Monell v. The Scooter Store, LTD et al

Filing 39

MEMORANDUM-DECISION AND ORDER granting in part and denying in part 28 Motion for Summary Judgment: The Court hereby ORDERS that Defendants' motion to exclude Plaintiff's expert is DENIED; and the Court further ORDERS that Defendants' ; motion for summary judgment is GRANTED in part and DENIED in part; and the Court further ORDERS that Defendants' counsel shall initiate a telephone conference, using a professional conferencing service, with the Court and Plaintiff's coun sel on Tuesday, October 2, 2012, at 11:00 a.m., to discuss a schedule for the trial of this matter; and the Court furtherORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 9/14/12. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DELEVINE MONELL,
Plaintiff,
vs.

1:10-cv-897
(MAD/RFT)

THE SCOOTER STORE, LTD and PRIDE
MOBILITY PRODUCTS CORPORATION,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

GOLDSTEIN & METZGER, LLC
40 Garden Street
Poughkeepsie, New York 12601-3106
Attorneys for Plaintiff

PAUL J. GOLDSTEIN, ESQ.

MIRANDA, SAMBURSKY, SLONE,
SKLARIN & VERVENIOTIS, LLP
240 Mineola Boulevard
Mineola, New York 11501
Attorneys for Defendants

NEIL L. SAMBURSKY, ESQ.

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff commenced this action on July 21, 2010. See Dkt. No. 1. On February 14, 2011,
Plaintiff amended her complaint, alleging causes of action against Defendants in negligence, strict
tort liability, and breach of express and implied warranties, "including but not limited to the
breach of implied warranties as to merchantability and fitness." See Dkt. No. 20. Currently
before the Court are Defendants' motions to exclude Plaintiff's expert and for summary judgment.
See Dkt. No. 31.

II. BACKGROUND

A.

The scooter and accident at issue
In March of 2010, Plaintiff was a ninety-three year old woman who had limited mobility.

See Dkt. No. 31-11 at ¶¶ 3-4. Plaintiff lived alone in a trailer home she owned, which was located
on the property of Chester and Darlene Craig. See id. at ¶ 3. Plaintiff relied on Mr. and Mrs.
Craig for much of her care, including transportation outside of her home, meals, and general
assistance with the activities of daily life.
In the winter of 2009/2010, Mr. Craig received a catalogue from Defendant The Scooter
Store Ltd. ("the Scooter Store"), advertising the "Go-Go Ultra X Scooter" in both a four-wheel
and three-wheel model. Because of her mobility issues, Plaintiff required a scooter to engage in
activities such as going shopping with the Craigs. Before the Go-Go Scooter, Plaintiff had
bought for herself a "Caddy" three-wheeled scooter from QVC to ride around the neighborhood.
See id. at ¶ 31. The Caddy Scooter came with an owner's manual, which provided "Safety
Instructions" about the "stability and slopes" on which the Caddy three-wheeled scooter could be
safely operated. See id. at ¶ 32. There were several problems with the Caddy Scooter, however,
so the Craigs decided to purchase Plaintiff a new scooter that they could use to take her shopping.
See id. at ¶ 35. The Craigs wanted to buy Plaintiff a "travel scooter" that could be easily taken
apart, put in a car and put back together for use when shopping. See id. at ¶ 37.
The Craigs reviewed both three and four-wheeled scooters and decided to purchase
Plaintiff a three-wheeled scooter. See id. at ¶ 38. Although Plaintiff never spoke with anyone at
the Scooter Store or Pride Mobility Products Corporation ("Pride Mobility") before Mr. Craig
purchased the scooter, see id. at ¶ 41, Mr. Craig did explain to Plaintiff the differences between a
three and four-wheel scooter, including that a three-wheel scooter is better for use in stores
because it is capable of making tighter turns. See id. at ¶ 42.
2

Eventually, Mr. Craig purchased the three-wheeled Go-Go Ultra X Scooter from the
Scooter Store by telephone. See id. at ¶ 43. While purchasing the scooter for Plaintiff, Mr. Craig
advised the Scooter Store's sales representative that Plaintiff was ninety-three years old, that she
weighed about ninety-eight pounds, and that she would be using the scooter to "'get around'" and
possibly to "'go shopping.'" See id. at ¶ 44. Mr. Craig did not tell the Scooter Store's sales
representative about the terrain of his property or the driveway on which Plaintiff would be using
the scooter, and the sales representative did not ask. See id. at ¶ 45; see also Dkt. No. 36 at ¶ 45.
The catalog Mr. Craig received from the Scooter Store did not state anything about using the
scooter on gravel or loose surfaces, and Mr. Craig did not ask if it could be used on such surfaces.
See Dkt. No. 31-11 at ¶ 46. Plaintiff claims that although the Scooter Store made no oral
warranties to Mr. Craig while he was on the telephone with its representative, warranties were
made in Pride Mobility's literature and brochure. See Dkt. No. 36 at ¶ 48; see also Dkt. No. 31-11
at ¶ 48.
The Go-Go Scooter was delivered to the Craig's home in a large box and needed to be
assembled. See Dkt. No. 31-11 at ¶ 49. According to Plaintiff, Mr. Craig's friend, Eugene Lowe,
assisted in assembling the scooter. See id. at ¶ 55; Dkt. No. 36 at ¶ 55. The Owner's Manual for
the scooter was located in a sealed plastic bag that also contained the scooter's keys and pins for
the seat. See id. at ¶¶ 58-59. Neither Plaintiff nor Mr. Craig read the Owner's Manual prior to
assembling and operating the scooter because they were unable to locate it at first. See id. at ¶ 62.

