United States District Court, N.D. New York
WEISBERG & ZUKHER, PLLC Attorneys for Plaintiff
CAMPBELL, LLC Attorneys for Defendants
PETRONE & PETRONE, PC Attorneys for Defendants
E. ZUKHER, ESQ., L. JOHN ARGENTO, ESQ., NICHOLAS J. ZIDIK,
ESQ., MARK O. CHIECO, ESQ.
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge
April 17, 2015, Plaintiff Daniel Redmond
("Plaintiff") filed a complaint in the State of New
York Cayuga County Supreme Court against Defendants Teledyne
Landis Machine and Kennametal, Inc. ("Kennametal")
(collectively, "Defendants"), and against Nesco,
Inc. and Barth Industries, Co. ("Barth"), both of
which have been dismissed from this action. See Dkt.
Nos. 2, 10, 25. Defendants filed a notice of removal on May
27, 2015. See Dkt. No. 1. Defendants filed a motion
for summary judgment on November 14, 2016, see Dkt.
No. 34, which Plaintiff opposes, see Dkt. No. 38. On
December 22, 2016, Defendants filed a motion to deem the
entire statement of material facts as admitted and a motion
to preclude the report and affidavit of Plaintiff's
expert. See Dkt. Nos. 39, 40. Plaintiff did not
respond to those motions.
before the Court are Defendants' motion for summary
judgment, Defendants' motion to deem the entire statement
of material facts as admitted, and Defendants' motion to
preclude the report and affidavit of Plaintiff's expert.
See Dkt. Nos. 34, 39, 40.
time of the accident giving rise to this action, Plaintiff
was employed as a machinist with a gas metering components
fabricating company called UPSCO, Inc. ("UPSCO").
See Dkt. No. 34-4 ¶ 1; Dkt. No. 2 ¶¶
14-15. On May 7, 2012, while operating a pipe-cutting machine
in the course of his employment, Plaintiff lost his left
thumb. See Dkt. No. 34-4 ¶¶ 2-3; Dkt. No.
2 ¶ 16. Plaintiff cannot recall the exact sequence of
events leading up to the accident, and none of
Plaintiff's co-workers directly witnessed the accident.
See Dkt. No. 34-4 ¶¶ 21-22; Dkt. No. 34-10
at 47-48; Dkt. No. 34-11 at 15-16; Dkt. No. 34-12 at 21; Dkt.
No. 34-13 at 21.
pipe-cutting machine was a No. 2BA Landis Semi-Automatic Air
Operated Roller Pipe Cutter (the "Pipe Cutter").
See Dkt. No. 34-4 ¶ 3; Dkt Nos. 34-7, 34-8. The
Pipe Cutter was manufactured at least fifty-six years prior
to Plaintiff's accident by Landis Machine Co.
See Dkt. No. 34-4 ¶ 4. In 1956, Landis Machine
Co. sold the Pipe Cutter to Olney Pipe Products Co. in
Philadelphia, Pennsylvania. See Id. ¶ 5; Dkt.
No. 34-3 ¶¶ 5-6. From that point, the Pipe
Cutter's history is largely unaccounted for.
Plaintiff's employer, UPSCO, purchased the Pipe Cutter
from a company called Stanley Machinery Corp. in March of
2010. See Dkt. No. 34-4 ¶ 9; Dkt. No. 34-8. The
Pipe Cutter was presented to UPSCO as "refurbished,
" but the extent of that refurbishment is unknown.
See Dkt. No. 34-4 ¶ 9; Dkt. No. 34-10 at 15-16.
The parties are unsure of how many entities owned the Pipe
Cutter before UPSCO's purchase in March of 2010.
See Dkt. No. 34-4 ¶¶ 8-9; Dkt. No. 34-14
operate the Pipe Cutter, the operator pushes a pipe onto a
set of rollers until the pipe hits a back stop plate, which
would begin to spin the rollers and lower the cutting wheel
to cut the pipe. See Dkt. No. 34-4 ¶ 6. When
the Pipe Cutter was originally manufactured and sold to Olney
Pipe Products Co. in 1956, the Pipe Cutter did not have any
kind of guard at the operation area of the rollers. See
Id. ¶ 7. However, deposition testimony revealed
that, by the time UPSCO purchased the Pipe Cutter, someone
had added a diamond plated m guard at the point where the
pipe is fed onto the rollers. See Id. ¶ 10;
Dkt. No. 34-10 at 29-30; Dkt. No. 34-12 at 29-30. After the
accident, this guard was replaced with a new Plexiglas guard.
