Congilaro et al v. Crown Equipment Corporation et al

Filing 52

MEMORANDUM-DECISION AND ORDER granting Defendant's 37 Motion to Strike as to John Coniglio and denied as to Thomas Berry; denying Defendnat's 47 Motion for Summary Judgment w/out prejudice to renew. Signed by Senior Judge Frederick J. Scullin, Jr on 9/1/2012. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
JASON CONGILARO and BETHANNE
CONGILARO
Plaintiffs,
v.

5:09-CV-1452
(FJS/TWD)

CROWN EQUIPMENT CORPORATION,
Defendant.
______________________________________________
APPEARANCES

OF COUNSEL

OFFICE OF ROBERT E. LAHM
711 East Genesee Street
Syracuse, New York 13202
Attorneys for Plaintiffs

ROBERT E. LAHM, ESQ.

GOLDBERG SEGALLA LLP
5789 Widewaters Parkway
Syracuse, New York 13214
Attorneys for Defendant

KENNETH M. ALWEIS, ESQ.
LISA MARIE ROBINSON, ESQ.

GOODELL, DEVRIES, LEECH &
DANN, LLP
One South Street
20th Floor
Baltimore, Maryland 21202
Attorneys for Defendant

THOMAS J. CULLEN, ESQ.
RENEE N. SEWCHAND, ESQ.

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiffs Jason Congilaro and Bethanne Congilaro bring this product liability action

against Defendant Crown Equipment Corporation due to a stand-up forklift accident that
occurred on May 31, 2007, at a WalMart distribution center located in Marcy, New York.1
Currently before the Court are Defendant's motion to exclude the testimony of Plaintiffs'
proposed expert witnesses and Defendant's motion for summary judgment.

II. BACKGROUND
Plaintiff Jason Congilaro alleges that, while he was operating a stand-up forklift that
Defendant manufactured, model RR5225-45, he slid through a puddle of liquid on a WalMart
warehouse floor and crashed into a firewall door, causing severe injury to his lower left leg as it
was crushed between the door and the forklift. As a result of his injury, Plaintiff Jason Congilaro
has undergone multiple surgeries and his left leg had to be amputated below the knee. Plaintiff
Bethanne Congilaro, Plaintiff Jason Congilaro's wife, alleges, among other things, the loss of her
husband's services and consortium resulting from the May 31, 2007 incident.
Plaintiffs contend that the "open-compartment design" of Defendant's stand-up forklift is
unreasonably dangerous and defective because the compartment in which the forklift user stands
to operate the forklift lacks a rear door enclosing the operator compartment. Plaintiffs assert that
the addition of a rear door to the operator compartment as the forklift's standard design is a safer
design alternative to the open-compartment design.

1

Plaintiffs commenced this action on June 22, 2009, in New York Supreme Court,
Onondaga County; and Defendant removed the action to this Court by filing a notice of removal
dated December 30, 2009.
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III. DISCUSSION
A.

Defendant's Daubert motion to exclude the expert testimony of Plaintiffs' two
proposed expert witnesses
In its Daubert motion, Defendant seeks to preclude Plaintiffs' proffered experts, Thomas

A. Berry and John Coniglio, from testifying at trial concerning their opinions regarding a
proposed safer alternative to the open-compartment design of Defendant's stand-up forklift on the
ground that their opinions are unreliable, untested, and speculative. Plaintiffs' proposed expert
witnesses maintain that the installation of a rear door enclosing the forklift's operator
compartment would help to prevent injuries of the type that Plaintiff Jason Congilaro suffered.
Berry and Coniglio further assert that forklift operators should be trained to remain inside the
operator compartment during accidents. Defendant, on the other hand, contends that forklift
operators have the best chance to avoid injury by quickly exiting the forklift and that the
installation of a door fully enclosing operators within the operator compartments would only
encumber their ability to exit safely.
Under New York law, "a 'defectively designed product is one which, at the time it leaves
the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is
unreasonably dangerous for its intended use . . . .'" Yun Tung Chow v. Reckitt & Colman, Inc., 17
N.Y.3d 29, 33 (2011) (quotation omitted). "If the 'utility' of a product 'does not outweigh the
danger inherent in its introduction into the stream of commerce,' then the product is defectively
designed . . . ." Id. (quotation omitted).
In assessing the reliability of expert testimony, Rule 702 of the Federal Rules of Evidence
identifies certain "'indicia of reliability'" that a district court should consider, "'namely, (1) that

