Woelfle v. Black & Decker (U.S.) Inc.

Filing 95

OPINION AND ORDER granting in part and denying in part 80 Motion for Summary Judgment; denying 81 Motion to exclude the opinions of Defendants liability experts; denying 85 Motion for Summary Judgment; denying 86 Motion to exclude the opinions of Plaintiffs liability experts. Signed by Hon. William K. Sessions III on 7/7/2023. (CGJ)

UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
JAMES J. WOELFLE
Plaintiff,
v.
BLACK & DECKER (U.S.) INC.,
Individually and d/b/a DeWALT
INDUSTRIAL TOOL CO.,
Defendant.

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Case No. 1:18-CV-486

OPINION AND ORDER
Plaintiff James Woelfle has brought a product liability
personal injury claim against Black & Decker Inc. on theories of
strict liability, negligence, and breach of warranty (express
and implied). The product at issue is a DeWalt DW716 Type 2
compound miter saw (hereafter “subject saw” or “DW716 miter
saw”).
Defendant has moved for summary judgment seeking dismissal
of Plaintiff’s Complaint and Amended Complaint. ECF 80.
Plaintiff has filed a cross-motion for partial summary judgment
seeking dismissal of Defendant’s Scarangella defense to
Plaintiff’s strict product liability claim for defective design.
ECF No. 85. Further, Plaintiff has moved the Court to exclude
the testimony of Defendant’s liability experts, George H.
Pfreunsdschuh, Thomas Jay Bodine, and Erick H. Knox. ECF No. 81.
Defendant has filed a cross-motion to exclude the opinions of

