Bourassa v. Black & Decker (U.S.) Inc. et al
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendants' # 17 motion to exclude the expert testimony of Plaintiff's witness, Roger N. Wright, and for summary judgment dismissing Plaintiff's complaint in its entirety is GRANTED. The Court further ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case. Signed by Senior Judge Frederick J. Scullin, Jr. on 8/7/2015. (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
WILLIAM ANTHONY BOURASSA,
BLACK & DECKER (U.S.) INC. and
DEWALT INDUSTRIAL TOOL CO.,
LAW OFFICE OF PAUL
20 Prospect Street
Ballston Spa, New York 12020
Attorneys for Plaintiff
PAUL PELAGALLI, ESQ.
THORN GERSHON TYMANN AND
5 Wembley Court
New Kerner Road
P.O. Box 15054
Albany, New York 12212-5054
Attorneys for Defendants
ARTHUR H. THORN, ESQ.
MATTHEW H. MCNAMARA, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
William Anthony Bourassa (“Plaintiff”), who is a resident of New York State, brings this
case against Defendant Black & Decker (U.S.) Inc. (“Defendant” or “Black & Decker”), a
Maryland corporation, 1 alleging five causes of action, to wit (1) negligence, (2) defective
design, 2 (3) failure to warn, (4) strict products liability, and (5) breach of express and implied
warranty as a result of injuries he sustained from a drill that Defendant manufactured and sold.
Currently before the Court is Defendant’s motion for an order excluding the expert
testimony of Plaintiff’s witness, Roger N. Wright, and for summary judgment dismissing
Plaintiff’s complaint in its entirety.
Plaintiff alleges that he purchased a DeWalt Heavy-Duty ½ inch (13 mm) drill, model
number DW235G and serial number 831265 (“the DeWalt drill”) from retailer Curtis Lumber in
the Town of Ballston Spa, New York on or about August 28, 2009. See Complaint at ¶ 10.
Plaintiff alleges that Defendant Black & Decker designed, manufactured, tested, warranted,
distributed, and sold the DeWalt drill. See id. at ¶¶ 12-13. Plaintiff alleges that on October 30,
2009, at approximately 5:00 p.m., while operating the aforementioned DeWalt drill for its
Defendant DeWalt Industrial Tool Co. (“Defendant” or “DeWalt”) is not a legal corporate
entity. See Answer at 1. DeWalt is a business trade name that Defendant Black & Decker uses.
See Complaint at ¶ 8; Answer at 1. The Court will therefore address Defendant in the singular.
Plaintiff uses the language “defectively designed and manufactured” in his Complaint. See
Complaint at ¶ 21. However, Plaintiff admits, “There is no allegation of a manufacturing
defect.” See Response to Interrogatories at ¶ 11.
intended and reasonably foreseeable purpose, Plaintiff was seriously injured due to the defective
condition of the DeWalt drill. See id. at ¶ 15.
Plaintiff alleges that there is a design defect in the DeWalt drill, which caused the slide
handle’s grip on the rest of the drill to slip, allowing the drill to rotate while the side handle
remained static, thereby causing his injury.
Standard of review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall grant
summary judgment if the movant shows 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). At the
summary judgment stage, the court’s role is to determine “whether there is the need for a trial—
whether, in other words, there are any genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In making this determination, the court must
view the evidence in the record and draw all reasonable inferences in the light most favorable to
the non-moving party. See Consol. Risk Servs., Inc. v. Auto. Dealers WC Self Ins. Trust, No.
1:06–CV–871, 2010 WL 2735701, *3 (N.D.N.Y. July 9, 2010) (citation omitted).
Plaintiff’s first, second, and fourth causes of action for negligence, negligent design,
and strict products liability
Plaintiff has conceded, “There is no allegation of a manufacturing defect.” See Response
to Interrogatories at ¶ 11. He has alleged no other negligent activity besides Defendant’s design
of the DeWalt drill. See Complaint at ¶¶ 17-18, 21-24. His first cause of action for negligence is
therefore duplicative of his second cause of action for defective design.
Furthermore this Court has recognized that “New York courts generally consider strict
products liability and negligence claims based on defective design to be ‘functionally
synonymous.’” Pinello v. Andreas Stihl AG & Co. KG, No. 8:08-CV-00452, 2011 WL 1302223,
*16 (N.D.N.Y. Mar. 31, 2011) (citing Penny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d
650, 662 N.E.2d 730 (1995)). Courts analyze both types of claims under a single test. See id.
