Boots et al v. Stanley Black & Decker, Inc.
Filing
60
DECISION & ORDER. Defendant's motion for summary judgment, Dkt. No. 39 , is DENIED. Signed by Senior Judge Thomas J. McAvoy on 9/16/2015. (lah)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
PETER BOOTS and CINDY BOOTS,
Plaintiffs,
v.
8:13cv1096
STANLEY BLACK & DECKER, INC.,
Defendant.
________________________________________
DECISION & ORDER
Thomas J. McAvoy, Senior District Judge.
Plaintiffs Peter and Cindy Boots (“Plaintiffs”) commenced this products liability
action, alleging that a defective utility knife manufactured by Defendant Stanley Black &
Decker, Inc. (“Defendant”) injured Plaintiff Peter Boots. Defendant has filed a motion
for summary judgment, which is presently before the Court.
I.
BACKGROUND
This case concerns Plaintiffs’ claim that Peter Boots was injured by a defective
utility knife sold by the Defendant. As part of its motion for summary judgment,
Defendant’s brief contained a statement of material facts with citations to the record.
Plaintiffs did not respond to this statement by admitting or denying any of the
statements offered by the Defendant. Instead, Plaintiffs’ brief contains another
statement of material facts with citations to the record. Defendant responds to each
paragraph of this statement supporting any denials with appropriate citations to the
record.
Local Rule 7.1(a)(3) requires that a party who moves for summary judgment file
a “Statement of Material Facts” that “set[s] forth, in numbered paragraphs, each
material fact about which the moving party contends there exists no genuine issue.
Each fact listed shall set forth a specific citation to the record where the fact is
established.” L.R. 7.1(a)(3). The opposing party is then required to file a response,
“admitting and/or denying each of the movant’s assertions in matching numbered
paragraphs. Each denial shall set forth a specific citation to the record where the
factual issue arises.” Id. The Rules are clear that “[t]he Court shall deem admitted any
properly supported facts set forth in the Statement of Material Facts that the opposing
party does not specifically controvert.” Id. (emphasis in original). Plaintiffs ignored this
portion of the rules, apparently leaving it to the Court to determine which of the
Defendant’s facts the Plaintiffs disputed.
The responding Statement of Material Facts is not a mere formality, and the
courts apply Rule 7.1(a)(3) strictly. See N.Y. Teamsters Conference Pension & Ret.
Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005)(upholding grant of
summary judgment where “[t]he district court, applying Rule 7.1(a)(3) strictly,
reasonably deemed [movant’s] statement of facts to be admitted” because the nonmovant submitted a responsive Rule 7.1(a)(3) statement that “offered mostly conclusory
denials of [movant’s] factual assertions and failed to include any record citations.”);
Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998)(per curiam)(accepting as true
material facts contained in unopposed local rule statement of material facts); Meaney v.
CHS Acquisition Corp., 103 F. Supp.2d 104, 108 (N.D.N.Y. 2000)(deeming movant’s
Rule 7.1(a)(3) Statement admitted where non-movant’s response “set forth no citations
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– specific or otherwise – to the record”)(emphasis in original); McKnight v. Dormitory
Auth. of State of N.Y., 189 F.R.D. 225, 227 (N.D.N.Y. 1999)(McAvoy, J.)(“deem[ing] the
portions of Defendants’ 7.1(a)(3) statement that are not specifically controverted by
Plaintiff to be admitted”); Osier v. Broome County, 47 F. Supp.2d 311, 317 (N.D.N.Y.
1999) (McAvoy, J.)(deeming admitted all facts in defendants’ Rule 7.1(a)(3) statement
where “plaintiff submitted thirteen pages of purported facts without any indication where
those facts can be located in the record”).
The Court therefore declines to sift through the factual materials that Plaintiffs
have submitted in an effort to find factual support for their arguments in response to the
Defendants. See Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d
Cir. 2002)(“We agree with those circuits that have held that F ED. R. CIV. P. 56 does not
impose an obligation on a district court to perform an independent review of the record
to find proof of a factual dispute.”) (citations omitted); Monahan v. New York City Dep’t
of Corrections, 214 F.3d 275, 291 (2d Cir. 2000)(The Court’s Local Rules require the
parties “to clarify the elements of the substantive law which remain at issue because
they turn on contested facts” and the Court “is not required to consider what the parties
fail to point out.”)(internal quotation marks and citations omitted). Pursuant to Local
Rule 7.1(a)(3), the Court will deem all properly supported facts in the Defendant’s
Statement to be admitted.
