Silva v. Heil, Inc.

692 F.Supp.3d 29

Joseph SILVA and Chris Silva, Plaintiffs, v. HEIL, INC., Defendant.

20-CV-3279 (MKB)

United States District Court, E.D. New York

Signed September 14, 2023

Joseph G. Dell, Benjamin David Dell, David Michael Spoerer, Jay Joseph Massaro, Patrick G. Toner, Dell and Dean, PLLC, Garden City, NY, for Plaintiffs.

Michael-Hong Sik Bai, Littleton Park Joyce Ughetta & Kelly LLP, New York, NY, for Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiffs Joseph Silva and Chris Silva commenced the above captioned action against Defendant Heil, Inc.¹ on December 12, 2019 in the Supreme Court of the State of New York, County of Nassau, alleging, inter alia, product liability causes of action on behalf of Joseph Silva for design defect, manufacturing defect, failure to warn, and breach of warranty, as well as a cause of action on behalf of Chris Silva for loss of consortium.² (Summons & Verified Compl., annexed to Notice of Removal as Ex. A, Docket Entry No. 1-2.) On July 22, 2020, Defendant removed this action to the Eastern District of New York based on diversity jurisdiction under 28 U.S.C. § 1332. (Notice of Removal, Docket Entry No. 1.)

Defendant now moves (1) to exclude Plaintiffs' liability expert, Dennis Eckstine, pursuant to Rule 702 of the Federal Rules of Evidence; (2) to exclude Mr. Eckstine and Plaintiffs' medical expert, Dr. Philip Rafiy, pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure; and (3) for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on Plaintiffs' (1) design and manufacturing defect and (2) failure to warn claims.³ For the reasons set forth below, the Court excludes the testimony of Mr. Eckstine with respect to potential tailgate chain coverings, declines to exclude the testimony of Dr. Rafiy, and grants Defendant's summary judgment motion with respect to Joseph Silva's design defect, manufacturing defect, and failure to warn claims.

I. Background

The following facts are undisputed unless otherwise noted.⁴

a. The parties

Since 2009, Joseph Silva has been "a highway maintenance worker employed by the New York State Department of Transportation" ("NYSDOT").⁵ Defendant manufactured the dump body mounted to the chassis of a truck which Joseph Silva operated in the course of his job. (Def.'s 56.1 ¶ 4.)

b. Joseph Silva's accident and injury

Plaintiffs contend that Joseph Silva "injured his neck, back, and shoulders while trying to stop the tailgate on a NYSDOT truck from opening." (Id. ¶ 2.) "The truck at issue is a 2004 International 4200 Series truck owned by the NYSDOT." (Id. ¶ 3.) The truck and the dump body attached to it were "manufactured to specifications issued by the NYSDOT." (Id. ¶ 5).

On December 20, 2016, Joseph Silva's supervisor instructed him and his co-worker, Josue Roman, to load items into the bed of the truck, (id. ¶ 7), which required them to open the truck's tailgate — a task "which typically required two to three people," (id. ¶ 8). "[Joseph Silva] was aware that the tailgate was heavy before his accident," (id. ¶ 36), and understood that "the tailgate was too heavy for just one person to lift" and dangerous to handle by oneself, (id. ¶ 37).

The tailgate on the dump body is manually operated. (Id. ¶ 9.) Each side of the tailgate had a chain. (Id. ¶ 12.) Defendant contends that Joseph Silva and his co-worker intended to "adjust the chains on each side of the tailgate and lower the tailgate down to a horizontal position," (id. ¶ 10), but Plaintiffs contend that the two "intended on using different methods to lower the tailgate," (Pls.' 56.1 ¶ 10). Plaintiffs note that, according to the deposition testimony of Joseph Silva and Mr. Roman, there are multiple methods for lowering the truck's tailgate. (Id. ¶ 13.)