Once Mr. Craig and Mr. Lowe finished assembling the scooter, Mr. Craig test drove the
scooter. See id. at ¶ 60. Mr. Craig is six-feet fall and weighs two-hundred and seventy-nine
pounds. See id. at ¶ 61. While test driving the scooter, "he made a 'sharp turn,' turning the
3

handlebars from the 12:00 o'clock position to the 9:00 [o']clock position; he did not feel any
instability in the scooter whatsoever." See id. (quotation omitted).
Once Mr. Craig was finished test driving the scooter, Plaintiff took the scooter for a ride
around block, which lasted for approximately thirty minutes. See id. at ¶ 69. While Plaintiff
drove the scooter around the block, she was followed by Mrs. Craig, who was riding a bicycle.
See id. at ¶ 70. Mrs. Craig came back to the house before Plaintiff and, therefore, did not see the
accident occur. See id. at ¶ 71.
According to Plaintiff, the accident occurred in front of her house. See id. at ¶ 72. While
she was driving on the right side of the road, she felt an "'impact'" after "'hitting a stone or
something'" and was "'thrown' from the scooter." See id. at ¶ 73 (quotation omitted). Upon being
"'thrown'" from the scooter, Mr. and Mrs. Craig heard Plaintiff scream and found her
approximately six inches from the back of Mr. Craig's car with the scooter on top of her. See
id. at ¶¶ 74-76 (citations omitted). After calling 911, Mr. Craig went to Plaintiff and noted that
the scooter was already picked up off of her and was placed between the driver's side and rear
passenger side door of his car. See id. at ¶ 77 (citation omitted).

B.

The Pride Go-Go Scooter
The Go-Go Ultra X three-wheel scooter Mr. Craig purchased for Plaintiff is a Pride

Mobility product. See id. at ¶ 12. The Go-Go Scooter is designed to the specifications of a ClassII Medical Device approved for use by the United States Food and Drug Administration ("FDA").
See id. at ¶ 13. The Go-Go Scooter has three wheels – two in the back and one in the front – a
seat, and a tiller which is used to steer. See id. The Go-Go Scooter is also equipped with two
additional anti-tip wheels in the back of the unit, and utilizes an electric motor and two, twenty4

four volt batteries. See id. The parties agree that the Go-Go Scooter "meets the standards set
forth by ISO and the American National Standard Institute/Rehabilitation Engineering and
Assistive Technology Society of North America ('ANSI/RESNA'), Requirements for Test
Methods For Wheelchairs (including Scooters) with Electrical Systems,' which apply to Class-II
Medical Device electrical scooters." See id. at ¶ 14.
Pride Mobility performs the certification testing at its facility in Pennsylvania and the GoGo Scooter passed all of the dynamic and static stability tests under the ISO and ANSI/RESNA
standards, as required by the FDA. See id. at ¶ 15. According to Defendants, "[a]s set forth in the
testing documents, when Pride performs the testing of the GoGo Scooter, Pride puts the scooter in
its worst possible configuration for each test, i.e., a configuration which would make the scooter
prone to tipping by putting it in its least stable condition." See id. at ¶ 16. In addition to the ISO
and ANSI/RESNA testing, Pride Mobility also performs supplemental testing on its products on a
specially designed test tract on which the Go-Go Scooters (and other Pride Mobility products) are
tested on several obstacles and uneven surfaces, "including uneven pavers and bricks, curbs and
ADA curb cut-outs, just to make sure that the product is as safe and stable as possible in real
world driving conditions." See id. at ¶ 17.
The Go-Go Scooter is a "travel scooter" which is designed to be light-weight and easy to
disassemble, put in a car and quickly reassembled for use. See id. at ¶ 18. The Go-Go Scooter "is
designed to perform admirably on packed soil, grass and gravel. Nevertheless, the customer is
warned and instructed to read the Owner's Manual before using the GoGo Scooter, as it provides
important information about how to operate the scooter outdoors and how to avoid potential
tipping hazards." See id. at ¶ 19.
III. DISCUSSION
5

A.

Defendants' motion to exclude Mr. Chen's testimony
1. Defendants' position
Defendants argue that Plaintiff's proffered expert, Peter Chen, "must be excluded from

testifying because not only is he unqualified to offer any opinions in this case, the opinions he
offered are admittedly based on speculation, are untested and are just plain wrong." See Dkt. No.
31-10 at 6.1 Mr. Chen's report opines that the Go-Go Scooter tipped over when Plaintiff allegedly
drove over a localized 6.9° lump in the driveway. See id. at 7. Defendants claim that, "[p]utting
aside that the Pride GoGo Scooter is designed, tested and able to proceed over such a grade . . . ,
Mr. Chen admitted during his deposition that: i) he has no evidence to offer a jury that Ms.
Monell actually drove her scooter over the lump . . . ; ii) he cannot offer any evidence to a
reasonable degree of engineering certainty as to where Ms. Monell encountered the lump . . . ;
and iii) Ms. Monell may not have even encountered the lump." See id. (internal citations
omitted). Therefore, Defendants assert that all of Mr. Chen's opinions regarding the "lump and its
alleged interaction with the GoGo Scooter are unsupported conjecture." See id.
Moreover, Defendants argue that Mr. Chen did not measure the length, width, or height of
the alleged lump, did not photograph the lump, and "admittedly has no information from which he
can determine where the lump is located." See id. at 7-8. Further, Defendants assert that Mr.
Chen's opinion about the Go-Go Scooter's interaction with the alleged 6.9° lump is misleading
because he failed to place any part of the scooter on the lump so that he could measure the angle
of the scooter on the lump. See id. at 8. Defendants continue by claiming that Mr. Chen never
performed any testing of the scooter on or off of the lump, "and while he claims to have operated

To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
1

6

the scooter, that alleged fact is not disclosed in his expert report, and the Craigs actually denied
that Mr. Chen test drove the scooter." See id. Even assuming, arguendo, that Mr. Chen did drive
the scooter, Defendants argue that he failed to perform any "tip-testing of the scooter." See id.
Finally, Defendants argue that there is no basis for Mr. Chen's opinion that a cause of the
accident was the failure to provide adequate information and warnings about the Go-Go Scooter,
both pre and post sale. Defendants claim that Mr. Chen has failed to offer an opinion as to what
additional warning or instructions should have been provided with the Go-Go Scooter, or whether
any additional warnings/instructions would have altered the behavior of the Craigs or Plaintiff.
See id. at 9.

