United States District Court, N.D. New York
PETER T. ENGLER and TRACEY ENGLER, Plaintiffs,
MTD PRODUCTS, INC. and CUB CADET, LLC, Defendants.
TIMOTHY HORIGAN, ESQ., HORIGAN, HORIGAN LAW FIRM, Amsterdam, New York, for Plaintiffs.
JOHN W. BAILEY, ESQ., BAILEY, KELLEHER LAW FIRM, Albany, New York, for Defendants.
PATRICK J. QUALLICH, ESQ., WEGMAN, HESSLER LAW FIRM, Cleveland, Ohio, for Defendants.
MEMORANDUM-DECISION AND ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiffs Peter T. Engler ("Engler") and Tracey Engler (collectively "plaintiffs, " where appropriate) bring this products liability action pursuant to the Court's diversity jurisdiction under 28 U.S.C. § 1332 against defendants MTD Products, Inc., which designed, manufactured, distributed, tested, sold, marketed, and assembled the Cub Cadet lawnmower; and Cub Cadet, LLC (collectively "MTD, " where appropriate). Dkt. No. 30-1, at 35. On January 13, 2015, the Court addressed defendants' request to exclude Dkt. No. 39 from consideration on the motion for summary judgment. Dkt. No. 44-1, at 7-11. The Court granted the motion in part and denied it in part, permitting MTD the opportunity re-open discovery for the limited purpose of obtaining a supplemental statement from their proposed expert witness addressing the opinions presented in the affidavit of plaintiffs' proposed witness (Dkt. No. 39). Dkt. No. 48. MTD has chosen not to obtain this supplemental statement. Thus, the Court will proceed based on the materials currently within the record, including Dkt. No. 39. Presently pending before the Court is MTD's (1) motion for summary judgment (Dkt. No. 29); and (2) motion to preclude plaintiffs' proposed expert witness from testifying at trial pursuant to Fed.R.Civ.P. 704 (Dkt. No. 43). For the following reasons, the Court (1) grants in part and denies in part MTD's motion to preclude the testimony of plaintiff's proposed expert; and (2) grants in part and denies in part the MTD's motion for summary judgment.
On or about July 2011, plaintiff Peter T. Engler visited Tractor Supply Company, a store in Oneonta, New York to look at available riding lawnmowers. Engler Dep. (Dkt. No 30-2), at 44-45. Engler did not purchase a mower at that time nor did he speak with staff about any of the mowers. Id. at 47. Engler returned to the store on April 29, 2010; this time with his mother-in-law, and purchased a Cub Cadet Lawn Tractor LTX1040 ("lawnmower"), which was manufactured by MTD. Id. at 44-45. When Engler returned to Tractor Supply on April 29, he knew which mower he wished to purchase; he did not rely on advertisements, brochures, or any staff recommendations in making this decision. Id. at 48-49. Engler's mother-in-law purchased the lawnmower for Engler's use. Id. at 56.
On July 28, 2011, Engler was mowing his lawn at 250 Beaver Hill Road. Dkt. No. 30-2, at 57. Previously, Engler had used the lawnmower on six other occasions. Id. at 61-62. He was able to mow his lawn without incident. Id. at 126. After Engler finished mowing his lawn, he parked the lawnmower at the top of his driveway. Id. at 134. After taking a short break, Engler started the lawnmower and drove down his driveway, turning right onto Beaver Hill Road, toward his in-laws' residence approximately three-quarters of a mile down the road. Id. at 12, 123-25, 134, 154. Engler had driven the lawnmower to his in-laws' home without issue about a month earlier. Id. at 12, 64-65, 124. A few seconds after turning out of his driveway, Engler realized that he had not placed the shift lever into forward gear and that the lawnmower was picking up speed without his depressing the gas pedal. Id. at 132-33, 135. Engler realized the mower was not in gear because the lawnmower did not react when he pressed the gas pedal or pushed up the throttle. Id. at 132. Engler attempted to engage the brakes but this did not stop or slow down the lawnmower. Id. at 131, 142-44. He twice attempted to push the shift lever into forward gear, but it did not engage. Id. at 137. Engler then turned the steering wheel slowly to the left to attempt a gradual right turn into his neighbor's driveway. Id. at 131, 146. Engler was unable to complete this turn and fell from the lawnmower about two feet from his neighbor's driveway. Id. at 158, 162. He landed approximately ten feet from the lawnmower. Id. at 165. Before being thrown from the mower, Engler noticed that the front right tire of the lawnmower had lifted approximately ten to twelve inches off of the ground. Id. at 159, 161. He also felt the left rear tire of the mower leave the ground, but did not see the tire lift. Id. at 160. Engler observed that the mower had come to a stop about fifteen feet past the point where he had fallen. Id. at 171. Engler stated that, when the mower came to a stop, it was upright on all four of its wheels. Id.