According to the facts properly supported by the Defendant, the subject utility
knife when sold is equipped with a series of six snap-off style blades that each contain
eight snap-off segments. (Defendant’s Statement of Material Facts, dkt. # 39-2 at ¶ 1).
A user can therefore use up to forty-eight sharp blades without having to open the knife
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and load a new blade. (Id.). The knife is an auto-load-auto-locking device. (Id. at ¶ 2).
A “blade slider” permits the user to control the length of the blade or retract the blade in
to the housing when not in use. (Id. at ¶ 3). The auto-locking mechanism on the knife
is contained in this blade-slider button. (Id. at ¶ 4). T he auto-lock mechanism is
actuated by a spring loaded L-shaped pawl. (Id. at ¶ 5). This mechanism locks the
blade in place by means of a physical engagement between the L-shaped lock pawl
and barrel engagement teeth in the knife housing. (Id. at ¶ 6). The knife’s packaging
contains warnings and instructions. (Id. at ¶ 11).
The knife also contains a “blade clamp,” which is designed to reduce lateral
motion when a blade is in the cutting position and to wipe the blade of potential
contaminants when a user retracts the blade into the housing. (Id. at ¶¶ 7, 10). The
blade clamp is not designed to lock the blade in place, and it cannot do so. (Id. ¶ 8).
The function of the blade clamp does not affect the performance of the auto-lock
mechanism. (Id. at ¶ 9).
Plaintiff Peter Boots was hired by DaMaCo Windows in December 2009. (Id. at
¶ 12). Plaintiff’s hiring came through the Iron Workers Union. (Id.). Plaintiff worked on
a number of window installation jobs before suffering the injury that led to this litigation.
(Id.). The job in question occurred at Salmon River High School. (Id.). Plaintiff’s
training and experience made him familiar with window installation. (Id. at ¶ 13).
At the time of his injury, Plaintiff was attempting to install a vinyl jamb along the
right side of a classroom window at Salmon River High School. (Id. at ¶ 14). The jamb
was approximately seven feet long and five inches wide. (Id. at ¶ 15). The jamb’s
width was bordered by 1/4 inch flanges that formed a c-shaped channel. (Id. at ¶ 16).
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Plaintiff and other DaMaCo employees pre-cut the jambs to match the height of the
window involved. (Id. at ¶ 17). About half of the jambs needed to be “notched” to make
the jamb lie flat and not contact the factory-welded seam on the top and bottom of the
window corner. (Id. at ¶ 18). Plaintiff had been trained to “notch” the jamb, cutting the
flange in two places per notch and then using pliers to snap off the flange between the
cuts. (Id. at ¶ 19).
Plaintiff testified that he used the subject knife just before the accident,
extending a blade so that one to one-and-a-half segments were exposed. (Id. at ¶ 20).
One blade segment is .4 inches of blade exposure. (Id. at ¶ 21). Thus, one and onehalf blade segments amount to .6 inches of blade exposure. (Id. at ¶ 22).
Plaintiff attempted to cut a notch in a vinyl jamb. (Id. at ¶ 24). The utility knife’s
blade became stuck in the vinyl while Plaintiff attempted to cut the fourth cut in the
jamb. (Id.). Plaintiff attempted to free the blade by holding the jamb upright in his left
hand and pulling the blade with his right. (Id. at ¶ 25). This method for freeing the
blade put Plaintiff’s left arm in the path of the blade. (Id. at ¶ 26). The blade came free
from the jamb, and Plaintiff cut his left arm between the wrist and elbow to a depth
significantly less that .4 or .6 inches. (Id. at ¶¶ 27, 22).
Owen Swamp, who witnessed the incident, testified that he picked up the utility
knife immediately after the accident. (Id. at ¶ 28). He kept the knif e in his possession
until he gave it to the Plaintiff. (Id.). He returned the knife to the Plaintiff in the same
condition as it was at the time of the accident. (Id. at ¶ 29).
There were a number of different methods that Plaintiff could have used to free
the knife from the jamb. (Id. at ¶ 31). He could have pushed the blade away from his
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body, which would have prevented the accident. (Id. at ¶ 31).