"At the time of the accident, [Joseph Silva] positioned himself at the tailgate on the passenger side of the vehicle, while Mr. Roman positioned himself at the tailgate on the driver's side." (Def.'s 56.1 ¶ 17.) "Mr. Roman pulled the chain out on his side of the tailgate first and asked Plaintiff if he was ready to lower the tailgate."⁶ (Id. ¶ 18.) Joseph Silva "testified that while holding the tailgate up with his left hand, he was going to use his right hand to pull the chain out of the keyhole one link at a time to the desired length."⁷ (Id. ¶ 20.) The chain holding the tailgate snapped, (Def.'s 56.1 ¶ 22; Pl.'s 56.1 ¶ 22), and the tailgate eventually swung fully open, (Def.'s 56.1 ¶ 24; Pl.'s 56.1 ¶ 24). "The top pins on the tailgate were not in place at the time of the accident." (Def.'s 56.1 ¶ 29.) "Following the accident, [Joseph Silva's] co-workers loaded the tailgate and used the truck that same day." (Id. ¶ 33.)

Defendant contends that the top pins "keep the tailgate from falling," (id. ¶ 32), and that they should be in place when lowering the tailgate and setting the chain length, (id. ¶ 31). Plaintiffs contend that the deposition testimony concerning the use and purpose of the pins was conflicting. (Pls.' 56.1 ¶¶ 31-32.)

II. Discussion

a. Standards of review

i. Rule 702

"The admission of expert testimony is governed primarily by the Federal Rules of Evidence." United States v. Walker, No. 18-CV-3506, 2023 WL 3451419, at *1 (2d Cir. May 15, 2023). Rule 702 of the Federal Rules of Evidence provides that "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702.⁸ "While the proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied, . . . the district court is the ultimate gatekeeper." United States v. Jones, 965 F.3d 149, 161 (2d Cir. 2020) (alteration in original) (quoting United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007)); Richardson v. Corr. Med. Care, Inc., No. 22-CV-210, 2023 WL 3490904, at *2 (2d Cir. May 17, 2023) (same); see also United States v. Farhane, 634 F.3d 127, 158 (2d Cir. 2011) ("The law assigns district courts a 'gatekeeping' role in ensuring that expert testimony satisfies the requirements of Rule 702." (citation omitted)), cert. denied, 565 U.S. 1088, 132 S.Ct. 833, 181 L.Ed.2d 542 (2011).

Prior to permitting a person to testify as an expert under Rule 702, the court must make the following findings: (1) the witness is qualified to be an expert; (2) the opinion is based upon reliable data and methodology; and (3) the expert's testimony on a particular issue will "assist the trier of fact." Nimely v. City of New York, 414 F.3d 381, 396-97 (2d Cir. 2005); see also United States v. Napout, 963 F.3d 163, 187-88 (2d Cir. 2020) (explaining that the court is tasked with "ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand" (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993))); United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004) (same). In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court set forth a list of factors, in addition to the criteria set forth in Rule 702, that bear on the determination of reliability: "(1) whether a theory or technique has been or can be tested; (2) 'whether the theory or technique has been subjected to peer review and publication;' (3) the technique's 'known or potential rate of error' and 'the existence and maintenance of standards controlling the technique's operation;' and (4) whether a particular technique or theory has gained general acceptance in the relevant scientific community." Williams, 506 F.3d at 160 (quoting Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786); see also United States v. Morgan, 675 F. App'x 53, 55 (2d Cir. 2017) (same); Zaremba v. Gen. Motors Corp., 360 F.3d 355, 358 (2d Cir. 2004) (same). The Daubert inquiry for reliability is a "flexible one" and does not "constitute a definitive checklist or test," and thus, the Daubert factors "neither necessarily nor exclusively appl[y] to all experts or in every case." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citation omitted).

The district court is afforded "the same broad latitude when it decides how to determine reliability as it enjoys [with] respect to its ultimate reliability determination." Id. at 142, 119 S.Ct. 1167. Expert testimony should be excluded if it is "speculative or conjectural." Jones, 965 F.3d at 162 (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996)); Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (same). When an expert's opinion is based on data or methodologies "that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony." Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 253 (2d Cir. 2005) (citation omitted); see also Nimely, 414 F.3d at 396 ("[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." (alteration in original) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997))). Nevertheless, "in accordance with the liberal admissibility standards of the Federal Rules of Evidence, only serious flaws in reasoning or methodology will warrant exclusion." In re Fosamax...