(citations omitted). Therefore, Plaintiff’s negligence and defective design claims are both
subsumed by his claim of strict products liability, which this Court will now address.
Strict liability claim based on defective design
As the court stated in Quiles v. Bradford-White Corp.,
“In order 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.”
No. 10-CV-747, 2012 WL 1355262, *4 (N.D.N.Y. Apr. 18, 2012) (quoting Voss v. Black &
Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983)). In order to
determine whether Defendant marketed the DeWalt drill with a design defect, the Court must
determine whether a reasonable person, knowing of the product’s condition, “‘would conclude
that the utility of the product did not outweigh the risk inherent in marketing a product designed
in that manner.’” Steuhl v. Home Therapy Equip., Inc., 51 A.D.3d 1101, 1103-04 (3d Dep’t
2008) (quoting Denny v. Ford Motor Co., 87 N.Y.2d 248, 257 , quoting Voss v. Black &
Decker Mfg. Co., 59 N.Y.2d at 108).
This requirement usually demands that a plaintiff introduce expert testimony that a
feasible alternative design exists. See Quiles, 2012 WL 1355262, at *4 (quotation omitted).
Specifically, the plaintiff’s expert must “demonstrate[e], through testing and construction of a
prototype, that an alternative is feasible, practical, economical and safe; or, [otherwise, that
other] manufacturers of similar equipment . . . have put the proposed design into use.” Id. at *5
(citing Rypkema v. Time Mfg. Co., 263 F. Supp. 2d 687, 692 (S.D.N.Y. 2003). “’The only
exception to this rule is if a reasonable alternative design is both obvious to and understandable
by a layperson.’” Id. (quoting Soliman v. Daimler, AG, 2011 WL 6945707, at *5 (E.D.N.Y.
Aug. 8, 2011)).
Here, Plaintiff has not properly offered 3 an alternative to Defendant’s design of the
DeWalt drill, nor has he alleged that an alternate design would be obvious to or understandable
by a layperson. Therefore, an expert’s testimony is required.
Rule 702 of the Federal Rules of Evidence governs the admissibility of all expert
testimony and provides, in pertinent part, as follows:
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 upon 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.
Plaintiff’s proffered expert submitted an untimely affidavit in which he alleged that other drills
use an alternate design to achieve similar effects. See Dkt. No. 20-1, Affidavit in Opposition to
the Defendants’ Motion for Summary Judgment (“Wright Aff.”) at ¶ 11. For reasons discussed
in n.3, infra, this Court will not consider this untimely submission.
As an initial matter, the expert must be qualified to testify in the specific technical or
specialized area at issue. See Eagleston v. Guido, 41 F.3d 865, 873-74 (2d Cir. 1994). An
expert, although generally qualified, may not be competent to render opinions under the
circumstances of a particular case which are outside the expert’s area of expertise. See
Quintanilla v. Komori Am. Corp., No. CV 04-5227, 2007 WL 1309539, *4 (E.D.N.Y. May 4,
2007), aff’d, 2009 WL 320186 (2d Cir. Feb. 10, 2009).
The court must next determine whether the expert’s methodology is reliable and
trustworthy. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993); see also Fed.
R. Evid. 401. Where an expert’s analysis regarding the dangers of a product have not been
tested, where the analysis has not been submitted to peer review, and where the expert makes no
reference to the rate of error in his analysis or its general acceptance within the scientific
community, this Court has found that such evidence must be precluded due to its lack of reliable
foundation. See Pinello, 2011 WL 1302223, at *9.
Furthermore, an expert opinion that is not “sufficiently tied” to the facts of the case and
reliably applied to those facts does not adequately fulfill the requirements for admissibility.
Daubert, 509 U.S. at 591-92 (quotations omitted); see also Amorgianos v. Nat’l R.R. Passenger
Corp., 303 F.3d 256, 265 (2d Cir. 2002); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
Plaintiff’s proffered expert, Dr. Wright, is a metallurgical and materials engineer by
training and experience. See Dkt. No. 17-16, Deposition of Roger N. Wright, Sc.D. (“Wright
Depo.” at 4-5). Dr. Wright opines that the slide handle on the DeWalt drill “presents a major
hazard insofar as it is vulnerable to gross slipping, resulting in loss of operator control.” See
generally Dkt. No. 17-6, Remarks on the Failure of a DeWALT Model DW235G Heavy Duty ½-
inch Drill Assembly (“Wright Report”) at 5. He further opines that this slippage is due to the
fact that the contact areas between the side handle and the drill are made of “aluminum alloy, and
aluminum alloys are vulnerable to unstable ‘stick-slip’ response to frictional contact.” See id.