2. Plaintiff's position
First, Plaintiff argues that Mr. Chen should be allowed to testify and directs the Court's
attention to a case it claims is factually similar in which the court denied the defendant's motion to
preclude the plaintiff's expert witnesses from testifying. See Dkt. No. 34 at 8 (citing Floyd v.
Pride Mobility Products Corp., 2007 WL 4404049 (S.D. Ohio 2007)). Next, Plaintiff claims that
Mr. Chen is sufficiently qualified to be permitted to testify pursuant to Rule 702 of the Federal
Rules of Evidence. See id. at 9-10. Plaintiff asserts that Mr. Chen has extensive training and
education in mechanical engineering, and that "he possesses expertise in the areas of Mechanical
Engineering, machine Analysis and Guarding, Human Factor Analysis, Product Liability,
Analysis and Testing, Accident Reconstruction and Mechanical Equipment Evaluations." See
id. at 9. Moreover, Plaintiff argues that Mr. Chen is employed by an investigative engineering
company, which employs accident analysis experts who provide skilled forensic engineering to
determine the origin and cause of product failures and accidents, and that he has experience
7

investigating and testifying in at least three prior scooter cases. See id. Plaintiff claims that
Defendants are mistaken in their assertion that Mr. Chen cannot offer an expert opinion in this
case because he is not an expert in FDA regulations or an expert in the sale of mobility products.
See id.
Next, Plaintiff argues that Mr. Chen's opinion that the Go-Go Scooter was defectively
designed for use on outdoor surfaces, such as Plaintiff's driveway, is supported by sufficient
evidence, testing and analysis to be admissible. See id. at 11. Plaintiff claims that "Mr. Chen did
a thorough site inspection of the accident location, spoke to Mr. Craig, . . . inspected the scooter
in question, measured the slope of the lump, compression tested and observed the surface of the
driveway, measured the scooter, reviewed deposition testimony of witnesses, defendants' own
materials and other relevant information." See id. Moreover, according to Plaintiff, Mr. Chen
used generally accepted engineering principles of physics, lateral stability and the stability
triangle to render an opinion as to how the accident at issue occurred and to identify the design
defects of the Go-Go Scooter. See id.
Finally, Plaintiff argues that Mr. Chen's opinions are not "unsupported conjecture" and
inconsistent with evidence. See id. To the extent that Defendants take fault with his use of
methodologies or lack of authority for his opinion, Plaintiff asserts that such arguments go to the
weight of the evidence, not the admissibility of his testimony. See id. at 12-13.

3. Analysis
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of
Evidence. That Rule provides as follows:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
8

issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Fed. R. Evid. 702.
In reviewing the admissibility of expert testimony, "the district court has a 'gatekeeping'
function under Rule 702 – it 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.'" Amorgianos v. Nat'l R.R.
Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S. Ct. 2786 (1993)). The rule set forth in Daubert
applies to scientific knowledge, as well as technical or other specialized knowledge. See Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
As the Second Circuit has explained,
[i]n fulfilling this gatekeeping role, the trial court should look to the
standards of Rule 401 in analyzing whether proffered expert
testimony is relevant, i.e., whether it 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. Next, the district court must determine whether the
proffered testimony has a sufficiently reliable foundation to permit
it to be considered. In this inquiry, the district court should
consider the indicia of reliability identified in Rule 702, namely, (1)
that the testimony is grounded on sufficient facts or data; (2) that
the testimony is the product of reliable principles and methods; and
(3) that the witness has applied the principles and methods reliably
to the facts of the case. In short, the district court 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.
Amorgianos, 303 F.3d at 265 (internal alterations, quotations, and citations omitted). The court
must also consider the fact that "experience in conjunction with other knowledge, skill, training or
9

education . . . [may] provide a sufficient foundation for expert testimony," and "[i]n certain fields,
experience is the predominant, if not sole, basis for a great deal of reliable expert testimony."
Advisory Committee Notes, 2000 Amendments, Fed. R. Evid. 702; see also 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").
"In undertaking this flexible inquiry, the district court must focus on the principles and
methodology employed by the expert, without regard to the conclusions the expert has reached or
the district court's belief as to the correctness of those conclusions." Amorgianos, 303 F.3d at 266
(citation omitted). "In deciding whether a step in an expert's analysis is unreliable, the district
court should undertake a rigorous examination of the facts on which the expert relies, the method
by which the expert draws an opinion from those facts, and how the expert applies the facts and
methods to the case at hand." Id. "A minor flaw in an expert's reasoning or a slight modification
of an otherwise reliable method will not render an expert's opinion per se inadmissible." Id.
"'The judge should only exclude the evidence if the flaw is large enough that the expert lacks
good grounds for his or her conclusions.'" Id. (quotation and other citation omitted).
As the courts and Advisory Committee have made clear, "the rejection of expert testimony
is the exception rather than the rule." Fed. R. Evid. 702, Advisory Committee's Note; see also
E.E.O.C. v. Morgan Stanley & Co., 324 F. Supp. 2d 451, 456 (S.D.N.Y. 2004); U.S. Info. Sys.,
Inc. v. Int'l Bhd. of Elec. Workers Local Union No. 3, 313 F. Supp. 2d 213, 226 (S.D.N.Y. 2004).
"This principle is based on the recognition that 'our adversary system provides the necessary tools
for challenging reliable, albeit debatable, expert testimony.'" Melini, 2009 WL 413608, at *5
(quoting Amorgianos, 303 F.3d at 267).

10

However, "when an expert opinion is based on data, methodology, or studies that are
simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the
exclusion of that unreliable opinion testimony." Amorgianos, 303 F.3d at 266; accord Ruggiero
v. Warner-Lambert Co., 424 F.3d 249, 253 (2d Cir. 2005).2 Furthermore, "it is critical that an
expert's analysis be reliable at every step." Amorgianos, 303 F.3d at 267. Of course, "the district
court must focus on the principles and methodology employed by the expert, without regard to the
conclusions the expert has reached or the district court's belief as to the correctness of those
conclusions." Id. at 266 (citing Daubert, 509 U.S. at 595). Nevertheless, "conclusions and
methodology are not entirely distinct from one another." Gen. Elec. Co. v. Joiner, 522 U.S. 136,
146 (1997). Accordingly, "[a] court may conclude that there is simply too great an analytical gap
between the data and the opinion proffered." Joiner, 522 U.S. at 146.
In the present matter, contrary to Defendants' assertions, a review of Mr. Chen's affidavit,
as well as his report and supplemental report, make clear that Mr. Chen's opinions and testimony
are sufficiently reliable and based on sufficient facts and data to permit him to testify at trial.
According to Mr. Chen, in reaching his conclusions, he visited and inspected the site of the
accident, reviewed deposition transcripts of the involved individuals, and operated the Go-Go

