Vicuna et al v. O.P. Schuman & Sons, Inc.

Filing 101

ORDER granting 76 Motion to Amend/Correct/Supplement; granting 87 Motion for Reconsideration; granting in part and denying in part 94 Motion for Summary Judgment. More specifically, consistent with the enclosed memorandum and order, the plainti ffs' motion for reconsideration of my decision dated May 19, 2015 is GRANTED, and upon reconsideration Schuman's motion for summary judgment on the independent failure to warn claim is DENIED; Schuman's motion to preclude the plaintiff s' expert and his testimony is DENIED; Schuman's motion for summary judgment is DENIED in part and GRANTED in part; the plaintiffs' motion for costs and attorney's fees is DENIED; and the plaintiffs' motion for leave to amend their complaint is GRANTED. Ordered by Judge Edward R. Korman on 10/31/2017. (Chefitz, Jacob)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FEDERICA VICUNA and MARTIN VARELAS,
Plaintiffs,
MEMORANDUM & ORDER
– against –
O.P. SCHUMAN & SONS, INC., S.K.S.
EQUIPMENT CO., and AMERIPAK INC.,

13-cv-2834-ERK

Defendants.

KORMAN, J.:
Plaintiffs Federica Vicuna and her husband Martin Varelas bring this action against S.K.S.
Equipment Co. (“S.K.S.”), AmeriPak, Inc. (“AmeriPak”), and O.P. Schuman & Sons, Inc.
(“Schuman”). Plaintiffs allege numerous claims sounding in products liability based on a
workplace injury that plaintiff Vicuna sustained while using a machine that S.K.S. manufactured
under its AmeriPak brand name. S.K.S. is now a defunct company. Schuman has purchased much
of the assets once under the control of S.K.S., including the AmeriPak brand name.
There are currently four motions pending. First, the plaintiffs move for reconsideration of
my order dated May 19, 2015. That order granted Schuman’s motion for summary judgment on
the plaintiffs’ so-called independent failure to warn claim. Second, Schuman moves to preclude
the plaintiffs’ proffered expert witness. Third, Schuman moves for summary judgment seeking
dismissal of nearly all remaining claims outstanding against it. Fourth is the plaintiffs’ motion for
leave to amend their complaint.

BACKGROUND
I.

Factual Background
On February 22, 2012, plaintiff Vicuna was injured while using a Model 60 packaging

machine manufactured by S.K.S. See First Federica Vicuna Depo., Sept. 5, 2014, 10:1-17:17, ECF
No. 47-2. This occurred during the course of her work for Muffins ‘n’ More, Inc. in Brooklyn,
New York (“Muffins ‘n’ More” or “plaintiff’s employer”). Id. The Model 60 is known in the
packaging industry as a “horizontal wrapper.” See Eng’g Report, Eric Heiberg, July 29, 2016, ECF
No. 94-14, at 2-4. Model 60s use a conveyor belt to move baked goods towards a point of operation
where plastic film is wrapped around them. Id. Once the plastic film covers the baked goods, the
machine then cuts and seals the plastic film with a descending heating element that forms a pinch
point. Id.
While operating a Model 60 in “manual mode,” the plaintiff crushed and burned three of
her fingers, requiring amputation. See AmeriPak Model 60 Operator’s Manual, ECF No. 89-9, at
1-9; First Sterner Depo., Sept. 19, 2014, 115:5-7, ECF No. 47-5; First Vicuna Depo. 10:23-11:9;
37:4-18. Unlike when in “automatic mode,” the Model 60 can run in manual mode without a
polycarbonate guard in place to protect operators from contacting the pinch point. See Operator’s
Manual, at 1-9; First Sterner Depo. 47:18-49:16. Without the polycarbonate guard in place, the
pinch point is exposed and an operator is free to place his or her hand into that area. Indeed,
Vicuna’s employer directed her to sometimes operate the Model 60 in manual mode so that she
could place her hand very close to the pinch point area. This allowed her to adjust certain “small”
baked goods so that they would not “bounce around” and become damaged at the pinch point. See
First Vicuna Depo. 54:10-25. The plaintiff was performing this precise task when her accident
occurred.

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The operator’s manual for the Model 60 expressly contemplates that operators will use the
machine in manual mode for “setup” as well as for “jogging” of the machine. See Operator’s
Manual, at 1-9. The operator’s manual also states that “GUARDS MUST BE IN PLACE BEFORE
OPERATING.” Id. at 1-7. Plaintiff Vicuna was apparently never given a copy of the operator’s
manual, nor any other written instructions for the machine. First Vicuna Depo. 29:22-30:15; 32:718. The plaintiff testified that she did not realize that placing her fingers near the machine’s moving
parts was dangerous. Id. at 49:18-50:19; 53:8-14. She testified that she would not have operated
the machine in such a manner had she known of the danger. Id. She did not remember seeing any
warning decals on the machine the day of the accident. Id. at 49:12-17.
A decal of some sort was in fact present on the Model 60 based on my review of a
photograph taken in December 2012, roughly 9 months after the plaintiff’s accident. In the
photograph, the decal is difficult, if not impossible, to decipher. See Photograph AmeriPak Model
60, Dec. 4, 2012, ECF No. 98-1. Schuman asserts that the decal warned against placing an
operator’s hand near the pinch point. See Def.’s Reply Mem. Supp. Mot. Summ. J., Feb. 17, 2017,
ECF No. 99, at 8-9. Importantly, whatever the decal portrayed, it appears that the decal was
positioned such that an operator could see it only when the protective guard was horizontal and
already secured in place, and not when the guard was vertical and unsecured—i.e., when a warning
would be useful. See Photograph AmeriPak Model 60.
The Model 60 horizontal wrapper was the first in a line of wrapping machines that S.K.S.
manufactured and marketed under the AmeriPak brand name. See First Sterner Depo. 34:15-24.
S.K.S. discontinued the Model 60 around 1999. S.K.S. then sold the last machine of that model in
2004, though production continued on other models within the AmeriPak line. See William
Schuman Aff., Sept. 12, 2013, ECF No. 47-7, at ¶ 10. Although S.K.S. thrived for a period, by

3

2004 its sales had decreased and it was forced to either sell the business or allow a bank takeover.
See First Sterner Depo. 37:14-21; 38:13-21.
Around December 2004, defendant Schuman purchased certain S.K.S. assets for
approximately $300,000. See Asset Purchase Agreement, ECF No. 47-1, at ¶¶ 1, 2. The primary
purpose of the asset sale was for Schuman to obtain the AmeriPak product line and continue the
line under its own control. See William Schuman Depo., Sept. 18, 2014, ECF No. 74-3, 22:4-15;
51:20-24. Indeed, Schuman obtained blueprints and patents for the AmeriPak line of machines.
See First Sterner Depo. 75:11-76:19. Schuman also obtained the goodwill that came with the
AmeriPak line along with a list of customers and purchase records. See Schuman Depo. 40:2-19;
60:2-8; 60:23-61:19. After Schuman purchased the assets of S.K.S., all eight S.K.S. employees
joined Schuman. See First Sterner Depo. 36:3-14; Schuman Depo. 63:19-22; Jim O’Shea Depo.,
Sept. 19, 2014, ECF No. 49-4, 17:1-7; 55:23-57:20.
Numerous documents were brought from the S.K.S. facility to the Schuman facility
following the asset purchase. Specifically, an engineering folder was brought to the Schuman
facility. This folder contained a one-page “alternative electronic schematic” for the S.K.S.
manufactured Model 60. See O’Shea Depo. 23:11-22; 27:2-5; 27:21-28:9; 53:6-15; 60:18-21;
61:2-12; Resp. to Pls.’ Supp. Not. to Produce, June 27, 2016, ECF No. 98-4, at 5; Second Sterner
Depo., July 5, 2016, ECF No. 89-5; 257:4-8. The alternative schematic provided a workaround
design that, through rewiring, altered the Model 60. This alteration made it so that the Model 60
could not operate in any mode—neither automatic nor manual—without the polycarbonate guard
in place to protect operators. See Second Sterner Depo. 255:10-256:5.
Whether Schuman technically purchased this engineering folder and the alternative
schematic is unresolved on the record. Schuman asserts repeatedly that the folder and schematic

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are “S.K.S. documents” and “not Schuman documents.” See, e.g., William Schuman Aff., Jan. 18,
2017, ECF No. 90-1, at ¶ 15. Schuman further claims that it was not aware of these documents
until as late as July 2016, roughly three years after this litigation began. See, e.g., Def.’s Mem.
Opp’n Pls.’ Mot. for Reconsideration, Jan. 20, 2017, ECF No. 90, at 6. Nevertheless, the
documents have been stored at Schuman’s facility since around the time of the S.K.S. asset sale in
2004. Moreover, at least two of Schuman’s long-time employees testified that, at all pertinent
times, they were readily familiar with these documents. See O’Shea Depo. 23:11-22; 27:2-5;
27:21-28:9; 53:6-15; 60:18-21; 61:2-12; First Sterner Depo. 16:1-8; 36:12-17; 44:10-13; Def.’s
Mem. Opp’n Pls.’ Mot. for Reconsideration, at 6.
Since its asset purchase in 2004, Schuman has continued designing and manufacturing the
line of AmeriPak horizontal wrappers originally created by S.K.S. Today, however, Schuman
incorporates rewiring similar (if not identical) in nature to that set out in the S.K.S. alternative
electronic schematic mentioned above. See Eng’g Report, at 11. Thus, new wrappers manufactured
by Schuman cannot operate in either automatic or manual mode unless the protective guard is
secured in place. See Second Sterner Depo. 257:19-258:11.
Around January 2012, roughly seven years after the asset purchase and approximately
seven weeks before plaintiff Vicuna’s injury, her employer, Muffins ‘n’ More, contacted Schuman
to request spare parts and an operator’s manual for its Model 60 horizontal wrapper. See Schuman
Depo. 105:14-106:17; 110:10-24; Manual Invoice, Jan. 5, 2012, ECF No. 49-12; Parts Invoice,
Jan. 12, 2012, ECF No. 49-13. Soon after the request from Muffins ‘n’ More, Schuman mailed the
desired spare parts and operator’s manual. Muffins ‘n’ More had not purchased any parts from
Schuman prior to this time. Nor is there any evidence of contact after this point. See Schuman
Depo. 112:6-113:14.

