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Benjamin v. Fosdick MacHine Tool Co.

United States District Court, W.D. New York

April 22, 2015



JEREMIAH J. McCARTHY, Magistrate Judge.

This products liability action was commenced in State of New York Supreme Court and subsequently removed to this court on the basis of diversity of citizenship. Notice of Removal [1].[1] Pursuant to 28 U.S.C. §636(c), the parties have consented to jurisdiction by a United States Magistrate Judge [104].

Before me is the motion of defendant Makino, Inc. ("Makino") to exclude the opinion of plaintiff's expert witness, Kevin B. Sevart, P.E., and for summary judgment pursuant to Fed.R.Civ.P. ("Rule") 56 [105]. Oral argument was held on October 8, 2014 [112]. For the following reasons, the motion is granted.


Plaintiff seeks to recover for personal injuries sustained on April 11, 2008, when her hand became entangled in a spinning reamer tool attached to an upright drill press manufactured by Makino's predecessor, the Fosdick Machine Tool Company. Amended Complaint [1-1]. The drill press was manufactured in the mid-1940s. Deposition of plaintiff's expert witness, Kevin B. Sevart, P.E. [105-9], p. 31.

Mr. Sevart applied a methodology known as "design hierarchy", the purpose of which is to "[e]liminate all hazards, if possible, without unduly compromising function or utility of machine", and as to "hazards [which] cannot be eliminated, provide some form of physical protection or occurred protecting the operator". Sevart Affidavit [109], ¶11. He concluded that the drill press was defective because it "should have been provided with barrier guarding to prevent unintended contact with the rotating components, including the spindle and tool. This barrier could have been interlocked to allow for easy access, but prevent excess while the machine was running". Sevart Report, [105-7], p. 4, ¶1.[2]

In moving for summary judgment, Makino argues that "Sevart's opinions do not meet the standards of reliability set forth in Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). As a result, Sevart's opinions cannot be considered and plaintiff is left with no proof on the essential element of feasible alternative design." Makino's Memorandum of Law [105-3], p. 5.

Plaintiff suggests that Makino is not entitled to summary judgment because it has failed to offer admissible evidence that the drill press was reasonably safe for its intended use. Plaintiff's Memorandum of Law [110], pp. 3-4. That might be true if this action were still in state court. See Smith v. Allen, 124 A.D.3d 1128, 1129 (3rd Dept. 2015) ("As the proponents of a motion for summary judgment, it was incumbent upon defendants to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact").

However, "[b]ecause this is a diversity case, we apply state substantive law... and federal procedural law", In re Fosamax Products Liability Litigation , 707 F.3d 189, 193 (2d Cir. 2013), and there is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim". Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (emphasis in original). Instead, once discovery is complete (as in this case), the moving party need merely "demonstrat[e] that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim". Farid v. Smith , 850 F.2d 917, 924 (2d Cir. 1988).


A. Applicable Substantive Law

Plaintiff alleges claims for negligence and strict liability based on defective design. However, she does not dispute Makino's assertion that those two claims "are considered to be functionally equivalent". Makino's Memorandum of Law [105-3], Point V. Therefore, I need only address her defective design claim.

Under New York law, "[i]n order to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury." Voss v. Black & Decker Mfg. Co. , 59 N.Y.2d 102, 107 (1983). To meet her burden, plaintiff must "present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the ...

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