Chica-Hernandez v. Italpresse U.S.A., Inc. et al

Filing 96

ORDER granting in part and denying in part 79 Motion for Summary Judgment; granting in part and denying in part 84 Motion for Summary Judgment. For the reasons set forth in the attached memorandum and order, Defendants' motions to exclude P laintiff's expert's testimony is denied as to his opinion on design defect, and as to his opinion on the adequacy of the warnings. Defendants' motions for summary judgment are granted as to Plaintiff's manufacturing defect and br each of express and implied warranty claims, which are dismissed. Defendants' motions for summary judgment are denied as to Plaintiff's design defect and failure to warn claims. Defendant Italpresse U.S.A., Inc.'s motion for summary judgment on its cross claim for indemnification against Defendant Italpresse S.P.A. is denied without prejudice.The parties are directed to appear for a telephone conference with the undersigned on April 1, 2022 at 10:00 a.m. to advise the Court how they plan to proceed with this case, and to contact Magistrate Judge Scanlon by close of business on March 14, 2022 to arrange for a settlement conference and the completion of a Final Joint Pre-Trial Order. Judge Scanlon's schedule permitting, the parties should schedule a settlement conference before the April 1st conference with the undersigned. Ordered by Judge Kiyo A. Matsumoto on 3/13/2022. (Ahn, Lois)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------- x
:
JOSE DAVID CHICA-HERNANDEZ,
:
:
Plaintiff,
:
:
-against:
:
ITALPRESSE U.S.A., INC. AND
:
ITALPRESSE S.P.A.,
:
x
Defendants.

MEMORANDUM AND ORDER
No. 17-cv-6422 (KAM)(VMS)

---------------------------------MATSUMOTO, United States District Judge:
Plaintiff
diversity
(“IUSA”)

action
and

Jose

David

against

Italpresse

Chica-Hernandez

Defendants

S.P.A.

Italpresse

(“ISPA”),

brought

this

U.S.A.,

Inc.

alleging

negligence,

strict products liability, and breach of warranty claims.
No.

1,

Complaint

(“Compl.”).)

Upon

the

close

of

(ECF

discovery,

Defendants moved for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure, and to exclude testimony by
Plaintiff’s expert, Dr. Irving Ojalvo.

(ECF Nos. 79, Notice of

ISPA’s Motion for Summary Judgment; 84, Notice of IUSA’s Motion
for

Summary

Judgment.)

For

the

reasons

set

forth

below,

Defendants’ motions to exclude Dr. Ojalvo’s testimony are denied.
Defendants’

motions

for

summary

judgment

are

granted

as

to

Plaintiff’s manufacturing defect and breach of warranty claims,
which are dismissed.

Defendants’ motions for summary judgment are
1

denied as to Plaintiff’s design defect and failure to warn claims.
IUSA’s motion for summary judgment on its cross claim against ISPA
for indemnification is denied without prejudice.
BACKGROUND
The Court has considered the facts set forth below from
the parties’ declarations and exhibits attached thereto, and the
Rule 56.1 Statements of Facts and opposing 56.1 Statements. 1

Upon

consideration of the motions for summary judgment, the Court must
and will construe the facts in the light most favorable to the
non-moving party.

See Capobianco v. City of New York, 422 F.3d

47, 50 n.1 (2d Cir. 2005).

Unless otherwise noted, the following

facts are undisputed, or the opposing party has not proffered
evidence in the record to dispute them.
I.

Factual Background
Plaintiff suffered an injury to his left hand on November

4, 2014, during the course of his employment at non-party Island
Architectural Woodworking Inc. (“IAWW”) when his left hand came

1
(See ECF Nos. 80, ISPA’s 56.1 Statement (“ISPA 56.1”); 81‒81-13, Park
Declaration in Support of ISPA’s 56.1 Statement (“Park Decl.”) and exhibits
attached thereto; 86, IUSA’s 56.1 Statement (“IUSA 56.1”); 88‒88-17, Van Etten
Declaration in Support of IUSA’s Motion for Summary Judgment and 56.1 Statement
(“Van Etten Decl.”) and exhibits attached thereto; 89‒89-41, Massaro Declaration
(“Massaro Decl.”) and exhibits attached thereto; 90, Plaintiff’s Response to
ISPA’s 56.1 Statement (“Pl. Resp. ISPA 56.1”); 92, Plaintiff’s Response to
IUSA’s 56.1 Statement (“Pl. Resp. IUSA 56.1”); 94-1‒94-10, Exhibits to ISPA’s
Reply Memorandum in Support of its Motion for Summary Judgment; 94-12, ISPA’s
Reply to Plaintiff’s 56.1 Statement of Additional Facts (“ISPA 56.1 Reply”).)

2

into contact with a nip point 2 of the rollers of a glue spreader
component (the “Glue Spreader”) of a 2011 Italpresse Mark/C 1632/10 Automatic Pressing Line (the “Pressing Line”), manufactured
by ISPA and sold to IAWW by ISPA’s subsidiary, IUSA.

(ISPA 56.1

¶ 1; IUSA 56.1 ¶¶ 5‒6.) The Glue Spreader component of the Pressing
Line was manufactured by a non-party entity, Osama Technologies,
and sold to ISPA.

(IUSA 56.1 ¶ 99.)

Pressing Line to IAWW in May 2011.
this

action

against

IUSA sold and delivered the

(Id. ¶ 6.)

Defendants,

Plaintiff commenced

alleging

design

defect,

manufacturing defect, and failure to warn, under negligence and
strict products liability theories, and breach of warranty claims.
(ECF No. 13, Amended Verified Complaint.)
Defendants’ Pressing Line is a machine that presses
together the faces of laminate and veneer paneling onto substrates
such as wood or foam board.

(ISPA 56.1 ¶ 3; IUSA 56.1 ¶ 7.)

The

Pressing Line consists of several components, including the Glue
Spreader, which has multiple rollers (or rotation cylinders) that
apply glue to the substrate.

(Id.)

The substrate is inserted

through the infeed side, or the front, and, once glue is applied,
the substrate exits from the outfeed side, or the back, of the
Glue Spreader.

(IUSA 56.1 ¶ 8.)

rotate in opposite directions.

The rollers on the outfeed side
(Id.)

“A nip point is where two surfaces come into contact, creating a point where
an object can become caught or be pinched off.” Clarke v. LR Sys., 219 F. Supp.
2d 323, 326 (E.D.N.Y. 2002).
2

3

The Glue Spreader was equipped with the following safety
features that block access to and/or stop the operation of its
rollers: (1) a blue mesh guard located in the front (or infeed
side), which stops the rollers when lifted up; (2) a blue mesh
guard located in the back (or outfeed side), which stops the
rollers when lifted up; (3) a red emergency button that, when
pressed, stops the Glue Spreader; (4) a blue safety bar at knee
height in the front (or infeed side) which stops the rollers when
pressed; (5) a blue safety bar at knee height in the back (or
outfeed side) which stops the rollers when pressed; and (6) a
silver metal guard/grill positioned vertically in the back (or
outfeed side), which completely blocks access to the rollers.
(ISPA 56.1 ¶ 9; Pl. Resp. IUSA 56.1 ¶¶ 9‒10.)

Electrical limit

switches 3 integrated into the machine’s control system functioned
as an interlock control for the guards, (ECF No. 89-9, Exhibit 9
to Massaro Decl. (“Schwalje Dep. Tr.”), at 26:17‒21), such that
opening

the

guards

would

interrupt

the

electrical

causing the rollers to immediately stop operating.

switches,

(Id. at 29:16‒

22.)
In May 2011, when the Pressing Line, including the Glue
Spreader, was delivered to IAWW by IUSA, there were several warning
signs affixed to the Glue Spreader, both in writing and pictograms,

The Court notes that the terms “limit switch” and “interlock” are used
interchangeably in the parties’ submissions.
3

4

indicating the danger of nip points of the rollers.

(ECF No. 88-

16, Exhibit H to IUSA’s Responses to Plaintiff’s First Set of
Interrogatories, at 12‒17.)4
Pinch point.

Crush hazard.

Keep clear of rollers.

procedure before servicing.”
“WARNING.

One of the signs stated: “DANGER.

(Id. at 16.)

Follow lockout

Another sign stated:

READ AND UNDERSTAND WELL THE INSTRUCTION MANUAL BEFORE

THE MACHINE RUNS.

STOP THE MACHINE IF YOU HAVE TO BRING YOUR HANDS

NEAR TO [sic] THE CYLINDERS.

KEEP ALL SAFETY DEVICES TO POSITION

WHILST THE MACHINES RUNS [sic].

DON’T USE FREE CLOTHES IF YOU ARE

NEAR TO [sic] A RUNNING MACHINE.”

(Id. at 17.)

The warning signs

included at least four pictograms, three of which depict a person’s
hand or arm being caught between rollers.

(Id. at 15‒17.)