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The operator’s manual included a personalized cover page designating AmeriPak as “a
division of O.P. Schuman and Sons, Inc.,” although the substance of the manual was written by
S.K.S. See Operator’s Manual, at 1; First Sterner Depo. 44:19-45:17. The second page of the
manual was also personalized. It stated in effect that “this manual has been prepared for Muffins
‘n’ More” and then listed the contact information for the Schuman sales department. Operator’s
Manual, at 2. The operator’s manual did not include any alternative schematics, not even the onepage alternative schematic that had been stored within the engineering folder described earlier. See
id. The parties agree that Muffins ‘n’ More never contacted Schuman directly about servicing the
Model 60 horizontal wrapper in question. They further agree that Schuman never made a service
call to Muffins ‘n’ More. See generally Pls.’ Mem. Opp’n Def.’s 1st Mot. Summ. J., March 16,
2015, ECF No. 49-18.
Review of the exhibits filed with the instant motions reveals that at least two other known
accidents in addition to plaintiff Vicuna’s have occurred involving Model 60 horizontal wrappers.
First, depositions indicate that another accident occurred at Muffins ‘n’ More in 2014, two years
after plaintiff Vicuna’s accident. That accident involved the same exact underlying machine and
resulted in another amputation. See Isabella Ortega Depo., March 17, 2016, ECF No. 98-7, 31:2333:12. Second, plaintiffs have discovered that, in or around 1995, S.K.S. was sued in an Iowa
lawsuit styled Lindsey v. S.K.S. Equipment Co. Pls.’ Mem. Supp. Mot. for Reconsideration, at 89. That case involved another workplace accident. The machine in question there was a Model 60
with serial number 102—just one serial number higher than the Model 60 underlying this litigation,
number 101. See id. The plaintiffs in the present case suspect that S.K.S. created the one-page
alternative design schematic addressed earlier in response to the Lindsey case, possibly as part of
a settlement there. See id.

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II.

Procedural Background & Belated Discovery Production
Plaintiffs filed suit against Schuman on May 14, 2013 for its role in plaintiff Vicuna’s

injuries, including Schuman’s role as successor to S.K.S. The complaint asserted claims sounding
in strict products liability, failure to provide proper warnings, breach of express warranty, breach
of implied warranty, negligence, and loss of services on behalf of Vicuna’s husband, Martin
Varelas. See generally Compl., May 14, 2013, ECF No. 1. Plaintiffs later filed an amended
complaint, which added S.K.S. and AmeriPak as defendants. See Am. Comp., July 17, 2013, ECF
No. 4, at 1.
Schuman then filed a cross-claim against S.K.S. See Answer, Aug. 8, 2014, ECF No. 36,
at 5. Schuman additionally filed a third-party complaint against Muffins ‘n’ More, plaintiff’s
employer. See 3d Party Compl., June 19, 2015, ECF No. 55. In turn, Muffins ‘n’ More filed
counterclaims against Schuman. See Answer to 3d Party Compl., Aug. 6, 2015, ECF No. 61.
Plaintiffs have voluntarily dismissed defendant AmeriPak. See Stip. & Order, June 30, 2014, ECF
No. 30. The court clerk has entered default against S.K.S. for failure to plead or otherwise defend
the action. See Entry of Default, Aug. 15, 2014, ECF No. 40. Thus, Schuman, Muffins ‘n’ More,
and the plaintiffs are the only parties that remain active in this litigation.
On March 16, 2015, Schuman moved for summary judgment on the issue of successor
liability. Schuman additionally moved for summary judgment as to plaintiffs’ claim against
Schuman for its “independent” failure to warn (i.e., Schuman’s failure to warn plaintiff’s employer
about defects in the Model 60, notwithstanding that S.K.S. and not Schuman manufactured that
machine). See Def.’s Mot. Summ. J., March 16, 2015, ECF No. 47. On May 19, 2015, applying
Pennsylvania law, I denied Schuman’s motion for summary judgment on successor liability. See
Vicuna v. O.P. Schuman & Sons, Inc., 106 F. Supp. 3d 286, 294–95 (E.D.N.Y. 2015). Applying

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New York law, I granted Schuman’s motion on the independent failure to warn claim, finding that
the record did not show the requisite “special relationship” between Schuman and plaintiff Vicuna
or her employer. Id. at 16-18. In short, while noting that Schuman might still be liable for warning
failures as a successor to S.K.S., I held that New York law placed no independent duty to warn on
Schuman, given its limited contact with the plaintiff and her employer. See id.
The plaintiffs ask me to reconsider today my independent failure to warn holding based on
new evidence. The new evidence is that Schuman was in possession of the alternative electronic
schematic at the time it provided plaintiff’s employer with the operator’s manual for the Model
60. See Pls.’ Mem. Supp. Mot. for Reconsideration, at 8-9. Thus, the plaintiffs assert that, under
the circumstances taken as a whole, this new evidence of Schuman’s possession of the alternative
design schematic tips the scale in favor of the plaintiffs on the issue of whether Schuman had an
independent duty to warn. See id. at 22-24.
Critical to plaintiffs’ assertion is their contention that Schuman withheld from discovery
the alternative design schematic. See id. at 8-9. Indeed, discovery here has been long and
convoluted. On May 28, 2014, plaintiffs served on Schuman a request for production. In that
request, plaintiffs demanded “all documents, memorandum, notes, letters and/or complaints
prepared by O.P. Schuman, received by O.P. Schuman, or maintained by O.P. Schuman related to
the safety guards of the Model 60 Horizontal Wrapper” or “related to operating the Model 60
Horizontal Wrapper in manual mode.” See Pls.’ Not. to Produce, May 28, 2014, ECF No. 89-3, at
¶¶ 14, 15. Schuman responded to that request three months later, on August 28, 2014. See Schuman
Supp. Resp. Not. to Produce, Aug. 28, 2014, ECF No. 89-4, at ¶¶ 14, 15. Schuman asserted that
“none” of the plaintiffs’ requested documents existed. Id.

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Next, on September 19, 2014, during the deposition of a long-time Schuman employee, it
appeared that, contrary to its earlier discovery responses, Schuman might be maintaining an
engineering folder on the Model 60. Over the course of the deposition, it became clear that the
folder might contain information relevant to the functionality and design of the Model 60, and
possibly its safety guard. See O’Shea Depo. 60:13-66:11. During that deposition, counsel for the
plaintiffs demanded that, if the engineering folder in fact existed at the Schuman facility, it be
preserved and produced. See id. at 65:17-66:11. Schuman’s counsel and Schuman’s president both
acknowledged this demand on the record. Id. The plaintiffs additionally followed-up regarding
this matter with counsel for Schuman after the deposition, though the record does not detail the
nature of the plaintiffs’ follow-up. Ultimately, the plaintiffs were forced to seek an order from
Magistrate Judge Kuo on June 2, 2016, directing Schuman to search for and produce the
engineering folder. See Minute Entry, June 2, 2016. In short, Schuman did not provide the
engineering folder—nor the one-page alternative schematic contained within that folder—until
roughly two years after the September 2014 deposition. Indeed, Schuman’s supplemental
production of these documents as well as other previously unproduced documents began around
June 27, 2016 and continued as late as September 12, 2016. See Resp. to Pls.’ Supp. Not. to
Produce, June 27, 2016, ECF No. 89-6, at ¶ 3; Supp. Resp. to Pls.’ Post-Depo. Demands, Sept. 12,
2016, ECF No. 89-7, at 5.
By the time Schuman completed its supplemental production on September 12, 2016, it
had been roughly 1.5 years since I granted Schuman’s motion for summary judgment on the
plaintiffs’ independent failure to warn claim. Plaintiffs now argue that, had they possessed the
engineering folder and alternative schematic at the time of Schuman’s motion for summary
judgment, they would have successfully defeated that motion. See generally Pls.’ Mem. Supp.

9

Mot. for Reconsideration. They emphasize that the engineering folder contained the one-page
alternative schematic that provided a workaround to prevent the Model 60 from operating in
manual mode without proper guarding. Id. at 22-24. Plaintiffs further highlight that the alternative
design set out in the one-page schematic is similar or identical to the current design of the
AmeriPak wrappers that Schuman now produces. This information, plaintiffs argue, would have
defeated Schuman’s motion for summary judgment because Schuman’s knowledge of a feasible
alternative design helps to trigger an independent duty to warn under New York law. Id.
As for why Schuman failed to provide these documents upon plaintiffs’ original request in
May 2014, Schuman has offered no sound excuse. Instead, Schuman continues to argue that these
documents are “not Schuman document[s]” and that Schuman’s president was unaware of the
existence of these documents until July 2016. See William Schuman Aff., Jan. 18, 2017, at ¶ 15.
What is concerning here is that, in response to plaintiffs’ May 2014 request for production, the
record does not establish that Schuman put forth any particular effort that would have led to the
discovery and production of the engineering folder or the alternative schematic.
Indeed, a long-time Schuman employee familiar with these documents testified that no one
asked him to search for responsive documents. See O’Shea Depo. 62:1-3. Certainly, Schuman has
not specified what actions, if any, it took to locate responsive documents in the time following
plaintiffs’ May 2014 request. Nor is there reason to believe that Schuman put forth any effort to
locate responsive documents following the September 19, 2014 deposition, at which Schuman was
informed that responsive documents might exist in its facility. See O’Shea Depo. 60:13-66:11.
Had it not been for the plaintiffs’ investigatory work and its follow-up efforts, Schuman
never would have made a supplemental production. Indeed, though I will not go into detail here,
it was apparently through a third-party source that the plaintiffs found out about Schuman’s likely

10

discovery failures. See Pls.’ Mem. Supp. Mot. for Reconsideration, at 8-9. Upon uncovering
Schuman’s potential discovery failures, the plaintiffs quickly began serving renewed demands for
depositions and document productions. Id. This eventually led to Schuman’s supplemental
productions of documents that had been within its custody and control all along. Id.
DISCUSSION
I.