Plaintiff’s liability experts, Les Winter and Ruhi Arslanoglu.
ECF No. 86.
For the reasons set forth below, Plaintiff’s motion to
exclude the opinions of Defendant’s liability experts is denied;
Defendant’s cross-motion to exclude the opinions of Plaintiff’s
liability experts is denied; Defendant’s motion for summary
judgment is granted in part and denied in part; and Plaintiff’s
cross-motion for partial summary judgment is denied.
FACTUAL BACKGROUND
This case involves the Plaintiff’s use of a DW716 miter saw
to cut what Plaintiff claims to have been a 2” x 2” x 36” long,
pressure-treated piece of wood (the “spindle” or “workpiece”)
that resulted in a deep laceration on the posterior side of the
Plaintiff’s forearm.
Plaintiff purchased the DW716 miter saw from Home Depot in
2015. ECF 80-10 at 76: 1-13; 99:1-19. The DW716 miter saw model
purchased by Plaintiff came equipped with a lower guard that
covers the blade when the saw is in its resting position and
that, as it is lowered, continues to cover the majority of the
exposed blade as the user makes a cut into a workpiece. The
DW716 model did not, however, come with a clamp as standard
equipment. ECF 80-11 at 100-103. A clamp is an instrument that
can be affixed to a miter saw to secure a workpiece in place
while a user makes a cut. Its purpose is to prevent the
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workpiece from shifting, improving both the accuracy and safety
of the saw. Id. Alternatively, a user can use their left hand to
secure a workpiece in place while using the DW716 miter saw by
applying downward pressure to the workpiece and pushing it into
the miter saw’s table and fence.
Between 2015 and the date of the injury on December 13,
2017, Plaintiff used the subject saw, without a clamp, to cut
wood for different applications without incident. The day of the
incident, Plaintiff was allegedly using the DW716 miter saw to
cut 2” x 2” x 36” long, pressure-treated pieces of wood for use
as stairwell spindles. Plaintiff was making 45̊ angle cuts in
the spindles to follow the angle of the stairwell; he set the
bevel of the miter saw to zero and rotated, or mitered, the
table 45̊ to the left. Plaintiff testified to then using his
left hand to secure the spindles against the miter saw’s table
and fence approximately 10 inches from the blade while making
cuts. Plaintiff allegedly made several successful 45̊ angle cuts
in the spindles the day of the incident without issue. On
approximately the ninth attempted cut, Plaintiff sustained an
approximately 6-inch-deep laceration on the posterior side of
his forearm when, as the Plaintiff testified, “[t]he saw jumped,
and I – it pulled [the workpiece] to the – to the right, inwards
toward the blade, and I just – it happened so quick.” ECF 80-10
at 114-115.
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DISCUSSION
I. Motions to Exclude Expert Testimony
A federal district court may only consider admissible
evidence when deciding a motion for summary judgment. Fed. R.
Evid. 104(a); See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53
(2d Cir. 1993). The standard for the admissibility of evidence
under Rule 702 is the same at summary judgment as at trial. See
General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997).
Correspondingly, the Court begins with an assessment of the
parties’ challenges to the admission of expert testimony in this
case.
A. Form of Submission
To start, Plaintiff argues that Black & Decker has failed
to offer its expert reports in admissible form by attaching
unsworn reports that do not satisfy the requirements for summary
judgment affidavits or declarations under Rule 56(c)(4). ECF 87
at 4. Plaintiff is correct that FRCP 56(c) allows a party to
object to the Court’s consideration of materials cited in
support of a motion for summary judgment that are not presented
in an admissible form, meaning they are not supported by an
affidavit, declaration, or sworn to in conformity with 28 U.S.C.
§ 1746. FRCP 56(c)(2), (4); see Monclova v. City of N.Y., 726 F.
App’x 83, 84 (2d Cir. 2018). Nonetheless, as each of Defendant’s
experts appeared for and testified under oath as to the opinions
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contained in their reports, and as Defendants have since cured