See also Zaremba v. Gen. Motors Corp., 360 F.3d 355, 358-60 (2d Cir. 2004) (holding
that expert testimony that was speculative and unreliable was properly not considered by the
district court on summary judgment); Dreyer v. Ryder Auto. Carrier Group, Inc., 367 F. Supp. 2d
413, 416-17 (W.D.N.Y. 2005) (noting that "[a]n otherwise well-credentialed expert's opinion may
be subject to disqualification if he fails to employ investigative techniques or cannot explain the
technical basis for his opinion"); Dora Homes, Inc. v. Epperson, 344 F. Supp. 2d 875, 887-89
(E.D.N.Y. 2004) (declining to consider plaintiff's expert's testimony in deciding pending motions
for summary judgment based on a finding that the expert's testimony "is unreliable under Fed. R.
Evid. 702 and the principles articulated in Daubert and its progeny," given that the expert (1)
qualified his opinions, (2) failed to support his opinions with any methodology which the court
could analyze, and (3) rested his opinions "upon nothing more than subjective belief and
unsupported speculation").
2

11

Scooter in the driveway where the accident is alleged to have occurred. See Dkt. No. 35-1.
Moreover, Mr. Chen inspected and analyzed the lump that is alleged to have caused the accident
and determined that if the rear wheel of the scooter went over the lump, it would have created a
sufficient angle to cause the scooter to tip. See id. at ¶ 8. Further, Mr. Chen explains that,
although he tested the scooter, he did not attempt to recreate the accident because it would have
caused risk of injury to himself and because it would have been "near impossible to recreate the
exact conditions which caused the scooter to tip, that is, the weight of Ms. Monell; her position
sitting on the scooter; and the exact manner the rear wheel hit the lump and the location of the
front wheel, which caused the lateral instability and the tipping over." See id.
In his affidavit, Mr. Chen provides the following regarding the investigation he conducted,
the methods he employed, and the conclusions he reached:
9.

I do not need to know the angle of the Go-Go scooter when
it encountered the lump or the different variables or how it
may have encountered the lump, because the accident
speaks for itself. It is my opinion, based upon a reasonable
degree of engineering certainty, that the only plausible
explanation for the scooter tipping over was the rear wheel
of the scooter encountering that 6.9° lump, upsetting the
stability triangle or the lateral stability, and throwing Ms.
Monell to the ground. The only evidence that I have is the
happening of the accident; my observations and
measurements of the lump in the area where Ms. Monell
was found; my review of the defendants' testing and
deposition testimony of their representative, Michael
Zablocky, and defendants' dynamic lateral stability testing
which indicates the scooter will tip at 5.75°.

10.

I have reviewed the applicable standards, ANSI/RENSA and
ISO, and they do not include, nor did the testing performed
by defendants' experts include, testing at the angle of least
stability, that is putting the front wheel and one of the rear
wheels perpendicular to the ramp incline, the condition
encountered in this accident by Ms. Monell.

12

11.

I have reviewed the Winter 2009/2010 catalogue which Mr.
Craig received and from which he subsequently ordered a
scooter for Ms. Monell. . . . The catalogue advertises both
the 3-wheel and 4-wheel model Go-Go Ultra X scooters on
the same page and makes no distinction between the two. . .
. The catalogue also states that when a consumer calls, a
"Product Consultant will ask about your needs to help you
find a scooter that's a perfect fit." . . . The catalogue makes
no reference to the difference in stability between the GoGo Ultra X 3-wheel model and 4-wheel model. The
catalogue also details their superior customer service in
assisting customers in choosing the correct and safest
scooter and names their product consultants experts in
scooters. . . . In addition, as referenced in my report, when I
visited the Pride Mobility website, there is nothing that
discussed lateral stability, or compared stability between the
Go-Go Ultra X 3-wheel model and 4-wheel model, or other
scooter models. The website also advertised the Go-Go
Ultra X as an indoor/outdoor scooter. . . .
*****

14.

It is my opinion, within a reasonable degree of engineering
certainty, that a substantial cause of Ms. Monell's accident
was the raised lump in the driveway adjacent to the tree, that
was difficult to see because the driveway and adjacent areas
are comprised of hard compacted soil and rock, causing the
scooter to tip. The scooter was advertised as a scooter that
could be used on outdoor surfaces. The fact that this
accident happened represents an improper design and a
failure to provide adequate warnings regarding the lateral
stability and appropriate use of the scooter.

15.

The product was therefore not fit for the ordinary purpose
for which defendants claim it could be used; that is, as an
outdoor scooter. The design was improper because it could
not withstand the driveway deviation (the lump) in this case,
which was well within its intended purpose. Further, the
design was improper with respect to warning that should
have been posted directly on the scooter, warnings of
limitations in its lateral stability.

16.

An alternative design that would have prevented this
incident is a 4-wheel scooter, that would have offered the
lateral stability necessary, given the factors present in this
case.
13

*****
18.

It is my opinion, within a reasonable degree of engineering
certainty, that a substantial cause of the subject accident was
a lack of warning labels with regard to lateral stability, or
stability of a 3-wheel versus 4-wheel scooter, necessary for
a consumer, like Ms. Monell and/or her agents, to make
informed safety decisions. The warnings are inadequate to
property advise a person of the dangers of lateral stability on
a 3-wheeled scooter. That defendants provided no limits,
guidelines or inspection criteria for users to follow regarding
surfaces and lateral stability or position of least stability.
An appropriate warning would have been, not to operate it
on packed soil, grass and gravel because you may encounter
"lumps", such as Ms. Monell did in the current case.