Plaintiffs’ Motion for Reconsideration
A. Procedure
The plaintiffs move for reconsideration of my May 19, 2015 order based on the newly

discovered one-page alternative design schematic that Schuman maintained during all pertinent
times but did not produce until 2016. The plaintiffs move pursuant to Rules 60(b) and 59(e) of the
Federal Rules of Civil Procedure. See Pls.’ Mem. Supp. Reconsideration, at 2. I address each Rule
in turn.
Rule 60(b) is not a proper avenue for reconsideration here. The Rule provides that a district
court may grant a party relief from certain “final” orders in the event of, among other things, new
evidence:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or
proceeding for the following reasons:
***
(2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b)
Fed. R. Civ. Pro. 60(b). The Advisory Committee Notes following Rule 60 state unequivocally
that only final orders fall within the scope of Rule 60(b). The Notes state that “[t]he addition of
the qualifying word ‘final’ emphasizes the character of the judgments, orders or proceedings from
11

which Rule 60(b) affords relief.” Fed. R. Civ. P. 60(b), Advisory Committee Notes 1946
Amendment; see also Fennell v. TLB Kent Co., 865 F.2d 498, 501 (2d Cir. 1989) (analyzing Rule
60 Advisory Committee Notes).
Judge Schofield recently addressed this issue, collecting a great number of useful
authorities. Like the Advisory Committee Notes, Judge Schofield concludes that Rule 60(b)
applies only to final orders. Importantly, Judge Schofield concludes that the question of whether
an order is final—and thus within the scope of Rule 60(b)—turns on whether it is appealable. Only
orders that are appealable will be considered final within Rule 60(b). Put differently, nonappealable orders are generally considered interlocutory, and therefore outside the scope of Rule
60(b):
Because Rule 60(b) enumerates grounds for relief from
a “final judgment, order or proceeding,” the threshold question is
whether [my previous order] is “final.” Fed. R. Civ. P.
60(b) (emphasis added and capitalization altered). Contrary to the
parties’ assumption, [my previous order] is not “final” within the
meaning of Rule 60(b).
The prevailing rule in this Circuit and elsewhere is that an order is
final for purposes of Rule 60(b) when it is appealable. “The standard
test for whether a judgment is ‘final’ for Rule 60(b) purposes is . . .
whether the judgment is sufficiently ‘final’ to be appealed.” 12
James Wm. Moore et al., Moore’s Federal Practice § 60.23 (cited in,
inter alia, Luv n’ Care, Ltd. v. Regent Baby Prods. Corp., 986 F.
Supp. 2d 400, 411 n.3 (S.D.N.Y. 2013), reconsideration
denied, (S.D.N.Y. 2014); Bank Leumi USA v. Ehrlich, No. 12 Civ.
4423, Dkt. No. 58, at 2 (S.D.N.Y. Feb. 18, 2014); Floyd v. City of
New York, 813 F. Supp. 2d 457, 464 n.65 (S.D.N.Y. 2011); Alvarez
v. Am. Airlines, Inc., No. 98 Civ. 1027, 2000 WL 145746, at *1
(S.D.N.Y. Feb. 8, 2000); see also Gucci Am., Inc. v. Weixing Li, No.
10 Civ. 4974, 2012 WL 1883352, at *2 (S.D.N.Y. May 18,
2012) (collecting cases), vacated on other grounds, 768 F.3d 122
(2d Cir. 2014). The Second Circuit has not expressly articulated this
rule, but has adopted it by implication. See In re U.S. Lines,
Inc., 216 F.3d 228, 235 (2d Cir. 2000) (citing cases equating finality
to appealability in finding district court’s venue order in a
bankruptcy case, which fell under district court’s “original” rather
12

than “appellate” jurisdiction, as not final for Rule 60(b) purposes).
At least three other circuits have stated that Rule 60 applies only to
appealable final orders or judgments. See Santamarina v. Sears,
Roebuck & Co., 466 F.3d 570, 571 (7th Cir. 2006) (“Rule 60(b) of
the Federal Rules of Civil Procedure . . . by its terms limited to
‘final’ judgments or orders, is inapplicable to interlocutory
orders.”); Penn W. Assocs., Inc. v. Cohen, 371 F.3d 118, 125 (3d
Cir. 2004) (same); Prudential Real Estate Affiliates, Inc. v. PPR
Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000) (explaining that “a
preliminary injunction is not a ‘final judgment, order, or proceeding’
that may be addressed by a motion under Rule 60(b)” because it is
“interlocutory”).
As is well established, for purposes of an appeal, “[a] final judgment
or order is one that conclusively determines all pending claims of all
the parties to the litigation, leaving nothing for the court to do but
execute its decision.” Petrello v. White, 533 F.3d 110, 113 (2d
Cir.2008). The “core application” of the statute that confers
appellate jurisdiction, 28 U.S.C. § 1291, “is to rulings that terminate
an action.” Gelboim v. Bank of America Corp., 135 S.Ct. 897, 902
(2015). Barring a district court’s entry of a partial final judgment
based on an express determination that “there is no just reason for
delay,” “any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any of the
claims or parties.” Fed. R. Civ. P. 54(b) (emphasis added).
In re Shengdate, Inc. Sec. Litig., No. 11-cv-1918, 2015 WL 3422096, at *3-4 (S.D.N.Y. May 28,
2015).
Here, it is clear that my May 19, 2015 order was not appealable. The order was thus
interlocutory and not final within the meaning of Rule 60(b). Indeed, my order did not adjudicate
all of the claims before me, and it did not dismiss any party from the litigation. Nor did I enter a
partial final judgment or a determination that “there is no just reason for delay.” See id.; see also
In re World Trade Center Disaster Site Litig., 521 F.3d 169, 178 (2d Cir. 2008) (describing what
constitutes a final order). Thus, Rule 60(b) cannot provide the plaintiffs with relief.
Next for consideration is Rule 59(e). That Rule permits parties to file motions to “alter or
amend a judgment.” See Fed. R. Civ. P. 59(e). There is again a threshold question here: whether
13

my May 19, 2015 order granting partial summary judgment qualifies as “a judgment” within the
scope of Rule 59(e). This question is not entirely settled. Some courts hold that summary
judgment orders fall outside Rule 59(e) because, in general, Rule 59 addresses post-trial motions.
See, e.g., Hill v. Bethlehem Steel Corp., 729 F. Supp. 1071, 1072 n.1 (E.D. Pa. 1989), aff’d, 902
F.2d 1560 (3d Cir. 1990). Other courts hold that Rule 59(e) applies to summary judgment orders
because subsection (e) in particular does not limit itself to post-trial motions. See, e.g., Larry
Spier, Inc. v. Bourne, Co., No. 90-cv-1065, 1991 WL 51146, at *1 (S.D.N.Y. Apr. 3,
1991) (considering motion to amend judgment under Rule 59(e) even though “there is some
force to the suggestion” that motion for summary judgment “does not fall within the rule.”);
Travelers Ins. Co. v. Buffalo Reins. Co., 739 F. Supp. 209, 210 (S.D.N.Y. 1990) (vacating
summary judgment order upon Rule 59(e) motion).
Even assuming that my May 19, 2015 order of partial summary judgment falls within the
scope of Rule 59(e), I still decline to grant reconsideration under that Rule. Courts impose an
exacting 28-day time limit within which parties must file a motion under Rule 59(e). “A district
court is not empowered to extend the time to file a Rule 59(e) motion.” Corines v. Am.
Physicians Ins. Trust, 615 Fed. App’x 708, 708 (2d Cir. 2015) (summary order). In fact, Rule
6(b)(2) expressly prohibits time extensions under Rule 59(e): “A court must not extend the time
to act under” Rule 59(e). In this case, plaintiffs filed their motion roughly 1.5 years after my May
19, 2015 decision. Plaintiffs may not proceed under Rule 59(e).
Plaintiffs may nonetheless proceed under Rule 54(b), pursuant to which I have express
authority to reconsider all interlocutory orders. See United States v. LoRusso, 695 F.2d 45, 53 (2d
Cir. 1982) (addressing both civil and criminal cases and stating that “district court has the
inherent power to reconsider and modify its interlocutory orders prior to the entry of judgment”).

14

Rule 54(b) provides that an “order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties does not end the action
as to any of the claims or parties and may be revised at any time before the entry of a judgment . .
. .” Fed. R. Civ. P. 54(b) (emphasis added); see also Parmar v. Jeetish Imports, Inc., 180 F.3d
401, 402 (2d Cir. 1999) (“All interlocutory orders remain subject to modification or adjustment
prior to the entry of a final judgment adjudicating the claims to which they pertain.”); Kotlicky v.
U.S. Fid. & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987) (indicating that all district court orders will
be subject to modification and revision to the extent they are non-final, especially where an order
was not relied upon by the parties); 11 Wright, Miller & Kane FEDERAL PRACTICE AND
PROCEDURE § 2852, 292-93 (3d ed. 2012) (“[T]he power of a court to modify an interlocutory
judgment or order at any time prior to final judgment remains unchanged and is not limited by
the provisions of Rule 60(b).”).
While a district court may revise decisions under Rule 54(b), it is not obligated to do so.
Rather, the “law of the case doctrine” controls. According to this doctrine, a district court may
reconsider prior adjudications where to do so would not be inconsistent with the objectives of
efficiency and finality. See Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992); Tri-Star Pictures, Inc. v. Leisure Time Prod., B.V., 88-cv-9127, 1992 WL 296314,
at *2 (S.D.N.Y. Oct. 6, 1992). In other words, the doctrine provides district courts with discretion
to revisit earlier rulings “subject to the caveat that ‘where litigants have once battled for the court’s
decision, they should neither be required, nor without good reason permitted, to battle for it
again.’” Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand,
LLP, 322 F.3d 147, 167 (2d Cir. 2003) (quoting Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir.
1964)).

15

When considering a motion for reconsideration under Rule 54(b), “[t]he major grounds
justifying reconsideration are ‘an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.’” DiLauria v. Power
Auth. of N.Y., 982 F.2d 73, 76 (2d Cir. 1992). For new evidence to justify reconsideration, the
evidence must be “of such importance that it probably would have changed the outcome” of the
prior ruling. See United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001).
“When newly discovered evidence is the basis for reconsideration, the proponent must
demonstrate that the newly discovered evidence was neither in his possession nor available upon
the exercise of reasonable diligence at the time the interlocutory decision was rendered.” See In
re Rezulin Prod. Liab. Litig., 224 F.R.D. 346, 350 (S.D.N.Y. 2004) (collecting cases).
Applying this framework, numerous courts have reconsidered prior orders and decisions
based on new evidence. See, e.g., J.C. Penney Corp., Inc. v. Carousel Center Co., L.P., No. 02cv-1360, 2009 WL 3246794, at *3-4 (N.D.N.Y. Oct. 6, 2009) (granting motion for
reconsideration); Rockland Exposition, Inc. v. Alliance of Auto. Servs. Providers of New Jersey,
894 F. Supp. 2d 288, 341 (S.D.N.Y. 2012) (reaching merits based on theory that pertinent
discovery information was not unavailable at time of previous order); Adams v. Ellis, No. 09-cv1329, 2012 WL 4762044, *6 (S.D.N.Y. Oct. 5, 2012) (reaching merits based on newly available
declarations).
Defendant Schuman presents two primary arguments in opposing the plaintiffs’ motion
for reconsideration. First, Schuman asserts that the plaintiffs’ motion is time-barred pursuant to
Local Rule 6.3. That Rule provides 14 days during which to seek reconsideration following
issuance of an order. Here Schuman states correctly that “[p]laintiffs filed this motion over 1.5
years after the Court issued its [May 19, 2015] ruling dismissing plaintiffs’ [independent] failure