the alleged defect by submitting affidavits from each of their
liability experts, see Capobianco v. City of N.Y., 422 F.3d 47,
55 (2d Cir. 2005), the Court denies the Plaintiff’s request to
exclude Defendant’s expert reports as inadmissible hearsay.
B. Admission of Rebuttal Opinions from Defendant’s Experts
Next, Plaintiff has asked the Court to preclude the
Defendant’s liability experts, Mr. Pfreundschuh, Mr. Bodine, and
Mr. Knox, from offering rebuttal opinions that are not supported
by their initial reports due to Defendant’s decision to submit
no rebuttal reports by the agreed upon deadline.
With the Court’s approval, Plaintiff agreed to identify his
expert witnesses and produce his reports by April 8, 2022,
Defendant agreed to do the same by June 8, 2022, and both
parties agreed to offer any intended rebuttal reports by August
5, 2022. ECF 62. It was additionally agreed that expert
depositions would take place no later than October 7, 2022.
These deadlines were complied with, except for that Defendant’s
experts submitted no rebuttal reports.
A party making disclosures of expert witnesses must do so
“at the times and in the sequence that the court orders.” FRCP
26(a)(2)(D). Federal Rule of Civil Procedure 26(a)(2)(B)
requires submission of an expert report from all testifying
experts prepared and signed by the witness containing, among
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other things, “a complete statement of all opinions the witness
will express and the basis of reasons for them.” When “evidence
is intended solely to contradict or rebut evidence on the same
subject matter identified by another party under Rule
26(a)(2)(B) or (C), [it must be disclosed] within 30 days after
the other party’s disclosure.” FRCP 26(a)(2)(D)(ii). FRCP
37(c)(1) complements Rule 26(a) by providing that when a “party
fails to provide information or identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at trial, unless the failure was substantially
justified or is harmless.”
Rule 26(a)(2)(B) makes clear that an expert’s report must
contain a statement of “all opinions to be expressed and the
basis and reasons thereof” for opinions about another expert’s
analysis that contradicts or rebuts another expert’s testimony.
The Court is not persuaded that rebuttal expert testimony is
excepted from Rule 26’s reporting requirements. See Complaint of
Kreta Shipping, S.A., 181 F.R.D. 273, 277 (S.D.N.Y. 1998)
(finding expert’s trial affidavit that included rebuttal
statements that were not included in the expert’s prior reports
violated Rule 26(a)(2)(B))). Therefore, Defendant’s argument
that Mr. Pfreundschuh, Mr. Bodine, and Mr. Knox each indicated
willingness or intent to offer rebuttal opinions during the
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deposition or at trial should the Plaintiff have questioned him
about those opinions does not persuade the Court to exempt from
any expert opinions that are not included in their reports from
the Rule 26 reporting requirements.
As the Court finds that expert rebuttal opinions that are
not supported by a report are excludable under FRCP 37(c)(1) for
failure to submit rebuttal reports under FRCP 26(a)(2)(B), the
Court must next assess whether to preclude Defendant’s liability
experts from offering rebuttal testimony at trial. Courts in the
Second Circuit assess four factors on a motion to preclude
expert testimony:
(1) the party's explanation for the failure to comply
with the discovery order; (2) the importance of the
testimony of the precluded witness; (3) the prejudice
suffered by the opposing party as a result of having
to prepare to meet the new testimony; and (4) the
possibility of a continuance.
Patterson v. Balsamic, 440 F.3d 104, 117 (2d Cir. 2006) (quoting
Softel, Inc. v. Dragon Med. & Sceintific Commc’ns, Inc., 118
F.3d 955, 961 (2d Cir. 1997).
In this instance, the opinions that Plaintiff seeks to
exclude are merely anticipated; Defendant’s experts, as of yet,
have given no opinions that lack support in their initial
reports. Accordingly, the Court is not in a position to properly
assess the Second Circuit factors. As Defendant’s experts have
yet to offer any rebuttal testimony, there is no indication that

