Woelfle v. Black & Decker (U.S.), Inc.

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JAMES J. WOELFLE Plaintiff, v. BLACK & DECKER (U.S.) INC., Individually and d/b/a DeWALT INDUSTRIAL TOOL CO., Defendant.

No. 1:18-CV-486

United States District Court, W.D. New York

July 7, 2023

OPINION AND ORDER

William K. Sessions III U.S. District Court Judge

Plaintiff James Woelfle has brought a product liability personal injury claim against Black & Decker Inc. on theories of strict liability, negligence, and breach of warranty (express and implied). The product at issue is a DeWalt DW716 Type 2 compound miter saw (hereafter “subject saw” or “DW716 miter saw”).

Defendant has moved for summary judgment seeking dismissal of Plaintiff's Complaint and Amended Complaint. ECF 80. Plaintiff has filed a cross-motion for partial summary judgment seeking dismissal of Defendant's Scarangella defense to Plaintiff's strict product liability claim for defective design. ECF No. 85. Further, Plaintiff has moved the Court to exclude the testimony of Defendant's liability experts, George H. Pfreunsdschuh, Thomas Jay Bodine, and Erick H. Knox. ECF No. 81. Defendant has filed a cross-motion to exclude the opinions of Plaintiff's liability experts, Les Winter and Ruhi Arslanoglu. ECF No. 86.

For the reasons set forth below, Plaintiff's motion to exclude the opinions of Defendant's liability experts is denied; Defendant's cross-motion to exclude the opinions of Plaintiff's liability experts is denied; Defendant's motion for summary judgment is granted in part and denied in part; and Plaintiff's cross-motion for partial summary judgment is denied.

FACTUAL BACKGROUND

This case involves the Plaintiff's use of a DW716 miter saw to cut what Plaintiff claims to have been a 2” x 2” x 36” long, pressure-treated piece of wood (the “spindle” or “workpiece”) that resulted in a deep laceration on the posterior side of the Plaintiff's forearm.

Plaintiff purchased the DW716 miter saw from Home Depot in 2015. ECF 80-10 at 76: 1-13; 99:1-19. The DW716 miter saw model purchased by Plaintiff came equipped with a lower guard that covers the blade when the saw is in its resting position and that, as it is lowered, continues to cover the majority of the exposed blade as the user makes a cut into a workpiece. The DW716 model did not, however, come with a clamp as standard equipment. ECF 80-11 at 100-103. A clamp is an instrument that can be affixed to a miter saw to secure a workpiece in place while a user makes a cut. Its purpose is to prevent the workpiece from shifting, improving both the accuracy and safety of the saw. Id. Alternatively, a user can use their left hand to secure a workpiece in place while using the DW716 miter saw by applying downward pressure to the workpiece and pushing it into the miter saw's table and fence.

Between 2015 and the date of the injury on December 13, 2017, Plaintiff used the subject saw, without a clamp, to cut wood for different applications without incident. The day of the incident, Plaintiff was allegedly using the DW716 miter saw to cut 2” x 2” x 36” long, pressure-treated pieces of wood for use as stairwell spindles. Plaintiff was making 45° angle cuts in the spindles to follow the angle of the stairwell; he set the bevel of the miter saw to zero and rotated, or mitered, the table 45° to the left. Plaintiff testified to then using his left hand to secure the spindles against the miter saw's table and fence approximately 10 inches from the blade while making cuts. Plaintiff allegedly made several successful 45° angle cuts in the spindles the day of the incident without issue. On approximately the ninth attempted cut, Plaintiff sustained an approximately 6-inch-deep laceration on the posterior side of his forearm when, as the Plaintiff testified, “[t]he saw jumped, and I - it pulled [the workpiece] to the - to the right, inwards toward the blade, and I just - it happened so quick.” ECF 80-10 at 114-115.

DISCUSSION

I. Motions to Exclude Expert Testimony

A federal district court may only consider admissible evidence when deciding a motion for summary judgment. Fed.R.Evid. 104(a); See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir. 1993). The standard for the admissibility of evidence under Rule 702 is the same at summary judgment as at trial. See General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). Correspondingly, the Court begins with an assessment of the parties' challenges to the admission of expert testimony in this case.