16

to warn claim.” Def.’s Mem. Opp’n Pls.’ Mot. for Reconsideration, at 8. Nevertheless, Schuman
fails to address or even acknowledge the obvious issue: that the plaintiffs could not file for
reconsideration until after they received the new evidence upon which they now rely.
Schuman’s supplemental production in this case began around June 2016 and continued
until at least September 12, 2016. See, e.g., Supp. Resp. to Pls.’ Post-Depo. Demands (dated Sept.
12, 2016). The plaintiffs now rely on the documents produced during that time. Moreover, the
documents that Schuman provided during that time were of a technical nature virtually
meaningless to an attorney without the help of a consulting expert—e.g., electronic schematics
resembling blue prints, complete with engineering symbols and industry shorthand. See generally
id. Considering all of this, it would be reasonable for the plaintiffs to take the month of September
2016 to evaluate the newly produced documents and consult an expert before taking the extreme
measure of filing a motion for reconsideration. And this is precisely what the plaintiffs did. See
Pls.’ Reply Mem. Supp. Mot. for Reconsideration, Feb. 17, 2017, ECF No. 91, at 8.
At some point before October 6, 2016, the plaintiffs had contacted counsel for Schuman
and shared their intention to file a motion for reconsideration. See Ltr., Allison Hendele, Oct. 6,
2016, ECF No. 74, at 2. Indeed, the plaintiffs sought to coordinate a motion and briefing schedule
with Schuman in accordance with my bundling rule. But Schuman apparently refused to coordinate
such a schedule without a “pre-motion conference” or “court order” that expressly “allowed” for
the plaintiffs’ motion. Id. Magistrate Judge Kuo thus issued an order addressing Schuman’s
position. She did so on October 7, 2016, holding that no pre-motion conference was necessary for
the plaintiffs’ motion. See Order, Minute Entry, Oct. 7, 2016. She further ordered that Schuman
must coordinate a motion and briefing schedule in accordance with my bundling rule. Id. By

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October 24, 2016 Schuman had finally agreed to a schedule. See Ltr., Gregory Cannata, Oct. 24,
2016, ECF No. 75. I then approved that schedule on November 1, 2016. See Order, Nov. 1, 2016.
In short, the plaintiffs exhibited diligence and prudence in pursuing their motion for
reconsideration, especially in the face of opposition presented by Schuman. Accordingly, the
proper time to examine is not the roughly 1.5 years between May 19, 2015 (the date of my initial
order) and October 24, 2016 (the date when the plaintiffs formally filed their motion for
reconsideration). Rather, the proper time period to consider would be the roughly 20 days between
September 12, 2016 (the date that Schuman completed its discovery productions) and October 6,
2016 (the date by which Schuman had refused to coordinate a briefing schedule with the plaintiffs).
Measuring from this perspective, plaintiffs’ motion was made within a reasonable period
considering the plaintiffs’ need to consult with an expert before taking the extreme measure of
filing for reconsideration. I will not apply Local Rule 6.3 so rigidly as to prevent the plaintiffs’
motion under these circumstances. See Lechtenberg v. Besicorp Grp., Inc., 204 F.3d 397, 403-04
(2d Cir. 2000) (stating that an extension under Local Rule 6.3 is within district court’s discretion
and does not contravene Fed. R. Civ. P. 6(b)); Libaire v. Kaplan, No. 06-1500, 2010 WL 317893,
at *4 (E.D.N.Y. Jan. 21, 200) (collecting cases).
Schuman next argues the plaintiffs’ new evidence (the engineering folder and the
alternative schematic) are “not Schuman document[s].” Therefore, Schuman argues, these
documents cannot form the basis of a motion for reconsideration. Def.’s Mem. Opp’n Pls.’ Mot.
for Reconsideration, at 12. Indeed, Schuman argues that many of these documents came from the
former S.K.S. facility and that Schuman’s president was not aware of their existence until very
recently. See id. at 11-12. Nevertheless, it is not dispositive whether Schuman “owned” these
documents in the strictest sense. What is important is that the documents were under the sole

18

possession and control of Schuman and its employees during all pertinent times. See Fed. R. Civ.
P. 34(a)(1) (requiring parties to produce documents within their “possession, custody, or control”);
Matter of Marc Rich & Co., A.G., 707 F.2d 663, 667 (2d Cir. 1983) (“[t]he test for the production
of documents is control”); see also UCAR Int’l, Inc. v. Union Carbide Corp., No. 00-cv-1338,
2004 WL 137073, at *13 (S.D.N.Y. Jan. 26, 2004) (collecting cases supporting the proposition
that “[k]nowledge and actions of a corporation’s employees and agents are generally imputed to
the corporation where the acts are performed on behalf of the corporation and are within the scope
of their authority.”)
Schuman refuses to acknowledge its role in failing to provide the plaintiffs with basic,
fundamental documents pertinent to this litigation and within the scope of discovery. Had
Schuman done so, there would be no need for the plaintiffs’ motion for reconsideration. As set out
earlier, the plaintiffs requested in May 2014 all documents “prepared, received, or maintained” by
Schuman “related to the safety guards [or the operation] of the Model 60 Horizontal Wrapper.”
See Pls.’ Not. to Produce, May 28, 2014, at ¶¶ 14, 15. Schuman responded in August 2014 that
“none” such documents existed within its possession, custody, or control. See Schuman Supp.
Resp. Not. to Produce, Aug. 28, 2014, at ¶¶ 14, 15. And yet, responsive documents did exist—
apparently Schuman had simply not searched for them.
For instance, the engineering folder containing the one-page alternative schematic was
stored at all pertinent times at Schuman’s facility, and Schuman employees were highly familiar
with the folder. See, e.g., Schuman Aff., Jan. 18, 2017, at ¶ 15 (indicating that employee Sterner
was readily familiar with said documents). In addition to the one-page alternative design
schematic, the engineering folder in question contained sales records, client contact information,
and more, all related to the Model 60. See, e.g., Second Sterner Depo. 153:21-155:5. It clearly fell

19

within the scope of discovery. Schuman could have and should have discovered the engineering
folder and produced it upon the plaintiffs’ May 2014 document request. Schuman’s president
implies in an affidavit filed with the court that he never asked his employees (or at least not his
employees most knowledgeable about these matters) to search for responsive documents until as
late as June or July 2016. See Schuman Aff., Jan. 18, 2017, at ¶ 15. In fact, his affidavit does not
indicate whether Schuman undertook any actions at all to search for documents following the
plaintiffs’ May 2014 request for production. See generally id.
Moreover, not only did Schuman apparently fail to search adequately for responsive
documents, it also neglected to correct that failure when, during a deposition in September 2014,
Schuman should have realized that previously unproduced responsive documents existed at the
Schuman facility. See O’Shea Depo. 60:13-66:11. Again, a long-time Schuman employee was
being deposed. See id. at 14:4-11. As the employee began to describe the engineering folder in
question, plaintiffs’ counsel demanded the folder from Schuman’s counsel, on the record. Id. at
60:13-66:11. Both Schuman’s president and Schuman’s counsel were present at the deposition.
Both agreed they would search for and preserve the documents and produce them. Id. Yet they
failed to comply for roughly two years.
Indeed, it was Schuman’s duty in the first instance to conduct a proper search for pertinent
documents—and also its responsibility to continually supplement its previous discovery responses
as additional documentation became known and available. Schuman failed to do this. See Catskill
Dev., LLC v. Park Place Entm’t Corp., 286 F. Supp. 2d 309, 314-15 (S.D.N.Y. 2003) (citing
numerous cases and stating that even an accidental failure to produce documents requested in
discovery may constitute party misconduct for purposes of relief from an order under Rule
60(b)(3)); Nkihtaqmikon v. BIA, 601 F. Supp. 2d 337, 340 (D. Maine 2009) (documents previously

20

withheld during discovery constituted new evidence for purposes of Rule 60(b)(2)); Nycomed U.S.
Inc. v. Glenmark Generics Ltd., No. 08-cv-5023, 2010 WL 3173785, at *4 (E.D.N.Y. Aug. 11,
2010) (imposing sanctions for belated discovery production and failure to conduct adequate search
for responsive material); Metropolitan Opera Ass’n, Inc. v. Local 100, 212 F.D.R. 178, 221-22
(S.D.N.Y. 2003) (plaintiff entitled to judgment on question of liability because defendant
conducted inadequate search for responsive documents and acted without real concern for
obligations under discovery rules).
B. Merits
I turn now to reconsider the merits of Schuman’s motion for summary judgment regarding
the independent failure to warn claim. A motion for summary judgment will be denied unless there
is no genuine issue as to any material fact and it is clear that the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining
whether a genuine factual issue exists, the court draws all reasonable inferences and construes all
evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
I have previously held—and the parties do not dispute—that New York law governs the
independent failure to warn claim. See Celle v. Filipino Reporter Enter. Inc., 209 F.3d 163, 175
(2d Cir. 2000) (“Since no party has challenged the choice of New York libel law, all are deemed
to have consented to its application.”). In general, a failure to warn claim requires a showing of
four elements: “(1) the manufacturer had a duty to warn; (2) the manufacturer breached such duty
so that the product is rendered defective, i.e. reasonably certain to be dangerous; (3) the defect was
the proximate cause of the plaintiff’s injury; and (4) that the plaintiff suffered loss or damage.”
Bah v. Nordson Corp., No. Civ. 9060 DAB, 2005 WL 1813023, at *13 (S.D.N.Y. Aug. 1, 2005)
21

(collecting cases). In the present case, there is no dispute that the plaintiff Vicuna suffered
cognizable damages. I therefore turn to the first three elements.
1. Duty to Warn
A corporation that is a successor to an original manufacturer will have an independent duty
to warn purchasers of a product manufactured by the corporation’s predecessor where there is a
“special relationship” between the successor and the purchaser. Sullivan v. Joy Mfg. Co., 70
N.Y.2d 806, 808 (1987); Schumacher v. Richards Shear Co., Inc., 59 N.Y.2d 239, 246 (1983). The
question of what constitutes a special relationship in this context is not entirely settled in New
York. Rulings turn on the unique facts presented in each case.
Interestingly, the question of whether a special relationship exists is, in New York, virtually
always a question of law for the court. McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997).
Yet within the unique context of a successor corporation’s independent duty to warn, the question
is one of fact reserved for the jury. Schumacher, 59 N.Y.2d at 248-49. While I have discovered no
in-depth commentary discussing this subtle inconsistency, I observe that Judge Jones of the New
York Court of Appeals took note of it. In discussing a successor corporation’s independent duty
to warn, he wrote: “Evidently, whether in a particular instance the factual aspects of the
relationship between the servicer and the owner are such as to give rise to liability of the servicer
is a question for determination by the jury, subject, of course, to the obligation of the court to take
the question from the jury if the evidence would be insufficient as a matter of law to sustain a
verdict for the plaintiff.” Id. at 258 (Jones, J., dissenting).
The leading case outlining what constitutes a special relationship in an independent duty
to warn claim is Schumacher. It holds that “[s]everal factors may be considered in determining
whether there exists a sufficient link to create a duty to warn, among them ‘succession to a
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predecessor’s service contracts, coverage of the particular machine under a service contract,
service of that machine by the purchaser corporation, and a purchaser corporation’s knowledge of
defects and of the location or owner of that machine.’” Schumacher, 59 N.Y.2d at 247. The Court
of Appeals in Schumacher ultimately held that evidence had been presented to defeat a successor
corporation’s motion for summary judgment. See id. at 249. Indeed, the successor there knew the
location and owner of the machine, actively offered to service the machine, and the successor held
itself out as having expertise in the product. Id.
A question of fact for the jury also existed in Colon v. Multi-Pak Corp., 477 F. Supp. 2d
620, 625-28 (S.D.N.Y. 2007). In Colon, the successor corporation provided service to plaintiff’s
employer, there had been “subsequent business contacts” between the successor and the employer,
and there may have been a service contract between the successor and the employer. See id.
Similarly, the court in Radziuk v. Hooper, Inc. applied the Schumacher factors and denied a
successor corporation’s motion for summary judgment. 479 N.Y.S.2d 324, 328 (Sup. Ct. Monroe
Cnty. 1984). Radziuk presents an important articulation of the law for our purposes. The record in
Radziuk indicated that the successor corporation had substantial points of contact with the owner
of the machine in question. Id. at 325. This contact included on-site machine operation training as
well as ongoing service and maintenance of the machine in question. Id. at 325-26. In addition, the
successor company actually developed a “safety kit” for the machine model in question and
requested that its consultant publish a safety “bulletin” regarding the model. Id. at 325.
Significantly, the safety bulletin included an alternative design that added safety guards to the
machine—safety guards that would have prevented the underlying injury in the litigation. Id. The
court considered all of these facts in its analysis but focused particularly on the alternative design.
In concluding that a reasonable jury could find a special relationship, the court emphasized not