See id. at ¶¶ 9-11, 14-16 & 18 (citations omitted).
Mr. Chen's report goes on to discuss, in more detail, the testing that he performed, as well
as testing performed by Defendant Pride Mobility, on this three-wheeled scooter. See Dkt. No.
35-3 at 9-11. Mr. Chen concludes that Defendant Pride Mobility did not test the stability of this
scooter "per the ANSI/RESNA standard or company specific standards that mimicked this kind of
lump," which caused the scooter to be placed in the "angle of least stability (putting the front
wheel and one of the rear wheels perpendicular to the ramp incline)." See id. at 10.
While many of Defendants' contentions are sensible, they simply go to the weight of
Plaintiff's expert's testimony and do not provide a basis for exclusion. See Demar v. D.L.
Peterson Trust, No. 1:05-cv-103, 2006 WL 2987314, *5 (N.D.N.Y. Oct. 13, 2006). It is clear that
Mr. Chen's initial report, supplemental report, and affidavit rest on a sufficiently reliable
foundation and are relevant to the issues presented. See Amorgianos, 303 F.3d at 265 (citation
omitted); see also Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995) (holding that the Supreme
Court in Daubert "expressed its faith in the power of the adversary system to test 'shaky but
admissible' evidence, . . . and advanced a bias in favor of admitting evidence short of that solidly
14

and indisputably proven to be reliable" (quotation omitted)). Finally, the Court finds no valid
basis for Defendants' argument that since Mr. Chen "is not an expert in FDA regulations, nor an
expert in the sale of mobility products," his testimony must be excluded. See Floyd v. Pride
Mobility Products Corp., No. 1:05-CV-389, 2007 WL 4404049, *5 (S.D. Ohio Dec. 12, 2007)
(holding that the plaintiffs' experts, who held degrees in electrical engineering, mechanical and
human factors engineering, were qualified to testify as experts despite their "lack of experience in
the 'scooter industry'"); Santoro v. Donnelly, 340 F. Supp. 2d 464, 473 (S.D.N.Y. 2004) (holding
that "[t]he question is not whether the engineer is an expert on the exact issues presented in the
case, but rather, whether his general engineering experience qualifies him to testify in an area in
which he does not have extensive experience"). Mr. Chen's credentials clearly demonstrate that
he is sufficiently qualified to testify as an expert in this case, in the manner proposed.
Based on the foregoing, the Court finds that Mr. Chen's opinions are based on sufficient
data related to the scooter and accident in question, and are sufficiently grounded in his
engineering discipline so as to justify their admission. As such, the Court denies Defendants'
motion to exclude the testimony of Plaintiff's expert witness.

B.

Defendants' motion for summary judgment
1. Standard of review
A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at
15

36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where
the non-movant either does not respond to the motion or fails to dispute the movant's statement of
material facts, the court may not rely solely on the moving party’s Rule 56.1 statement; rather, the
court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment "would derogate the truth-finding
functions of the judicial process by substituting convenience for facts").

2. Products liability
"In New York, a plaintiff injured by an allegedly defective product may seek recovery
against the manufacturer on the basis of any one or more of four theories of liability," including
contract (express or implied), negligence, or strict products liability. Voss v. Black & Decker
Mfg. Co., 59 N.Y.2d 102, 106 (1983) (citing Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d
395, 373 N.Y.S.2d 39, 335 N.E.2d 275, 276-77 (1975)). Although the available defenses and
applicable limitations principles of the various liability theories differ, there can be "a high degree
of overlap between the substantive aspects" of the causes of action. Denny v. Ford Motor Corp.,
87 N.Y.2d 248, 256 (1995) (citation omitted).
16

a. Strict products liability
Established New York law holds "that 'the manufacturer of a defective product is liable to
any person injured or damaged if the defect was a substantial factor in bringing about his injury or
damages; provided (1) that at the time of the occurrence the product is being used . . . for the
purpose and in the manner normally intended, (2) that if the person injured or damaged is himself
the user of the product he would not by the exercise of reasonable care have both discovered the
defect and perceived its danger, and (3) that by the exercise of reasonable care the person injured
or damaged would not otherwise have averted his injury or damages.'" Voss, 59 N.Y.2d at 106
(quoting Codling v. Paglia, 32 N.Y.2d 330, 342, 345 N.Y.S.2d 461, 298 N.E.2d 622, 628-29
(1973)). A manufacturer may be liable under strict products liability for defective products based
on a "manufacturing flaw, improper design or failure to warn." Sukljian v. Charles Ross & Son
Co., Inc., 69 N.Y.2d 89, 94 (1986) (citations omitted). Specifically, under strict products liability,
a manufacturer which places a defective product on the market is liable for injury resulting from
using the product for its intended or reasonably foreseeable purposes. See Denny, 87 N.Y.2d 248,
258-59 (1995). In the present matter, Plaintiff alleges strict products liability claims of defective
design and failure to warn.

i. Defective design
Defendants argue that, even if Mr. Chen is allowed to testify, Plaintiff has still failed to
establish that a design defect proximately caused the incident at issue. See Dkt. No. 31-10 at 13.
Defendants argue that Mr. Chen acknowledges that the three-wheel scooters provide superior
mobility and handling in the mall environment in which Plaintiff was intending to use the scooter
17

and that it "was reasonably safe for the intended use as a travel scooter, except for in the specific
driveway at the Monell residence." See id. (citing Exh. U, p. 265-267). Further, Defendants
claim that Plaintiff fail to meet the second prong of this claim because Mr. Chen did not opine
that it was feasible to design the Go-Go Scooter in a safer manner or that any proposed design
change would have prevented Plaintiff's injuries. See id. at 10.
To establish a prima facie case in strict products liability based on design defect, "'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.'" Adams v. Genie Industries, Inc., 14 N.Y.3d 535,
542 (2010) (quotation omitted).3 Whether a product "is not reasonably safe" has been described
as follows: "'whether . . . if the design defect were known at the time of the manufacture, 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. (quotation omitted). Therefore, to succeed
on her claim, Plaintiff must establish that (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 her injury. See Voss, 59 N.Y.2d at 108
(citation omitted).
A finding of such liability requires the jury to balance the risks of using the product in its
present condition against the product's risks and costs, and against the risks, usefulness and costs

"In design defect cases, the alleged product flaw arises from an intentional decision by
the manufacturer to configure the product in a particular way. In contrast, in strict products
liability cases involving manufacturing defects, the harm arises from the product's failure to
perform in the intended manner due to some flaw in the fabrication process. In the latter class of
cases, the flaw alone is a sufficient basis to hold the manufacturer liable without regard to fault."
Denny, 87 N.Y.2d at 257 n.3 (citation omitted).
3

