United States District Court, N.D. New York
PHILLIP A. GAUDETTE, JR., Plaintiff,
SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, SAINT-GOBAIN PERFORMANCE PLASTICS, YALE MATERIALS HANDLING CORPORATION d/b/a YALE, and NACCO MATERIALS HANDING GROUP, INC., Defendant. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Cross-Claimant,
YALE MATERIALS HANDLING CORPORATION d/b/a YALE, and NACCO MATERIALS HANDING GROUP, INC. Cross-Defendants. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Third-party Plaintiff,
FEDEX FREIGHT, INC. as successor in interest to FEDEX FREIGHT SYSTEM, INC. and FEDEX NATIONAL, LTL, INC., Third-party Defendant.
CONWAY & KIRBY, LLP, ANDREW W. KIRBY, ESQ., Latham, New York, Attorneys for Plaintiff.
PHILLIPS LYTLE LLP, PRESTON L. ZARLOCK, ESQ., RICHARD T. TUCKER, ESQ., Buffalo, New York, Attorneys for Defendant-Cross-Claimant-Third-Party Plaintiff Saint-Gobain Performance Plastics Corporation.
GOLDBERG SEGALLA LLP, JOHN P. FREEDENBERG, Buffalo, New York, Attorneys for Defendant-Cross-Defendant NACCO Materials Handling Group, Inc.
WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP JEFFREY A. SEGAL, New York, New York, Attorneys for Third-Party Defendant FedEx Freight, Inc.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
In his Amended Complaint, Plaintiff Philip A. Gaudette, Jr. alleges causes of action against Defendants in negligence, strict tort liability, and breach of express and implied warranties. See Dkt. No. 12. Defendant-Cross-Claimant-Third-Party Plaintiff Saint-Gobain Performance Plastics Corporation ("Saint-Gobain"), in its Answer to Amended Complaint with Counter-Claims, seeks contractual indemnification, common law indemnification, and common law contribution from Defendants-Cross-Defendant Yale Materials Handling Corporation and NACCO Materials Handling Group, Inc. (collectively, "NMHG"). See Dkt. No. 15. Saint-Gobain has also filed an Amended Third-Party Complaint against Plaintiff's employer, FedEx Freight, Inc., as successor in interest to FedEx Freight System, Inc. and FedEx National, LTL, Inc. ("FedEx"), alleging causes of action for contractual indemnification and contribution, common law indemnification, and common law contribution. See Dkt. No. 35. Presently before the Court are the following motions: NMHG's motion to preclude the expert testimony of Saint-Gobain's expert Dennis Eckstine and for summary judgment and dismissal of all claims against it, see Dkt. No. 55; FedEx's motion for summary judgment and dismissal of Saint-Gobain's contract-based claims against it, see Dkt. No. 59; and Saint-Gobain's motion to strike portions of FedEx's reply memorandum of law in support of its motion for summary judgment, or for leave to file a sur-reply, see Dkt. No. 65.
A. The forklift and accident at issue
On May 11, 2009, Plaintiff sustained injury to his left foot while on the premises of Saint-Gobain's facility in Hoosick Falls, New York. Dkt. No. 55-1, NMHG's Statement of Material Facts ("NMHG SOMF") ¶ 15. At the time of his injury, Plaintiff was employed as a driver for FedEx, and was making a delivery to Saint-Gobain in that capacity. Id. ¶ 16. The material delivered by Plaintiff to Saint-Gobain was positioned on pallets or skids, which were off-loaded from his trailer by use of a forklift truck. Id. ¶ 17; Dkt. No. 55-8 ("Gaudette Dep.") at 66-68. The forklift truck used by Saint-Gobain to offload Plaintiff's trailer that day was a Yale-branded forklift truck with Model Number ESC025F4S071 (the "Yale Forklift"). Dkt. No. 12 ("Amended Complaint") ¶ 13; Dkt. No. 15 at ¶ 8.
Timothy Morin was the Saint-Gobain shipping and receiving employee who operated the Yale Forklift during the offloading of pallets delivered by Plaintiff on May 11, 2009. NMHG SOMF ¶ 18. In order to offload the pallets from Plaintiff's FedEx truck, the width of the forks on the Yale Forklift had to be widened to accommodate the position of a certain pallet. Id. ¶ 19; Gaudette Dep. at 75-78. Plaintiff and Mr. Morin positioned themselves on opposite ends of the fork carriage, which is the lateral piece of metal to which the forks were attached. NMHG SOMF ¶ 20; Gaudette Dep. at 78. The fork carriage was elevated between two and three feet from the floor of the trailer. NMHG SOMF ¶ 22; Gaudette Dep. at 172; Dkt. No. 55-10 ("Morin Dep.") at 35. When Plaintiff pulled on one of the forks, it came off the fork carriage and landed on his left foot. NMHG SOMF ¶ 21; Gaudette Dep. at 83, 89-90.