23

only that the alternative design was announced in a bulletin but also that the successor corporation,
in continuing its manufacturing of the product line in question, had incorporated a similar
alternative design into its newer models. Id. at 327.
In contrast to these cases, the New York Court of Appeals held in Sullivan that a special
relationship is not established when a successor corporation makes only a single service call to a
plaintiff’s employer. 70 N.Y.2d at 808-09. The Appellate Division echoed this reasoning in
Goldman v. Packaging Indus., Inc., 534 N.Y.2d 388, 391-92 (N.Y. App. Div. 1988). There, the
court held that a successor corporation had no duty to warn where the successor made only a single
service call to plaintiff’s employer, there was no service contract, the successor attempted to avoid
servicing such machines, and there were no systematic contacts between the successor and
employer. Id. Last, in Peralta v. WHM Tool Grp., Inc., the court held that no special relationship
existed, where none of the Schumacher factors were present. See No. 04-cv3826, 2005 WL
2002454, at *5 (E.D.N.Y. Aug. 19, 2005). In reaching its decision the court specifically noted that
“there is no evidence that [the successor] knew or had reason to know of any defects in the
machine.” Id.
Taking all this into account, I conclude that the plaintiffs have put forth sufficient evidence
to defeat Schuman’s motion for summary judgment on the independent duty to warn claim. There
is no dispute that Schuman provided plaintiff’s employer with an operator’s manual as well as
spare parts for the machine underlying this litigation. As I held previously, this alone would not
be sufficient to trigger Schuman’s duty to warn. See Mem. & Order, May 19, 2015, at 18. Indeed,
the one-time supply of a manual and spare parts is similar to a single service call, which, under
Sullivan, is not enough to trigger an independent duty to warn. 70 N.Y.2d at 808-09. But now we

24

understand that further factors existed suggestive of a special relationship between Schuman and
plaintiff’s employer.
That is, it appears that Schuman knew of an alternative design for the Model 60. Again,
Schuman’s employees were familiar with the engineering folder that was transported from the
S.K.S. facility to the Schuman facility. See O’Shea Depo. 23:11-22; 27:2-5; 27:21-28:9; 53:6-15;
60:18-21; 61:2-12; First Sterner Depo. 16:1-8; 36:12-17; 44:10-13; Def.’s Mem. Opp’n Pls.’ Mot.
for Reconsideration, at 6. That folder contained a one-page alternative design schematic. See Resp.
to Pls.’ Supp. Not. to Produce, at 4. As in Radziuk, implementation of that alternative design at
plaintiff’s place of employment would have prevented the underlying injury in this litigation.
Radziuk, 479 N.Y.S.2d at 325. What is more, while Schuman did not continue manufacturing
Model 60s, it did continue manufacturing the AmeriPak line of horizontal wrappers—i.e., Models
40 and 140. In doing so, Schuman itself incorporated an alternative design similar (or even
identical) to that seen in the engineering folder taken from the S.K.S. facility—this is again similar
to the Radziuk case. See id. at 327.
I emphasize that I cannot ignore Schuman’s knowledge or constructive knowledge of the
alternative design for the Model 60 in determining Schuman’s independent duty to warn plaintiff
or her employer. New York’s Schumacher factors expressly contemplate “a purchaser
corporation’s knowledge of defects and of the location or owner of that machine.” Schumacher,
59 N.Y.2d at 247. The record is clear that Schuman knew the location and the owner of the machine
underlying this litigation. See Operator’s Manual, at 2. Moreover, a jury could readily find that
Schuman had or should have had knowledge of a defect. See, e.g., Resp. to Pls.’ Supp. Not. to
Produce, at 4; Eng’g Report, at 11; see UCAR Int’l, Inc. v. Union Carbide Corp., No. 00-cv-1338,
2004 WL 137073, at *13 (S.D.N.Y. Jan. 26, 2004) (stating that employees’ knowledge of facts is

25

generally imputed to corporation). Indeed, Schuman itself made changes to its AmeriPak wrappers
in order to correct the exact defect underlying this litigation. See, e.g., Eng’g Report, at 18.
Furthermore, this case is not like the Goldman case described above. 534 N.Y.2d at 39192. There, the successor actively sought to avoid business dealings with the machine underlying
that litigation. Id. In the present case, however, Schuman was eager to present itself as an expert
in the Model 60 and as a company upon which plaintiff’s employer could rely for its needs relating
to the Model 60. While Schuman did not draft the Model 60 operator’s manual, it did personalize
the cover page of that manual, choosing to denote AmeriPak as “a division of O.P. Schuman and
Sons, Inc.” See Operator’s Manual, at 1. Schuman additionally personalized the second page of
the operator’s manual, choosing, for solicitation purposes, to provide the names and contact
information for its sales department. Id. at 2.
Given these circumstances, the trier of fact must decide for itself whether Schuman had an
independent duty to warn. These circumstances include Schuman’s sale of an operator’s manual
and spare parts to plaintiff’s employer; Schuman denoting AmeriPak as a “division of” Schuman
in the operator’s manual; Schuman inserting its sales department’s contact information into the
operator’s manual for solicitation purposes; Schuman’s knowledge of the location and the owner
of the machine in question; Schuman’s knowledge or constructive knowledge of the one-page
alternative design schematic; and Schuman’s actual implementation of a similar or identical
alternative design into its newer models. My holding here is especially appropriate where the New
York Court of Appeals broke with its own tradition in 1983 and categorized questions regarding a
successor corporation’s independent duty to warn as an issue of fact for the jury, not an issue of
law for the court—as I outlined earlier.

26

2. Breach of Duty
“The adequacy of the warning in a products liability case based on a failure to warn is, in
all but the most unusual circumstances, a question of fact to be determined at trial.” Cooley v.
Carter-Wallace Inc., 102 A.D.2d 642, 642 (N.Y. App. Div. 4th Dep’t); see Billiar v. Minn. Mining
and Mfg. Co., 623 F.2d 240, 247 (2d Cir. 1980). Indeed, “recovery [under a failure to warn theory]
ultimately depends upon a subjective determination by the trier of facts of what constitutes
reasonable warning under all the circumstances.” Rainbow v. Albert Elia Bldg. Co., 49 A.D.2d
250, 253 (N.Y. App. Div. 4th Dep’t 1975). While this area of law is not replete with bright-line
rules, one clear principle is that the need for specific warnings increases as the risk posed by a
machine increases. See Cover v. Cohen, 61 N.Y.2d 261, 275 (1984); Lancaster Silo & Block Co.
v. Carter-Wallace, Inc., 75 A.D.2d 55, 65 (N.Y. App. Div. 4th Dep’t 1980).
Schuman’s briefing does not appear to directly address plaintiffs’ two major assertions on
this issue. First, plaintiffs assert that Schuman should have added to its operator’s manual the onepage insert providing the alternative design schematic described earlier. Pls.’ Mem. Supp. Mot. for
Reconsideration, at 22. This design schematic would have alerted plaintiff’s employer as to the
danger of operating the machine in manual mode and, more importantly, provided a simple and
inexpensive electronic workaround to fix the defect in question. Schuman was already in the
practice of customizing the first two pages of the Model 60 operator’s manual. See Operator’s
Manual, at 1-2. Adding an additional one-page insert would not have burdened Schuman.
Moreover, such an inexpensive warning from Schuman seems particularly appropriate here given
the severity of the risk that the Model 60 posed—amputation or potentially worse. See Cover, 61
N.Y.2d at 275; Lancaster, 75 A.D.2d at 55.

27

Second, plaintiffs maintain that Schuman could have equipped the machine in question
with properly situated decals. These decals might have, for example, alerted the operator that he
or she should use the machine only with the protective guard in place; that the operator should not
operate the machine in manual mode; or that the operator should wear heat-resistant gloves when
operating the machine. Pls.’ Mem. Opp’n Def.’s 1st Mot. Summ. J., at 39-40. While the record
indicates that a decal was present on the Model 60 around the time of plaintiff Vicuna’s accident,
it is not clear what that decal portrayed. See Photograph AmeriPak Model 60, at 1. Moreover,
whatever the decal portrayed, it was positioned such that it could not be seen when the interlocking
guard was vertical and unsecured. See id. I observe that the plaintiff has testified that she did not
recall a warning decal present on the day of her accident. First Vicuna Depo. 49:12-17. A jury
could reasonably find that Schuman breached its duty warn.
3. Proximate Cause
New York law imposes a “presumption that a user would have heeded warnings if they had
been provided, and that the injury would not have occurred.” Anderson v. Hedstrom, 76
F. Supp. 2d 422, 441 (S.D.N.Y. 1999); see also Liriano v. Hobart Corp., 170 F.3d 264, 271-72
(2d Cir. 1999) (Liriano II) (“[R]ather than requiring the plaintiff to bring in more evidence to
demonstrate that his [or her] case is of the ordinary kind, the law presumes normality, and requires
the defendant to adduce evidence that the case is an exception. . . . This shifting of the onus
procedendi has long been established in New York.”).
A reasonable jury could find proximate cause on the record provided. The plaintiff Vicuna
has testified specifically that, had she be warned of the dangers present, she would not have
operated the machine in the manner that she did. First Vicuna Depo. 49:18-50:19; 53:8-14.
Moreover, common sense indicates that the injury in question could have been avoided had
28

Schuman provided a proper warning or alternative schematic. Indeed, decals present on the
machine could have alerted the plaintiff to the dangers of the machine as well as alternative
operation methods available to ensure safety, such as protective gloves. Additionally, I highlight
that plaintiff’s employer specifically requested an operator’s manual from Schuman. See Manual
Invoice, Jan. 5, 2012, ECF No. 49-12. Plaintiff’s employer did this arguably for the purpose of
maintaining and operating the machine in a safe and efficient manner. Had Schuman provided the
one-page alternative schematic with the operating manual, it is possible that plaintiff’s employer
would have made use of it—and prevented the injury here. I therefore deny Schuman’s motion for
summary judgment on the independent duty to warn claim.
II.