Plaintiffs’ counsel on June 27, 2014 represented to the Court that their ex pert
had not yet inspected the knife. (Id. at ¶ 32). Counsel stated that he hoped to av oid
any claims of prejudice by the Defendant that could come if the knife were damaged by
the inspection. (Id.). Moreover, the knife would need to be opened by both sides to
ascertain the functionality of the blade locking mechanism at issue. (Id.). Despite this
representation, on July 17, 2014, Plaintiffs’ expert inspected the knife outside the
presence of any representative for the Defendant. (Id. at ¶ 33).
A joint inspection was conducted on August 14, 2014. (Id. at ¶ 34). The joint
inspection revealed that the knife contained two full blades with eight segments each.
(Id.). The blades were in the housing unit. (Id.). No partial blades remained inside the
knife, and none were preserved by the Plaintiff. (Id. at ¶ 36). No physical evidence
indicates that the blade broke. (Id. at ¶ 37).
The August 14, 2014 inspection also revealed that the lock pawl component,
which engages with the knife’s barrel teeth when performing the auto-lock function, had
migrated from its assembly position. (Id. at ¶ 38). This migration of the lock-pawl
prevents the auto-lock feature from working as designed. (Id. at ¶ 39). The design of
the blade slider and the auto-lock mechanism means that there is no escape geometry
by which a lock pawl can exit the slider once properly assembled. (Id. at ¶ 40).
According to Plaintiff’s expert “[m]y inspection and dimensional analysis of the subject
slider confirmed that there was no damage to the slider and no escape geometry exists
by which the lock pawl can exit the slider.” (Id. at ¶ 41). The knife’s lock pawl cannot
become dislodged, if properly assembled, unless the housing unit is intentionally
6
opened and the lock pawl is physically removed. (Id. at ¶ 42).
II.
LEGAL STANDARD
Defendant has moved for summary judgment. It is well settled that on a motion
for summary judgment, the Court must construe the evidence in the light most favorable
to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999),
and may grant summary judgment only where "there is no genuine issue as to any
material fact and ... the moving party is entitled to a judgment as a matter of law." FED.
R. CIV. P. 56(a). An issue is genuine if the relevant evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986).
A party seeking summary judgment bears the burden of informing the court of
the basis for the motion and of identifying those portions of the record that the moving
party believes demonstrate the absence of a genuine issue of material fact as to a
dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is
able to establish a prima facie basis for summary judgment, the burden of production
shifts to the party opposing summary judgment who must produce evidence
establishing the existence of a factual dispute that a reasonable jury could resolve in his
favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A
party opposing a properly supported motion for summary judgment may not rest upon
"mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v.
Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or
unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
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III.
ANALYSIS
Defendants seeks summary judgment on Plaintiffs’ claims on several bases,
which the Court will address in turn.
A. Applicable Law
This case, which was removed to this Court from the Supreme Court of Franklin
County, New York, raises products liability claims. The parties agree that New York law
governs these claims. In New York, “[a] manufacturer who places into the stream of
commerce a defective product which causes injury may be liable for such injury.”
Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 532, 571 N.E.2d 645, 648 (1991).
Defects in a product “may consist of a mistake in manufacturing, an improper design or
the inadequacy or absence of warnings for the use of the product.” Id. “To recover for
injuries caused by a defective product, the defect must have been a substantial factor in
causing the injury, and ‘the product must have been used for the purpose and in the
manner normally intended or in a manner reasonably foreseeable.’” Hartnett v. Chanel,
Inc., 97 A.D.3d 416, 419, 948 N.Y.S.2d 282, 285 (1 st Dept. 2012) (quoting Amatulli, 77
N.Y.2d at 532).
In most cases, “‘the opinion of a qualified expert that a plaintiff’s injuries were
caused by a deviation from relevant industry standards would preclude a grant of
summary judgment in favor of the defendants.’” Diaz v. N.Y. Downtown Hosp., 99
N.Y.2d 542, 544, 784 N.E.2d 68, 70 (2002) (quoting Murphy v. Conner, 84 N.Y.2d 969,
972, 646 N.E.2d 796 (1994)). Still, “[a]n expert’s affidavit–offered as the only evidence
to defeat summary judgment–‘must contain sufficient allegations to demonstrate that
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the conclusions it contains are more than mere speculation and would, if offered alone
at trial, support a verdict in the proponent’s favor.’” Ramos v. Howard Indus. Inc., 10
N.Y.3d 218, 224, 885 N.E.2d 176, 179 (2009) (q uoting Adamy v. Ziriakus, 92 N.Y.2d
396, 402 (1998)). If “the expert’s ultimate assertions are speculative or unsupported by
any evidentiary foundation, however, the opinion should be given no probative force
and is insufficient to withstand summary judgment.” Id. “‘Where the expert states his
conclusion unencumbered by any trace of facts or data, his testimony should be given
no probative force whatsoever[.]’” Amatulli, 77 N.Y.2d at 533 n.2 (quoting McLaughlin,
1971 Practice Commentary, MCKinney’s Cons Laws of NY, book 7B).
B.