18

of using the alternative design instead of the one creating the alleged defect. See Denny, 87
N.Y.2d at 257 (citation omitted). In balancing the inherent risks of a product as designed, against
its utility and cost, the following factors may be considered:
(1) the utility of the product to the public as a whole and to the
individual user; (2) the nature of the product – that is, the likelihood
that it will cause injury; (3) the availability of a safer design; (4) the
potential for designing and manufacturing the product so that it is
safer but remains functional and reasonably priced; (5) the ability of
the plaintiff to have avoided injury by careful use of the product; (6)
the degree of awareness of the potential danger of the product
which reasonably can be attributed to the plaintiff; and (7) the
manufacturer's ability to spread any cost related to improving the
safety of the design.
Voss, 59 N.Y.2d at 109 (citations omitted).
In the present matter, contrary to Defendants' assertions, Plaintiff has created questions of
fact as to this claim that preclude summary judgment. Specifically, Mr. Chen stated in his report
that a cause of Plaintiff's accident was the fact that she chose the Go-Go Ultra X three-wheeled
scooter, as opposed to other available models, because this version did not provide sufficient
lateral stability in certain situations. See Dkt. No. 35-3 at 10-11. Further, Mr. Chen stated that,
unlike Plaintiff's previous "legacy scooter," which had a thirty-six (36) inch wheel base and a
twenty-four (24) inch track, the Go-Go Ultra X scooter had only a twenty-eight (28) inch wheel
base and an eighteen (18) inch track width. See id. at 10. Therefore, Plaintiff may not have been
aware of an increased likelihood that her new scooter would tip in certain conditions. Mr. Chen
further states that a four-wheel scooter would have provided more stability and may have
prevented this injury. See id. at 11. Moreover, in his deposition, Mr. Chen again stated that a
four-wheeled scooter would have provided more stability and that the four-wheeled version
would of served the intended purpose, i.e., a travel scooter that can be easily transported. See
Dkt. No. 30-9 at 248-51. Although a four-wheeled scooter could still possibly tip, Mr. Chen
19

made clear that such an incident was less likely because of the greater stability provided by the
four-wheel model. See id. at 251-52.
Additionally, the fact that Defendants have presented conflicting expert testimony that the
Go-Go scooter was safe as designed creates questions of fact and credibility determinations to be
answered by the jury. See Wojcik v. Empire Forklift, Inc., 14 A.D.3d 63, 65 (3d Dep't 2004)
(citation omitted). Although Defendants criticize Plaintiff and Mr. Chen for failing to "opine that
it was feasible to design the GoGo Scooter in a safer manner," his opinion that the four-wheel
version of the scooter was safer, suitable for the intended purpose, and that it may have prevented
the injury is sufficient to withstand Defendants' motion. See Humphrey v. Diamant Boart, Inc.,
556 F. Supp. 2d 167, 178 (E.D.N.Y. 2008) (holding that the plaintiff's expert did not need to test
his theory of alternative feasible design because "such testing is not required to establish
feasibility if the expert can point to an existing design in the marketplace" (citation omitted)); see
also Bah v. Nordson Corp., No. 00 CIV 9060, 2005 WL 1813023, *8 (S.D.N.Y. Aug. 1, 2005)
(citations omitted).
Based on the foregoing, the Court denies Defendants' motion for summary judgment as to
Plaintiff's design defect claim.

ii. Failure to warn
Plaintiff also seeks to hold Defendants liable under negligence and strict liability for their
failure to provide adequate warnings. Defendants argue that Plaintiff did not read the Owner's
Manual that accompanied the Go-Go Scooter or the marketing literature about the product, and
she never spoke with anyone from Pride Mobility or the Scooter Store; and, therefore, there is no
basis for any claim that the incident was proximately caused by the failure to provide adequate
20

warnings. See Dkt. No. 31-10 at 15. Moreover, Defendants claim that Mr. Chen admits that Mr.
Craig and Plaintiff should have followed the warnings provided with and on the scooter. See id.
Finally, Plaintiff argues that Plaintiff has not offered any proposed alternative warning(s) which
would have prevented the incident. See id.
Under New York law, "[a] manufacturer has a duty to warn against latent dangers
resulting from foreseeable uses of its product of which it knew or should have known." Liriano v.
Hobart Corp., 92 N.Y.2d 232, 237 (1998) (citing Rastelli v. Goodyear Tire & Rubber Co., 79
N.Y.2d 289, 297, 591 N.E.2d 222, 582 N.Y.S.2d 373 (1992)). A plaintiff must show a breach of
that duty and "that the failure to warn was the proximate cause of his [or her] injury." Henry v.
Rehab Plus Inc., 404 F. Supp. 2d 435, 442 (E.D.N.Y. 2005) (citations omitted); see also Howard
v. Poseidon Pools, Inc., 72 N.Y.2d 972, 974 (1988). Thus, to make out a prima facie case in
negligence and strict liability, a plaintiff asserting a failure to warn claim must establish that (1)
the manufacturer had a duty to warn, i.e., it knew or should have known of latent dangers
resulting from intended or reasonably foreseeable unintended uses of the product; (2) the plaintiff
used the product in a reasonably foreseeable manner; and (3) the manufacturer's failure to provide
a warning was the cause of the plaintiff's harm. See Santoro ex rel. Santoro v. Donnelly, 340 F.
Supp. 2d 464, 485-86 (S.D.N.Y. 2004) (citation omitted); see also Liriano, 92 N.Y.2d at 237
(citations omitted).
"In New York, there is a presumption that a user would have heeded warnings if they had
been provided and that the injury would not have occurred." Henry v. Rehab Plus Inc., 404 F.
Supp. 2d 435, 442 (E.D.N.Y. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986)). Moreover, "[a] defense to liability for failure to warn exists
when the injured party had actual knowledge of the danger." Id. (citations omitted).
21

