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Toomey v. MillerCoors LLC

United States District Court, E.D. New York

February 17, 2015

WILLIAM TOOMEY and MARY TOOMEY, Plaintiffs,
v.
MILLERCOORS LLC, Defendant

For the Plaintiffs: Christopher Dean, Esq., Joseph G. Dell, Esq., DELL & DEAN, Garden City, NY; Melanie Lynne Little, Esq., Joseph Nicola Cotilletta, Esq., DELL, LITTLE, TROVATO, AND VECERE LLP, Bohemia, NY.

For the Defendant: Jason M. Romeo, Esq., RIVKIN RADLER LLP, Uniondale, NY; Patrick Nolan, Esq., QUARLES & BRADY LLP, Milwaukee, WI.

Page 203

MEMORANDUM AND ORDER

Denis R. Hurley, United States District Judge.

William Toomey (" Toomey" ) and Mary Toomey (" plaintiffs" ) commenced this action against MillerCoors LLC (" MillerCoors" ) (" defendant" ) asserting products liability claims arising from an incident that occurred when a Coors Light beer bottle exploded in Toomey's hand. Presently before the Court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (" Rule 56" ) seeking dismissal of the Complaint and defendant's motion to preclude the testimony of plaintiffs' expert pursuant to Federal Rule of Evidence 702 (" Rule 702" ). Should the Court not grant those motions, defendant requests in the alternative that the Court grant its motion to enforce a settlement that it argues has already been reached in this action. For the reasons set forth below, the defendant's motions for summary judgment and to preclude the expert testimony are granted, and the motion to enforce settlement is denied as moot.

BACKGROUND

The following facts, drawn from the defendant's Local Rule 56.1 statement[1] and the parties' submissions, are undisputed unless otherwise noted.

On May 23, 2009, Toomey, working as a bartender, was stocking an ice bin with 12 ounce bottles of Coors Light beer. Toomey grabbed two bottles of beer with his left hand by holding one bottle between his index finger and his thumb and another bottle between his index finger and his middle finger. As Toomey placed the bottles in the ice bin, the bottle between his index finger and thumb exploded causing severe injuries to his index finger.

The Pecoraro Report

To demonstrate that the accident was the fault of MillerCoors, plaintiffs rely heavily on the expert testimony of George Pecoraro, the owner of Pecoraro Consulting, a litigation consulting business he started in 2005/2006. Prior to that, Pecoraro worked at PPG Industries, a company in the business of manufacturing automotive, residential, and commercial panel glass. Pecoraro's experience at PPG related mainly to refractories, i.e., the materials

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that are used to manufacture furnaces in which glass is cooked. Pecoraro admits that he has never " worked in the manufacture of glass containers including bottles" or " consulted for a company that designed glass containers or manufactured glass containers." (Pecoraro Dep. at 109-110, 119-120.) Moreover, Pecoraro has not published any peer-reviewed articles on glass bottle design and manufacture, and he does not have any patents relating to glass bottle design.

Pecoraro opines that the accident occurred because the glass constituting the Coors Light bottle was not thick enough to withstand fracture. His report suggests that generally during glass bottle formation, tiny cracks form in the bottles, and if the glass is not thick enough, these cracks can lengthen during the rest of the bottling process and eventually fracture in the hands of a consumer. In order to support his theory, Pecoraro measured the " glass wall thickness" of six bottles of other beer brands, including Sam Adams Light and Bud Light, against that of three bottles of Coors Light. (Pecoraro Report at 5.) According to Pecoraro, the Coors Light bottles had an average thickness of .069 inches at the height of the labels on the bottles, while the other brands of beer had an average thickness of .091 inches. He claims that the Coors Light bottle's measured thickness indicates that the bottle was susceptible to fracture.

Moreover, Pecoraro suggests that MillerCoors could have prevented Toomey's injury by putting a warning on the packaging " that some of the beer bottles in the case may have been damaged during processing and shipping and that they may fracture during handling." ( Id. at 7.) In addition, Pecoraro suggests that in order to avoid injury, MillerCoors could use thicker bottles, require the bottling plant to more thoroughly examine bottles for defects, or use metal containers or bottles spray ...


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