Manufacturing Defect
Defendant first argues that no evidence supports a claim that the knife was
improperly manufactured. Defendant contends that evidence shows that the L-shaped
lock pawl was properly assembled and installed and removed only after the knife left
Defendant’s possession. Defendant points to its expert report as prima facie evidence
that the subject knife was not defectively manufactured and argues that Plaintiff has no
evidence to rebut this showing.
In New York “‘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.’” Preston v. Peter Luger Enters., Inc., 51 A.D.3d
1322, 1324, 858 N.Y.S.2d 828, 831 (3d Dept. 2008) (quoting Denny v. Ford Motor Co.,
87 N.Y.2d 248, 257, 662 N.E.2d 730 (1995)). “For entitlem ent to summary judgment on
this basis, a defendant must submit admissible proof establishing that the product was
9
not defective as a matter of law.” Id. The initial burden rests with the Defendant to
show that the product was not defective “when the product left the manufacturer.” Id. If
the defendant meets this burden, then the plaintiff must “either submit direct evidence
that a defect existed when the product left the manufacturer or, ‘in the absence of
evidence identifying a specific flaw, . . . prove that the product did not perform as
intended and exclude all other causes for the products failure that are not attributable to
the defendant[.]’” Id. (quoting Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 41, 790
N.E.2d 252 (2003) (internal citations omitted)).
Included in the Defendant’s moving papers is Plaintiff’s expert report, written by
Harry Ehrlich. (See Dkt. # 39-16). Ehrlich reports that, along with Stanley’s expert,
Matthew Ponko, he examined the subject knife. (Id. at 4). The two found that “the
subject knife made a rattling sound when shaken.” (Id.). Upon opening the knife, they
found that “the L-shaped pawl was not assembled within the slider, but was loose within
the knife enclosure.” (Id.). Without the lock pawl, the blade could not lock. (Id.).
Testing revealed that, without the pawl, the force necessary “to extend the retract blade
in the supposedly locked position . . . range[d] from 0.9 pounds to 1.3 pounds.” (Id.).
Stanley’s testing specified that “the blade should withstand a force of 22.5 pounds in
both directions and remain locked[.]” (Id.). Ehrlich concludes that, since “there is no
escape geometry by which the lock powl can exit the slider, if properly assembled,” the
“knife was not fully assembled when it left the factory.” (Id.). Ehrlich notes that he
examined the slider and found no damage to that part of the knife. (Id. at 5). He also
finds that “[t]he design of the subject knife relies upon a small spring that is housed
within the slider. That spring is under compression and pushes the lock pawl into an
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opening that allows a small segment of the pawl to emerge from the slider and engage
the notches in the steel sleeve. Should the pawl not be held captive during the entire
slider assembly process, that spring will push the pawl out of the slider before the slider
assembly is completed.” (Id.). Further, citing the design of the knife, deposition
testimony, and “physical evidence, the presence of the spring in the slider, the absence
of the lock pawl in the slider and the lack of escape geometry” Ehrlich concludes that
“the slider was assembled in the factory without the lock pawl in place.” (Id.). The lack
of a lock pawl was a cause of Plaintiff’s injury. (Id.).
Defendant offers Ponko’s expert report, which disputes these conclusions. (See
Expert Report of Report of Matthew B. Ponko, Exh. E to Defendant’s Motion, dkt. # 397, (“Ponko Report”)). Ponko points to evidence that indicates wear on the lock pawl
and the knife’s barrel teeth, which he contends indicates that the knife “must have been
properly assembled and used for a period of time because both the lock pawl and the
barrel engagement teeth contain significant wear marks.” (Id. at 9).1 The Court finds
1
In opposing the motion for summary judgment, Plaintiff also provides a rebuttal
report from Ehrlich. (See Exh. A to Plaintiff’s Response (“Ehrlich Rebuttal Report”), dkt.
