The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiffs Barbara and Craig Williams commenced the instant personal injury action against Defendants arising out of Barbara Williams' operation of an Arctic Cat Prowler XT 650 H1 manufactured by Defendant Arctic Cat and sold by Defendant Gander Mountain. Plaintiffs assert claims for strict product liability, negligence, and breach of warranty. Presently before the Court is Defendants' motion to preclude Plaintiffs' expert and for summary judgment and Plaintiffs' cross-motion to preclude Defendants' experts. Oral argument was heard on September 10, 2012.
On March 26, 2007, Plaintiffs purchased a 2007 Arctic Cat Prowler XT 650 H1 bearing Model No. U2007P2S4BUSG and VIN 4UF07MPV97T308306 (hereinafter referrred to as the "Prowler") from Defendant Gander Mountain. The Prowler was designed to meet customer demand for a vehicle catering to farmers, ranchers, and hunters. The Prowler did not come with doors as standard factory equipment, but as optional accessories. According to Arctic Cat, doors were not included as standard equipment because it would significantly decrease the utility of the vehicle for its primary intended purpose as a utility/work vehicle where frequent stopping and ingress and egrees into and out of the vehicle would occur. Plaintiffs used the Prowler for farm work, general riding and recreation. Plaintiff did not purchase the optional doors, but, instead, had a third-party aftermarket soft cab installed on the Prowler. The soft cab came with doors that Plaintiffs had removed at the time of the accident. The Prowler contained numerous on-product warning decals and warnings in the Operator's Manual concerning safe operation. Plaintiff Barbara Williams ("Williams") looked at the owner's manual, but did not read it front to back. Williams understood that the purpose of the operator's manual was "[t]o make the machine last longer, the safety of it. . . ." Williams Dep. at 120. Plaintiffs never had any problems with the stability of the Prowler prior to the subject accident.
On March 28, 2008, Williams was operating the Prowler in Port Crane New York on Depot Hill Road. Williams was driving the Prowler on a public road on her way to a local store. Williams' daughter, Shelby, was riding in the passenger seat. Williams claims that she was maneuvering through a downhill, left-hand curve in the road, when a vehicle approached and passed her from behind. Williams drove the Prowler partially onto the dirt shoulder of the road to avoid the vehicle. After the vehicle passed, Williams noticed a mailbox in her path of travel. Williams turned back on to the road to avoid the mailbox. Williams claims that the shoulder of the road gave way as she attempted to turn back onto the road. The Prowler started to pitch forward onto the right, front tire, near where Williams's daughter was sitting. To counter this force, Williams shifted her weight to the left (extending her head outside the occupant compartment), at which time the Prowler started tipping to the left. During this process, Plaintiff's left leg came out of the cab. The Prowler tipped over onto the driver's side and spun 180 degrees. Williams's leg became pinned under the Prowler and was injured.
Plaintiffs then commenced the instant action against Defendant Arctic Cat, the manufacturer of the Prowler, and Gander Mountain, the retailer where the Prowler was purchased. Plaintiffs retained Lawrence Feer as their expert. Feer opined that a side restraint occupant containment system would have prevented Williams's injuries; Wiliams's injuries were foreseeable to Defendant, who had an obligation to provide adequate warnings and not mislead consumers concerning the risks; the Prowler is similar in configuration to other four-wheel ATV's (side-by-sides) having similar experiences with rough terrain, pavements and other hazards associated with driving such vehicles; Defendant failed to offer a side restraint system; and Defendant could have prevented the injury by: (a) using occupant containment, (b) placing a dead pedal in the operator's compartment, (c) designing the operator's seating to take into account people of different sizes, (d) offer doors, hand holds, straps, webbing, devices, kick panels, splash guards and upper extremity restraints, leg guards, or side restraint systems, (e) making a sill higher than the floor, (f) making doors of difference sizes with different hinge locations, (g) making handholds (grab bars), (h) delethalizing the vehicle, (i) making the Prowler crashworthy, (j) making a clear and unambiguous statement as to the increased risk of rollover on pavement, (k) incorporating anthropomorphics, (l) making the floor area lower than the floor sill, (m) balancing the need for ease of use with protection, (n) evaluating real life usage, (o) examining other manufacturers' designs, (p) restraining occupants, and (q) making adjustable seating. According to Plaintiff, Feer will offer the following opinions:
(1) when a vehicle is designed, safety of the occupant is and should be the primary concern;
(2) the history of ATV's and the accumulated knowledge of the industry must be used and considered when designing and warranting a vehicle;
(3) the history of ATV's indicates that rollovers do in fact occur;
(4) the history of ATVs indicates that extremity injuries are the most common;
(5) in rollovers, occupant containment and protection is an issue that must be recognized and considered;
(6) given the history of ATVs, some sort of side containment and protection device could and should have been developed at the time of the sale which would have protected its occupants, such as half doors, webbing, and extended kick panels;
(7) Plaintiff's use of the vehicle on a country road was a direct result of Defendant's actions;
(8) pavement test drives and completion of a New York State Vehicle Registration/Title Application would mislead consumers into believing that pavement and on-road use of the Prowler was acceptable;
(9) given the lack of any collision damage into the occupant compartment, a side restraint system would have kept Williams's leg contained;
(10) there were a variety of different designs available that would have worked to ...