B. Proposed Expert Witnesses
1. Plaintiffs' Proposed Expert
Plaintiffs offer two reports, deposition testimony, and an affidavit from Ernest J. Gailor, a licensed Professional Engineer ("Gailor"). In his initial report, dated April 2, 2013, Gailor stated that he visually inspected the lawnmower on December 6, 2011 in order "to assess the condition of the machine." Dkt. No. 30-1, at 103. Gailor contended that the braking system in the subject lawnmower "is a simple disc/caliper system." Id . Gailor opined that "the calipers did not firmly engage the brake disc" which "allowed the machine to roll forward even when the brake was engaged. The brake appeared to be out of adjustment." Id . Gailor also observed that the operator's manual had "no instruction for the adjustment of the brake, " concluded that "[b]rake adjustment must be made by a service technician, " and provided that "[t]he brake is initially adjusted at the factory and shipped to distributors." Id . Finally, Gailor noted that the manual "cautions against using the machine on a cross slope that exceeds 15 degrees, " and that "Engler was driving down a street with a 22 degree down slope and no appreciable cross slope." Id.
Gailor testified at a deposition on May 29, 2014. Dkt. No. 30-2 at 61-137. He testified that he made one request to take apart the lawnmower to inspect the parts on December 6, 2011. Id. at 81. He did not explain whether this request was addressed by MTD. Id . Gailor also testified that he "mentioned that it would be nice" to have tested the mower's brake pad "for compliance with the required type of pad material it had to have, " but that he does not believe that he formally made the request. Id. at 80. Gailor stated that he was unable to discern the material make-up of the brake pads from photographs. Id. at 82. He stated further that he was not aware that defendants' expert Daniel Martens disassembled the lawnmower until he received Martens' report and photographs. Id. at 81. Gailor contended that he did not believe that there was a design defect with the lawnmower. Id. at 86. Gailor further contended that, at the time he inspected the mower in 2011, the brakes had "ceased to function." Id. at 89. He stated that the amount of wear on the brakes was more than expected given the low number of hours of use on the mower. Id. at 93. He agreed with the defense expert's conclusion that the mower's brakes had the equivalent of 300 hours of use. Id . He also agreed that the "abnormal wear" in the mower's system was "confined to the brake pads." Id. at 94. Gailor further agreed that if the brake pads on the mower were readjusted, the brakes would be fully functional. Id. at 95. He clarified that even if the brakes were readjusted, however, he did not believe that "the readjustment would stay in place very long before the rest of the pad would start to deteriorate." Id . Gailor did not know what caused the brake pads to come out of adjustment. Id. at 96. He defined "out of adjustment" as the "pads were not fully engaging the discs...." because the outer pad "was too far away or worn to the point where it was too far aware [sic] from the face of the disc." Id . Gailor concluded that there existed premature wear of the brake pads. Id. at 98. However, he did not know the cause of the premature wear. Id. at 99.
Gailor testified regarding the owner's manual. Dkt. No. 30-2, at 100-101. He stated that the manual provided that brake adjustments are to be completed by a service professional. Id . He testified that an operator needs an instruction or warning to take the mower to a service professional to have an adjustment if depressing the brake pedal did not bring the tractor to a complete stop. Id. at 99. Gailor further testified that such warning was "already there" in the operator's manual. Id. at 100-101. In response to an inquiry whether "there is any other instruction or warning that should have been on the product itself as it relates to brakes, " Gailor responded in the negative. Id. at 102. He responded "I don't believe so" when asked if there was "any other instruction or warning that should have been in the manual as it relates to the adjustment of the brakes." Id . Further, when he was asked whether there were "any other criticisms that [he had] of any of the instructions or warnings" other than what he had set forth in his report, Gailor replied, "no." Id. at 105-106.