A. Form of Submission

To start, Plaintiff argues that Black & Decker has failed to offer its expert reports in admissible form by attaching unsworn reports that do not satisfy the requirements for summary judgment affidavits or declarations under Rule 56(c)(4). ECF 87 at 4. Plaintiff is correct that FRCP 56(c) allows a party to object to the Court's consideration of materials cited in support of a motion for summary judgment that are not presented in an admissible form, meaning they are not supported by an affidavit, declaration, or sworn to in conformity with 28 U.S.C. § 1746. FRCP 56(c)(2), (4); see Monclova v. City of N.Y., 726 Fed.Appx. 83, 84 (2d Cir. 2018). Nonetheless, as each of Defendant's experts appeared for and testified under oath as to the opinions contained in their reports, and as Defendants have since cured the alleged defect by submitting affidavits from each of their liability experts, see Capobianco v. City of N.Y., 422 F.3d 47, 55 (2d Cir. 2005), the Court denies the Plaintiff's request to exclude Defendant's expert reports as inadmissible hearsay.

B. Admission of Rebuttal Opinions from Defendant's Experts

Next, Plaintiff has asked the Court to preclude the Defendant's liability experts, Mr. Pfreundschuh, Mr. Bodine, and Mr. Knox, from offering rebuttal opinions that are not supported by their initial reports due to Defendant's decision to submit no rebuttal reports by the agreed upon deadline.

With the Court's approval, Plaintiff agreed to identify his expert witnesses and produce his reports by April 8, 2022, Defendant agreed to do the same by June 8, 2022, and both parties agreed to offer any intended rebuttal reports by August 5, 2022. ECF 62. It was additionally agreed that expert depositions would take place no later than October 7, 2022. These deadlines were complied with, except for that Defendant's experts submitted no rebuttal reports.

A party making disclosures of expert witnesses must do so “at the times and in the sequence that the court orders.” FRCP 26(a)(2)(D). Federal Rule of Civil Procedure 26(a)(2)(B) requires submission of an expert report from all testifying experts prepared and signed by the witness containing, among other things, “a complete statement of all opinions the witness will express and the basis of reasons for them.” When “evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), [it must be disclosed] within 30 days after the other party's disclosure.” FRCP 26(a)(2)(D)(ii). FRCP 37(c)(1) complements Rule 26(a) by providing that when a “party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.”

Rule 26(a)(2)(B) makes clear that an expert's report must contain a statement of “all opinions to be expressed and the basis and reasons thereof” for opinions about another expert's analysis that contradicts or rebuts another expert's testimony. The Court is not persuaded that rebuttal expert testimony is excepted from Rule 26's reporting requirements. See Complaint of Kreta Shipping, S.A., 181 F.R.D. 273, 277 (S.D.N.Y. 1998) (finding expert's trial affidavit that included rebuttal statements that were not included in the expert's prior reports violated Rule 26(a)(2)(B))). Therefore, Defendant's argument that Mr. Pfreundschuh, Mr. Bodine, and Mr. Knox each indicated willingness or intent to offer rebuttal opinions during the deposition or at trial should the Plaintiff have questioned him about those opinions does not persuade the Court to exempt from any expert opinions that are not included in their reports from the Rule 26 reporting requirements.

As the Court finds that expert rebuttal opinions that are not supported by a report are excludable under FRCP 37(c)(1) for failure to submit rebuttal reports under FRCP 26(a)(2)(B), the Court must next assess whether to preclude Defendant's liability experts from offering rebuttal testimony at trial. Courts in the Second Circuit assess four factors on a motion to preclude expert testimony:

(1) the party's explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.

Patterson v. Balsamic, 440 F.3d 104, 117 (2d Cir. 2006) (quoting Softel, Inc. v. Dragon Med. & Sceintific Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997).

In this instance, the opinions that Plaintiff seeks to exclude are merely anticipated; Defendant's experts, as of yet, have given no opinions that lack support in their initial reports. Accordingly, the Court is not in a position to properly assess the Second Circuit factors. As Defendant's experts have yet to offer any rebuttal testimony, there is no indication that Defendant has failed to comply with the discovery order. And without knowing the content of the rebuttal testimony, the Court is not in a position to assess its importance. Likewise, the Court cannot judge the prejudice Plaintiff may suffer by admission of rebuttal testimony. Thus,...