# 43-1). Ehrlich disputes claims by Defendant’s expert that wear marks on the lock
pawl demonstrate that the knife was properly assembled. (Id. at ¶ 4). Instead, Ehrlich
contends, the wear marks on the lock pawl “are consistent with the lock pawl being
improperly assembled and floating loose within the barrel of the knife.” (Id.). Under
those circumstances, Ehrlich insists, “the lock pawl is subject to scraping against the
blades, blade holder and blade slider and m etal spring components within the barrel.”
(Id.). Similarly, wear on the barrel engagement teeth, Ehrlich finds, could have been
caused by contact from tools in a toolbox, and not necessarily from repeated
engagement of the lock pawl. (Id.). Ehrlich thus concludes that “the wear marks on the
subject knife components confirm that the knife was never properly assembled.” (Id. at
¶ 5). Defendant contends that this report is improper as it was not produced in
accordance with Federal Rule of Civil Procedure 26(a) and offers a new theory of
liability designed to counter a significant flaw in the original report. The Court finds that
the original support was sufficient to defeat summary judgment and declines to address
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that the Defendant’s expert report meets the Defendant’s prima facie burden, and that
Plaintiff’s expert report provides expert evidence sufficient to defeat Defendant’s
motion. While Defendant surely offers trenchant criticism of Ehrlich’s report which a
jury may find convincing, the Court finds that a reasonable juror could be persuaded by
Ehrlich’s position presentation. The jury will have to determine whether the knife was
defectively manufactured.
Elsewhere in its brief, Defendant argues that the Court must disregard Ehrlich’s
report because it does not meet the standard articulated in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 573 (1993), and should not be considered. “Under
Fed. R. Evid. 702, an expert witness, unlike a lay witness, is ‘permitted wide latitude to
offer opinions, including those that are not based on firsthand knowledge or
observation.’” Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310
(2d Cir. 2008) (quoting Daubert, 509 U.S. at 592). The trial court must “determine at
the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that
(2) will assist the trier of fact to understand or determine a fact in issue.’” Id. (quoting
Daubert, 509 U.S. at 592. The Daubert principles apply to “‘technical’ and ‘other
specialized’ knowledge.” Id. at 311 (quoting Kumho Tire Co. v. Carmichael, 526 U.S.
137, 141 (1999)). A district court should exclude proffered “‘expert testimony based on
speculative assumptions[.]’” Id. (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d
18, 21 (2d Cir. 1996). “An expert’s opinions that are without factual basis and are
based on speculation or conjecture are simply inappropriate.” Id.
the admissibility of the rebuttal report at this time.
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Defendant claims that the objective physical evidence makes Ehrlich’s report
speculative and scientifically unreliable. Defendant points out that Ehrlich contends
“that the subject knife must have been improperly manufactured because the lock pawl
was found free floating in the housing unit and because the lock pawl mechanism’s lack
of escape geometry would not allow a properly manufactured lock pawl to became
dislodged (absent intentional removal).” (Defendant’s Brief at 14). Defendant insists
that Ehrlich’s opinion is merely “speculative and scientifically unreliable because his
analysis fails to account for the other obvious scenario where the lock pawl is properly
installed but later removed.” (Id. at 14-15).
The weakness of Defendant’s position is underlined in this passage. Defendant
contends that the report should be discounted because the ex pert report fails to
consider “the other obvious scenario.” (Id. at 15) (emphasis added). Here, Defendant
points out that there is another explanation available for why the lock pawl was not in
place at the time of the accident besides a manufacturing defect. Defendant’s expert
report surely offers this explanation. To be admissible, however, Plaintiff’s expert report
need not accept this scenario. The Court notes that Defendant’s expert report likewise
builds upon physical evidence, testimony and reported use to reach the conclusion that
the lock pawl was removed after shipment to the consumer. Defendant’s conclusion is
necessarily based on circumstantial evidence, since Defendant’s expert did not see the
knife manufactured or examine the knife when the manufacturer shipped it. The Court
cannot accept that conclusion as undisputed. In doing so, the Court would ignore its
obligation to “view all of the evidence presented ‘in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.’” LaBounty v. Coughlin,
13
137 F.3d 68, 73 (2d Cir. 1998) (quoting American Cas. Co. v. Nordic Leasing, Inc., 42
F.3d 725, 728 (2d Cir. 1994)). The jury must decide such issues of disputed fact, and
excluding an expert report because the expert did not accept the conclusion that the
Defendant insists is most likely (and which would likely lead to judgment for the
Defendant) would be improper. The Court finds the Plaintiff’s expert report admissible.
Summary judgment is therefore inappropriate on the manufacturing defect claim.