Finally, in an affidavit sworn to on September 26, 2014, Gailor stated that "[a]fter being provided with the deposition testimony of the defense expert, Daniel Martens, and photographs taken during his inspection, I was able to supplement my initial report." Dkt. No. 39, at 3 ¶ 7. He provided that the brake pads experienced "greatly premature failure" in that the deterioration seen in photographs of the brake pads is "not expected, or even remotely acceptable wear for a lawn tractor braking system only a year old and with only 27 hours of use." Id . Gailor concluded that "[i]n order to exhibit this type of wear in such a small amount of time, these brake pads had to be defective in their manufacture or integrity." Id. at 7. He further concluded that "[t]he premature failure of the brake pads eliminated any opportunity for [plaintiff] to stop the machine, and is the sole proximate cause of his inability to do so." Id . Gailor stated that "[w]hether the brakes were functioning properly and whether they were in proper adjustment is immaterial to their failure. The failure of the brakes in this case was due to premature wear, meaning the brake pads were defective." Id. at 5.
Gailor also contended that the operator's manual "contains no instructions for the owner to adjust the brakes" and that there is no "warning or highlighting" provided for brake adjustment. Dkt. No. 45, at 7. He concluded that "this omission indicates to the user that brake adjustment is not important. Id . Gailor noted that the "only mention of testing the braking mechanism is a mention of Parking Brake Adjustment'" which states that brakes may need an adjustment "if the tractor does not come to a complete stop when the brake pedal is completely depressed, of [sic] if the tractor's rear wheels can roll with the parking brake applied and the shift lever in neutral." Id . However, Gailor was critical that this portion of the manual "is not highlighted by the standard exclamation point inside a triangle" and
does not say how often a user should check the brake, or even if they should do so at all; and it fails to consider that the mower will come to a stop when the user lifts his right foot from the drive pedal without use of the braking system when on flat land.
Id. at 7-8. Addressing "[d]efendants' characterization of [his] testimony regarding warnings, " Gailor contended that his deposition statement about warnings being sufficient related to warnings for adjustment of brakes. Id. at 5. He stated that "[w]hile a further warning with regard to how to adjust the brakes might not have prevented this incident, a clear recitation or warning indicating how often to check the brakes and how to do so could certainly have exposed the premature wearing of these brakes." Id.
2. Defendants' Proposed Expert
Defendants' expert, Daniel J. Martens ("Martens"), Vice President, Product
Development & Safety at MTD, performed an inspection of the subject lawnmower and accident site on March 12, 2014. Dkt. No. 39-2, at 129. The inspection of the lawnmower involved "remov[ing] and inspect[ing] the brake pads and brake disc of the subject lawn tractor." Id . Martens opined that "it is evident that the brakes were used extensively. Given the fact that the brake pads were worn, in addition to the amount of wear on the brake pads, it is apparent that the brakes were functional at the time of manufacture." Id. at 130. Martens disagreed with plaintiff's testimony that the only time he used the lawnmower's brakes were when he set the parking brake before and after each use. Id . Instead, Martens concluded that "[n]ormal use of the braking system of the subject tractor would not result in the amount of wear found on the brake pads." Id . He opined that such wear would not occur "under normal usage for a machine with only 39.1 hours of use." Id . Martens' inspection revealed that the original thickness of the inside brake pad was.285 inches, but at the time of testing, it was worn to.255 inches. Id . Similarly, the outer brake pad had an original thickness of.2925 and was worn to a thickness of.269. Id . Martens concluded that this wear "would create a gap of.0635 to.0685 inches between the brake pads and disc. Id . Martens also concluded that the wear on the pads "indicates extensive use and in fact, misuse of the braking system. The amount of wear on the brake pads indicates the braking system was functional before the accident." Id.
Martens opined that the "accident and resulting injuries to [plaintiff] were proximately caused by [plaintiff's] own negligence in not following the warnings and instructions both on the tractor and in the operator's manual." Dkt. No. 30-2, at 130. Martens further concluded that, at the time of its manufacture, the lawnmower was in compliance with safety specifications. Id. at 131. Martens concluded that the lawnmower "was not defective or unreasonably dangerous and designed and manufactured by MTD. The lawn tractor was manufactured in accordance with MTD's specifications and was free of any manufacturing defects." Id . Martens stated that "the warnings and instructions provided with the lawn tractor, both by way of the on-product labeling and those contained within the Operator's Manual, were sufficient and adequate for their intended purpose" and he "d[id] not believe that any additional guarding, warnings, instructions or product design changes were required for the lawn tractor to be reasonably safe and suitable for consumer use when it's used as intended." Id . Ultimately, Martens concluded that the "cause of the accident was [plaintiff]'s conduct of operating the subject lawn tractor in an unsafe manner on the day of his accident." Id.