These warning signs were affixed to the Glue Spreader
when IUSA trained IAWW employees when IAWW first purchased the
Glue Spreader, (Pl. Resp. ISPA 56.1 ¶ 188), but the record does
not establish whether all the signs were present at the time of
Plaintiff’s accident in November 2014.

And the parties’ expert

reports suggest that the sign that cautioned users to review the
instruction manual before running the Glue Spreader, stop the
machine before putting their hands near the rollers, ensure that
all safety devices are in position while the machine runs, and not
place any loose clothing near the machine while it runs, was only

The Court refers to the Electronic Case Filing (“ECF”) System’s pagination
for this specific document for ease of reference.
4

5

in Italian when the experts inspected the Glue Spreader in 2017
and 2018.

(ECF Nos. 89-28, Exhibit 28 to Massaro Decl. (“Ojalvo

Suppl. Expert Report”), at 13; 89-22, Exhibit 22 to Massaro Decl.
(“Brickman Expert Report”), at 28); 89-30, Exhibit 30 to Massaro
Decl. (“Auflick Suppl. Expert Report”), at 11.)
At the time of receipt of the Pressing Line in May 2011,
IAWW was provided with two user manuals, one for the Pressing Line,
and a separate manual for the Glue Spreader.
56.1 ¶ 15.) 5

(ISPA 56.1 ¶ 5; IUSA

The manuals were in English and Italian.

(ECF No.

89-4, Exhibit 4 to Massaro Exhibit (“Ortmayer Dep. Tr.”), at 38:19‒
39:18.)

It is undisputed that Plaintiff reads and understands

little English, (Pl. Resp. ISPA 56.1 ¶ 193), and does not speak
Italian. (ECF No. 89-7, Exhibit 7 to Massaro Decl. (“Pl. Dep.
Tr.”), at 8:4‒6.)

5 Plaintiff fails to demonstrate that there is a material factual dispute as to
whether IAWW was provided with two user manuals, one for the Pressing Line and
another for the Glue Spreader.
During his deposition, Alberto Salsa, the
corporate representative of ISPA, testified that there was a separate manual
for the Glue Spreader. (See ECF No. 89-1, Exhibit 1 to Massaro Decl. (“Salsa
Dep. Tr.”), at 22:5‒16 (Q. In 2014 and before that, was there a specific manual
or instruction manual or operator’s manual for the glue spreading machine
specifically? A. Yes.).) The portion of Salsa’s deposition testimony to which
Plaintiff cites in “disput[ing] that the machine was provided with two manuals,”
(Pl. Rep. ISPA 56.1 ¶ 5; Pl. Resp. IUSA 56.1 ¶ 15), relates to Salsa not being
aware that there were separate instructions for cleaning the Glue Spreader in
the Glue Spreader manual, not that there was a separate user manual for the
Glue Spreader. (Id. at 107:15‒25.) Additionally, the fact that Salsa himself
was not aware of the existence of the cleaning instructions does not create a
dispute of material fact as to whether the Glue Spreader manual contained such
instructions.
Finally, Michael Lurz, an IAWW employee, testified that the
manuals were kept in a pouch affixed to the machine. (ECF No. 89-5, Exhibit 5
to Massaro Decl. (“Lurz Dep. Tr.”), at 12:7‒21, 14:6‒11).)

6

The accident at issue occurred on November 4, 2014, while
Plaintiff was cleaning or attempting to clean the Glue Spreader
for the first time by himself.
ISPA 56.1 ¶ 30.)

(Pl. Resp. IUSA 56.1 ¶ 5; Pl. Resp.

Plaintiff stood on the outfeed side of the Glue

Spreader and sprayed the rollers with water from a hose that he
was holding in his right hand.

(Pl. Resp. IUSA 56.1 ¶ 74.)

While

Plaintiff was spraying the rollers with water, the blue mesh guard
was down, or in a closed position, and Plaintiff saw the rollers
rotating.

(Id. ¶ 75.)

Plaintiff then lifted the blue guard with

his left hand while still holding the hose in his right hand.
¶ 77.)

(Id.

Plaintiff knew that the rollers were supposed to stop

rotating when the blue guard was lifted, but he did not look to
see if they were still rotating when he lifted the guard.
78.)

(Id. ¶

Plaintiff bent down to place the hose on a hook on the right

side of the Glue Spreader from where he was standing, (id. ¶ 79),
and as he was placing the hose down, he felt his left hand being
“squeezed,” and he realized that his left hand was caught in the
Glue Spreader.
51:4.)

(Pl. Resp. IUSA 56.1 ¶ 80; Pl. Dep. Tr. at 50:6‒

He pushed the blue safety bar with his knee, which stopped

the rollers.

(Pl. Resp. IUSA 56.1 ¶ 80.)

As a result of the

accident, Plaintiff suffered from a complete loss of his left ring
finger, and partial losses of his left small and long fingers.
(Pl. Resp. ISPA 56.1 ¶ 1; Pl. Resp. IUSA 56.1 ¶¶ 159‒60.)

7

Plaintiff had been working at IAWW for approximately one
month before the accident.

(Pl. Resp. IUSA 56.1 ¶ 50.)

Plaintiff

never operated machinery, and his job responsibilities included
cleaning the floors and bathrooms, helping the carpenters, moving
materials, preparing bunks for specific machines, and cleaning the
Glue Spreader.

(Id.)

Plaintiff’s brother, Jose Alex Chica-

Hernandez (“Alex”), taught Plaintiff how to clean the Glue Spreader
on two occasions, both approximately one week before the accident.
(Id. ¶ 52.)

The two training sessions lasted less than fifteen

minutes and consisted of Plaintiff observing Alex cleaning the
machine.

(Id. ¶¶ 52‒53.)

Plaintiff received no other training on

how to clean the Glue Spreader.

(Id. ¶ 52.)

Plaintiff testified that though he was aware that he
“cannot put [his] hand” near the rollers while they were moving,
(Pl. Dep. Tr. at 61:7‒14), he believed that “if the rollers were
moving” and he lifted up the blue mesh guard, “the machine would
stop.”

(Id. at 61:15‒62:5.)

Plaintiff also testified that prior

to the accident, he did not know that his hand could get caught in
the rollers and get injured.

(Id. at 81:23‒82:3.)

Plaintiff

testified that he did not read or look at any of the warnings on
the Glue Spreader before cleaning it, (id. at 80:15‒81:6), he did
not “know which were the instructions,” (id. at 80:25‒81:2), and
he did not review the user manual for the Pressing Line or for the
Glue Spreader.

(Id. at 80:2‒5.)
8

Plaintiff submitted as an exhibit to the declaration of
Jay Massaro, counsel for Plaintiff, an email communication between
certain

IUSA

employees

and

certain

individuals

at

Osama

Technologies indicating that IUSA had notice that its Glue Spreader
was involved in Plaintiff’s accident at least as of November 5,
2014, the day after the accident.

(ECF No. 89-19, Exhibit 19 to

Massaro Decl. (“IUSA November 5, 2014 Email”).)

The email chain

consists of two emails, the first of which is from a Crista at
IUSA to a Marco Tinti and a Simone Perozzi at Osama Technologies,
stating: “We have an urgent request for spare parts on the . . .
Glue Spreader sold to [IAWW].

Attached is a diagram of the parts.

They are needing items 6, 7, 8.
today in an accident.

Someone may have lost their hand

It was their fault for disabling the safety

switch on this grill! . . . Please send a sales offer to us for
these items . . . .”

(Id.)

The second email is a response from

Simone Perozzi that states, in relevant part, “Here is our offer
. . . Complete set with protection grill and ‘supports’ on the
sides . . . .” (Id.) There is no evidence in the record explaining
or

illustrating

“items

6,

7,

8”

or

the

“Complete

protection grill and ‘supports’ on the sides.”

set

with

After Plaintiff’s

accident on November 4, 2014, there is no evidence in the record
documenting any inspection of the Glue Spreader undertaken by IAWW
or

Defendants,

in

the

form

reports, or notes, until 2018.

of

photographs,

maintenance

log,

(Cf. Lurz Dep. Tr. at 45:6‒48:24;
9

ECF No. 89-2, Exhibit 2 to Massaro Decl. (“Mojum Dep. Tr.”), at
83:20‒84:19.)
In September 2018, nearly four years after the accident,
IAWW requested that IUSA send a technician to service the Pressing
Line and the Glue Spreader.

(Pl. Resp. IUSA 56.1 ¶ 20.)

The IUSA

technician sent to service the machine discovered that the Glue
Spreader’s limit switches, integrated with the three guards to
stop the operation of the rollers when the guards were in an up or
open position, had been bypassed.

(Ortmayer Dep. Tr. at 53:3‒13.)

The two limit switches for the blue guards (on both the infeed and
outfeed sides) were bypassed by means of wrapping tape around an
activation cam which caused the switches to stay active even when
the guards were lifted.