During the twenty-eight years Mr. Morin worked at Saint-Gobain, he had never seen or reviewed the operator's manual for the Yale Forklift. NMHG SOMF ¶ 24. At the time of the accident, Mr. Morin was not familiar with the instruction sticker mounted in the operator's compartment of the Yale Forklift, and had never seen a device called a load backrest extension ("LBE") on the Yale Forklift. NMHG SOMF ¶ 25-26; Morin Dep. at 24-25, 121.
Christopher McGlynn was hired by Saint-Gobain as a maintenance engineer in June 2008, with responsibilities for daily maintenance of the facility and its equipment. NMHG SOMF ¶ 30. Prior to the accident at issue, Saint-Gobain did not have an operator's manual for the Yale Forklift, but Mr. McGlynn had read the Yale Forklift's warning stickers. NMHG SOMF ¶¶ 31, 33; Dkt. No. 55-11 ("McGlynn Dep.") at 9-10, 24. Mr. McGlynn was aware that the Yale Forklift was not equipped with an LBE prior to the accident. NMHG SOMF ¶ 34; McGlynn Dep. at 26. Mr. McGlynn was familiar with industry standards which provided that an end user should not modify original equipment installed on a forklift without approval from the manufacturer. NMHG SOMF ¶ 35; McGlynn Dep. at 28-29.
David Romero is an engineer who was employed by Yale as a test engineer and stress analyst, who was involved in the testing of the prototype for Yale Forklift at issue. NMHG SOMF ¶ 40. As part of his team's work on the Yale Forklift at issue, Mr. Romero had responsibility for testing its compliance with industry standards and regulations, including those promulgated by the American National Standards Institute ("ANSI") and Underwriters Laboratory ("UL"), as well as Occupational Safety and Health Administration ("OSHA") regulations. NMHG SOMF ¶ 41; Dkt. No. 55-12 ("Romero Dep.") at 16-17. The Yale Forklift was manufactured in 1977. NMHG SOMF ¶ 42.
At issue in NMHG's motion for summary judgment is the load backrest extension or LBE. The parties agree that an LBE was standard equipment with the Yale Forklift, NMHG SOMF ¶ 50, but their agreement ends there. NMHG contends that the LBE served two safety purposes: to prevent loads from falling back on the operator and to prevent the forks from coming off the fork carriage. Id. ¶ 44. NMHG states that the controlling ANSI standard at the time the Yale Forklift was manufactured required that manufacturers provide a means to fix forks laterally on the fork carriage, and that this standard was satisfied through the use of pins and notches along the top edge of the fork carriage and the LBE. Id. ¶ 45. It is beyond dispute that the LBE does fit on the fork carriage in such a way as to prevent the forks from coming off the fork carriage. NMHG SOMF ¶ 46; Romero Dep. at 30, 140-41. It is also beyond dispute that the Yale Forklift's on-product label advises that it "should be equipped with over-head guard and load backrest. Use extreme care if operating conditions prevent use of over-head guard and load backrest." NMHG SOMF ¶ 52; Dkt. No. 56-16. Mr. Romero also testified that Yale expected that the Yale Forklift would be operated from time-to-time without the LBE. Romero Dep. at 77, 143-44. Saint-Gobain disputes that the Yale Forklift's LBE was designed for the purpose of protecting against the risk of forks falling off the fork carriage. Dkt. No. 56-1 ("Saint-Gobain SOMF") ¶ 44. Saint-Gobain also contends that the Yale Forklift was designed with no other safety features to prevent the forks from coming off the fork carriage. Saint-Gobain SOMF ¶¶ 46-48.
B. The Saint-Gobain-FedEx Transportation Services Agreement
On or about November 26, 2007, Saint Gobain and FedEx entered into a Transportation Services Agreement. Dkt. No. 59-1, FedEx's Statement of Material Facts ("FedEx SOMF") ¶ 11; Dkt. No. 59-11, Transportation Services Agreement ("TSA"). On May 11, 2009, Plaintiff sustained an injury to his left foot while at the Saint-Gobain facility in Hoosick Falls, New York. FedEx SOMF ¶ 17. At the time of his injury, Plaintiff was making a delivery within the scope of his employment at FedEx. Id. ¶ 16 (duplicate). Saint-Gobain employee Timothy Morin was operating the Yale Forklift during the offloading of the pallets Plaintiff was delivering to Saint-Gobain at the time of his injury. Id. ¶ 17 (duplicate). On December 30, 2009, Saint-Gobain sent a letter to FedEx demanding a defense and indemnification from FedEx pursuant to the TSA. Id. ¶ 13. FedEx has denied Saint-Gobain's demand for defense and indemnification. Id. ¶ 14.