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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.'" United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007)
(quotation omitted). Furthermore, in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),
the Supreme Court enumerated a list of additional factors that a court should consider, including
"(1) whether a theory or technique has been or can be tested;" "(2) 'whether the theory or
technique has been subjected to peer review and publication;'" "(3) the technique's 'known or
potential rate of error' and 'the existence and maintenance of standards controlling the technique's
operation;'" and "(4) whether a particular technique or theory has gained general acceptance in
the relevant scientific community." Williams, 506 F.3d at 160 (quoting Daubert, 509 U.S. at
593-94, 113 S. Ct. 2786). Although the Daubert threshold is not very stringent, courts
nonetheless look to Daubert to ensure that expert testimony is based on sufficiently reliable
knowledge and methodology.
In the instant case, Defendant certainly has support for its position that the operator
compartment of its stand-up forklifts should remain unencumbered by a door enclosing the
operator compartment as the standard design. However, this does not preclude Plaintiffs from
presenting their theory of liability to a jury, aided by qualified experts, that a door guarding the
opening at the rear of the operator compartment is a safer alternative to no door. Applying the
Daubert factors to this case, first, Plaintiffs' experts' door theory has been tested. Second, it
appears that Berry conducted a study on the history of stand-up forklift operator safety and
published a peer-reviewed report, titled "A Risk Based Study of Tipover and Off-dock Accidents
Involving Stand-up Lift Trucks." See Dkt. No. 43 at 7. Third and fourth, as is further discussed
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below, although it has not gained general acceptance, the closed-operator-compartment-door
theory is subject to dispute within the engineering community.
Plaintiffs' experts' proposed alternative design is not, as Defendant suggests, some
untested and unreliable design. On the contrary: Defendant has designed, manufactured, and sold
such doors to various customers for many years. Likewise, to the extent that Defendant is
seeking to preclude Plaintiffs' proffered experts based on the supposed unreliability of their
alternative design theory that a door is safer than no door, that theory is not uniformly
disfavored.2 Finally, courts have found Defendant Crown Equipment Corporation liable based
on alternative design theories substantially similar to those asserted here. See, e.g., McEuin v.
Crown Equip. Corp., 328 F.3d 1028 (9th Cir. 2003) (affirming the injured forklift-operator
plaintiff's compensatory and punitive damage jury award against Crown in a defective design
case for not installing an operator-compartment door on its stand-up forklift). Cf. Walden v.
Crown Equip. Corp., 72 F. App'x 56 (5th Cir 2003) (affirming the lower court's admittance of
expert testimony that it would have been safer to manufacture a forklift with an operatorcompartment door under Arkansas law).

2

For example, Ford Motor Company, a major Crown customer, requires a full height
safety door on its stand-up rider forklifts. Moreover, many of the standards to which Defendant
refers in support of its proposition that operator-compartment doors are either prohibited or at
least disfavored in the relevant communities do not, in fact, mandate such a conclusion. The
American National Standards Institute ("ANSI") provides only that operator-compartment doors
may be provided; and, if provided, they shall permit easy ingress and egress from the operator
console. Similarly, although Defendant cites to a military standard requiring military forklifts to
"permit unobstructed egress from the rear of the truck," this standard is not applicable to forklifts
that businesses and persons outside the military use. Defendant also cites to the Occupational
Safety & Health Administration ("OSHA") and argues that, since OSHA has adopted the ANSI
standard, OSHA effectively disfavors the use of doors on stand-up forklifts. Of course, since the
ANSI standard does not prohibit doors, neither does OSHA.
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With respect to Thomas A. Berry, the Court denies Defendant's Daubert motion to
exclude because Berry is a qualified expert in mechanical engineering with significant experience
in forklift design and forklift accidents of the type at issue in this case. Indeed, as one court has
concluded,
Mr. [Thomas A.] Berry meets the Fed. R. Evid. 702 and Daubert
standards because his testimony is grounded on technical
knowledge which may well be useful to the finder of fact. Mr.
Berry is a qualified mechanical engineer with knowledge of the
material handling industry, the standards applicable to forklifts,
forklift accident reports, and forklift design history. Whether an
alternative design would significantly reduce the risk of injury
without impairing the product's utility is a question of fact, not a
question of law in Arkansas.
Robinson v. Crown Equip. Corp., No. 2:02CV00084WRW, 2006 WL 897669, *5 (E.D. Ark.
Mar. 30, 2006).3 But see Lawrence v. Raymond Corp., No. 3:09 CV 1067, 2011 WL 3418324
(N.D. Ohio Aug. 4, 2011) (precluding Thomas A. Berry from testifying as an expert that a
forklift lacking a rear door was defectively designed because, among other reasons, his
alternative design testing was found to be insufficient and unreliable).
"While the testing of a prototype is undoubtedly one of the preferred methods for
determining the reliability of an expert's opinion, testing is not necessarily a requirement for the
admission of expert testimony." Milliman v. Mitsubishi Caterpillar Forklift Am., Inc., 594 F.
Supp. 2d 230, 239 (N.D.N.Y. 2009) (citations omitted). Defendant contends that Plaintiffs do
not establish the reliability of Berry's expert opinion "that adding a door as standard equipment is
3