(Id.)

The third limit switch for the

silver metal guard/grill had corroded to a point where it was no
longer operational, and a jumper cable had been installed in the
electric panel to bypass the switch to keep the machine running.
(Id.) 6

There is no evidence in the record when the bypasses of

6 The Court finds that although the timing of the bypasses has not been
established, Plaintiff has failed to establish that there is a dispute of fact
as to whether the limit switch supervising the silver metal guard was bypassed
using a jumper wire. (Pl. Resp. IUSA 56.1 ¶ 21.) Plaintiff asserts that the
testimony of Mr. Ortmayer “that a jumper cable was utilized to disable one of
the three interlocks is inadmissible pursuant to the sham affidavit doctrine
because said testimony is directly contradicted by IUSA’s Interrogatory
Responses, which Mr. Ortmayer verified.” (ECF No. 91, Plaintiff’s Memorandum
of Law in Opposition to ISPA’s Motion for Summary Judgment (“Pl. ISPA Opp.”),
at 2.) The Court finds that Ortmayer’s deposition testimony does not contradict
his interrogatory response, which stated, “Plaintiff’s injuries were caused by
[IAWW] and other unknown parties that made material alterations to the Product
in the form of overriding safety measures by wrapping tape around portions of
the machine that, if unaltered, would prevent the press from operating with the
safety screens in the open position.”
(ECF No. 88-16, IUSA’s Responses to

10

the interlocks with tape and wire occurred.

(Id. at 57:3‒19.)

Specifically, the record does not establish whether the two tape
and one wire bypasses were present on the limit switches at the
time of delivery to IAWW in 2011, or on November 4, 2014, the date
of Plaintiff’s accident.
II.

Dr. Ojalvo’s Proposed

Expert Opinions

Dr. Ojalvo’s Expert Reports
Plaintiff

primarily

relies

on

the

opinions

of

his

proposed expert witness, Dr. Ojalvo, to support his design defect
and failure to warn claims.

The Court notes that Plaintiff

submitted two expert reports from Dr. Ojalvo, one dated February
2020

and

the

other

dated

Declaration of Jay Massaro.

August

2020,

as

exhibits

to

the

(ECF No. 89-27, Exhibit 27 to Massaro

Decl. (“Ojalvo Expert Report”); Ojalvo Suppl. Expert Report.)

On

the other hand, IUSA filed three Rule 26 Expert Disclosures from
Plaintiff,

dated

February

19,

2020,

(ECF

Nos.

88-11‒88-12),

September 8, 2020, (ECF No. 88-13), and September 21, 2020 (ECF
No. 88-14), and attached Dr. Ojalvo’s February 2020, September
2020, and August 2020 Expert Reports, respectively.

ISPA states

Plaintiff’s First Set of Interrogatories, at 7.) See also Keepers, Inc. v.
City of Milford, 807 F.3d 24, 34 (2d Cir. 2015) (explaining that Rule 30(b)(6)
testimony “is ‘binding’ in the sense that whatever its deponent says can be
used against the organization . . . [b]ut Rule 30(b)(6) testimony is not
‘binding’ in the sense that it precludes the deponent from correcting,
explaining, or supplementing its statements.”). The Court finds, however, that
the record does not establish when the alterations bypassing the limit switches
occurred and whether the alternations existed at the time of Plaintiff’s
accident.

11

that

Dr.

Ojalvo’s

September

2020

report

was

“retracted

by

plaintiff’s counsel under a claim of privilege as a draft report.”
(ECF No. 82, ISPA’s Memorandum of Law in Support of its Motion for
Summary Judgment (“ISPA Mem.”), at 8 n.2.)

Therefore, the Court

considers only Dr. Ojalvo’s February 2020 and August 2020 expert
reports for the purpose of deciding the instant motions.

(See Pl.

Resp. ISPA 56.1 ¶ 148 (“The report stating ‘September 2020’ was a
draft report that was disclosed accidentally.”).)
Dr. Ojalvo had opined in his first expert report of
February 2020, that the Pressing Line was defectively designed
because the guards restricting access to the rollers “can easily
be opened without deactivating the power to the rollers,” not
having been equipped with “an interlocked guard (i.e. a device
that automatically cuts the power to the machine when the guard is
opened) and/or by another means such as a photoelectric presence
sensing device that would automatically cut power to the machine
when a body part or other foreign object entered the hazard zone.”
(Ojalvo

Expert

Report

at

15.)

In

addition,

Dr.

Ojalvo

had

concluded in February 2020 that Plaintiff’s incident could have
been

avoided

if

the

user

manual

contained

clear,

instructions on how to safely clean the rollers.

explicit

(Id. at 18.)

Though Dr. Ojalvo testified during his deposition that he plans to
only present at trial the conclusions from his supplemental report
of August 2020, (see Ojalvo Dep. Tr. at 115:3‒18), the Court leaves
12

open the possibility of hearing Dr. Ojalvo’s testimony regarding
his February 2020 report.
In his supplemental report of August 2020, Dr. Ojalvo
states that at the time his initial report was issued in February
2020, he was “unaware of two important pieces of information that
[he was] only informed of this month [August 2020], when reviewing
three

defense

expert

engineering

reports”

and

that

the

“[i]nformation in these reports led [him] to request depositions
given by the plaintiff’s coworkers at [IAWW] and members of the
defendants [ISPA] and [IUSA] organizations.

The new information

. . . centers on the facts that 1) [the Glue Spreader] had been
tampered with so that its safety interlocks had been deactivated
and 2) there existed a use and maintenance manual for [the Glue
Spreader] not previously supplied to [him].” (Ojalvo Suppl. Expert
Report at 1.)
With respect to the Glue Spreader’s design, Dr. Ojalvo
opined

that

“[i]t

may

be

stated

to

a

reasonable

degree

of

engineering certainty that the [Glue Spreader] installed at [IAWW]
was unreasonably dangerous and a significant factor in the cause
of [Plaintiff’s injury]” because the limit switches supervising
the guards were “too easy to defeat.”

(Id. at 11.)

In support,

Dr. Ojalvo asserted that the Glue Spreader did not comport with
the industry standards at the time of its design and manufacture,
citing to the following: (1) Section 7.1.6 and E7.1.6 of the
13

American National Standards Institute (“ANSI”) 7 safety standard
B11.19-2003

provide

that

“[i]nterlocks

should

be

designed

to

discourage the capability to easily bypass the interlock with
readily available items such as tape, pieces of metal, screws,
tools, etc.,”

(ECF No. 89-31, Exhibit 31 to Massaro Decl., at

13); and (2) Section 5.7 of the International Organization for
Standardization (“ISO”) safety standard, amended in 2007, provides
that “interlocking devices shall be designed . . . so that they
cannot be defeated in a reasonably foreseeable manner. . . .
Typically, [defeat in a reasonably foreseeable manner] can mean
‘intended operation achieved manually or with a readily available
object.’” 8

(ECF No. 89-24, Exhibit 24 to Massaro Decl., at 1‒2.)
As to an alternative design, Dr. Ojalvo opined that the

Glue Spreader could have used “interlocks that are difficult to

“ANSI standards are relied upon by the manufacturers of machinery and by
experts in various fields to conduct evaluations of the safety of machinery and
processes.” Del Civ v. Beloit Corp., 901 F. Supp. 539, 545 (E.D.N.Y. 1995).
8 Defendants contend that Dr. Ojalvo “does not rely on the appropriate ANSI
standard applicable to the subject machine . . . .” (ECF No. 94, ISPA’s Reply
Memorandum of Law in Support of its Motion for Summary Judgment (“ISPA Reply”),
at 1 n.1; see also ECF No. 95, IUSA’s Reply Memorandum of Law in Support of its
Motion for Summary Judgment (“IUSA Reply”), at 9 (“[P]laintiff makes repeated
references to engineering standards from [ANSI] and [ISO] in a futile effort to
demonstrate they were somehow violated and such violation is per se proof of a
defective design.
However, the record is replete with references to their
inapplicability to the equipment/machinery involve herein . . . .”).) The Court
notes that whether a safety standard is applicable is typically a question for
the jury.
See Mustafa v. Halkin Tool, Ltd., No. 00-cv-4851(DGT), 2007 WL
959704, at *8 n.14 (E.D.N.Y. Mar. 29, 2007) (“Before a promulgated safety
standard can even be considered by a jury in a products liability action, the
jury must first conclude that the standard represents the general custom or
usage in the industry.”). The Court concludes that the applicability of the
safety standards cited by Dr. Ojalvo, in addition to the other material factual
issues as to the design defect claim, set forth infra, should be determined by
the trier of fact.
7

14

bypass”

and,

as

an

example,

identified

a

“Schmersal-type

electronic interlock,” which is “comprised of a solenoid locking
mechanism . . . and a locking key.”
at 7.)