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Defendant has failed to comply with the discovery order. And
without knowing the content of the rebuttal testimony, the Court
is not in a position to assess its importance. Likewise, the
Court cannot judge the prejudice Plaintiff may suffer by
admission of rebuttal testimony. Thus, while the testimony of
Defendant’s experts may necessarily be limited by virtue of
their decision not to submit rebuttal reports, the Court
declines to decide at this point whether to exclude any of the
Defendant’s expert opinions made in rebuttal to the opinions of
Plaintiff’s experts.
For these reasons, the Court denies Plaintiff’s request to
preclude Defendant’s liability experts from offering rebuttal
testimony.
C. Daubert Motions to Exclude Expert Testimony
The Court next addresses the parties’ cross motions to
exclude several expert opinions. Plaintiff has moved the Court
to exclude the opinions of George H. Pfreundschuh, P.E., Thomas
J. Bodine, and Erick H. Knox. ECF 81. Defendants have moved the
Court to exclude the opinions of Plaintiff’s liability experts
Les Winter and Ruhi Arslanoglu. ECF 84. For the reasons that
follow, both parties’ motions are denied.
Federal Rule of Evidence 702, which governs the
admissibility of expert witness testimony, provides:

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If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact and 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 on 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.
Under Rule 702, the trial court functions as a “gatekeeper”
tasked with ensuring “that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.”
Daubert v. Merrell Dow. Pharm., 509 U.S. 579, 597 (1993). Though
trial judges have “broad discretion” in this role, United States
v. Felciano, 223 F.3d 102, 120 (2d Cir. 2000), Rule 702 makes
clear that two prerequisites must be met before testimony of an
expert witness can be admitted into evidence: (1) the witness
must be properly qualified to testify as an expert on matters
that are scientific, technical, or specialized in nature, see
Hodder v. United States, 328 F. Supp. 2d 335, 345 (E.D.N.Y.
2004) (citing Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81
(2d Cir. 1997)), and (2) the expert’s testimony must reliably
assist the trier of fact in understanding the evidence or
determining an issue of fact, see Campbell ex rel. Campbell v.
Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 184 (2d Cir. 2001).
An expert’s proponent bears the burden of establishing the
reliability of that expert’s testimony by a preponderance of the
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evidence. See Lara v. Delta Int’l Mach. Corp., 174 F. Supp. 3d
719 (E.D.N.Y. 2016). As established in Daubert and its progeny,
the baseline of Rule 702 is expert testimony that, in the
Court’s discretion, is sufficiently reliable and relevant should
be admitted. Daubert, 509 U.S. at 597 (1993).
Daubert requires a case-by-case evaluation of the
reliability of an expert’s testimony; the standards trial courts
employ to make this assessment are “liberal and flexible.” Lara,
174 F. Supp. at 729 (internal quotation and citations omitted);
see also Kumbo Tire Co., v. Ltd. v. Carmichael, 526 U.S. 137,
152 (1999). While Daubert identified a non-exclusive list of
factors that trial courts may consider in their reliability
assessment of an expert’s opinion, including peer reviews,
theoretical testing, error rates, and scientific standards, the
Second Circuit, among others, has recognized that not all
factors have applicability in every case. See Amorgiano v.
National R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002)
(explaining that the Daubert factors are not a “definitive
checklist or test ... [since] [t]he inquiry envisioned by Rule
702 ... is a flexible one and the gatekeeping inquiry must be
tied to the facts of a particular case”); see Zaremba v. General
Motors Corp., 360 F.3d 355, 358 (2d Cir. 2004) (recognizing that
the list of factors set forth in Daubert “neither necessarily
nor exclusively applies to all experts or in every case”);
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Hilaire v. Dewalt Indus. Tool Co., 54 F. Supp. 3d 223, 243
(E.D.N.Y. 2014) (noting that “any inquiry into reliability need
not be limited to the four factors listed in Daubert [since]
these guidelines must be applied with flexibility, particularly
when the expert is offering opinions based on specialized
personal knowledge rather than scientific studies”). As such,
even where an expert has not pointed to scientific literature to
support their opinion, an expert can “otherwise reliably
utilize[ ] scientific methods to reach a conclusion.” Id. The
gatekeeping duty of the trial court is to “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 field.” Kumbo Tire Co., 526 U.S. at 152.
In the product liability context, “an expert witness is not
strictly confined to [their] area of practice, but may testify
concerning related applications; a lack of specialization
affects the weight of the opinion, not its admissibility.” Lara,
174 F. Supp. at 730 (quoting Lappa v. Honda Motor Co., Inc., 857
F. Supp. 222, 226 (N.D.N.Y. 1994), aff’d sub nom., Lappe v.
Honda Motor Co. of Japan, 101 F.3d 682 (2d Cir. 1996)). In other
words, an expert may testify on related applications upon which
they can use their relevant education or background to form an

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opinion despite their lack of specialization in the specific
product at issue. Id.
1. Motion to Exclude Expert Opinion of George H.
Pfreundschuh
Plaintiff first asks the Court to preclude the Defendants
from introducing Mr. Pfreundschuh as an expert. Mr. Pfreundschuh
proffers an expert opinion on the design safety of the DW716
miter saw as sold without a clamp, the adequacy of the warnings
accompanying the subject saw, and the necessity of supplying a
work clamp as standard equipment with the subject saw. Plaintiff
challenges Mr. Pfreundschuh’s qualifications, his lack of
identification of any studies or peer reviewed literature to
substantiate his opinions, and his failure to conduct tests to
support several of his opinions. For these reasons, Plaintiff
asks the Court to preclude Mr. Pfreundschuh from offering an
opinion in this action.
Defendant asserts that Mr. Pfreundschuh’s “opinions, as
detailed in his report and testified to during his expert
deposition, fit comfortably within his areas of expertise.” ECF
84-14 at 7. Mr. Pfreundschuh is a professional engineer who
earned a Bachelor of Science in mechanical engineering in 1988
and a Master of Science in mechanical engineering in 1990 and
who is licensed to practice as an engineer in New York and New
Jersey. Mr. Pfrendschuh is presently an engineering consultant