Section 16 of the TSA provides:
(16) INDEMNIFICATION. Carrier and Customer (each an "Indemnifying Party") shall each indemnify, defend and hold harmless the other, including their respective officers, directors, agents, employees and parent, sister and other affiliated companies, from and against any and all, claims, demands, losses, damages, costs and expenses (including reasonable attorney's fees, costs and expenses incidental thereto), connected with or resulting from injury to or death of any person; injury to property (excluding Customer's cargo), or to natural resources; violation of any local, state or federal law or regulation; or strict liability imposed by any law or regulation, arising out of the Indemnifying Party's (or its employees' or agents') negligent acts or omissions or willful misconduct or violation of any law or regulation, in connection with this Agreement, provided that the party seeking indemnification gives the Indemnifying Party (i) prompt written notice of any such claim; (ii) sole authority and control over the defense and/or settlement of such claim; and (iii) at the Indemnifying Party's request, such reasonable assistance and information as is available for the defense of such claim. In no event will either party be liable for consequential, indirect, exemplary or special damages.
TSA ¶ 16. The TSA states that it shall be interpreted in accordance with the laws of the state of Tennessee. FedEx SOMF ¶ 12; TSA ¶ 25.
A. NMHG's motion to preclude Mr. Eckstine's testimony
1. Mr. Eckstine's qualifications and opinions
Dennis Eckstine is an engineering design professional with over twenty-five years of experience in the field of safe design and use of construction, industrial, and agricultural equipment. Dkt. No. 55-17 ("Eckstine Report") ¶ 2. He has a bachelor's degree in mechanical engineering and a masters in business administration, and has held senior positions in the engineering, quality and product safety departments of three different manufacturers of industrial equipment. Id. ¶¶ 3-4. During his twenty-five year career at Grove Worldwide, Mr. Eckstine worked on the design and product safety of Grove's products including cranes, aerial work platforms, lift trucks and other materials handling equipment. Dkt. No. 55-18 ("Eckstine Dep.") at 7-10. He has been a member of several professional organizations in this field, including ANSI and ISO. Eckstine Report ¶ 5. For the last ten years, Mr. Eckstine has worked for a consulting firm he founded, Eckstine and Associates. In that capacity, Mr. Eckstine has been retained as a testifying expert in over twenty cases in federal and state court over the last four years. Id. ¶ 6, Exh. B. Mr. Eckstine has never been precluded from testifying as an expert in a federal court. Eckstine Dep. at 5.
Mr. Eckstine's report opines that the Yale Forklift, as designed, posed a substantial likelihood of harm as a result of the forks falling off the carriage beam when they were adjusted to widen their placement. Eckstine Report ¶ 17. Mr. Eckstine's report further opines that there are three feasible design alternatives that would have reduced or prevented the harm sustained by Plaintiff here: (1) an LBE secured in place by a locking mechanism, so that it would likely only be removed when the forks were completely removed from the carriage beam; (2) a carriage beam design that only permitted the removal of the forks from the center of the carriage beam; and (3) a "fork stop" device affixed to the top of the carriage beam that would have prevented the forks from falling off the carriage beam while the Yale Forklift was being operated without an LBE. Id. ¶ 46. Mr. Eckstine is also of the opinion that the defective design of the Yale Forklift was a substantial factor in causing Plaintiff's injury, and that NMHG failed to properly warn of the risk of operating the Yale Forklift without the LBE in place (because such was foreseeable and expected by NMHG). Id. ¶ 55, 62. Mr. Eckstine's opinions are based upon the following: the custom and standard of practice in the fields of safe design and use of construction, industrial, and agricultural equipment, and his twenty-five years of experience in those fields; the documents listed in Exhibit D of his Report; and a physical inspection of the Yale Forklift on August 29, 2012. Id. ¶ 10.
2. NMHG's position
NMHG argues that the opinions of Saint-Gobain's proffered expert, Mr. Eckstein, "should be precluded both because he lacks qualification relevant to the design of the product at issue, and his opinions are based on nothing more than unsupported speculation and subjective belief." Dkt. No. 55-2 at 12. Despite his degree in engineering, Saint Gobain contends that Mr. Eckstine "lacks specialized knowledge or training relevant to the design of forklift trucks or their operation in the workplace." Id.
In support of its argument that Mr. Eckstine is not qualified, NMHG notes that Mr. Eckstine formerly worked at Grove Worldwide, which is a manufacturer of cranes, aerial work platforms, and other products, but that Grove manufactured forklift trucks for only a limited period during the 1980s. Although Mr. Eckstine volunteered to be a liaison on the International Organization for Standardization's technical committee for industrial trucks, he is not a member of the ANSI standard committee for industrial trucks, and has never published any papers on forklift trucks. See id. at 12-13.