See Dkt. No. 34-4 ¶¶ 11-13. The parties
have not been able to find the m guard after it was replaced
with the Plexiglas guard, as it was apparently discarded, and
there are no pictures of the Pipe Cutter with the m guard on
it. See Id. ¶ 12; Dkt. No. 34-12 at 29-30. As
such, the only information regarding the m guard that the
parties are aware of comes from the deposition testimony of
to several of Plaintiff's co-workers, the new Plexiglas
guard was similar in design to the m guard that was on the
machine the day of Plaintiff's injury. See Dkt.
No. 34-4 ¶ 13; Dkt. No. 34-12 at 29-32. Plaintiff's
supervisor, George Walker, testified at his deposition that
he was the person who replaced the m guard with the Plexiglas
guard. See Dkt. No. 34-12 at 31-32. Mr. Walker
testified that he used the m guard as a template for the new
Plexiglas guard. See id.
mentioned above, no one saw the exact sequence of events
leading up to the accident. Plaintiff's co-worker, James
Peek, was very close to Plaintiff when the accident occurred.
See Dkt. No. 34-13 at 19-21. In his deposition, Mr.
Peek testified that he saw Plaintiff standing too close to
the operation area just before the accident occurred. See
Id. at 20. Mr. Peek testified that he did not actually
see Plaintiff's thumb go into the point of operation
where the rollers were located, but that he did see
Plaintiff's thumb spinning around the rollers after it
became detached. See Id. at 21. Several co-workers
testified that Plaintiff's thumb was detached by the
rollers, and not by the cutting wheel. See Id. at
27-28; Dkt. No. 34-12 at 28. The Pipe Cutter had not caused
any injuries to anyone else before Plaintiff's accident.
See Dkt. No. 34-4 ¶ 17; Dkt. No. 34-10 at 26;
Dkt. No. 34-12 at 27.
Corporate Liability for the Pipe Cutter
undisputed the Pipe Cutter was manufactured by a company
called Landis Machine Co. See Dkt. No. 34-4 ¶
5; Dkt. No. 38 ¶ 8. The parties do, however, generally
dispute the nature of the relationship between the original
Landis Machine Co. and Kennametal. Plaintiff claims that
Kennam is the corporate successor to Landis Machine Co., and
therefore, should be held liable for the torts of Landis
Machine Co. See Dkt. No. 38-18 at 2. Defendants
claim that Plaintiff has failed to establish that Kennam is
the corporate successor to Landis Machine Co., and thus
should not be held liable for the torts of Landis Machine Co.
See Dkt. No. 34-5 at 8-10. With that said, the
parties generally agree on the sequence of events that
ultimately led up to Kennametal's asset purchase from the
original Landis Machine Co.
original manufacturer of the Pipe Cutter, Landis Machine Co.,
ceased to exist in April of 1968 when all of its assets were
acquired by Teledyne Machine Corp. See Dkt. No. 34-3
¶ 8. On May 15, 1968, Teledyne Machine Corp. changed its
name to Landis Machine Company. See Id. ¶ 9. On
October 31, 1969, Landis Machine Company merged into Teledyne
Argonaut Corporation. See Id. Several days later,
Teledyne Argonaut Corporation changed its name to Teledyne
Mid-America Corporation. See Id. ¶ 10. On
December 31, 1975, Teledyne Mid-America Corporation merged
into Teledyne Industries, Inc. See Id. Teledyne
Industries, Inc. sold certain assets to Barth Industries in
1977, including the Landis pipe threading, gear, and roll
forming machine product line. See Id. ¶ 11.
Teledyne Industries, Inc. changed its name to TDY Industries,
Inc. on December 9, 1999. See Id. ¶ 12. On
January 2, 2012, TDY Industries, Inc. converted to an LLC.
See Id. Finally, on November 4, 2013, TDY
Industries, LLC sold the remaining assets of its Landis
division to Kennametal. See Id. ¶ 13.
respect to Teledyne Landis Machine, the other remaining
Defendant in this action, Plaintiff originally alleged that
Teledyne Landis Machine is a foreign corporation with a
principal place of business in Waynesboro, Pennsylvania.
See Dkt. No. 2 ¶ 2. In Defendants' answer,
they claim that Teledyne Landis Machine was never a
corporation itself, but merely a division of Teledyne
Argonaut Corporation. See Dkt. No. 6 ¶ 2.