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with Affiliated Engineering Laboratories, Inc., where he has
been conducting forensic engineering investigations and
evaluations related to engineering and safety evaluations since
2002. ECF 81-7 at 47-50. He has provided expert witness
testimony in more than sixty cases. ECF 81-7 at 50. Mr.
Pfreundschuh is additionally a member of the ANSI 01 Standard
Committee – “Safety Requirements for Woodworking Machinery,” the
American Society for Testing and Materials – ASTM E34.10
Standard Development Table Saw Task Group, the American Society
of Mechanical Engineers (ASME), and the American Society of
Safety Professionals (ASSP).
The Court concludes that given Mr. Pfreundschuh’s overall
background, education, training, and prior experience in the
field of engineering generally and with table saw and
woodworking machinery more specifically, he is adequately
qualified to render an opinion in this case concerning a miter
saw. See Lara, 174 F. Supp. 3d at 732-33. Mr. Pfreundschuh’s
education and professional qualifications “permit him to analyze
a given set of circumstances, [as] he can through reading,
calculations, and reasons from known scientific principles make
himself very much an expert in the particular product even
though, [as the Plaintiff notes], he has not had actual
experience in its manufacture.” Lappe, 857 F. Supp. at 226.

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Next, Plaintiff challenges the reliability of Mr.
Pfreundschuh’s opinions on account of his lack of reliance of
any studies or tests to support his opinions. Mr. Pfreundschuh’s
report contains opinions based on his review of the case
documents, assessment of applicable codes and industry
standards, findings from three separate inspections of the
subject saw, demonstrations of Plaintiff’s use of the saw, and
application of his education and training. That Mr. Pfreundschuh
did not look to peer reviewed studies nor perform any specific
testing on the saw does not impair the reliability of his expert
opinion as to the safety of the subject saw based on his
educational and professional experience in addition to his
assessment of the subject saw’s compliance with industry custom
and standards. Any challenges to Mr. Pfreundschuh’s opinions
based on his conclusions, report, and testimony go to the weight
of his testimony, not its admissibility. See Sprayregen v. A.
Gugliotta Dev., Inc., 166 F. Supp. 3d 291, 301 (E.D.N.Y. 2016).
As Mr. Pfreundschuh’s opinions are based on his technical and
specialized knowledge as required by FRE 702, the Court
concludes Defendant has demonstrated by a preponderance of the
evidence that Mr. Pfreundschuh’s opinions are admissible.
The Court likewise finds no merit in Plaintiff’s request
that Mr. Pfreundschuh be barred from testifying to any accident
reproduction he engaged in through the course of preparing his
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report, in certain areas at trial. The Court additionally denies
Plaintiff’s request to bar Mr. Pfreundschuh from testifying on
the topic of warnings. And finally, as Mr. Pfreundschuh was
neither retained as a human factors expert nor offered any
opinions regarding human factors in this case, the Court need
not bar Mr. Pfreundschuh from testifying on the topic.
Accordingly, Plaintiff’s motion to exclude the opinion of
Mr. Pfreundschuh is denied.
2. Motion to Exclude Expert Opinion of Thomas J. Bodine
Plaintiff next asks the Court to preclude Defendant from
introducing Mr. Bodine as an expert in this action. Mr. Bodine,
another liability expert for the Defendant, proffers engineering
opinions on whether the subject saw is defective in its design
or manufacture, whether the saw is safe for its intended or
foreseeable uses, industry standards for compound miter saws,
and his assessment of whether and how the subject could have
caused Mr. Woelfle’s injury at issue in this case.
Mr. Bodine holds a bachelor’s degree in mechanical
engineering and master’s degree in engineering management with
over twenty years of experience in engineering positions at
Stanley Black & Decker, Inc., or Black & Decker (U.S.) Inc. ECF
81-3 at 1. Mr. Bodine has been a Safety Assurance Manager in
Stanley Black & Decker’s Product Liability Group since 2013. ECF
81-3 at 1. In this position, he was responsible for many
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products, including miter saws. ECF 81-3 at 1. Mr. Bodine is not
a doctor, medical professional, biomedical engineer, nor a human
factors expert. Nonetheless, the Court concludes Mr. Bodine is
qualified to offer expert opinions in this case on account of
his educational and professional background as well as his
familiarity with the subject saw.
Plaintiff argues that Mr. Bodine’s testimony is unreliable
because he “never conducted any testing (aside from pulling the
saw blade up and down a few hundred times) or analysis related
to any of his opinions,” and relied on no studies to support his
conclusions as to the design and safety of the subject saw. ECF
81-1 at 12. The Court finds this argument to be without merit.
Mr. Bodine prepared a report and provided deposition