It is well-settled that a manufacturer has a duty to warn (1) "against latent dangers
resulting from foreseeable uses of its product of which it knew or should have known," and (2)
"of the danger of unintended uses of a product provided these uses are reasonably foreseeable."
Liriano v. Hobart Corp. ("Liriano I"), 92 N.Y.2d 232, 237 (1998). "Under New York law, the
jury does not need expert testimony to find a warning inadequate, but may use its own judgment
concerning all the circumstances." Billiar v. Minn. Mining and Mfg. Co., 623 F.2d 240, 247 (2d
Cir. 1980) (citing Rainbow v. Albert Elia Bldg. Co., 49 A.D.2d 250, 373 N.Y.S.2d 928, 931 (N.Y.
App. Div. 1975) ("[R]ecovery [under a failure to warn theory] ultimately depends upon a
subjective determination by the trier of the facts of what constitutes reasonable warning under all
the circumstances") and Young v. Elmira Transit Mix, Inc., 52 A.D.2d 202, 383 N.Y.S.2d 729,
731 (N.Y. App. Div. 1976)). Moreover, the New York State Court of Appeals has described the
standard for evaluating "failure-to-warn" liability 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 I, 92 N.Y.2d at 243. 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." Urena v. Biro Mfg. Co., 114 F.3d 359, 366 (2d Cir. 1997) (citing Beyrle v.
Finneron, 199 A.D.2d 1022, 606 N.Y.S.2d 465, 466 (N.Y. App. Div. 1997)); see also Liriano v.
Hobart Corp. ("Liriano II"), 132 F.3d 124, 131 (2d Cir. 1998) (stating that the 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)).
There are certain circumstances, however, where failure to warn claims can be decided as
22

a matter of law: (1) "where the injured party was fully aware of the hazard through general
knowledge, observation or common sense, or participated in the removal of the safety device
whose purpose is obvious"; or (2) where the hazards are "patently dangerous or pose open and
obvious risks." Liriano I, 92 N.Y.2d at 241.
In the present matter, contrary to Defendants' arguments, Plaintiff has put forth sufficient,
admissible evidence to create questions of fact to defeat the pending motion for summary
judgment. In his affidavit, Mr. Chen opined that this accident could have been avoided had
Defendants provided adequate warnings in the marketing material and on the scooter itself
informing their customers about "lateral stability and appropriate use of the scooter." See Dkt.
No. 35-1 at ¶¶ 14-15. Mr. Chen specifically states that not only was the warning itself materially
inadequate, but that the location of the warning was insufficient as well. See id. at ¶ 15.
According to Mr. Chen, a warning should have been placed on the scooter itself warning Plaintiff
about the potential that the scooter may tip when used in a certain manner. See id. Finally, Mr.
Chen states that "[D]efendants provided inadequate information to the [P]laintiff and other end
users, with regard to the product's lateral stability or stability in positions of least stability, in
order for the customer, like [P]laintiff, to make an informed decision about whether this scooter
was the proper one to purchase." See id. at ¶ 17.
Moreover, the fact that neither Plaintiff nor Mr. Craig read the Owner's Manual or the
other material that came with the scooter is not dispositive under New York law in connection
with a failure to warn claim. See Humphrey, 556 F. Supp. 2d at 180-81. "First, a plaintiff may be
able to argue that the warnings, in addition to being substantively inadequate, were insufficiently
conspicuous or prominent and, thus, be able to overcome his or her failure to read them." Id. at
181 (citations omitted); see also Derienzo v. Trek Bicycle Corp., 376 F. Supp. 2d 537, 568
23

(S.D.N.Y. 2005) ("While it is true that, in many cases, a plaintiff who admits that he failed to read
a warning that was issued with the product will have failed to show that any deficiency in that
warning was the proximate cause of his injuries, plaintiff's failure to read an insufficiently
conspicuous or prominent warning will not necessarily defeat the causation element of a failure to
warn claim" (citations omitted)); Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 443 (S.D.N.Y.
1999) ("[T]he location and conspicuousness of the warnings (whether that be based on label or
letter size, color, or other attributes of conspicuousness), and the role those factors played in the
plaintiff's failure to read them, as well as the content and clarity of those warnings, are disputed
issues in this case, and the plaintiff's failure to read the warnings should not, in and of itself,
prevent the 'failure to warn' claim from going before the jury" (citations omitted)); German v.
Morales, 24 A.D.3d 246, 247 (1st Dep't 2005) ("A jury could reasonably conclude, on the basis of
the warnings that the expert asserts should have been included on the label, that the warnings that
were included were inadequate and inconspicuous. Under such circumstances, a manufacturer
who provides insufficient warnings cannot avoid liability solely because the plaintiff did not read
the warnings that were provided" (citation omitted)).
"Second, a plaintiff also 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 181-82 (citations omitted).
In the present matter, as discussed above, Plaintiff, through her expert, has cited to alleged
inadequacies in the substance of the warnings that were provided and to their conspicuousness,
including the failure to include such a warning in the marketing material and on the scooter itself.
24

In short, these factual issues as they relate to the conspicuousness and substance of the warnings,
and whether Mr. or Mrs. Craig would have conveyed to Plaintiff any warnings had they been
more conspicuously placed preclude granting Defendants' motion for summary judgment.
Based on the foregoing, the Court denies Defendants' motion for summary judgment as to
this claim.

b. Negligence
Defendants claim that "New York courts generally consider strict products liability and
negligence claims to be 'functionally synonymous.'" See Dkt. No. 31-10 at 15 (quotation and
other citation omitted). As such, Defendants argue that, since they are entitled to summary
judgment with respect to Plaintiff's strict liability claims, they are also entitled to summary
judgment with regard to Plaintiff's negligence claims. See id. at 16.
Although Plaintiff asserts her design defect claim under theories of strict products liability
and negligence, the same prima facie case is required under both theories. See Jarvis v. Ford
Motor Co., 283 F.3d 33, 62-63 (2d Cir. 2002) (citing Denny v. Ford Motor Co., 87 N.Y.2d 248,
639 N.Y.S.2d 250, 662 N.E.2d 730, 735 (1995)) ("In general, . . . the strict liability concept of
'defective design' is functionally synonymous with the earlier negligence concept of unreasonable
designing" (internal citation omitted)). In particular, the decisive question for both strict liability
and negligent design causes of action is whether the evidence establishes that the product "was
'not reasonably safe' as Voss defines the term." Adams v. Genie Industries, Inc., 14 N.Y.3d 535,
543 (2010). Moreover, it is well-settled law that "'[w]here liability is predicated on a failure to
warn, New York views negligence and strict liability claims as equivalent.'" Estrada v. Berkel
Inc., 14 A.D.3d 529, 530 (2d Dep't 2005) (quotation omitted).
25

