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Redmond v. Teledyne Landis Machine

United States District Court, N.D. New York

June 7, 2017

DANIEL REDMOND, Plaintiff,
v.
TELEDYNE LANDIS MACHINE; KENNAM INC., Defendants.

         APPEARANCES:

          WEISBERG & ZUKHER, PLLC Attorneys for Plaintiff

          SWARTZ CAMPBELL, LLC Attorneys for Defendants

          PETRONE & PETRONE, PC Attorneys for Defendants

         OF COUNSEL:

          DAVID E. ZUKHER, ESQ., L. JOHN ARGENTO, ESQ., NICHOLAS J. ZIDIK, ESQ., MARK O. CHIECO, ESQ.

          MEMORANDUM-DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge

         I. INTRODUCTION

         On 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.

         Currently 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.

         II. BACKGROUND

         A. Factual Background

         1. Plaintiff's Injury

         At the 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.

         The 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 at 3-4.

         To 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 Plaintiff's co-workers.

         According 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.

         As 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.

         2. Corporate Liability for the Pipe Cutter

         It is 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.

         The 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.

         With 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.

         B. Procedural Background

         Plaintiff 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.

         On June 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.

         Plaintiff's 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.

         The 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.

         Moreover, 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 judgment.

         Defendants 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 ...


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