congilaro and Bethanne Congilaro bring this product liability action against Defendant Crown Equipment Corporation due to a stand-up forklift accident that occurred on May 31, 2007, at a WalMart distribution center located in Marcy, New York.*fn1

Currently before the Court are Defendant's motion to exclude the testimony of Plaintiffs' proposed expert witnesses and Defendant's motion for summary judgment.


Plaintiff Jason Congilaro alleges that, while he was operating a stand-up forklift that Defendant manufactured, model RR5225-45, he slid through a puddle of liquid on a WalMart warehouse floor and crashed into a firewall door, causing severe injury to his lower left leg as it was crushed between the door and the forklift. As a result of his injury, Plaintiff Jason Congilaro has undergone multiple surgeries and his left leg had to be amputated below the knee. Plaintiff Bethanne Congilaro, Plaintiff Jason Congilaro's wife, alleges, among other things, the loss of her husband's services and consortium resulting from the May 31, 2007 incident.

Plaintiffs contend that the "open-compartment design" of Defendant's stand-up forklift is unreasonably dangerous and defective because the compartment in which the forklift user stands to operate the forklift lacks a rear door enclosing the operator compartment. Plaintiffs assert that the addition of a rear door to the operator compartment as the forklift's standard design is a safer design alternative to the open-compartment design.


A. Defendant's Daubert motion to exclude the expert testimony of Plaintiffs' two proposed expert witnesses In its Daubert motion, Defendant seeks to preclude Plaintiffs' proffered experts, Thomas

A. Berry and John Coniglio, from testifying at trial concerning their opinions regarding a proposed safer alternative to the open-compartment design of Defendant's stand-up forklift on the ground that their opinions are unreliable, untested, and speculative. Plaintiffs' proposed expert witnesses maintain that the installation of a rear door enclosing the forklift's operator compartment would help to prevent injuries of the type that Plaintiff Jason Congilaro suffered. Berry and Coniglio further assert that forklift operators should be trained to remain inside the operator compartment during accidents. Defendant, on the other hand, contends that forklift operators have the best chance to avoid injury by quickly exiting the forklift and that the installation of a door fully enclosing operators within the operator compartments would only encumber their ability to exit safely.

Under New York law, "a 'defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use . . . .'" Yun Tung Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29, 33 (2011) (quotation omitted). "If the 'utility' of a product 'does not outweigh the danger inherent in its introduction into the stream of commerce,' then the product is defectively designed . . . ." Id. (quotation omitted).

In assessing the reliability of expert testimony, Rule 702 of the Federal Rules of Evidence identifies certain "'indicia of reliability'" that a district court should consider, "'namely, (1) that the testimony is grounded on sufficient facts or data; (2) that the testimony is the product of reliable principles and methods; and (3) that the witness has applied the principles and methods reliably to the facts of the case.'" United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007) (quotation omitted). Furthermore, in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the Supreme Court enumerated a list of additional factors that a court should consider, including "(1) whether a theory or technique has been or can be tested;" "(2) 'whether the theory or technique has been subjected to peer review and publication;'" "(3) the technique's 'known or potential rate of error' and 'the existence and maintenance of standards controlling the technique's operation;'" and "(4) whether a particular technique or theory has gained general acceptance in the relevant scientific community." Williams, 506 F.3d at 160 (quoting Daubert, 509 U.S. at 593-94, 113 S. Ct. 2786). Although the Daubert threshold is not very stringent, courts nonetheless look to Daubert to ensure that expert testimony is based on sufficiently reliable knowledge and methodology.

In the instant case, Defendant certainly has support for its position that the operator compartment of its stand-up forklifts should remain unencumbered by a door enclosing the operator compartment as the standard design. However, this does not preclude Plaintiffs from presenting their theory of liability to a jury, aided by qualified experts, that a door guarding the opening at the rear of the operator compartment is a safer alternative to no door. Applying the Daubert factors to this case, first, Plaintiffs' experts' door theory has been tested. Second, it appears that Berry conducted a study on the history of stand-up forklift operator safety and published a peer-reviewed report, titled "A Risk Based Study of Tipover and Off-dock Accidents Involving Stand-up Lift Trucks." See Dkt. No. 43 at 7. Third and fourth, as is further discussed below, although it has not gained general acceptance, the closed-operator-compartment-door theory is subject to dispute within the engineering community.

Plaintiffs' experts' proposed alternative design is not, as Defendant suggests, some untested and unreliable design. On the contrary: Defendant has designed, manufactured, and sold such doors to various customers for many years. Likewise, to the extent that Defendant is seeking to preclude Plaintiffs' proffered experts based on the supposed unreliability of their alternative design theory that a door is safer than no door, that theory is not uniformly disfavored.*fn2 Finally, courts have found Defendant Crown Equipment Corporation liable based on alternative design theories substantially similar to those asserted here. See, e.g., McEuin v. Crown Equip. Corp., 328 F.3d 1028 (9th Cir. 2003) (affirming the injured forklift-operator plaintiff's compensatory and punitive damage jury award against Crown in a defective design case for not installing an operator-compartment door on its stand-up forklift). Cf. ...

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