He further states that the “instructions provided with the drill and the side handle are quite
inadequate . . .” for instructing the user as to how to properly twist the slide grip until the
connection is tight enough. See id. At one point, Dr. Wright states,
The interface between the side handle ring and the smooth
cylindrical surface of the drill involves no “tongue-ingroove” relationship (parallel to the drill axis) which would
“back-stop” respective motion of the side handle ring and
smooth drill surface, in the event of a frictional breakdown.
See id. at 2. He further opines that the drill responds in an unstable manner to its variable speed
trigger, which “can destabilize the loading on the side handle attachment, thus increasing the risk
of an injury such as sustained by Mr. Bourassa.” See id. at 5.
Defendant argues that Dr. Wright is not qualified to testify under Rule 702 because he
has no familiarity with applicable standards on the design and manufacture of power drills, nor
has he reviewed materials relevant to the action in rendering his opinions. See Dkt. No. 17-22,
Defendant’s Memorandum of Law (“Defendant’s Memo.”) at 8-9. Alternatively, Defendant
contends that, even if Dr. Wright is qualified to testify, the methodology underlying his opinions
is insufficiently reliable. See id.
Defendant also argues that Dr. Wright’s proffered testimony is based upon insufficient
facts or data, which would fail to satisfy one of the Amorgianos criteria for admissibility of
expert testimony. See id. at 9; Amorgianos, 303 F.3d at 265. Defendant notes that Dr. Wright’s
report lacks any indicia that he considered materials that Defendant provided for this case,
including deposition transcripts and engineering and design materials. See Defendant’s Memo.
at 9 (citing Wright Report). The user comments on Amazon.com, which Dr. Wright did consider,
Defendants describe as unreliable and unsubstantiated.
Defendant further notes that Dr. Wright’s report indicates he analyzed only an exemplar
of the DeWalt drill and not the drill that allegedly harmed Plaintiff. See id. (citing Wright
Finally, Defendant argues that Dr. Wright’s report failed to offer an alternative design to
that of the DeWalt drill, as required to establish a prima facie case of design defect under New
York Law according to Quiles. See id. at 10; Quiles, 2012 WL 1355262, at *4.
Plaintiff argues that Dr. Wright’s “extensive teaching and research experience in
metallurgy and metals processing” as well as his experience as the owner of a “private consulting
business” qualify him to testify as an expert in this case. See Dkt. No. 19 at 5. Plaintiff points
out that Dr. Wright “examined the subject drill and side handle” as well as an exemplar thereof,
and he did speak with Plaintiff himself about what happened on the day of the accident. See id.
Plaintiff argues that Dr. Wright used reliable methods of measuring “the instability of the
coefficient of friction that results from scoring on the aluminum alloy surfaces of the drill body
and the side handle.” See id. at 6. Plaintiff then alleges that Dr. Wright “look[ed] at a design
that is used in other drills on the market, the ‘tongue-in-groove’ design, which could have been
feasible in this product to impede slippage of the side handle.” See id.
Finally, Plaintiff asserts that an expert’s lack of familiarity with a specific item and
experience with that item go to weight of the expert’s testimony and not its admissibility. See
Dkt. No. 19 at 7 (citing Argonaut Ins. Co. v. Samsung Heavy Indus. Co. Ltd., 929 F. Supp. 2d
159, 172 (N.D.N.Y. 2013)).
Notwithstanding Plaintiff’s assertions as to the qualifications of Dr. Wright, it is clear
that he lacks experience in the particular issue at hand: the safe design and manufacture of
handheld power tools. See Wright Depo. at 34. He has assisted an attorney with preparation of a
case involving drill bits, but otherwise he has no experience working on cases involving power
drills. See id. at 32-33. He also has no experience in designing instruction manuals or warnings
for power tools.