Defendant’s Motion to Preclude Plaintiffs’ Proffered Expert
Schuman moves to preclude the plaintiffs’ proffered expert, Mr. Eric Heiberg. First,

Schuman asserts that Mr. Heiberg is unqualified as an expert and, therefore, he cannot provide any
testimony at all in this matter. Second, Schuman argues that, even if qualified as an expert, Mr.
Heiberg’s proffered testimony is so unreliable as to render it inadmissible.
A. Qualification
A district court exercises broad discretion in deciding whether to exclude expert testimony.
See McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995). Rule 702 of the Federal
Rules of Evidence sets out the standard for admissibility:
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
29

(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702. The threshold question under Rule 702 is whether a witness is qualified to
render expert testimony. This involves a two-part inquiry:
[T]he court must first ascertain whether the proffered expert has the
educational background or training in a relevant field. Then the
court should further compare the expert’s area of expertise with the
particular opinion the expert seeks to offer and permit the expert to
testify only if the expert’s particular expertise enables the expert to
give an opinion that is capable of assisting the trier of fact.
TC Sys. Inc. v. Town of Colonie, 213 F. Supp. 2d 171, 174 (N.D.N.Y. 2002) (collecting cases).
In assessing an expert’s qualifications, the witness “should not be required to
satisfy an overly narrow test of his own qualifications, and the court’s focus should be on whether
the expert’s knowledge of the subject is such that his opinion will likely assist the trier of fact in
arriving at the truth.” Crown Cork & Seal Co., Inc. Master Ret. Trust v. Credit Suisse Boston Corp.,
No. 12-cv-05803, 2013 WL 978980, at *2 (S.D.N.Y. March 12, 2013) (internal marks and citations
omitted). “Disputes as to the strength of [an expert’s] credentials, faults in his use of differential
etiology as a methodology, or lack of textual authority for his opinion, go to the weight, not the
admissibility, of his testimony.” McCullock, 61 F.3d at 1044.
It is apparent here that the plaintiffs’ proffered expert in this case, Mr. Heiberg, has an
impressive background that is germane to the matter at hand. He attended The Cooper Union for
the Advancement of Science and Art on a full merit-based scholarship. See Eric Heiberg,
Curriculum Vitae, July 29, 2016, ECF No. 94-14, at 30. He graduated in 1986 with a B.S. in
mechanical engineering. Id. At Cooper Union, Mr. Heiberg completed more than two dozen
advanced seminars, including a seminar titled “OSHA: Machine Safeguarding – Machine
Guarding.” Id. at 30-31. Due to his academic achievements, he was inducted into the Pi Tau Sigma
National Honor Society for Mechanical Engineers. Id. at 30.
30

Mr. Heiberg’s work experience now spans over thirty years. Yes, some of his professional
activities may not apply directly to this litigation—e.g., senior building inspector at Stuyvesant
Town/Peter Cooper Village. See id. at 30; but see Lara v. Delta Int’l Mach. Corp., 174 F. Supp.
3d 719, 730-33 (E.D.N.Y. 2016) (holding that expert qualified to testify as to machine safeguards
even where his practical background was in building safety). Nevertheless, much of Mr. Heiberg’s
experience is directly applicable. For instance, Mr. Heiberg worked as the manager of engineering
at a company known as EBI. See Eric Heiberg, Curriculum Vitae, at 29. His primary duties were
to design, produce, and test medical equipment. This brought him into contact with various
machines similar in nature to the Model 60 in question here. See id. at 29, 32. Other responsibilities
at EBI included hazard and risk analyses, product labeling, warning labeling, operator manual
drafting, workplace safety supervision, and more. Id. at 29. In another position, as a mechanical
engineer at Coltene/Whaledent, Mr. Heiberg oversaw the design and production of numerous
plastic products. Id. He was additionally responsible for the selection and purchasing of workplace
safety equipment; further duties included supervision regarding regulatory workplace safety
requirements. Id.
Mr. Heiberg has worked first-hand with numerous machines relevant to the events
underlying this litigation, including heating machines, packaging machines, crimping machines,
punch presses, brake presses, shrink wrapping machines, heat processing machines, mixing
machinery, and more. Id. at 35. Again, Mr. Heiberg’s education specifically included training on
machine guarding, which goes to the heart of this litigation. Id. at 30-31. He is currently a
registered professional engineer in four states, including New York and Pennsylvania. Id. at 30.
He is also a member of the American Society of Mechanical Engineers and the American Society
of Civil Engineers. Id. at 31.

31

It is unreasonable to claim that Mr. Heiberg could not at least assist the trier of fact in a
litigation such as this. Indeed, in arguing that Mr. Heiberg is unqualified to render an expert
opinion, Schuman conflates admissibility with evidentiary weight. Schuman points out that Mr.
Heiberg has never previously worked directly with an AmeriPak Model 60. See Def.’s Mem. Supp.
Mot. to Exclude Expert, Dec. 9, 2016, ECF No. 94, at 7. This is precisely the type of fact that goes
to the weight of Mr. Heiberg’s testimony, and not his threshold qualification to testify. It would be
immensely difficult (if not impossible) to locate and retain an expert who has worked first-hand
with an AmeriPak Model 60—a machine that has been out of production for nearly 15 years.
This is not unlike Schuman’s other contention: that Mr. Heiberg is unqualified because he
has never previously provided testimony at trial as an expert in a litigation involving packaging
equipment specifically. Id. at 8. If that alone were sufficient to preclude Mr. Heiberg, all courts
would be devoid of expert witnesses—there must be a first time for everything. At any rate, I
observe that clients have retained Mr. Heiberg as an expert in thirty-six different projects involving
machines with interlocking guards similar to the guard at issue in the present case. See Eric
Heiberg, Retained Cases, Jan. 20, 2017, ECF No. 98-10, at 7-8. Of those thirty-six projects
involving interlocking guards, fourteen progressed to formal litigation, including cases in state and
federal courts in New York and New Jersey. Id. Moreover, of the thirty-six projects involving
interlocking guards, approximately ten involved packaging equipment specifically (though
apparently none of those ten projects progressed to formal litigation). Id. At any rate, Mr. Heiberg
is no stranger to the courtroom: in the past five years alone, he has appeared in person at court
proceedings in at least ten litigations. See Eric Heiberg, List of PE Court Appearances, July 18,
2016, ECF No. 94-14, at 35.

32

Schuman’s case citations here do not support its position. Schuman cites Sorto-Romero v.
Delta Int’l Mach. Corp. for the proposition that Mr. Heiberg should be disqualified as an expert.
See No. 05-cv-5172, 2007 WL 2816191, at *4-5 (E.D.N.Y. Sept. 24, 2007). Yet the Sorto-Romero
decision did not address expert qualification. Rather, it addressed the reliability of expert
testimony, a completely different matter. Indeed, the court in Sorto-Romero wrote expressly that
the parties had conceded that the proffered expert there “possesse[d] the requisite knowledge and
experience to be qualified as an expert.” Id. at *4. Schuman also cites Barban v. Rheen Textile
Sys., Inc., No. 01-cv-8475, 2005 WL 387660, at *3 (E.D.N.Y. Feb. 11, 2005). But that case
involved a proffered expert that worked only part-time as an engineer, spending the majority of
his time in real-estate development and personal investing. Id. That is not the case here. Moreover,
the proffered expert in Barban had no previous experience designing, using, or inspecting the type
of machine in question, nor any similar machine. Id. Again, that is not the case here. Mr. Heiberg
is qualified.
B. Relevance & Reliability
After qualifying a witness as an expert, the court must next turn to the other factors in Rule
702. The court is charged with “the task of ensuring that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 597 (1993). Regarding relevance, Rule 401 shapes the question facing the court: whether
the proffered expert testimony has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Campbell v. Metropolitan Prop. & Cas. Ins. Co., 239 F.3d 179, 184 (2d
Cir. 2001) (discussing how admissibility under Rule 702 interacts with Rule 401).

33

The reliability question is more involved. On this question, the Daubert standard has
replaced the former Frye rule. Frye demanded that a scientific theory be generally accepted in the
scientific community in order to be admissible. See Daubert, 509 U.S. at 585-89. Today’s Daubert
test is far less rigid than the old Frye rule. While Rule 702 “sets forth specific criteria for the district
court’s consideration, the Daubert inquiry is fluid and will necessarily vary from case to case.”
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002).
Under Daubert, courts may consider any number of indicators when determining
reliability. These include: (1) whether an expert’s theory or technique has been tested; (2) whether
the theory or technique has been subjected to peer review; (3) a technique’s known or potential
rate of error; (4) the existence of standards controlling the technique’s operation; and (5) whether
a technique or theory has gained general acceptance in the relevant scientific community. These
factors merely provide a backdrop and are not meant to constitute a “checklist.” Daubert, 509 U.S.
at 593; Kumho Tire Co. Ltd v. Carmichael, 526 U.S. 137, 141, 150 (1999). To be clear, an expert
need not “back his or her opinion with published studies that unequivocally support his or her
conclusions.” Amorgianos, 303 F.3d at 267. In fact, an expert need not point to any literature at all
to support his or her conclusions. Id. Rather, the point of Daubert and Rule 702 is merely to ensure
that “junk science” does not enter the courtroom. Id. Like other Federal Rules of Evidence, courts
must interpret Rule 702 liberally in favor of admission of proffered expert testimony. See Daubert,
509 U.S. at 588.
It is helpful to review the nature of Mr. Heiberg’s investigation before addressing
Schuman’s specific objections. Mr. Heiberg’s proffered report filed with the court is roughly
twenty-five pages in length, single-spaced. See generally Eng’g Report. In that report, Mr. Heiberg
outlines the information he reviewed in conducting his investigation. Id. at 2. This included two

34

site visits with the Model 60 machine in question, one in December 2012 and another in February
2016. Id. Additionally, Mr. Heiberg examined numerous photographs of the machine. Id. He also
studied the operator’s manual for the Model 60 as well as the manuals for subsequent machines in
the AmeriPak line—e.g., Models 40 and 140. Id. Moreover, he read the transcripts from seven
depositions, including the deposition of the plaintiff Vicuna and the depositions of several
Schuman employees. Id. Mr. Heiberg further studied the one-page alternative electronic schematic
dating from around 1995-1996. See id.
In addition to reviewing this evidence, Mr. Heiberg further consulted a plethora of safety
regulations and protocols. This included, among other things: (1) Accident Prevention Manual,
National Safety Council, Administration and Programs; (2) Product Safety Management
Guidelines, National Safety Council; (3) American National Standard for Packaging-Related
Converting Machinery – Safety Requirements for Construction, Care and Use; (4) The Measure
of Man, Human Factors in Design, Henry Dreyfus; (5) Handbook of Warnings, Michael S.
Wogalter; and (6) American National Standard for Product Safety, Signs and Labels. See generally
id. Notwithstanding Mr. Heiberg’s thorough investigation and research, Schuman argues that “Mr.
Heiberg’s opinion is unreliable as it was developed solely for the purpose of paid expert
testimony.” See Def.’s Mem. Supp. Exclusion Expert Witness, at 13. Yet this issue merely weighs
against the credibility of Mr. Heiberg’s testimony. It does not speak to admissibility. Countless
experts develop opinions “solely for the purpose of paid testimony,” and such is not a proper basis
for exclusion. Indeed, the cases that Schuman cites here are altogether inapposite. See, e.g., In re
Parmalat Sec. Litig., 477 F. Supp. 2d 637, 640-41 (S.D.N.Y. 2007) (addressing whether Italian
accounting report drafted for purposes of foreign criminal proceeding was admissible under Fed.
R. Evid. 803(8) public records hearsay exception).