C.
Design Defect
In a design defect claim, “the relevant inquiry is ‘whether the product, as
designed, was not reasonably safe.’” Dommes v. Best Tr. Corp., 17 N.Y.3d 594, 608
(2011) (quoting Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 450 N.E.2d 204
(1983)). “‘[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,’ and ‘whose utility does not outweigh the
danger inherent in its introduction into the stream of commerce.’” Hoover v. new
Holland N. Am., Inc., 23 N.Y.3d 41, 53-54, 11 N.E.3d 693, 701 (2014) (quoting Voss, 59
N.Y.2d at 107). Factors to be considered making this determination include: “‘(1) the
product’s utility to the public as a whole, (2) its utility to the individual user, (3) the
likelihood that the product will cause injury, (4) the availability of a safer design, (5) the
possibility of designing and manufacturing the product so that it is safer but remains
functional and reasonably priced, (6) the degree of awareness of the product’s potential
danger that can reasonably be attributed to the injured user, and (7) the m anufacturer’s
ability to spread the cost of any safety-related design changes.’” Chavez v. Delta Intl.
Mach. Corp., 13 N.Y.S.2d 482 , 484-485, 130 A.D.3d 667 (2d Dept . 2015) (quoting
14
Denny v. Ford Motor Co., 87 N.Y.2d 248, 257, 662 N.E.2d 730 (1995)). T he issue of
utility versus danger is generally one for the jury. Yun Tung Chow v. Reckitt & Colman,
Inc., 17 N.Y.3d 29, 33, 950 N.E.2d 113, 116 (2011). A prima facie design defect case
requires a showing “that the defendant ‘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.’” Id. at 54 (quoting Voss, 59
N.Y.2d at 106-107).
Plaintiff’s expert alleges that the design of the subject product was unsafe
because the knife’s appearance was “deceptive and misleading.” (Ehrlich Report at 5).
The knife features “a blade clamping mechanism that is used to clamp the blade and
minimize wobble.” (Id.). This is mechanism is apparently a safety feature, since
“[w]hen using a sharp knife, it is safest to minimize wobble, thereby increasing control.”
(Id. at 6). The clamping mechanism works by means of a sliding switch on the side of
the knife. (Id. at 5). This mechanism does not lock the blade and is not intended to
lock the blade. (Id.). Still, there are “pictorials of a lock alongside the switch” for the
clamping mechanism. (Id.). If a user clamps the blade, “an image of a closed lock is
revealed on a red background.” (Id.). When the blade is not clamped, an open lock
and a green background appears. (Id.). Ehrlich points out that a user would likely be
confused by this design, since “the image of the closed lock means ‘locked’ and the
image of an open lock means ‘unlocked.’” (Id.). At the same time, red usually means
“‘stop’” or “‘danger’” and green usually means “‘go’” or “‘safe.’” (Id.). Adding to this
problem, Ehrlich finds, was the fact that the written instructions accompanying the knife
did not instruct users on “the function of the blade clamp or how to use the blade clamp
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switch.” (Id.).
Defendant contends that, even conceding that the design was not safe for its
intended use, the alleged defect was not the “proximate cause” of Plaintiff’s injury.
(Defendant’s Brief, dkt. # 39-2 at 11). Defendant argues that the blade locks
automatically when the user releases the blade slider mechanism and acts
independently of the allegedly defective blade-clamp design. In this respect, the Court
agrees with the Defendant. Plaintiff’s expert does not allege that Defendant’s injury
was caused by the blade-clamp. The expert agrees states that the purpose of the
clamp is to prevent blade wobble. No evidence in the case indicates that Plaintiff Peter
Boots was injured by blade wobble, however, and the expert does not claim that he
was. Since no evidence indicates that the blade-clamp design was a substantial factor
in causing Plaintiff’s injury, Plaintiff could not prevail if his claim was that the design
defect that injured him was the blade clamp itself. See Yun Tung Chow, 17 N.Y.3d at
54 (finding that a prima facie design defect case requires a showing “that the defendant
‘breached its duty to market safe products when it marketed a product designed so that
the it was not reasonably safe and that the defective design was a substantial factor in
causing plaintiff’s injury.’” Id. (quoting Voss, 59 N.Y.2d at 106-107)).