Furthermore, the methodology through which Dr. Wright formed his opinions lacks
reliability. He did not even consider many of the relevant facts. Dr. Wright was not aware, for
instance, of the mechanism of injury to Plaintiff – that is, he was not aware of what object or
force acted upon Plaintiff’s hand to cause the injury. See Wright Depo. at 20-21. He was not
aware whether Plaintiff’s injury occurred to his left hand or his right, or whether it occurred to
the hand that rested upon the side handle of the DeWalt drill itself. See id. In addition, the
method by which he tested his hypothesis is also problematic. Dr. Wright’s report makes no
reference to any examination or testing of the drill that allegedly harmed Plaintiff. His report
only refers to examination and testing of an “exemplar drill.” See Wright Report at 1-3, 6-7. 4
Dr. Wright’s report also gives no indication that he operated or tested the exemplar drill in a
manner consistent with Plaintiff’s account of his operation of the drill prior to his alleged
injuries. His conclusion as to the effect of the variable speed trigger on the stability of the drill
and its side handle is not based upon testing but, rather, arises from negative user reviews he read
on Amazon.com’s sales page for the DeWalt drill. See Wright Report at 5.
At his deposition, Dr. Wright stated that he did have an opportunity to “look at” the drill that
allegedly harmed Plaintiff, but he stated that he did not take it with him, and he made no
reference to any analysis conducted on any drill other than an exemplar of the same model. See
Wright Depo. at 11.
As for Dr. Wright’s conclusions regarding the instability of the coefficient of friction
between the DeWalt drill and its side handle, he did not provide evidence that these conclusions
had been peer-reviewed or that his methods had gained widespread acceptance in the scientific
community. See Amorgianos, 303 F.3d at 267 (“’[A]ny step that renders the analysis unreliable
under the Daubert factors renders the expert’s testimony inadmissible.’” (quotation and other
Most importantly, Dr. Wright did not properly offer an alternative design for the DeWalt
drill’s side handle that would be “feasible, practical, economical and safe,” or that manufacturers
of similar equipment have used such a design. See generally, Wright Report; 5 Quiles, 2012 WL
1355262, at *4.
Accordingly, for all of these reasons, the Court grants Defendant’s motion to exclude Dr.
Wright’s testimony and dismisses Plaintiff’s second cause of action for defective design. 6
As noted above, Dr. Wright’s report stated that the DeWalt drill “lacked” a tongue-in-groove
design for the side handle attachment ring, but the report contained no discussion of the
feasibility, practicality, or economics of such a design, nor did the report describe other
manufacturers’ use of such a design. See Wright Report at 2. In an affidavit filed on November
25, 2013, Dr. Wright did state that other manufacturers utilize an alternative design for side
handles on handheld power drills. See Wright Aff. at ¶ 11. The deadline for discovery
submissions was September 30, 2013. See Dkt. No. 16, Scheduling Order at ¶ 1. This
submission clearly violates Rule 26 of the Federal Rules of Civil Procedure; and, therefore, the
Court will not consider it. See Fed. R. Civ. P. 26(a)(2)(B). Furthermore, even if the Court were
to consider this additional evidence, Dr. Wright’s untimely statements do not satisfy the Quiles
requirement that the other manufacturers’ equipment be similarly feasible, practical, economical,
and safe. See Quiles, 2012 WL 1355262, at *4.
The exclusion of Dr. Wright’s testimony is fatal to Plaintiff’s second cause of action because
Plaintiff requires such evidence to establish that the design defect “was a substantial factor in
causing plaintiff’s injury.” Quiles, 2012 WL 1355262, at *4 (citing Voss, 59 N.Y.2d at 107).