testimony to share the outcome of his investigation into the
accident that is the subject of this case. He based his report
and opinion on his assessment of the subject saw and its manual,
examination and testing of an exemplar DeWALT DW716 miter saw,
UL Standard UL987 (Standard for Stationary and Fixed Electric
Tools, Eighth Edition, dated October 18, 2011), other miter saw
manuals, information the parties disclosed pursuant to FRCP 26,
Mr. Winter’s report, and transcripts, exhibits and video of Mr.
Woelfle’s deposition on July 12, 2019. ECF 81-3 at 1. Mr. Bodine
grounded his opinion on his application of his extensive
knowledge of mechanical engineering and miter saw design and
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safety to the facts of this incident as disclosed in Plaintiff’s
complaint and deposition testimony. Mr. Bodine’s report
indicates he did in fact inspect the subject saw on two
occasions (ECF 81-3 at 4-5), calculated the forces applied with
Mr. Pfreundshuh and Mr. Winter in a joint inspection, and
participated in testing of the subject saw (ECF 81-3 at 5). Mr.
Bodine additionally testified in his deposition to running tests
on an exemplar saw in an unsuccessful attempt to reproduce the
wear patterns observed on the subject saw to no avail (ECF 81-4
at 28), which the Court finds is not evidence of lack of
testing, but rather may be probative of the Plaintiff’s alleged
use of the subject saw with the guard disengaged, as Mr. Bodine
suggested in his report (ECF 81-3 at 13). Accordingly, the Court
concludes that the sources Mr. Bodine utilized constituted a
sufficient factual basis for his opinion and that he applied
reasonable principles in a reliable manner based on his
mechanical engineering expertise, in conformity with FRE 702.
The Court must next consider whether Mr. Bodine is
qualified to offer an opinion on the cause of Mr. Woelfle’s
specific injuries. As the Second Circuit has explained, “because
a witness qualifies as an expert with respect to certain matters
or areas of knowledge, it by no means follows that he or she is
qualified to express expert opinions as to other fields.” Nimely
v. City of New York, 414 F.3d 381, 399 n.13 (2d Cir. 2005).
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Courts in this Circuit are in agreement that “biomechanical
experts are permitted to opine as to general causation of
injuries in motor accident cases; i.e., whether the force
sustained by a ‘plaintiff in the subject accident could
potentially cause certain injuries.’” Thomas v. YRC Inc., No.
16CIV6105ATHBP, 2018 WL 919998, at *5 (S.D.N.Y. Feb. 14, 2018)
(quoting Manlapig v. Jupiter, 14 Civ. 235 (LGS), 2016 WL 916425
at *3 (S.D.N.Y. Mar. 10, 2016)). In Morgan v. Girgis, 07 CIV.
1960 (WCC), 2008 WL 2115250, at *5 (S.D.N.Y. May 16, 2008), the
Southern District of New York held that a biomechanical expert is
qualified to testify about the nature and force generated in an
accident and how the accident could affect the human body, but
may not testify as to whether the accident caused the
plaintiff's specific injuries due to his lack of a medical
background. The court relied on the reasoning of a Sixth Circuit
case that determined that a biomedical expert was “qualified to
give general opinions about causation,” but not to give “medical
opinions.” Laski v. Bellwood, 2000 WL 712502, at *3 (6th Cir.
May 25, 2000). Despite this assessment, the court affirmed the
trial court’s decision to permit the medical causation opinion.
Id.
In this case, the Court concludes that the opinions Mr.
Bodine intends to proffer regarding the causation of the
Plaintiff’s laceration are well within his expertise. Plaintiff
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suggests that Mr. Bodine requires a medical degree to proffer
the following opinion:
Mr. Woelfle’s description of the incident and Mr.
Winter’s theory do not align with the factual evidence
of the wound. In my opinion, Mr. Woelfle’s injury is
more consistent with him inadvertently putting his arm
in the path of the blade as he lowered the head with
his right arm with the lower guard defeated.
This opinion does not constitute a “medical opinion.” It
reflects Mr. Bodine’s expert assessment of the miter saw and the
manner in which Plaintiff testified to using it, based on which
Mr. Bodine drew a conclusion given the undisputed placement and
depth of Plaintiff’s wound and Mr. Bodine’s expert opinion of
the ways in which a user’s arm could possibly be brought into
contact with the subject saw’s blade. The Court finds a medical
degree is not required to form this opinion. Given Mr. Bodine’s
extensive background in mechanical engineering and product
safety, he is clearly qualified to testify about the nature of
the accident, the mechanics of the subject saw, the effects that
use and misuse of the subject saw could inflict on the human
body under different conditions, and whether, under the use
conditions described by the Plaintiff, the incident could have
caused Mr. Woelfle’s wound.
Plaintiff finally asks the Court to preclude Mr. Bodine
from giving any opinion on the topic of warnings as detailed in
his report and testified to during his deposition. The Court