Since the Court has denied Defendants' motion for summary judgment as to Plaintiff's
strict liability claims, Defendants' arguments as to Plaintiff's negligence claims must also fail. As
such, the Court denies Defendants' motion seeking dismissal of Plaintiff's negligence claims.

c. Breach of implied warranties of merchantability and fitness for a particular
purpose
Defendants argue that the Court must dismiss Plaintiff's breach of warranty claims
because they are "co-extensive with their tort based claims[.]" See Dkt. No. 31-10 at 16 (citations
omitted).
Causes of action for breach of implied warranties bear a strong resemblance to those for
strict products liability. Under a theory of breach of implied warranty of merchantability or
breach of implied warranty of fitness for a particular purpose, the inquiry is focused on consumer
expectations when the product "was being used for the purpose and in the manner intended."
Beneway v. Superwinch, Inc., 216 F. Supp. 2d 24, 30 (N.D.N.Y. 2002) (citation omitted). "A
product must be 'fit for the ordinary purposes for which such goods are used' to be considered
merchantable under New York's version of the Uniform Commercial Code." Derienzo v. Trek
Bicycle Corp., 376 F. Supp. 2d 537, 570 (S.D.N.Y. 2005) (quotation and other citation omitted).
As the New York State Court of Appeals has made clear, it is not true as a matter of law
that all breach of implied warranty claims are duplicative of their more modern strict products
liability cousins. See Denny, 87 N.Y.2d at 256. An implied warranty claim asks only whether the
product was fit for its intended purpose, while the strict liability claim requires a risk-utility
balancing test which takes into account the utility of the product, the feasibility of an alternative
design and the risk of injury. See Donald v. Shinn Fu Co. of Am., No. 99-CV-6397, 2002 WL
32068351, *4 (E.D.N.Y. Sept. 4, 2002) (citation omitted). A finding that a products liability
26

claim and a breach of implied warranty claim are distinct "requires a showing that the 'ordinary
purpose' for which the product was sold and marketed is not the same as the purpose that provides
the utility that outweighs the risk of injury." Gonzalez by Gonzalez v. Morflo Indust., Inc., 931 F.
Supp. 159, 167 (E.D.N.Y. 1996) (quotation omitted). Thus,
[i]n some cases, a rational factfinder could conclude that a design
defect that is not actionable in tort may nevertheless support a
viable contract claim [i.e., a breach of implied warranty claim].
That is, the factfinder could simultaneously conclude that a
product's utility outweighs the risk of injury and that the product
was not safe for the "ordinary purpose" for which it was marketed
and sold.
Id. (citing Denny, 87 N.Y.2d at 263, 639 N.Y.S.2d at 258, 662 N.E.2d at 735).
For example, in Denny, a tort suit concerning a Ford Bronco, the New York State Court of
Appeals concluded that a jury could rationally find that the vehicle's use as an off-road vehicle
outweighed the risk of injury from "rollovers," but that the vehicle was not safe for its "ordinary
purpose" of road driving. See Denny, 87 N.Y.2d at 263. Similarly, in Donald, a case concerning
the safety of a jack used to raise forklifts so that repairs could be completed on their undersides,
the court concluded that a reasonable jury could find that the "jack's 'ordinary purpose' as
marketed is to hold in place fork lifts while repairs are made, while defendants could show that
the utility of having a product that elevates (but doesn't hold in place) a fork lift outweighs the
risk that it could collapse while being jacked up." Donald, 2002 WL 32068351 at *5.
In the present matter, Defendants have simply asserted that Plaintiff's product liability and
breach of implied warranty claims are "co-extensive" and should therefore be dismissed. By
simply asserting that the claims are redundant with no more detailed argument, Defendants have
not demonstrated that they are entitled to summary judgment on this claim. See Henry v. Rehab
Plus Inc., 404 F. Supp. 2d 435, 444 (E.D.N.Y. 2005). Drawing all reasonable inferences from the
27

record in Plaintiff's favor, Plaintiff could demonstrate, for example, that the scooter's "ordinary
purpose" was as a travel scooter, which would foreseeably be used for periods of time outdoors to
achieve that purpose, which it is not fit to do. Defendants, however, could demonstrate that the
utility of having a three-wheeled scooter which is lighter and has a greater turning radius
outweighed the risk that, in certain situations, the scooter might tip. See id.
Accordingly, Defendants have failed to establish that Plaintiff's breach of implied
warranty claims are identical to her strict products liability claims; and, therefore, Defendants'
motion for summary judgment as to Plaintiff's breach of implied warranty claims is denied.4

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion to exclude Plaintiff's expert is DENIED; and the Court
further
ORDERS that Defendants' motion for summary judgment is GRANTED in part and

In its motion for summary judgment, Defendants argue that Plaintiff's breach of an
express warranty claim must be dismissed because Defendants never made any express warranties
regarding the scooter that induced Plaintiff to make the purchase. See Dkt. No. 31-10 at 16-17.
In her response to the motion, Plaintiff does not address Defendants' contention that her claim for
breach of express warranties must be dismissed. See Dkt. No. 34 at 21-23. In light of Plaintiff's
failure to respond to Defendants' argument that her breach of express warranty claims must be
dismissed, the Court finds that Plaintiff has abandoned these claims. See Taylor v. City of New
York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (holding that "[f]ederal courts may deem a claim
abandoned when a party moves for summary judgment on one ground and the party opposing
summary judgment fails to address the argument in any way" (citation omitted)). Accordingly,
the Court grants Defendants motion for summary judgment as to Plaintiff's breach of express
warranty claims.
4

28

DENIED in part; and the Court further5
ORDERS that Defendants' counsel shall initiate a telephone conference, using a
professional conferencing service, with the Court and Plaintiff's counsel on Tuesday, October 2,
2012, at 11:00 a.m., to discuss a schedule for the trial of this matter; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: September 14, 2012
Albany, New York

Defendants' motion for summary judgment is only granted as to Plaintiff's breach of
express warranty claims.
5

29