(Ojalvo Suppl. Expert Report

According to Dr. Ojalvo, if Schmersal interlocks were used,

“when a guard door is mechanically opened, the electronic program
would remove motor power to the glue rollers and they would stop,”
thus “result[ing] in the machine providing a ‘lock/run’ closed
guard and an open guard ‘unlock/setup’ safety mode.

Such a system

could not be easily defeated by readily available items such as
tape, pieces of metal, etc., and if used by Italpresse in their
glue machine, would have avoided [Plaintiff’s] injury.”

(Id.)

As

to causation, Dr. Ojalvo opined that “the violation of the ANSI
B11.19 and ISO standards regarding the use of readily defeated
interlocks was a significant proximate cause of [Plaintiff’s]
injury.”

(Id. at 8.)
With respect to the warning signs on the Glue Spreader,

Dr. Ojalvo opined that “[i]t may be stated to a reasonable degree
of engineering certainty that the [Glue Spreader] installed at
[IAWW] was unreasonably dangerous and a significant factor in the
cause of [Plaintiff’s injury]” because there was no “sufficiently
explicit warnings on the [Glue Spreader] itself in English (and
perhaps in Spanish) instructing users to read and understand the
technique for cleaning the rollers . . . .”

(Id. at 11.)

Dr.

Ojalvo stated that the warning sign cautioning users to read and
15

understand the user manual before using the machine was written
only in Italian, did not explicitly reference the designation/name
and number of the Glue Spreader, and did not make it clear to the
user that it was referring specifically to the user manual for the
Glue Spreader.

(Id. at 9.)

Furthermore, Dr. Ojalvo stated that

“the inclusion of warnings in Italian on a machine for use in an
English speaking country serves to clutter the message and reduce
its effectiveness.”

(Id.)

Dr. Ojalvo opined that Plaintiff’s

incident likely would not have occurred with more explicit warnings
on the Glue Spreader and gave the following alternative warnings
as examples:
•
•
•

“MAKE SURE THAT GUARDS COVERING THE ROLLERS ARE CLOSED WHEN
ROLLERS ARE MOVING”;
“ONLY CLEAN THE GLUE MACHINE ROLLERS REMOTELY USING THE
MACHINE SCRUB BRUSHES”; and
“IF ROLLER CLEANING IS REQUIRED WITH GUARDS OPEN MAKE SURE
THE ROLLERS ARE NOT TURNING.”

(Id.)
Dr. Ojalvo’s Deposition Testimony
Dr.

Ojalvo

testified

that

on

October

2,

2017,

he

inspected the Pressing Line, including the Glue Spreader, and
interviewed Plaintiff.

(Ojalvo Dep. Tr. at 18:9‒14, 19:13‒18.)

He testified further that, at the time of the inspection, he could
not tell whether there were limit switches equipped to the Glue
Spreader.

(Id. at 82:19‒83:14.)

Dr. Ojalvo testified that, prior

to his deposition on January 7, 2021, he had not seen Exhibit J to
16

IUSA’s Responses to Plaintiff’s First Set of Interrogatories,
which are photographs taken by IUSA’s technician in September 2018,
almost four years after Plaintiff’s accident, when the Pressing
Line was serviced at the request of IAWW.

(Id. at 120:17‒121:6.)

The photographs demonstrated the ways in which the three limit
switches for the safety guards of the Glue Spreader were bypassed
as of 2018.

(Id.)

When asked whether the two limit switches for

the blue mesh guards (one on the infeed side and the other on the
outfeed side) that were bypassed using tape were also bypassed
electrically, Dr. Ojalvo answered that he does not know.
120:17‒123:8.)

(Id. at

As to the limit switch for the silver metal

guard/grill that was bypassed using a jumper wire, Dr. Ojalvo
testified that does not know whether it “was easily bypassed
electrically.”

(Id. at 108:6‒109:3 see id. (“Q. Okay, do you know

if this was easily bypassed electrically?
And that relates to the subject machine.

A. I don’t know.

Q.

There’s an instance where

you don’t know, perhaps, specific data about the capabilities of
the existing interlocks on this machine, correct? A. That’s right.
I couldn’t get that out of the manual.”).)
When

asked

to

describe

his

methodology,

Dr.

Ojalvo

testified that his methodology was “[t]o do an inspection with the
plaintiff present . . . for him to describe how the accident
occurred, to look at the manuals that were available regarding the
operation and maintenance of the machine and eventually to have
17

the information regarding the people who were knowledgeable about
the interlock defeat and to have available the standards associated
with machine interlocks that [he] cited [in his expert report].”
(Id. at 166:21‒167:13.)

Dr. Ojalvo testified that he did not

conduct any testing for this case other than his reenactment of
the accident based on his interview of Plaintiff to determine
whether the accident could have occurred as described by Plaintiff.
(See

id.

at

45:16‒46:21,

47:23‒49:14,

49:21‒50:1;

50:9‒52:4,

78:22‒79:23.)
With

respect

to

a

feasible

alternative

design,

Dr.

Ojalvo testified that he did not propose a specific alternative
limit switch that should have been equipped on the Glue Spreader
but opined generally that there were many available at the time
that could have been used that were harder to bypass.

18

(See id. at

175:2‒176:7 9, 179:11‒180:8 10.)

He also testified that he did not

research “which model interlock would have been best suited for
[the Glue Spreader].”

(Id. at 171:18‒20.)

And because he did not

propose a specific alternative interlock, Dr. Ojalvo did not “build
an exemplar proposed interlock,” (id. at 170:24‒171:5), prepare “a
circuit diagram of [the] proposed interlock design,” (id. at
179:11‒13), or perform any “failure modes or effects analysis” of
the proposed design, (id. at 14‒16).

Additionally, though Dr.

Ojalvo had opined in his August 2020 supplemental expert report
that a Schmersal type interlock would have prevented Plaintiff’s

Q. . . . You’re proposing or you opined in this case this machine was
defectively designed but your position is that you have not proposed a
reasonable alternative design that if it had been used would have prevented
this accident. Fair statement?
. . .
A. I did not propose a specific design that would have been acceptable. But I
had enough information to make the statement that it was possible.
Q. But possible is certainly different than reasonable, would you say? Would
you agree?
A. I would include the word reasonable in my definition.
Q. And so do you have -- just so I’m clear, are you or are you not proffering
a reasonable alternative design that would have prevented this accident in this
case?
A. Only in generalities, not specific detail.
Q. What does that mean, sir, only in generalities, not in specific details? I
don’t understand what you’re saying.
A. I’m saying that given the machine, given the spaces that are available, given
the technology of interlocks that were available at the time the machine was
designed and manufactured, that there were sufficient possibilities to come up
with multiple designs that would have satisfied the [safety] standards.
10 Q. Can you state to a reasonable degree of engineering certainty that your
proposed interlock design would have prevented the plaintiff’s injury?
A. Well I don’t have a specific design, I have a concept. And I’m aware of
what was available to the manufacturer at the time. And I think that I could
effectively design something if asked to do it.
Q. So if I understand your testimony correctly, you have opined that the machine
was defective in its design because the interlocks could be bypassed, you have
said it’s possible to build a [sic] interlock that cannot be bypassed or not
easily bypassed but you have not proposed any alternative design in this case;
is that fair to say?
A. Correct. Only generalities.
9

19

accident, he could not confirm during his deposition whether the
interlocks that were equipped on the Glue Spreader were in fact
Schmersal interlocks.

(Id. at 167:14‒168:7.)

And when asked

whether he was aware of any other glue spreader machine that
incorporates a Schmersal interlock, Dr. Ojalvo answered, “No.
haven’t done a study of that.”

I

(Id. at 180:19‒22.)

As to the adequacy of the warning signs that were on the
Glue Spreader, Dr. Ojalvo testified that his biggest criticism is
“the lack of any indication” that there is a user manual specific
to the Glue Spreader.

(Id. at 190:24‒191:7.)

He testified that

the pictograms displayed the hazards adequately, (id. at 187:14‒
16), and the font sizes of the written warnings were sufficient,
(id. at 187:3‒13).

Dr. Ojalvo testified that had not tested his

proposed warning, nor published his proposed warnings in a peerreviewed publication, (id. at 187:17‒23), and that none of his
opinions in this case were peer reviewed.

(Id. at 166:21‒167:13.)

Finally, Dr. Ojalvo supplemented his expert report during the
deposition to include the opinion that the user manuals for the
Pressing Line and the Glue Spreader were both inadequate and that
their inadequacy was a primary factor in the cause of Plaintiff’s
accident.

(Id. at 150:23‒151:2.)

20

LEGAL STANDARD
Summary

judgment

shall

be

granted

to

a

movant

who

demonstrates “that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“A fact is ‘material’ for these purposes

when it ‘might affect the outcome of the suit under the governing
law.’”

Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,

104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).

No genuine issue of material fact exists

“unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party.”
U.S. at 249.

Anderson, 477

“If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.”