Since an alternative design unquestionably exists in this case (a door), and it is
ultimately up to the jury to determine whether the proposed alternative is, in fact, a safer
alternative, it is of no consequence that, under Arkansas law, a design-defect plaintiff need not
establish a safer alternative design, whereas, under New York law, courts follow a risk-utility
standard and require a design-defect plaintiff to present a reasonable alternative design.
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safer than an open compartment," see Dkt. No. 44 at 3; but this is precisely the question of fact
that a jury must decide.
With regard to the proposed expert testimony of John Coniglio, however — Plaintiffs' socalled "industrial safety" expert — Plaintiffs, and even Coniglio himself, concede that Coniglio
is not qualified to render an expert design opinion. As such, to the extent that Plaintiffs seek to
call Coniglio to render an expert opinion regarding the relative safety of open-versus-closedcompartment stand-up forklift designs, the Court finds that he is not qualified to render such an
opinion. Although Coniglio's "extensive experience in the area of industrial safety and the
relationship between man and machine in the warehouse and factory setting" might entitle him to
testify reliably about the cause of the forklift accident, see Dkt. No. 43 at 14, the Court finds that
it does not entitle him to render an expert design opinion — the fundamental issue in this case.4
The relative safety of a forklift equipped with an operator-compartment door compared to
the safety of a forklift without a door is of central importance to this litigation. Whether an
alternative design is safer presents a question of fact, not law, for the jury to decide. See Quiles
v. Bradford-White Corp., No. 10-CV-747, 2012 WL 1355262, *4 (N.D.N.Y. Apr. 18, 2012)
(citation omitted). Since Thomas A. Berry can support Plaintiffs' design defect claim regarding a
possible and feasible alternative deign, or, more accurately, assist the jury in coming to its own
conclusion on the matter, the Court concludes that it should not bar Plaintiffs from presenting
Berry's expert design opinion to the jury.

4

Further, with regard to Coniglio's opinion that the forklift is defective due to its braking
system, he stated plainly during his deposition that he was "not really here to pick on the brake
pedal itself as a design, and I'm not a design engineer." See Dkt. No. 38, Exh. "V" attached
thereto, at 49.
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B.

Defendant's motion for summary judgment
A court shall only grant a party's motion for summary judgment pursuant to Rule 56 of

the Federal Rules of Civil Procedure "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). In its two-and-a-half page memorandum of law in support of its motion for summary
judgment, Defendant seemingly assumed that the Court would grant its motion to exclude the
testimony of Plaintiffs' proposed experts; and its summary judgment motion relied upon that
assumption. Defendant has utterly failed to show that material facts do not remain in dispute
regarding whether the open-compartment forklift design constitutes a safer alternative to the
closed-compartment design as a standard feature.
Accordingly, the Court denies Defendant's motion for summary judgment without
prejudice to renew.

IV. CONCLUSION
Having 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 Defendant's Daubert motion to exclude Plaintiffs' proffered expert
testimony is GRANTED with respect to John Coniglio and DENIED with respect to Thomas A.
Berry; and the Court further

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ORDERS that Defendant's motion for summary judgment is DENIED without prejudice
to renew; and the Court further
ORDERS that this case be referred to Magistrate Judge Dancks for all further pretrial
matters.

IT IS SO ORDERED.

Dated: September 1, 2012
Syracuse, New York

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