35

Next, Schuman asserts that Mr. Heiberg’s testimony is unreliable because he did not
“consider alternative designs.” Def.’s Mem. Supp. Exclusion Expert Witness, at 10. In making this
argument, Schuman stresses in its brief that Mr. Heiberg “conceded that he has ‘not looked at a
safer alternative design for the automatic mode setting of this machine.’” Id. This is a peculiar
“concession” for Schuman to highlight because the issue in this litigation involves use of the Model
60 in manual mode, not automatic. Schuman does not explain how an alternative design for
automatic mode would be relevant.
Moreover, regarding manual mode, Mr. Heiberg did consider alternative designs in his
written report. Based on Schuman’s briefing, I would surmise that Schuman simply did not read
Mr. Heiberg’s report in its entirety. The report could not be more clear in setting out alternative
designs, including analyses of feasibility, cost, and utility—the so-called “touchstones” of expert
reporting in products liability cases. See Barban v. Rheem Textile Sys., Inc., No. 01-cv-8475, 2005
WL 387660, at *5 (E.D.N.Y. Feb 11, 2005) (collecting cases). Indeed, Mr. Heiberg’s report
allocated five pages to a discussion of two different alterative designs. In discussing how the Model
60 could have been rewired to prevent operation in manual mode without proper guarding, Mr.
Heiberg writes:
A guard should have been provided where the machine was
prevented from running while the infeed (fin seal) guard was in the
vertical position, regardless of whether the machines was in manual
or automatic mode. Such a guard could have been provided by
splitting the electrical path downstream, not upstream of the guard
micro-switches and NOT bypassing the micro-switches when the
machine was in manual mode. In this design in order for the
electricity to get to the “Main Drive” it has to pass through the
micro-switch, and if the micro-switch opens (turns off) the
electricity will cease to flow and the motor will stop. In such a
design, the infeed (fin seal) guard would be required to be in the
down, protecting position, during manual mode, in order for the
machine to operate.

36

Eng’g Report, at 10-11.
Put simply, Mr. Heiberg’s proposed alternative rewiring design would deprive the
machine’s conveyer mechanism of electricity in manual mode whenever the machine’s protective
guard was unsecured. This would apparently be similar to how a microwave oven will not activate
unless its door is securely closed. In additional, it would also be similar to how the Model 60
operates in automatic mode, and similar to the one-page alternative design schematic created by
S.K.S. in or around 1995-1996. Id. at 10. Importantly, the alternative rewiring design explored by
Mr. Heiberg is a design similar or identical to that actually utilized in AmeriPak models that
Schuman has manufactured subsequent to the Model 60, such as the Models 40 and 140. See id.
Mr. Heiberg’s proposed alternative rewiring design, if incorporated into the Model 60,
would have prevented the injuries underlying this litigation. Moreover, the favorable feasibility,
low cost, and continuing utility of the alternative design have been analyzed here by Mr. Heiberg.
Id. at 11, 17. Again, quite persuasive is that subsequent machines that Schuman manufactured
incorporate an alternative rewiring similar to Mr. Heiberg’s and seemingly function without any
handicap. See Almonte v. Averna Vision & Robotics, Inc., 128 F. Supp. 3d 729, 751 (W.D.N.Y.
2015) (holding that “the existence of a feasible alternative design may be established by pointing
to the existence of a post-accident design”).
I further observe that, in addition to the alternative rewiring design, Mr. Heiberg proposed
moving the “start” button on the Model 60. See Eng’g Report, at 15. Moving the start button as
Mr. Heiberg proposes would prevent many operators from using the Model 60 in manual mode
while his or her hand was near the dangerous “pinch point.” See id. Indeed, to use the Model 60’s
conveyor belt and pinching movement in manual mode, the operator must continually depress the
machine’s start button. See Operator’s Manual, at 1-9. Under the original design of the Model 60,

37

the start button is located relatively close to the pinch point. See Photograph AmeriPak Model 60,
Dec. 4, 2012, ECF No. 98-2, at 1. For this reason, many operators can easily depress the start
button while stretching to reach their hand into the pinch point area (which is what happened in
this case). This creates a moving hazard near the operator’s outreached hand. Mr. Heiberg’s start
button redesign would place that button father away from the pinch point. See Eng’g Report, at 15.
Under this redesign, many operators (over 97% of all females, for instance) could not depress the
start button and simultaneously stretch to reach their hand into the pinch point area. Id. In other
words, an operator would be less likely to lose his or her fingers in manual mode. Like his
alternative rewiring design, Mr. Heiberg’s alternative start-button design is complete with a
feasibility, cost, and utility analysis. See id. It cannot be argued that Mr. Heiberg did not consider
alternative designs.
Third, Schuman argues that Mr. Heiberg’s testimony is unreliable because he did not
consider plaintiff Vicuna’s own misuse of the machine in question—that is, her choice to operate
the Model 60 in manual mode contrary to the operator’s manual. See Def.’s Mem. Supp. Mot.
Preclude Expert, at 9-10. Mr. Heiberg, Schuman argues, also failed to consider the training from
her employer that the plaintiff received, in which Vicuna was apparently directed to operate the
machine in manual mode. Id. Again, I would surmise that Schuman has not read Mr. Heiberg’s
written report. There, Mr. Heiberg acknowledges that the plaintiff chose to operate the Model 60
in manual mode with the guard unsecured. Nevertheless, Mr. Heiberg’s report determines that her
use was foreseeable. See Eng’g Report, at 7; see also Boots v. Stanley Black & Decker, Inc., 132
F. Supp. 3d 307, 314 (N.D.N.Y. 2015) (holding that foreseeable use of a product must be
considered reasonable).

38

On this point, Mr. Heiberg quotes deposition testimony of Mr. Sterner, who was a principal
engineer at S.K.S. and later an employee at Schuman. Mr. Sterner’s testimony indicates that the
plaintiff’s use of the machine was expected at the time of the Model 60 design:
Q. Did it occur to you when the machine was designed that the
machine may be operated in the manual mode by an operator?
A. Yes.
Q. And was it – did you consider the fact that the guard could be
raised during that operation in the manual mode and the machine
would function?
A. Yes.
Q. And did you consider that it might bypass the safety of the – of
the point of operation guard by an operator doing that?
A. Yes.
See Eng’g Report, at 7. Moreover, Mr. Heiberg’s report reveals that the operator’s manual for the
Model 60 contemplates at least some use of the machine in manual mode. Id. For instance, the
operator’s manual contemplates “jogging” the Model 60 in manual mode as well as using manual
mode for machine “setup.” Operator’s Manual, at 1-9. This further indicates foreseeability. Mr.
Heiberg properly considered the plaintiff’s use of the Model 60.
Last, Schuman argues that Mr. Heiberg’s testimony is unreliable because of his bias and
predisposition towards finding in the plaintiffs’ favor. Schuman emphasizes that Mr. Heiberg
stated in his deposition, “If [the plaintiff] were to have intentionally stuck her arm into the machine
and still injured it, it would not have been relevant to whether or not the machine was defective—
defectively designed in a manner that caused the accident.” Eric Heiberg Depo., Sept. 8, 2016,
ECF No. 94-15, 111:12-18. Some case law would suggest that such an extreme position might
warrant exclusion of an expert’s testimony. See, e.g., Lara v. Delta Int’l Mach. Corp., 174 F. Supp.
3d 719, 738 (E.D.N.Y. 2016) (suggesting that unwavering predisposition towards finding fault in
a product’s design could render an expert opinion unreliable).

39

Yet Schuman has unfairly characterized Mr. Heiberg’s position. Reading his deposition
transcript in full, it is clear that Mr. Heiberg made a subtler point. See Eric Heiberg Depo. 110:1116:20. Rather than suggest that an operator’s actions could never be the cause of an accident on
the Model 60, Mr. Heiberg merely stated that, in this case, it was the design of the Model 60 that
contributed, at least in large part, to the injuries ultimately sustained. Id. at 113:5-20. In fact, during
the course of clarifying his answer, Mr. Heiberg readily conceded that “there may have been other
causes to the incident” in this case. Id. at 13-14. I further observe that the portion of Mr. Heiberg’s
testimony upon which Schuman relies was a point of real confusion between Mr. Heiberg and the
attorneys present at his disposition. The attorney representing Muffins ‘n’ More actually “moved
to strike” Mr. Heiberg’s statement because he did not “think that [it] answered the question” being
asked. Id. at 111:19-21. Whatever the case with Mr. Heiberg’s testimony, his written report makes
clear that he did take into account Vicuna’s use of the machine, concluding it was foreseeable, as
addressed earlier. I cannot exclude Mr. Heiberg’s testimony based on one stray statement
indicating a predisposition toward his client, especially considering the overall context here. Mr.
Heiberg’s proffered testimony is thus relevant and reliable.
III.