Id. at

249‒50 (internal citations omitted).
When bringing a motion for summary judgment, the movant
carries the burden of demonstrating the absence of any disputed
issues of material fact and entitlement to judgment as a matter of
law.

Rojas, 660 F.3d at 104.

motion,

the

court

must

In deciding a summary judgment

resolve

all

ambiguities

reasonable inferences against the moving party.

and

draw

all

Flanigan v. Gen.

Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
A moving party may indicate the absence of a factual dispute by
“showing . . . that an adverse party cannot produce admissible
21

evidence to support the fact.”

Fed. R. Civ. P. 56(c)(1)(B).

Once

the moving party has met its burden, the nonmoving party “must
come forward with admissible evidence sufficient to raise a genuine
issue of fact for trial in order to avoid summary judgment.”
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322‒23 (1986)).
DISCUSSION
I.

Design Defect
In New York, “to establish a prima facie case in strict

products liability for design defects, the plaintiff must show
that the manufacturer breached its duty to market safe products
when it marketed a product designed so that it was not reasonably
safe and that the defective design was a substantial factor in
causing plaintiff’s injury.”

Voss v. Black & Decker Mfg. Co., 450

N.E.2d 204, 208 (N.Y. 1983).

The design of a product is “not

reasonably safe” if “a reasonable person would conclude that the
utility of the product did not outweigh the risk inherent in
marketing a product designed in that manner.”

Id. “The plaintiff,

of course, is under an obligation to present evidence that the
product, as designed, was not reasonably safe because there was a
substantial likelihood of harm and it was feasible to design the
product in a safer manner.”

Id.

“This standard demands an inquiry

into such factors as (1) the product’s utility to the public as a
whole, (2) its utility to the individual user, (3) the likelihood
22

that the product will cause injury, (4) the availability of a safer
design, (5) the possibility of designing and manufacturing the
product so that it is safer but remains functional and reasonably
priced, (6) the degree of awareness of the product’s potential
danger that can reasonably be attributed to the injured user, and
(7) the manufacturer’s ability to spread the cost of any safetyrelated design changes.”

Denny v. Ford Motor Co., 662 N.E.2d 730,

735 (N.Y. 1995) (citation omitted).
The Court finds that there are genuine issues of material
fact precluding the grant of summary judgment for Defendants on
the design defect claim.

Specifically, Defendants’ primary theory

is that the bypassing of the safety interlocks by third parties,
rather than a defective design, was the cause of Plaintiff’s
accident.
too

Plaintiff’s theory is that the safety interlocks were

easily

bypassed

due

to

Defendants’

defective

design.

Furthermore, though the parties presume that the same bypasses of
the safety interlocks that were discovered by IUSA in 2018 existed
at the time of Plaintiff’s 2014 accident and, in turn, caused the
accident, there is no evidence in the record establishing such
presumption.

In fact, Defendant IUSA’s representative admitted

that he did not know when the bypasses were applied.

(See Ortmayer

Dep. Tr. at 57:3‒19 (“Q. Now, . . . as far as the discovery that
the . . . interlock switches had been disabled, and the jumper
wire bypassed the switch, and those types of things.
23

Was there

any way to determine when this may have been done?
may have been that way?

A. No.

Or how long it

Q. So there is nothing, to your

knowledge, definitive showing that that is the way the machine
would have been back in 2014 on November 4th?” . . . A. No.”).)
Indeed, the record includes only the IAWW service and maintenance
records for its machines, including Defendants’ Pressing Line and
Glue Spreader, from 2018 and 2019, but not from 2011 when IAWW
purchased the Pressing Line up to 2014, the year Plaintiff’s
accident occurred.

(See Lurz Dep. Tr. at 45:6‒48:24.)

Nor does

the record contain any IAWW service and maintenance records between
2014 and 2018.

(Id.)

And Defendants have not proffered any of

their own service and maintenance records for the machine that
injured Plaintiff preceding the September 2018 inspection by IUSA.
Plaintiff submitted as an exhibit an email exchange on
November 5, 2014 in which an individual named Crista at IUSA made
a request to Osama Technologies for certain spare parts for the
Glue Spreader, “items 6, 7, 8,” on behalf of IAWW.
5, 2014 Email.)
7, 8.”

(IUSA November

There is no explanation or diagram of “items 6,

In that same email, Crista wrote, “[s]omeone may have lost

their hand today in an accident.

It was their fault for disabling

the safety switch on this grill.”

(Id.)

In response, a Simone

Perozzi at Osama Technologies offered to send a “[c]omplete set
with protection grill and ‘supports’ on the sides . . . .”

(Id.)

The Court notes, without determining whether the parties would be
24

able to lay the proper foundation for this document at trial, that
though the email communication may suggest that the limit switch
for the silver metal guard/grill had been “disabl[ed]” in 2014, it
is not clear whether the disabling was done in the same manner
that it was found in 2018, by using a jumper wire to bypass the
switch, or whether the bypassed switch that had corroded to a point
of being inoperable in 2018 was also corroded and inoperable on
November 4, 2014, the day of Plaintiff’s accident.

And if the

limit switch had corroded by November 2014, less than four years
after the Pressing Line was purchased brand new by IAWW, the jury
could find that the limit switch was defectively designed.

The

email also makes no mention of the two limit switches for the blue
mesh guards.

Thus material issues of fact remain as to Defendants’

theory that a design defect did not exist and did not cause
Plaintiff’s accident.
Furthermore, the diagram of the parts, referred to in
the email from IUSA’s Crista to Osama Technologies, displaying the
parts of the Glue Spreader that needed to be replaced, described
as “items 6, 7, 8,” is not before the Court.

(Id.)

It is also

unclear why the silver metal guard/grill had to be replaced in its
entirety, along with the “‘supports’ on the sides” if the accident
occurred due to the “disabling [of] the safety switch on [the]
grill.”

(Id.)

The

service

and

maintenance

records

in

the

possession, custody, and control of Defendants are not before the
25

Court.

As such, because there are material issues of fact related

to whether the corrosion of the safety interlock and bypasses found
in

2018

by

IUSA’s

technician

also

existed

at

the

time

of

Plaintiff’s accident and caused the accident, the Court must deny
summary judgment in favor of Defendants. In addition, Dr. Ojalvo’s
expert opinion as to design defect is that the Glue Spreader was
defectively designed either because: (1) its rollers failed to
stop

when

the

blue

guard

was

lifted

up;

or

(2)

its

safety

interlocks were too easily overridden with objects that were
readily available, in violation of the relevant industry safety
standards at the time.

Dr. Ojalvo’s second design defect theory,

proffered in his August 2018 supplemental expert report, is based
on the same factual presumption that the bypasses of the safety
interlocks that were discovered in 2018 also existed in 2014 and
caused

Plaintiff’s

accident,

which

established by the record evidence.

the

Court

finds

is

not

Consequently, the Court also

denies Defendants’ motions to exclude Dr. Ojalvo’s expert opinion
as to defective design.
II.

Failure to Warn
A.

Admissibility of Dr. Ojalvo’s Testimony
Before considering the merits of Defendants’ motions for

summary judgment on failure to warn, the Court, as a threshold
matter,

must

address

Defendants’

argument

that

Dr.

Ojalvo’s

opinion as to the adequacy of the warnings should be excluded as
26

inadmissible.

See Cohalan v. Genie Indus., Inc., No. 10-cv-

2415(JMF), 2013 WL 829150, at *2 (S.D.N.Y. Mar. 1, 2013) (“Because
on a summary judgment motion a ‘district court properly considers
only evidence that would be admissible at trial,’ a court may—and
sometimes must—decide questions regarding the admissibility of
evidence, including expert opinion evidence, on a motion for
summary judgment.”) (citations omitted).
The admissibility of expert testimony is governed by
Federal Rule of Evidence 702, which provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence
or to determine a fact in issue; (b) the testimony is
based on sufficient facts or data; (c) the testimony is
the product of reliable principles and methods; and (d)
the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.

Thus, pursuant to Rule 702, the Court must

make several determinations before admitting expert testimony: (1)
whether the witness is a qualified expert; (2) whether the opinion
is based on reliable data and methodology; and (3) whether the
expert’s testimony will assist the trier of fact to understand the
evidence or determine an issue of fact.

See Beruashvili v. Hobart

Corp., No. 05-cv-1646(ENV), 2010 WL 11622750, at *4 (E.D.N.Y. July
15, 2010).

27

Though it is “[t]he proponent of the expert testimony
[who] bears the burden of establishing by a preponderance of the
evidence that the admissibility requirements of Rule 702 are
satisfied,” Zsa Zsa Jewels, Inc. v. BMW of N. Am., LLC, 419 F.
Supp. 3d 490, 511 (E.D.N.Y. 2019) (internal quotation marks and
citation

omitted),

‘gatekeeper.’”

“the

district

U.S.