Plaintiff does not appear to dispute this, and both parties
throughout this case refer to Defendants collectively by just
referring to Kennametal. As such, the Court will consider
Plaintiff's claims as against Kennametal.
filed his complaint on April 17, 2015 in state court, and
Defendants removed the case on May 27, 2015. See
Dkt. Nos. 1, 2. Plaintiff alleges five causes of action,
including negligence, strict products liability, breach of
express and implied warranties, major defect, and negligent
failure to warn or to take corrective action. See
Dkt. No. 2 ¶¶ 17-58.
11, 2015, Magistrate Judge Andrew T. Baxter approved
Plaintiff's stipulation dismissing Nesco, Inc. from this
action. See Dkt. Nos. 9, 10. On April 20, 2016, the
Court ordered a stipulation of discontinuance as to Barth.
See Dkt. No. 25. As such, the only remaining
Defendants are Teledyne Landis Machine and Kennametal.
expert disclosures were due on June 1, 2016, and
Defendants' expert disclosures were due on July 18, 2016.
See Dkt. No. 23. Judge Baxter set the close of
discovery for September 15, 2016. See Dkt. No. 33.
Plaintiff's counsel timely served Defendants with an
expert witness disclosure document on or about February 1,
2016, which listed the names and some information about
Plaintiff's purported expert witnesses. See Dkt.
No. 40-2 ¶ 5; Dkt. No. 34-16. However, Plaintiff's
counsel did not supplement this disclosure with written
reports from those witnesses pursuant to Fed.R.Civ.P.
26(a)(2)(b). See Dkt. No. 34-16. Instead,
Plaintiff's counsel provided Defendants with a written
report from Dr. James W. Pugh, one of the witnesses listed in
Plaintiff's expert disclosure list, on September 14,
2016. See Dkt. No. 40-2 ¶ 7. This report was
served several months after expert disclosures were due and
only one day before the final close of discovery. Moreover,
Dr. Pugh's written report was self-dated July 15, 2016,
which was still after expert disclosures were due.
See Dkt. No. 34-17 at 2. Plaintiff's counsel has
not provided any written reports from the other experts
identified in Plaintiff's initial expert disclosures.
Court also notes that, even though Plaintiff's counsel
has had ample time and opportunity to conduct discovery,
Plaintiff's counsel has conducted virtually no discovery
in this case whatsoever. Instead, Plaintiff's counsel
apparently relies on various newspaper articles, a yellow
page listing, and website postings in order to survive the
instant motion for summary judgment. See Dkt. Nos.
38-6, 38-7, 38-8, 38-9, 38-10.
with respect to Defendants' motion for summary judgment,
Plaintiff's counsel did not file a response to
Defendants' Statement of Material Facts, in violation of
Local Rule 7.1(a)(3). See Local Rules N.D.N.Y.
7.1(a)(3); Dkt. No. 38. Plaintiff's counsel did attach an
affidavit from Dr. Pugh in Plaintiff's opposition papers
to Defendants' motion for summary judgment. See
Dkt. No. 38-17. This affidavit is similar to Dr. Pugh's
original report, except the affidavit has additional opinions
which were not contained in Dr. Pugh's original report,
and which were clearly added in an attempt to survive the
instant motion for summary judgment. One of Defendants'
primary arguments in their motion for summary judgment is
that there is no evidence in the record that an alternative
feasible design was available at the time of the Pipe
Cutter's manufacture, which is an element of
Plaintiff's design defect claim. See Dkt. No.
34-5 at 16-17. Defendants are correct that Dr. Pugh's
original report says nothing about whether there was a safer,
alternative feasible design available for the Pipe Cutter at
the time of manufacture, and in fact, the report claims that
such a design was feasible merely because of a remedial
measure taken after Plaintiff's injury in this case.
See Dkt. No. 34-17 at 3. However, in Dr. Pugh's
affidavit, which was filed as part of Plaintiff's
opposition papers, Dr. Pugh concludes that such a design was
not only feasible but was the industry standard at the time
of manufacture. See Dkt. No. 38-17 ¶¶
20-22. Indeed, this information is not contained anywhere in
the record except in Dr. Pugh's subsequent affidavit
filed in response to Defendants' motion for summary
have filed a motion to deem the entire statement of material
facts as admitted, see Dkt. No. 39, and a motion to
preclude Dr. Pugh's original report and subsequent
affidavit, see Dkt. No. 40. Astonishingly, in light
of the significant disadvantage that Plaintiff would face if
those motions were granted, Plaintiff's ...