Defendant’s Motion for Summary Judgment
A. Design Defect - Strict Liability
“A cause of action in strict products liability lies where a manufacturer places on the market

a product which has a defect that causes injury.” Robinson v. Reed-Prentice Div. of Package Mach.
Co., 49 N.Y.2d 471, 478 (1980) (citation omitted). A strict products liability claim based on a
design defect theory “is premised on a manufacturer’s failure to properly design a product, which
is then placed on the market despite posing inappropriate risks.” Reed v. Pfizer, Inc., 839 F. Supp.
2d 571, 577 (E.D.N.Y. 2012) (citing Voss v. Black & Decker Mfg., 59 N.Y.2d 102, 107 (1983)).
40

To prove a design defect, plaintiffs must show: “(1) the product as designed posed a
substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and (3)
the defective design was a substantial factor in causing plaintiff’s injury.” Simon v. Smith &
Nephew, Inc., No. 13-cv-1909, 2013 WL 6244525, at *5 (S.D.N.Y. Dec. 3, 2013) (collecting
cases).
The record is replete with indications that the Model 60 in question here suffered from a
design defect. The plaintiffs have submitted proffered expert testimony by their retained engineer,
Mr. Heiberg. See supra section II.B. That report is thorough and spells out in great detail that the
Model 60 could operate in manual mode without the safety of a secured interlocking guard to
protect operators. According to Mr. Heiberg, such a design contravened industry standards as well
as prudent design. Id. His report refers to, among other things, the standards set out in the Accident
Prevention Manual published by the National Safety Council as well as the standards set out in the
American National Standard for Packaging Machinery and Packaging Related Converting
Machinery. Id.
Moreover, the defect could have been remedied inexpensively without changing the utility
of the Model 60, according to Mr. Heiberg. Id. His report proposes two alternative designs for the
Model 60—both of which I explained earlier—including analyses of feasibility, costs, and utility.
See supra section II.B.
The record further shows that the design defect was a substantial factor contributing to the
plaintiff’s injuries. Had protective guarding blocked the plaintiff’s access to the pinch point, no
accident would have occurred. Moreover, it is reasonably expected that lack of guarding would
lead to an operator’s unsafe contact with the pinch point. As stated earlier, a Schuman employee
testified that, at the time of design, the designers of the Model 60 contemplated that operators

41

might use the machine in manual mode without the protective guard in place. Id. The Schuman
employee further testified that this presented safety concerns. Id. Moreover, the operator’s manual
for the Model 60 contemplates use of the machine in manual mode, albeit for limited purposes. A
reasonable jury could find proximate cause here. See supra section II.B.; see, e.g., Mustafa v.
Halkin Tool, Ltd., No. 00-cv-4851, 2007 WL 959704, at *12 (E.D.N.Y. March 29, 2007) (“. . . the
absence of a safeguard for use with foot pedal actuation was a substantial factor in causing
plaintiff’s injury . . .”).
B. Manufacturing Defect
Under New York law, “To state a claim for manufacturing defect under theories of strict
liability [or] negligence . . . the plaintiff must allege that (1) the product was defective due to an
error in the manufacturing process and (2) the defect was the proximate cause of plaintiff’s injury.”
Rosen v. St. Jude Med., Inc., 41 F. Supp. 3d 170, 198 (N.D.N.Y. 2014) (collecting cases). Plaintiffs
do not dispute whether a manufacturing defect exists in this case and offer no evidence or
discussion relating to this issue, even though they would bear the burden of establishing a
manufacturing defect at trial. See generally Pls.’ Mem. Opp’n Def.’s 2d Mot. Summ. J., Feb. 17,
2017, ECF No. 98-12. Schuman’s motion for summary judgment on the claim of manufacturing
defect is therefore granted. See Celotex Corp., 477 U.S. at 322 (“[T]he plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.”); Hodge v. City of Long Beach, 433 Fed. App’x 17, 19 (2d Cir. 2011) (summary order)
(“Where the non-moving party fails to provide evidentiary support for an essential element of its
claim for which it bears the burden of proof, summary judgment is warranted.”).
42

C. Express Warranty
A claim for express warranty requires that the plaintiffs show: “(1) plaintiff[s] and
defendant entered into a contract; (2) containing an express warranty by the defendant with respect
to a material fact; (3) which warranty was part of the basis of the bargain; and (4) the express
warranty was breached by defendant.” Promuto v. Waste Mgmt., Inc., 44 F. Supp. 2d 628, 642
(S.D.N.Y. 1999) (citing CBS Inc. v. Ziff-Davis Pub. Co., 75 N.Y.2d 496, 501-06 (1990)). Again,
the plaintiffs here do not dispute whether an express warranty was made and they offer no
discussion of this issue in their briefing, notwithstanding that plaintiffs will have the burden of
proof on this claim at trial. See generally Pls.’ Mem. Opp’n Def.’s 2d Mot. Summ. J., Feb. 17,
2017, ECF No. 98-12. I therefore grant Schuman’s motion for summary judgment on the express
warranty claim. See Celotex Corp., 477 U.S. at 322; Hodge, 433 Fed. App’x at 19.
D. Implied Warranty
An “implied warranty is breached where the product in question is not fit for the ordinary
purpose for which it is to be used.” Cavanagh v. Ford Motor Co., No. 13-cv-4584, 2014 WL
2048571, at *5 (E.D.N.Y. May 19, 2014). In New York, liability under theories of strict products
liability and implied warranty are essentially the same. See Dalton v. Stedman Mach. Co., No. 05cv-0452, 2008 WL 351676, at *7 (N.D.N.Y. Feb. 7, 2008) (summarizing New York law and
stating that “[t]he [New York] Court of Appeals has held that liability under strict products liability
and implied warranty theory are essentially the same, except that under the implied warranty
theory, it is not necessary to show the feasibility of alternative designs or the manufacturer’s
reasonableness in marketing it in the unsafe condition.” (citing Denny v. Ford Motor Co., 87
N.Y.2d 248, 261-63 (1995))).

43

Schuman’s motion for summary judgment is therefore denied regarding implied warranty
for the same reasons that the plaintiffs’ strict liability claim remains, as discussed above. See also
Audi Vision Inc., RCA Mfg. Co., 136 F.2d 621, 625 (2d Cir. 1943) (“[T]here seems no question
that in the long run fragmentary disposal of what is essentially one matter is unfortunate not merely
for the waste of time and expense caused the parties and the courts, but because of the mischance
of differing dispositions of what is essentially a single controlling issue.”).
E. Design Defect - Negligence
Under New York law, “the strict liability concept of defective design is,” in general,
“functionally synonymous with the earlier negligence concept of unreasonable designing.” Denny,
87 N.Y.2d at 255; see also Jarvis v. Ford Motor Co., 283 F.3d 33, 63 (2d Cir. 2002) (quoting
Denny). Schuman’s motion for summary judgment therefore fails on the claim of negligent design,
just as its motion failed on the claim of strict liability.
F. Plaintiff’s Negligence
Schuman asserts that it is excused from liability here because the plaintiff’s own actions
contributed to her injury—namely, operating the Model 60 in manual mode without secured guards
and then reaching her hand into the pinch point area during operation. See Def.’s Mem. Supp. Mot.
Summ. J., at 23. A defendant may defeat a products liability claim for strict liability when the
plaintiff’s actions constitute the “sole proximate cause” of her injuries. See Yun Tung Chow v.
Reckitt & Colman, Inc., 17 N.Y.3d 29, 34 (2011). That is not the case here, where the record
indicates that the plaintiff used the Model 60 in a foreseeable manner, as addressed earlier. See id.
(denying defendant’s motion for summary judgment where plaintiff’s misuse of devise in question
was foreseeable); Mustafa, 2007 WL 959704, at *12 (“Additionally, it is clear
that Mustafa’s conduct, however culpable, was not the sole cause of the accident,
44

insulating Halkin from liability. Even though reaching into the point of operation without first
pushing the stop button or removing his foot from the pedal may have been a negligent act
contributing to the accident, had the point of operation been guarded this accident never would
have happened.”).
G. Failure to Warn - Successor Liability
I have already discussed at length Schuman’s motion for summary judgment on the
independent failure to warn claim. Again, that claim should proceed to a jury determination.
Separate and apart from that discussion is the plaintiffs’ claim against Schuman for failure to warn
as the successor to S.K.S. See Mem. & Order, May 19, 2015, at 18. On this issue, I note for the
record that Schuman has not moved for summary judgment. See Mem. Supp. Def.’s Mot. Summ.
J., at ii. This is surprising because Schuman appears to have moved for summary judgment on
every other outstanding claim. See id. Schuman has further sought dismissal of “all claims and
counterclaims.” Id. at 24. Indeed, it would appear that Schuman’s failure to move for summary
judgment on this successor issue was an oversight. Thus, while I will not reach the merits of that
claim today, I remind the parties that it remains a cause of action for trial.
H. Loss of Services
The plaintiffs’ claim for loss of services is derivative of the underlying claims. Schuman’s
motion for summary judgment on this claim is therefore denied.
IV.

Subsequent Remedial Measures
I observe that Schuman objects throughout its briefing to the plaintiffs’ use of the

alternative schematic on grounds that the schematic represents a subsequent remedial measure
inadmissible pursuant to Federal Rule of Evidence 407. See, e.g., Def.’s Mem. Opp’n Pls.’ Mot.
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for Reconsideration, at 1. Nevertheless, the schematic dates from before the injury in this case.
See, e.g., Resp. to Pls.’ Supp. Not. to Produce, at 5 (dated 1996). Thus, while the schematic may
have been created after the initial manufacturing of the machine in question here, it does not
represent a subsequent remedial measure within the meaning of Rule 407. Indeed, Rule 407 only
prohibits admission of measures “that would have made an earlier injury or harm less likely to
occur.” Fed. R. Evid. 407 (emphasis added). Moreover, subsequent remedial measures are
inadmissible only with respect to certain issues, such as negligence. Id. In this case, the plaintiffs
use the schematic to prove feasibility as well as for other permissible purposes. See supra sections
I.B.1. & II.B.; In re Joint Asbestos Litig., 995 F.2d 343, 345 (2d Cir. 1993).
V.

Plaintiffs’ Motion for Costs and Attorney’s Fees
The plaintiffs request costs and attorney’s fees. I decline to award such costs or fees against

Schuman at this time. Schuman’s presentation was not wholly frivolous, and Schuman did in fact
prevail on a number of the issues litigated. See Odeon Capital Grp. LLC v. Ackerman, 864 F.3d
191, 198 (2d Cir. 2017) (decision to award attorney’s fees is within district court’s discretion).
VI.

Plaintiffs’ Motion for Leave to Amend Complaint
The plaintiffs move for leave to amend their complaint. They wish to add six paragraphs

that they omitted inadvertently from the version of their complaint last filed with the court. See
Mot. to Amend Compl., Dec. 6, 2016, ECF No. 76, at 1. Leave to amend should be freely given
when justice so requires. Fed. R. Civ. P. 15(a)(3). The defendant Schuman has not shown any
prejudice that would result from amendment to the complaint in the manner described. See, e.g.,
Ltr. Opp’n Mot. to Amend Compl., Dec. 8, 2016, ECF No. 78, at 1. I grant the plaintiffs leave to
amend their complaint.

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CONCLUSION
Pursuant to the foregoing, I hereby order:
•
•
•
•
•

The plaintiffs’ motion for reconsideration of my decision dated May 19, 2015 is GRANTED,
and upon reconsideration Schuman’s motion for summary judgment on the independent failure
to warn claim is DENIED;
Schuman’s motion to preclude the plaintiffs’ expert and his testimony is DENIED;
Schuman’s motion for summary judgment is DENIED in part and GRANTED in part,
consistent with this memorandum;
The plaintiffs’ motion for costs and attorney’s fees is DENIED; and
The plaintiffs’ motion for leave to amend their complaint is GRANTED.

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