Plaintiff argues, however, that his expert report and his own testimony indicates
that the design was misleading about whether the blade was actually locked in place
and that this misleading design was the cause of his injury. Plaintiff contends that he
was mislead into believing that the knife’s blade was locked into place by the icons
described above. He thought the blade could not slip and extend when he removed it
from the jamb and was injured when the blade did extend. The design was therefore
16
confusing and contributed to Plaintiff’s injury by creating this false sense of security.
Plaintiff’s expert report makes this argument. While the Court recognizes that Plaintiff
failed to respond to Defendant’s statement of material facts in proper fashion, the Court
also notes that nowhere in the Defendant’s statement are there facts that establish that
the design of the knife did not confuse Plaintiff in this fashion. Defendant’s argument
instead focuses on the design of the blade clamp. Thus, with respect to the Plaintiff’s
claim that the knife was defectively designed because it mislead users into believing
that the knife blade was locked in place when it wasn’t, the Court will deny the motion
for summary judgment.
D.
Substantial Modification
Defendant next argues that summary judgment is appropriate because the
subject knife was substantially modified after it left Defendant’s control. Plaintiff’s injury,
Defendant insists, occurred because of this modification. Courts are clear that “[w]hile
the manufacturer is under a nondelegable duty to design and produce a product that is
not defective, that responsibility is gauged as of the time the product leaves the
manufacturer’s hands.” Robinson v. Reed-Prentice Div. of Package mach. Co., 49
N.Y.2d 471, 479, 403 N.E.2d 440, 443 (1980). “Substantial m odifications of a product
from its original condition by a third party which render a safe product defective are not
the responsibility of the manufacturer.” Id.
Defendant argues that the evidence establishes that “the lock pawl was
physically and intentionally removed after proper manufacturing.” Removal of this
“permanently affixed safety device” was the cause of Plaintiff’s injury, since there was
no locking mechanism for the blade. Defendant points out that wear on the device
17
indicates that the knife had been used for some time before Plaintiff’s injury and
therefore must have been working properly. Since the evidence establishes that the
lock pawl, if properly manufactured, cannot come loose absent an intentional act by a
user, Defendant argues that the evidence proves a substantial modification which
precludes liability on any grounds.
The Court notes that Defendant’s statement of material facts, which has been
deemed unopposed by the Court, establishes that the knife’s lock pawl cannot become
dislodged, if properly assembled, unless the housing unit is intentionally opened and
the lock pawl is physically removed. (Defendant’s Statement at ¶ 42). Thus, if the
undisputed facts could establish that the knife was properly assembled, the Court must
conclude that the knife underwent a substantial modification to the locking mechanism
and a strict liability claim cannot be raised. Defendant’s argument for this claim that
substantial modification occurred relies not just on the undisputed f acts but on
inferences and arguments made in the Defendant’s expert report.
Ehrlich’s report, as explained above, offers admissible evidence a jury could use
to determine that the knife was defectively manufactured, and thus was shipped by the
manufacturer in a defective condition. As explained above, this evidence is admissible.
A jury could use that evidence to conclude that no substantial modification occurred.
As such, summary judgment is inappropriate on these grounds as well.
E. Proximate Cause
Defendant also argues that summary judgment is appropriate because Plaintiff’s
conduct and the methods he employed while using the product represented the sole
proximate cause of his injury. Defendant submits the expert report of a biomechanical
18
expert, Doug Morr, to support its position. Morr contends that the m ethods Plaintiff
used increased his chance of injury. Since Plaintiffs did not refute this report with their
own biomedical expert, Defendant contends that the Court must adopt the report and
grant Defendant’s motion.
In New York, a plaintiff may not recover in a products liability action if “the sole
proximate cause of [his] injuries was his own negligence[.]” Donuk v. Sears, Roebuck &
Co., 52 A.D.3d 456, 456-57, 859 N.Y.S.2d 701, 702 (2d Dept. 2008). New York courts
have also pointed out that “[t]he concept of proximate cause, or more appropriately
legal cause, has proven to be an elusive one, incapable of being precisely defined to
cover all situations.” Derdiarian v. Felix Contractor Corp., 51 N.Y.2d 308, 314, 414
N.E.2d 666, 670 (1980). “Depending on the nature of the case, a variety of factors may
be relevant in assessing legal cause.” Id. at 314-15. Still, since there is a “unique
nature of the injury in each case, it is for the finder of fact to determine legal cause,
once the court has been satisfied that a prima facie case has been established.” Id. at
315. To prevail, “the plaintiff must generally show that the defendant’s negligence was
a substantial cause of the events which produced the injury.” Id.