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concludes that Mr. Bodine’s background, particularly as a Safety
Assurance Manager for Black & Decker is sufficient to qualify
him to proffer opinions regarding the subject saw’s on-product
warnings and manual.
For these reasons, Plaintiff’s motion to exclude the
testimony of Mr. Bodine is denied.
3. Motion to Exclude Expert Opinion of Erick H. Knox
Plaintiff next requests that the Court preclude Defendant’s
human factors expert, Mr. Knox, from testifying. Defendant
retained Mr. Knox to perform a biomechanical accident analysis
of the incident. Mr. Knox has submitted expert opinions on
injury causation under the circumstances described by Plaintiff
and given the mechanics and physics of the subject saw. He has
also proffered opinions on the safety equipment and warnings
accompanying the saw at the time of purchase by Plaintiff.
Mr. Knox holds a Bachelor of Science degree in engineering
from Marquette University, and a Master of Science degree and
Ph.D. in biomedical engineering from Northwestern University.
ECF 81-5 at 5. Mr. Knox has extensive experience as a licensed
professional engineer. He is currently employed as a principal
engineer at Engineering Systems Inc., a multi-disciplinary
professional engineering consulting firm and laboratory where he
specializes in accident investigation and reconstruction,
engineering and failure analysis, safety, and biomechanics and
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human factors. ECF 81-5 at 6. Mr. Knox has 25 years of
experience conducting accident investigations involving consumer
products, including accident investigations involving miter
saws, table saws, band saws, circular saws, and other power
tools. ECF 81-5 at 6.
Given Mr. Knox’s background in engineering and vast
experience in the field of accident investigation and
reconstruction of power tools—and miter saws in particular—the
Court finds that he is qualified to testify as an expert in this
case.
Moving to reliability, Mr. Knox based his report on his
examination of materials received from the Plaintiff, Mr.
Woelfle’s deposition testimony, photographs, inspection of the
subject saw and selected wood pieces, inspection and laboratory
testing of an exemplar DW716 miter saw, review of Mr. Woelfle’s
medical records, and safety information provided with the
product. ECF 81-5 at 2-13. During his deposition, Mr. Knox
additionally discussed the reference in his report to a peerreviewed, published study he had previously authored through the
course of a separate but similar investigation and accident
reconstruction involving a forearm injury from a comparable
miter saw with no clamp.
The Plaintiff broadly challenges Mr. Knox’s opinions as
unreliable because he did not produce certain force
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calculations, performed no tests using a clamp, and relied on a
self-authored study. The Court disagrees. Contrary to
Plaintiff’s assertion, Mr. Knox did in fact conduct testing on
an exemplar saw based on the Plaintiff’s description of the
incident. Moreover, Mr. Knox’s authorship of a study examining a
near-identical accident referenced in his report demonstrates
his relevant expertise and extensive review of miter saw safety
without clamps. Accordingly, Plaintiff’s critique of Mr. Knox’s
report is insufficient to allow the Court to conclude that Mr.
Knox’s opinion was based on anything less than scientific,
technical, and specialized knowledge as required by FRE 702.
Plaintiff further asserts that Mr. Knox’s opinions on
injury causation are improper as such opinions require a medical
degree. For the reasons described above, this challenge lacks
merit. Mr. Knox’s qualifications, testing, and review of the
medical records are sufficient to ensure the reliability of his
opinion as to injury causation under FRE 702 and Daubert. His
opinions reflect his assessment of the physics and scientific
principles associated with human operation of the saw, including
his assessment of whether a human arm could be brought into
contact with the subject saw’s blade in the manner described by
the Plaintiff. No medical degree is required to form this
opinion.