137,

is

the

ultimate

United States v. Williams, 506 F.3d 151, 160 (2d

Cir. 2007) (citations omitted).
526

court

152

(1999)

See Kumho Tire Co. v. Carmichael,

(holding

that

whether

the

area

of

expertise of a proffered expert witness is technical, scientific,
or more generally “experience-based,” the district court, in its
“gatekeeping” function, must “make certain that an expert, whether
basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.”).
At the same time, Court recognizes that the Rule 702 inquiry is
“liberal and flexible,” Zsa Zsa Jewels, 419 F. Supp. 3d at 511,
with a general presumption of admissibility.

Id.

If the expert testimony is found to be inadmissible
under Rule 702 and excluded, “the summary judgment determination
is made by the district court on a record that does not contain
that

evidence.

Such

an

analysis

must

be

conducted

even

if

precluding the expert testimony would be outcome determinative.”

28

Humphrey v. Diamant Boart, Inc., 556 F. Supp. 2d 167, 173‒74
(E.D.N.Y. 2008) (citations omitted).
1.

Qualifications

Dr. Ojalvo is a licensed Professional Engineer in New
York, Connecticut, Florida, and California.

(ECF No. 88-12,

Exhibit B to Plaintiff’s Rule 26 Expert Disclosure dated February
19, 2022, Curriculum Vitae of Irving U. Ojalvo (“Ojalvo CV”), at
2; Ojalvo Dep. Tr. at 8:2‒5.)

He holds a bachelor’s degree in

biomedical engineering from the City College of New York, a Master
of Science degree from the Massachusetts Institute of Technology,
and a Doctor of Science degree from New York University.
CV at 2.)

(Ojalvo

He was a professor of mechanical engineering at the

University of Bridgeport from 1982 to 1990.

(Id.)

Dr. Ojalvo is

also active in professional organizations, including the Society
of Automotive Engineers, the Human Factors & Ergonomics Society,
and the Institute of Transportation Engineers.

(Id.)

Dr. Ojalvo

testified that he has significant experience designing warnings
for industrial machines and consumer products, and in the field of
human factors.

(Ojalvo CV; Ojalvo Dep. Tr. at 202:11‒204:8.)

Defendants do not contend that Dr. Ojalvo is unqualified to opine
on the adequacy of the warning signs at issue, and the Court finds
him qualified.

29

2.

Reliability and Relevance

“In assessing the reliability of a proffered expert’s
testimony, the court’s inquiry under Daubert focuses not on the
substance of the expert’s conclusions, but on the principles and
methodology used to generate the conclusions.”
Supp. 2d at 332.

Clarke, 219 F.

Expert testimony should be excluded when it is

“speculative,” “conjectural” or based on assumptions that are “so
unrealistic and contradictory as to suggest bad faith.”

Boucher

v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.1996) (internal
quotation marks and citations omitted).

See Barban v. Rheem

Textile Sys., Inc., No. 01-cv-8475(ILG), 2005 WL 387660, at *6
(E.D.N.Y. Feb. 11, 2005) (“It is by now well settled that Daubert
and its progeny requires the Court to close the gate to opinion
evidence . . . that is bottomed upon nothing more than speculation
and guesswork.”).

Moreover, courts are not required to admit

expert opinion evidence that is “connected to existing data only
by the ipse dixit of the expert.

A court may conclude that there

is simply too great an analytical gap between the data and the
opinion proffered.”

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997) (citation omitted).
In Daubert v. Merrell Dow Pharms., Inc., the Supreme
Court articulated several factors to guide district courts in
assessing the reliability of expert testimony: (1) whether the
expert’s theory or technique has been or can be tested; (2) whether
30

it has been subjected to peer review and publication; (3) its known
or potential rate of error; and (4) its general acceptance by the
relevant scientific community.

509 U.S. 579, 593‒94 (1993).

The

four factors, however, are not exhaustive and ought to be applied
flexibly, as they “may or may not be pertinent in assessing
reliability, depending on the nature of the case, the expert’s
particular expertise, and the subject of his testimony.”

Kumho

Tire, 526 U.S. at 150 (internal quotation marks and citation
omitted).

Indeed, “[e]xpert engineering testimony may rest on

scientific

foundations,

Daubert

factors

the

directly,

examination

but

may

also

of

which

rest

knowledge or experience of the engineer.”

on

invokes
the

the

personal

Cacciola v. Selco

Balers, Inc., 127 F. Supp. 2d 175, 180 (E.D.N.Y. 2001); see Kumho
Tire, 526 U.S. at 156 (“[N]o one denies that an expert might draw
a conclusion from a set of observations based on extensive and
specialized experience.”).

Where, as here, an engineering expert

proffers opinions based on his education and experience, not all
four Daubert factors may be applicable to the Court’s reliability
analysis; even so, it may still be appropriate for the trial judge
to ask, for example, “how often an engineering expert’s experiencebased methodology has produced erroneous results, or whether such
a

method

is

community.”

generally

accepted

in

the

relevant

engineering

Cacciola, 127 F. Supp. 2d at 180 (internal quotation

marks and citation omitted).
31

As to Dr. Ojalvo’s opinions on the adequacy of the
warnings

on

the

Glue

Spreader

and

his

proposed

alternative

warnings, Defendants contend that they are “no more than off-thecuff challenges to the Glue Spreader’s current warnings without
any substantial support.”

(ISPA Mem. at 26.)

Specifically, they

argue that Dr. Ojalvo’s proposed warnings were not tested nor peer
reviewed, and that Dr. Ojalvo “had not so much as thought about
which signal words would be used in these warnings” and “could not
identify any glue spreader on the market that applied his proposed
English language warnings.”

(Id.; IUSA Reply Mem. at 10.)

The

Court notes that Defendants fail to cite any case that supports
their

proposition

proposed

that

alternative

proposed

designs,

alternative

must

undergo

warnings,
testing

like

as

to

feasibility or that their feasibility must be demonstrated through
examples of similar machines in the marketplace that incorporate
the

proposed

warnings.

But

cf.

Santoro

ex

rel.

Santoro

v.

Donnelly, 340 F. Supp. 2d 464, 482 (S.D.N.Y. 2004) (admitting an
expert’s opinion on the inadequacy of warnings, noting that the
expert based his opinion on “his experience in consumer safety and
on several articles on warnings and labeling.”).

Given that Dr.

Ojalvo has significant experience with designing warnings for
industrial machines and in the field of human factors, (Ojalvo CV;
Ojalvo Dep. Tr. at 202:11‒204:8), the Court finds that Dr. Ojalvo’s
testimony as to the design and effectiveness of the warnings is
32

reliable and will assist the jury in deciding Plaintiff’s failure
to warn claim.
B.

Fed. R. Evid. 702.

Summary Judgment
“A defendant may be liable under a negligence or strict

products liability theory by failing to adequately warn of a
potentially harmful aspect of the product.

There is no difference

between the prima facie elements of a failure to warn claim
sounding

in

liability.”

negligence

and

one

sounding

Mustafa, 2007 WL 959704, at *17.

in

strict

products

See Enright v. Eli

Lilly & Co., 570 N.E.2d 198, 203 (N.Y. 1991) (noting that a failure
to

warn

claim

“couched

in

terms

of

strict

liability,

is

indistinguishable from a negligence claim.”) (citation omitted).
Either way, a failure to warn plaintiff must show “(1) that a
manufacturer has a duty to warn; (2) against dangers resulting
from foreseeable uses about which it knew or should have known;
and (3) that failure to do so was the proximate cause of harm.”
Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 84
(S.D.N.Y. Dec. 19, 2001).

A manufacturer generally has a duty to

warn against: (1) latent dangers resulting from the foreseeable
uses of its product about which it knew or should have known; and
(2) dangers of reasonably foreseeable unintended uses of a product.
Clarke, 219 F. Supp. 2d at 329.

“Under New York law, the jury

does not need expert testimony to find a warning inadequate, but
may use its own judgment considering all the circumstances.”
33

Billiar v. Minn. Mining & Mfg. Co., 623 F.2d 240, 247 (2d Cir.
1980).
The New York Court of Appeals has described the standard
for evaluating failure to warn claims as “intensely fact-specific,
including

but

not

limited

to

such

issues

as

feasibility

and

difficulty of issuing warnings in the circumstances; obviousness
of the risk from actual use of the product; knowledge of the
particular product user; and proximate cause.”

Liriano v. Hobart

Corp. (“Liriano I”), 700 N.E.2d 303, 309 (N.Y. 1998) (internal
citation omitted).

Given this fact-intensive inquiry, as the

Second Circuit has emphasized, “[t]he adequacy of the instruction
or warning is generally a question of fact to be determined at
trial and is not ordinarily susceptible to the drastic remedy of
summary judgment.”
Cir.

1997)

Urena v. Biro Mfg. Co., 114 F.3d 359, 366 (2d

(citations

omitted);

see

Liriano

v.