Defendant points to the expert report of Robert J. Mullins, II to argue that the
evidence in the case indicates that Plaintiff’s conduct was the sole proximate cause of
his injuries.2 Mullins argues that “[t]here is no physical evidence that the subject blade
broke during the subject incident” and “no physical evidence of how much, if any, of the
2
Defendant cites to Exhs. J and K to its motion for summary judgment. These
exhibits are the same document, titled Mullins’ “Supplemental Report.” See Exhs. J
and K to Defendant’s Motion, dkt. #s 39-12 and 39-13. Both reports bear the sam e
date.
19
blade extended during the subject incident.” (Report of Robert J. Mullins, II, Exh. J, K,
to Defendant’s Motion, dkt. #s 39-12, 39-13, (“Mullins Report”) at 2). Mullins also points
out “well-established precautions” exist protecting “workers form the potential hazards
associated with using a tool such as the subject utility knife.” (Id.). He contends that
Plaintiff endangered himself by failing to “place the plastic jamb he was cutting on a
stable surface,” or “clamping” the material while he was cutting it. (Id.). These methods
“increased [the] risk of the material binding against the cutting blade” and “increased
[the] risk of the improper forces being applied to the knife to attempt to complete the
cuts.” (Id.). Mullins finds that “[t]his incident, including the injuries sustained, are in no
way dependent upon the blade extending out and then breaking off as alleged.” (Id.).
He contends that “[t]his incident, and the resulting injuries, would have been avoided
entirely if Mr. Boots would have followed widely accepted safety procedures.” (Id.).
Using “biomechanial analysis,” Mullins argues “Mr. Boots’ decisions of how and where
to hold the piece he was working on, and the direction and type of force he was
applying to the knife, were the primary causative factors to the injury he sustained.”
(Id.). His method of cutting “place[d] his left forearm in the direct path of the blade and
provide[d] the mechanism necessary to cause the injury with no more than the blade
length Mr. Booth reportedly selected prior to the event.” (Id. at 2-3).
The facts as established by the Defendant demonstrate the Plaintiff used a
method to cut the jamb and free the blade which placed him in danger. Those facts
establish that the utility knife’s blade became stuck in the vinyl while Plaintiff attempted
to cut the fourth cut in the jamb. (Defendant’s Statement at ¶ 24). Plaintiff attempted to
free the blade by holding the jamb upright in his left hand and pulling the blade with his
20
right. (Id. at ¶ 25). This method for freeing the blade put Plaintiff’s left arm in the path
of the blade. (Id. at ¶ 26). The blade came free from the jamb, and Plaintiff cut his left
arm between the wrist and elbow to a depth significantly less than .4 or .6 inches. (Id.
at ¶¶ 27, 22). There were a number of different methods that Plaintiff could have used
to free the knife from the jamb. (Id. at ¶ 31). He could have pushed the blade away
from his body, which would have prevented the accident. (Id. at ¶ 31).
Summary judgment would be appropriate here if these facts established that the
“sole proximate cause” of Plaintiff Peter Boots’ injury was his own conduct in cutting the
jamb and attempting to remove the stuck blade. Courts are clear, however, that the
burden lies with the Defendant at this point to “‘show that the plaintiff’s conduct was the
sole proximate cause of [his or her] injuries.’” Rupolo v. Oshkosh Truck Corp., 749
F.Supp.2d 31, 35 (E.D.N.Y. 2010) (quoting Donald v. Shinn Fu Co., No. 99-CV-6397
(ARR), 2002 U.S. Dist. LEXIS 27967, 2002 WL 32068351, at *6 (E.D.N.Y. Sep. 4,
2002) (emphasis added).
These facts and the expert reports do not establish, however, that the sole
proximate cause of Plaintiff’s injury was the way that he used the knife. Taking all
inferences in the Plaintiffs’ favor, they simply show that the Plaintiff used a method that
endangered him. Indeed, Mullins’ report, though contending that the accident would
have been avoided if Boots had used a safer technique, also admits that Boots’ actions
“were the primary causative factors to the injury he sustained.” (Mullins report at 2)
(emphasis added). The report thus equivocates. Primary is not sole, and Defendant
has not met its burden on this basis. A jury will have to determine the cause of
Plaintiff’s injury.
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IV.
CONCLUSION
For the reasons stated above, the Court will DENY the Defendant’s motion for
summary judgment, dkt. #39.
IT IS SO ORDERED.
Dated: 16, 2015.
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