Plaintiff’s third cause of action for failure to warn
In order to make a prima facie claim for failure to warn, a plaintiff must establish that the
manufacturer has a duty to warn, that the duty to warn extends to dangers resulting from the
foreseeable uses about which the manufacturer knew or should have known, and that the failure
to warn constituted a proximate cause of the plaintiff’s injuries. See Barrett v. Black & Decker
(U.S.), Inc., No. 06 Civ. 1970, 2008 WL 5170200, *10 (S.D.N.Y. Dec. 9, 2008) (citation
omitted); see also Liriano v. Hobart, 92 N.Y.2d 232, 243 (1998). There exists no duty to warn
of known or foreseeable dangers, where the dangers are obvious and/or the user is fully aware of
them. See Liriano, 92 N.Y.2d at 241; see also Monell v. Scooter Store, Ltd., 895 F. Supp. 2d
398, 414-15 (N.D.N.Y. 2012). Although manufacturers have a duty to warn against latent
dangers due to intended uses and foreseeable unintended uses of their products, see Liriano, 92
N.Y.2d at 237, courts may decide that there is no duty to warn or that such duty has been
discharged under the “knowledgeable user exception.” Travelers Ins. Co. v. Fed. Pac. Elec. Co.,
625 N.Y.S.2d 121, 123 (1st Dep’t 1995). The burden is upon the plaintiff to prove that the
specific warnings provided were inadequate, that any additional warnings would have prevented
the plaintiff’s injuries, and that the inadequacy of the warnings constituted a proximate cause
thereof. See Monell, 895 F. Supp. 2d at 413 (quoting Henry v. Rehab Plus, 404 F. Supp. 2d 435,
442 (E.D.N.Y. 2005)) (other citation omitted).
In the case at bar, Plaintiff’s claim of failure to warn is predicated upon the contention
that no instructions exist explaining how to tighten the side handle and defining the amount of
torque necessary to sufficiently tighten the side handle. See Response to Interrogatories at ¶ 15.
The warning provided with the drill was as follows:
Side Handle WARNING: To reduce risk of personal injury,
ALWAYS operate the tool with side handle properly installed and
tightened. Failure to do so may result in the side handle slipping
during tool operation and subsequent loss of control. Hold tool
with both hands to maximize control. . . . The side handle clamps
to the front of the gear case and can be rotated 360 degrees to
permit right or left hand use.
See id. Plaintiff testified that he tried several times to tighten the side handle’s connection to the
DeWalt drill by twisting the slide grip and did not find any resistance at first. See Bourassa
Depo. at 25. He testified that he did eventually manage to “get it right” when he “felt the
resistance and [he] was able to tighten it in that position.” See id.
Plaintiff’s evidence indicates that his circumstances at the time of the injury were similar
to those of the plaintiff in Pinello, whose testimony showed that “he understood the machine he
was using, like all power tools with rotating parts, is subject to reactive forces, and that certain
steps must be followed to control the machine and minimize the risks related to those forces.”
Pinello, 2011 WL 1302223, at *12. Based upon such evidence, the court found that the
knowledgeable user exception applied in Pinello and therefore dismissed the plaintiff’s failure to
warn claim. See id. at *14. Similarly, in this case, the Court finds that the knowledgeable user
exception applies and, accordingly, grants Defendant’s motion with regard to Plaintiff’s third
cause of action for failure to warn.
Plaintiff’s fourth cause of action for strict products liability
Plaintiff has not alleged that the DeWalt drill violates any statute, code, regulation, or
industry trade practice. Instead, Plaintiff’s strict products liability claim is predicated upon his
allegation of a design defect and failure to warn. See Complaint at ¶¶ 41-44. 7 For the reasons
stated in Parts C and D, supra, this Court finds that the design defect and failure to warn claims
Plaintiff also alleges in his Complaint that the DeWalt drill contained a manufacturing defect
but has since admitted that he has no such claim. See Response to Interrogatories at 11.
lack merit. Accordingly, this Court grants Defendant’s motion with regard to Plaintiff’s fourth
cause of action for strict products liability.
Plaintiff’s fifth cause of action for breach of express and implied warranty
Plaintiff has made no specific reference to any express warranties involved in his
purchase or use of the DeWalt drill. Plaintiff alleges that an implied warranty of merchantability
existed for the drill’s intended use. See Complaint at ¶¶ 48-49. Plaintiff’s claim of breach of
that implied warranty is predicated upon his allegations that the drill was defective and that
Defendant failed to warn Plaintiff about this defect. See Complaint at ¶¶ 51-53, 55-56, 60-62.
For the reasons stated in Parts C and D, supra, this Court finds that the design defect and failure
to warn claims lack merit. Accordingly, this Court dismisses Plaintiff’s fifth cause of action for
breach of express and implied warranty.
Having reviewed the entire file 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 the expert testimony of Plaintiff’s witness,
Roger N. Wright, and for summary judgment dismissing Plaintiff’s complaint in its entirety, see
Dkt. No. 17, is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and
close this case.
IT IS SO ORDERED
Dated: August 7, 2015
Syracuse, New York
Frederick J. Scullin, Jr.
Senior U. S. District Judge
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