Hobart

Corp.

(“Liriano II”), 132 F.3d 124, 131 (2d Cir. 1998) (stating that
courts have “squarely h[e]ld that it is up to the jury to decide
whether the manufacturer, in fact, has a duty to warn.”) (citations
omitted); Johnson v. Johnson Chem. Co., Inc., 588 N.Y.S.2d 607,
610 (2d Dep’t 1992) (“Whether a particular way of misusing a
product is reasonably foreseeable, and whether the warnings which
accompany a product are adequate to deter such potential misuse,
are ordinarily questions for the jury.”) (citations omitted);
Cooley v. Carter–Wallace Inc., 478 N.Y.S.2d 375, 376 (4th Dep’t
34

1984) (“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.”).
1.

Knowledge of the User

Notwithstanding the foregoing considerations, a court
may nevertheless dismiss a failure to warn claim as a matter of
law where the plaintiff cannot prove that the absence of warning
proximately caused his injury.

See Liriano I, 700 N.E.2d at 308

(no causation where “the injured party was fully aware of the
hazard through general knowledge, observation or common sense”).
A

plaintiff’s

knowledge

of

a

given

risk

does

not

change

a

manufacturer’s duty to warn but “goes to the analytically distinct
issue of whether a putative breach of that duty was a cause of
[the] plaintiff’s injury.”

Burke v. Spartanics, Ltd., 252 F.3d

131, 138 (2d Cir. 2001). A defendant can show the lack of proximate
cause by demonstrating the futility of warnings, through evidence
that plaintiff was fully aware of the hazard
knowledge, observation, or common sense.
Morflo

Indus.,

Inc.,

931

F.

Supp.

159,

through general

See also Gonzalez v.
168

(E.D.N.Y.

1996)

(“[W]here a warning would not have increased the particular injured
user’s awareness of the danger, failing to warn cannot be said to
have been the proximate cause of the accident.”).

35

To fall under the knowledge of the user exception,
Plaintiff “must have known about the specific hazard that caused
the injury, and must have appreciated the severity of the danger.
Although in appropriate cases a court may as a matter of law decide
that a manufacturer’s warning would have been superfluous given an
injured party’s actual knowledge of the specific hazard that caused
the injury, where reasonable minds might disagree as to the extent
of [the] plaintiff’s knowledge of the hazard, the question is one
for the jury.”

Leibstein v. LaFarge N. Am. Inc., 689 F. Supp. 2d

373, 388‒89 (E.D.N.Y. Feb. 12, 2010) (internal quotation marks and
citations omitted).
Though Defendants argue that Plaintiff was fully aware
of the danger posed by placing his hand near moving rollers, (ISPA
Mem. at 24; ECF No. 85, IUSA’s Memorandum of Law in Support of its
Motion for Summary Judgment (“IUSA Mem.”), at 18 (“plaintiff
acknowledged that he recognized the danger posed by moving rollers
and he knew not to put his hands near them while they were
rotating.”)), the Court finds that reasonable minds could differ
as to the extent of Plaintiff’s knowledge of the danger posed by
the Glue Spreader, which, unbeknownst to Plaintiff, included the
risk of its limit switches either failing or being bypassed and
failing

to

stop

when

the

guard

was

lifted

during

cleaning.

Specifically, the Court notes Plaintiff’s testimony that though he
was aware that he “cannot put [his] hand” near the rollers while
36

they were moving, (Pl. Dep. Tr. at 61:7‒14), he believed that “if
the rollers were moving” and he lifted up the blue mesh guard,
“the machine would stop.”

(Id. at 61:15‒62:5.)

Accordingly, the

Court concludes that there are genuine issues of material fact
concerning the extent of Plaintiff’s knowledge of the danger
presented by the Glue Spreader, and declines to grant summary
judgment on failure to warn based on Plaintiff’s knowledge of the
risk.
2.

Open and Obvious Risk

A court may also dismiss a failure to warn claim as a
matter of law where the manufacturer had no duty to warn because
the hazard was patently dangerous or posed an open and obvious
risk.

See Liriano I, 700 N.E.2d at 308 (“Where a danger is readily

apparent as a matter of common sense, there should be no liability
for failing to warn someone of a risk or hazard which he [or she]
appreciated to the same extent as a warning would have provided.
Put differently, when a warning would have added nothing to the
user’s appreciation of the danger, no duty to warn exists as no
benefit

would

be

gained

by

requiring

a

warning.”)

(internal

quotation marks and citation omitted) (alteration in original).
In contrast, “the open and obvious defense generally should not
apply when there are aspects of the hazard which are concealed or
not reasonably apparent to the user.”

37

Id.

The open and obvious inquiry goes to the manufacturer’s
duty and depends on, not what any particular plaintiff understands
about the risk, but whether reasonably foreseeable users of the
product would perceive it to be open and obvious.
at 137‒38.

Burke, 252 F.3d

And “[t]he class of reasonably foreseeable users will,

of course, encompass a spectrum of persons with widely varying
abilities and experience bearing on their perception of the hazards
at hand.”

Id. at 138.

Plaintiff’s own knowledge, though a

relevant reference point, does not determine the outcome of the
open and obvious inquiry, which is an objective one, and whether
a reasonably foreseeable user of the Glue Spreader would consider
the potential risk of its use to be open and obvious is a factintensive inquiry that is more appropriate for the jury. The Court
also notes that the nonobvious nature of the potential danger
presented

by

the

failure

or

bypassing

of

the

interlocks

is

demonstrated by the fact that Plaintiff’s expert, who has three
degrees in mechanical engineering, did not notice the interlocks
at the time of his inspection in October 2017.

Accordingly, the

Court concludes that there are genuine issues of material fact on
whether the hazard presented by the Glue Spreader is open and
obvious.
Finally,

the

Court

respectfully

declines

to

grant

summary judgment on failure to warn in favor of Defendants based
on their argument that the allegedly inadequate warnings were not
38

the proximate cause of Plaintiff’s injury because Plaintiff, who
reads and understands little English, did not read the warning
signs or the user manuals.

Courts have found that “a plaintiff .

. . may be able to prevail under New York law with respect to his
failure to warn claim, even though it is undisputed that he failed
to read the warnings, if he can demonstrate that adequate warnings
would have come to the attention of a third party, such as fellow
workers or an employer, and they would have informed him of those
warnings.”

Humphrey, 556 F. Supp. 2d at 181; see, e.g., Sorto-

Romero v. Delta Intern. Mach. Corp., No. 05–cv–5172(SJF), 2007 WL
2816191,

at

*12

(E.D.N.Y.

Sept.

24,

2007)

(“[I]n

light

of

Plaintiff’s inability to read the warnings, Plaintiff may be able
to prove causation whereby a third party may have conveyed the
warning to him.”) (citing New York cases); Mustafa, 2007 WL 959704,
at *19 (“[Plaintiff] could prove the requisite ca[usa]l link in
light of his inability to read the warning . . . under a theory of
causation whereby [a] third party may have conveyed the warning to
him.”); Derienzo v. Trek Bicycle Corp., 376 F. Supp. 2d 537, 570
(S.D.N.Y. 2005) (“the ‘realities of society’—i.e., the realties of
the mountain biking community—might have resulted in Plaintiff’s
friends advising him not to use a Y5 model for jumping, even if
Plaintiff had not read the warning himself.”) (citation omitted);
Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 445 n.24 (S.D.N.Y.
1999) (a witness who felt concerned about plaintiff’s use of a
39

trampoline but did not say anything might have voiced her concern
had adequate warnings accompanied the product).
In the instant case, it is undisputed that at least Alex
and German Monterosa speak Spanish, and Michael Lurz testified
that IAWW had “several people that speak English and Spanish” to
“interpret, if need be.”

(Lurz Dep. Tr. at 52:20‒22.)

Because it

is possible that if the jury finds that adequate warnings regarding
the machine could have come to the attention of Alex, Monterosa,
or other IAWW employees and, in turn, the warnings could have been
conveyed to Plaintiff, a jury could also find the requisite causal
link

necessary

for

Plaintiff

to

sustain

failure

to

warn. 11

Similarly, the Court finds that notwithstanding IAWW’s purported
failure to adequately train Plaintiff, the jury could find that
adequate

signs

nonetheless

could

have

prevented

Plaintiff’s

injury.
For the reasons stated above, Defendants’ motions for
summary judgment on Plaintiff’s failure to warn claim are denied.

11 Though Defendants presented evidence that Alex, Monterosa, and Lurz did not
read the user manuals, (ECF No. 89-8, Exhibit 8 to Massaro Decl. (“Alex Dep.
Tr.”), at 21:9‒14; ECF No. 89-6, Exhibit 6 to Massaro Decl. (“Monterosa Dep.
Tr.”), at 67:20‒23; Lurz Dep. Tr. at 12:4‒6), this does not preclude a finding
of fact that adequate warnings posted on the face of the Glue Spreader may have
prevented Plaintiff’s injury.