Martens testified in a deposition on April 1, 2014. Dkt. No. 38-3, at 13-118. Martens testified that he took apart the subject lawnmower. Id. at 52. When he disassembled the brakes, he noticed that "the pads were worn, which caused it to be out of adjustment, so the pedal was not allowing the brakes to work." Id. at 52. He concluded that the wear to the brake pads caused the brakes to be out of adjustment. Id. at 53. That the brake pads were worn and out of adjustment were the only issues relating to the brakes that Martens discovered during his inspection. Id . Martens testified that his report concluded that the subject lawnmower's brakes were functional and in proper adjustment at the time of its manufacture because MTD's procedure is to "one hundred percent test every product before it's sold." Id. at 63-64. Martens based this opinion upon his "knowledge of the routine procedures that are performed" at MTD." Id. at 72. Martens further explained that wear on the brake pads indicated that the brakes were functional at some point. Id. at 74. He further concluded that the brakes showed wear indicating use in excess of 300 hours or approximately ten years of use. Id. at 75-76. Marten's inspection revealed "bluing" of the disc, which indicates that the brakes were hot which "only occurs at high speeds and applying brakes." Id. at 87.
Martens proposed that one way the brakes could have been so worn despite the mower having only twenty-seven hours of use, is if plaintiff, on multiple occasions, drove the mower "down to his mother-in-law's house in neutral and coasting it and riding the brake down the slopes." Dkt. No. 38-3, at 78-80. Martens testified that he believed that plaintiff was "coasting" downhill when the accident occurred. Id. at 89. Martens was unable to think of an alternative cause of the wearing of the brakes. Id. at 80. Martens did not check the brake pads and disc to determine whether they had been manufactured to MTD specifications. Id. at 81.
Testifying about the owner's manual, Martens noted that there is an instruction that the owner should "[c]heck brake operation frequently as it is subject to wear during normal operation. Adjust and service as required.'" Dkt. No. 38-3, at 37. Martens explains that page twenty-three of the manual, the parking brake section, contained instructions for checking the parking brake. Id . Martens explained that the manual reads, "[i]f the tractor does not come to a complete stop when the brake pedal is completely depressed, or if the tractor [sic] rear wheels can roll with the parking brake applied and the shift lever in neutral, the brake needs adjustment.'" Id. at 38. The manual further states that the owner should "[s]ee your Cub Cadet dealer to have brakes properly adjusted." Id . Martens explained that the manual did not contain instructions for a consumer to adjust the brakes because "that is something that needs to be handled by a service technician to maintain that." Id. at 47-48. He explained that MTD does not "want to have the consumer adjusting the brakes themselves. We don't feel they have the knowledge, the technical background...." Id. at 48-49. He further explained that an issue with the brakes may not be clear until the mower is taken apart. Id. at 52.
Martens further testified that the manual contained a warning to avoid sudden turns. Dkt. No. 38-3, at 57. Martens believes that plaintiff's description of his turn into the driveway appeared to be a "sudden turn" because "he did turn to the left and make a right turn. There [sic] was probably more speed related than anything." Id. at 57-58. Finally, Martens testified that the entire manual is "important" and the owner "ha[s] to read the entire manual in its entirety, front to back, and follow the instructions and warnings that are in it." Id. at 48.
II. Motion to Preclude Plaintiffs' Expert from Testifying at Trial
MTD contends that Gailor should be precluded from testifying at trial because (1) he is not qualified under Rules 104 and 702 to render opinions "concerning the cause of the accident or the braking system" because he does not have the sufficient training or experience in those areas, and (2) his proposed testimony does not have a "sufficiently reliable foundation" under Fed.R.Civ.P. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Dkt. No. 43-4, at 5, 13, 18.
1. Legal Standards Governing Admissibility of Expert Testimony
In fulfilling its gatekeeping role, the trial court is to look to the standards of Rule
401 in analyzing whether proffered expert testimony is relevant...." Seely v. Hamilton Beach/Proctor-Silex, Inc., 349 F.Supp.2d 381 (N.D.N.Y. 2004) (quoting Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002)). Under the Fed. R. Civ. P., before a witness may be certified as an expert, the expert first must be "qualified" as an expert by his or her "knowledge, skill, experience, training, or education." FED. R. CIV. P. 702. "To determine whether a witness qualifies as an expert, courts compare the area in which the witness has superior knowledge, ...