NMHG also points out that Mr. Eckstine has inspected only the Yale Forklift at issue, and thus, has never inspected a Yale Forklift with an LBE in place. Nor did Mr. Eckstine conduct a study of different designs used by manufacturers of LBEs for forklift trucks, particularly whether other manufacturers bolt their LBEs in place as he suggests in his expert report. See id. at 13.
NMHG also claims that Mr. Eckstine's opinions contradict established industry and government regulations and standards. In sum, Saint-Gobain asserts that "Mr. Eckstine lacks qualification regarding forklift trucks in general, and regarding the Yale [F]orklift [ ] in particular, to allow him to provide reliable opinion testimony to the jury in this action." See id. at 12-13.
In support of it's argument that Mr. Eckstine's opinions are insufficiently reliable, NMHG asserts that his "opinions are entirely conclusory and would not assist the jury in this case." Dkt. No. 55-2 at 14. NMHG notes that Mr. Eckstine has admitted: that the Yale Forklift complied with then-applicable industry standards and that those standards did not require the redundant alternative design features he advocates; that the LBE would have prevented this accident if it were in place; and that the product literature and warnings alert the operator to the necessity of using the LBE. Moreover, NMHG argues that he has done no testing and can cite no peer-reviewed literature showing that his proposed alternative designs would be more likely to prevent this accident than the original safety features provided by the manufacturer. See id. at 14.
Moreover, NMHG argues that Mr. Eckstine has no specialized knowledge about forklift trucks and that he failed to educate himself about forklift trucks or the components relevant to this dispute. Further, NMHG asserts that Mr. Eckstine did no research regarding the design and warning practices of other manufacturers with regard to the forklift components at issue here. Finally, NMHG suggests that Mr. Eckstine's Report was drafted by counsel for Saint-Gobain and that his methodology was simply a reiteration of the legal conclusions supplied by counsel. See id. at 14-15.
3. Saint-Gobain's position
Saint-Gobain contends that each of NMHG's arguments go to the weight, not the admissibility, of Mr. Eckstine's opinions. First, Saint-Gobain argues that Mr. Eckstine is sufficiently qualified to render the opinions set forth in his Report. Saint-Gobain disputes NMHG's assertion that Mr. Eckstine should be precluded from testifying because he lacks experience in designing forklifts. Saint-Gobain contends that Mr. Eckstine's extensive engineering experience with industrial equipment, in particular his career at Grove Worldwide and his work as a consultant for the last fifteen years, render him qualified as an expert to testify regarding the design of the Yale Forklift. Moreover, Saint-Gobain argues that Mr. Eckstine's membership in and/or role as liaison to several industry standardization organizations further bolster his qualifications. See Dkt. No. 56-2 at 7-8.
Saint-Gobain next argues that any "perceived gaps in a professional engineer's qualifications or knowledge about a specific type of product generally affect the weight of the witness's testimony, not its admissibility." Id. at 8. Saint-Gobain contends that NMHG's objections to Mr. Eckstine's qualifications are merely based upon his lack of experience with the Yale Forklift at issue, and in particular his failure to inspect an exemplar model with an LBE installed. Saint-Gobain asserts that Mr. Eckstine's experience in the field of mechanical engineering and design safety, together with his physical inspection of the Yale Forklift at issue (as well as its design documents, product manuals, and applicable industry standards), are a sufficient foundation to render his testimony admissible. See id. at 9.
Finally, Saint-Gobain argues that Mr. Eckstine's opinions regarding feasible alternative designs is supported by sufficient evidence. Saint-Gobain asserts that in a products liability suit, peer review, publication, and testing of an expert's opinions are not dispositive. See id. at 10 (citing cases). Moreover, Saint-Gobain contends that an expert may establish a feasible alternative design through either testing and construction of a prototype or by identifying manufacturers of similar equipment who have put such an alternative design into use. See id. (citing Rypkema v. Time Mfg. Co., 263 F.Supp.2d 687, 692 (S.D.N.Y. 2003)). According to Saint-Gobain, Mr. Eckstine observed that prior to the manufacture of the Yale Forklift at issue, NMHG had begun the design process of changing its forklifts so that the LBE would be secured in place with screws to prevent its removal and the forks would be center loaded, as he proposes. Further, Mr. Eckstine identified several examples of "fork stops" in use in the industry, which prevent forks from falling off the end of a carriage beam where the LBE has been removed. See id. at 11.
4. Plaintiff's position
Plaintiff takes no position with respect to NMHG's motion to preclude the expert testimony of Saint-Gobain's expert, Dennis Eckstine. See Dkt. No. 57-2 at 4.
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. ...