40

III. Manufacturing Defect
Plaintiff advised the Court in his letter response to
IUSA’s letter motion for a pre-motion conference, dated April 5,
2021, that he withdraws “any claims of allegations of manufacturing
defects.”
in

his

(ECF No. 77.)
response

to

Though Plaintiff did not state the same

ISPA’s

letter

motion

for

a

pre-motion

conference, (ECF No. 76), the Court concludes that summary judgment
for Defendants on the manufacturing defect claim is appropriate,
based on Plaintiff’s failure to present any evidence supporting
this claim, or opposing ISPA’s motion for summary judgment on the
manufacturing defect claim.

Thus, because Plaintiff has either

abandoned or failed to support his manufacturing defects claim,
summary

judgment

dismissing

this

Defendants’ evidence in the record.

claim

is

granted

based

on

See Cuntan v. Hitachi KOKI

USA, Ltd., No. 06–cv–3898(RRM), 2009 WL 3334364, at *18 (E.D.N.Y.
Oct. 15, 2009) (“In his response to the defendants’ motion for
summary judgment, plaintiff makes no claim that he is pursuing
damages on the theory of a manufacturing defect and provides no
evidence in support of such a claim.

As a result, plaintiff either

has abandoned his manufacturing defect claim altogether or has
failed to meet his burden of proving that any such defect was a
‘substantial factor’ in causing his injuries.”).

41

IV.

Breach of Warranty
Defendants

move

for

summary

judgment

on

Plaintiff’s

breach of express and implied warranty claims on statute-oflimitations grounds.

The Court finds that Defendants are entitled

to summary judgment on the breach of warranty claims.

The statute

of limitations on a breach of warranty claim is four years, see
N.Y. U.C.C. § 2-725, and the claim accrues upon delivery of the
warrantied product.

See Solorio v. Asplundh Tree Expert Co., No.

02-cv-8035(RJS), 2009 WL 755362, at *5 n.10 (S.D.N.Y. Mar. 23,
2009) (“Claims for breach of implied and express warranties in New
York are governed by a four-year statute of limitations, measured
from

the

tender

of

delivery

of

the

goods.

The

statute

of

limitations for a breach of warranty claim, whether implied or
express, begins to run at the time the product is placed in the
stream of commerce or at the time of the original sale of the good
by the manufacturer, regardless of when the injury was sustained.”)
(citing N.Y. U.C.C. § 2-725(1); Heller v. U.S. Suzuki Motor Corp.,
477 N.E.2d 434 (N.Y. 1985); last citation omitted).

Thus, the

Plaintiff’s breach of warranty claims accrued in May 2011 when
IUSA delivered the Pressing Line to IAWW, and the claims became
stale in May 2015.
November 3, 2017.

Plaintiff did not bring this action until
Hence, his breach of warranty claims are time

barred and summary judgment is granted on these claims.

42

The Court respectfully rejects Plaintiff’s argument that
certain language in the Heller decision stands for the proposition
that “an injured consumer can file a breach of warranty claim
within three years of the date of accident.”
28.)

(Pl. ISPA Opp. at

The Heller decision did not consider whether an injured

plaintiff’s breach of warranty claim accrues on the date of the
injury.

Rather, the issue before the court in Heller was whether

plaintiff’s breach of implied warranty claim accrued on the date
of sale to plaintiff by the retailer, or on the earlier date of
the transfer of the motorcycle by the distributor to the immediate
purchaser, who then apparently transferred it to the retailer that
later sold it to Plaintiff.

477 N.E.2d at 435.

The court held

that a breach of implied warranty claim in a personal injury action
against a manufacturer or distributor “accrues on the date the
party charged [U.S. Suzuki Motor Corp.] tenders delivery of the
product, not on the date that some third party sells it to
plaintiff.”

Id. at 436.

The court reasoned that “[a] major

purpose of the uniform acts, and for the Statutes of Limitation
they contain, is to eliminate jurisdictional variations so that
concerns

doing

business

nationwide

different periods of limitation. . . .

will

not

be

governed

by

[which] is frustrated . .

. and the period of exposure to lability becomes unpredictable if
the cause of action accrues at the date of sale to the plaintiff
. . . .”

Id. at 437.

Thus the court in Heller did not confront
43

the issue of whether breach of warranty claims accrue at the time
of the plaintiff’s injury.
Plaintiff relies on the following language in Heller to
support his position that his breach of implied warranty claim is
timely because the instant action was brought within three years
of Plaintiff’s accident: “A consumer who acts within three years
of the date of the accident or four years from the date of sale,
as the pertinent statutes provide, may now maintain causes of
action in New York to recover against both immediate and remote
parties based on express or implied warranty, negligence or strict
products liability.”
the

dissenting

Id.

opinion

The quoted language was in response to
that

imposing

a

four-year

statute

of

limitations from the date of delivery by the charged party would
result in a plaintiff being “time-barred from prosecuting a cause
of action before he ever had one.”

Id. at 439 n.4.

The Heller

court stated that its decision “does not limit available remedies
generally,”

so

that

plaintiffs

in

personal

injury

actions,

notwithstanding the four-year statute of limitations for breach of
implied warranty which accrues upon delivery by the charged party,
may nonetheless bring a strict products liability claim within
three years of the date of the injury.
added).

Id. 436‒37 (emphasis

See also id. at 435‒36 (stating that personal injury

actions based on implied warranty, sounding in contract, were
developed “to impose strict liability on manufacturers and sellers
44

for defects in their products” and that some States, including New
York, eliminated the traditional privity requirement for such
actions

to

allow

purchasers

to

recover

from

remote

parties;

however, “there [was] no need to recognize an action on implied
warranty

for

personal

injuries

.

.

.

if

the

jurisdiction

recognize[d] a tort action in strict products liability as New
York [did]” and “[t]he tort remedy permits the injured plaintiff
to seek redress from remote parties in the distributive chain
regardless of privity.”).

As such, the Court grants Defendants’

motions for summary judgment and dismisses Plaintiff’s breach of
express and implied warranty claims as time barred.
V.

IUSA’s Cross Claim for Indemnification Against ISPA
Finally, the Court denies summary judgment as to IUSA’s

cross

claim

for

indemnification

against

ISPA.

In

a

strict

liability action, “a seller or distributor of a defective product
has an implied right of indemnification as against the manufacturer
of the product.”

Noveck v. PV Holdings Corp., 742 F. Supp. 2d

284, 297 (E.D.N.Y. 2010) (citation omitted).

The Court, however,

declines to prematurely decide the issue of indemnification unless
and until it is established that ISPA is liable.

As New York

courts have noted, “[when] it has not yet been determined whether
any party’s negligence contributed to [an] accident, a finding of
common-law indemnity is premature”

Barraco v. First Lenox Terrace

Assoc., 810 N.Y.S.2d 8, 11 (1st Dep’t 2006).
45

See also Brockman v.

Cipriani

Wall

Additionally,

947

Street,
it

is

N.Y.S.2d

34,

undisputed

36

that

(1st

Dep’t

Ortmayer,

2012).
IUSA’s

representative, trained at least two IAWW employees in May 2011,
when IAWW purchased the Pressing Line, and Ortmayer testified
during his deposition that his training covered both safety and
maintenance issues with respect to the machine.
Tr. at 11:16:15.)

(Ortmayer Dep.

The Court finds that there are triable issues

of fact as to whether ISPA is liable based on the design and the
warning signs of the Glue Spreader, and whether IUSA was negligent
in its training of the IAWW employees.

Thus, IUSA’s cross claim

against ISPA at this juncture is premature, and IUSA’s motion for
summary judgment is denied without prejudice.
CONCLUSION
Based on the foregoing analysis, Defendants’ motions to
exclude Dr. Ojalvo’s testimony is denied as to his opinion on the
design of the Glue Spreader, and as to his opinion on the adequacy
of the warnings on the Glue Spreader.
summary

judgment

are

granted

as

to

Defendants’ motions for
Plaintiff’s

manufacturing

defect and breach of express and implied warranty claims, which
are dismissed. Defendants’ motions for summary judgment are denied
as to Plaintiff’s design defect and failure to warn claims. IUSA’s
motion for summary judgment on its cross claim for indemnification
is denied without prejudice.

46

The parties are directed to appear for a telephone
conference with the undersigned on April 1, 2022 at 10:00 a.m. to
advise the Court how they plan to proceed with this case, and to
contact Magistrate Judge Scanlon by close of business on March 14,
2022 to arrange for a settlement conference and the completion of
a

Final

Joint

Pre-Trial

Order.

Judge

Scanlon’s

schedule

permitting, the parties should schedule a settlement conference
before the April 1st conference with the undersigned.
SO ORDERED.
/s/
Hon. Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
Dated: Brooklyn, New York
March 13, 2022

47