22

Accordingly, Plaintiff’s motion to exclude the expert
opinion of Mr. Knox is denied.
4. Cross-Motion to Exclude the Expert Opinions of Les
Winter and Ruhi Arslanoglu
To establish his claim that the accident was caused by a
design defect, Plaintiff seeks to offer the testimony of two
liability experts: Les Winter and Ruhi Arslanoglu. Defendant has
cross-moved the Court to exclude Plaintiff’s liability experts.
As a threshold matter, Defendant’s cross-motion to exclude
Plaintiff’s liability expert opinions is timely. A motion to
exclude expert testimony is not a dispositive motion. Such a
motion may have a dispositive impact when granted while a motion
for summary judgment is still pending, as exclusion of a party’s
expert witness may inform the Court’s assessment that summary
judgment against that party is proper. Nonetheless, even under
that circumstance, it is the motion for summary judgment that
remains dispositive, not the motion to exclude expert testimony.
Accordingly, Black & Decker’s cross-motion to exclude the
opinions of Plaintiff’s liability experts filed after the March
3, 2023 deadline for dispositive motions was not untimely.
Defendant challenges the reliability of Plaintiff’s expert
opinions without raising a challenge to the qualifications of
either expert. Defendant asserts that the “Plaintiff’s liability
experts are offering a novel, untested theory of liability” that

23

relies on speculation and an alternative version of the accident
that is unsupported by Plaintiff’s testimony.
According to Defendant, Plaintiff testified that the
“workpiece ‘slid’ along the fence to the right, without jumping
over the fixed fence,” whereas the Plaintiff’s liability
experts’ opinions rely on the theory that the blade became bound
in the workpiece, causing the portion of the workpiece to the
left of the blade to rotate counterclockwise with a force
significant enough to throw Plaintiff’s arm to the right and
into the path of the blade, resulting in Plaintiff’s injury.
The Court does not agree with the Defendant’s contention
that Plaintiff’s testimony and the opinions of Plaintiff’s
liability experts are irreconcilable. The relevant portion of
Plaintiff’s testimony provides as follows:
A.

. . . I
jumped,
inwards
quick.”

just start cutting, and it jumped. The saw
and I – it pulled it to the – to the right,
towards the blade, and I just – it happened so
ECF 84-2 at 114-116.

Q.

Okay. But your testimony is that, just the way you
just, it was pulled to the right?

A.

Right when I started – yes.

Q.

The question is to the right.
. . .

A.

Yes.

Q.

To your right. Okay. And did – did the blade ever make
its way through the material?

A.

No.
24

ECF 84-2 at 114-15.
Q.

Your testimony is that the spindle slid to the right,
correct?

A.

Correct.

Q.

Is there any – at any point did the spindle jump over
top of the fixed fence?

A.

No.

Q.

All of the motion, if I’m correct, was – was to – to
your right as you operated the saw?

A.

Yes.

ECF 84-2 at 120.
At no point does Plaintiff testify that the workpiece slid
“along the fence” under the path of the blade, only that the
workpiece slid. To the contrary, Plaintiff’s testimony that the
blade never made its way through the material is consistent with
Mr. Winter’s explanation that the wood blade became bound with
the workpiece. And Mr. Winter’s opinion that the workpiece
rotated counterclockwise, launching Plaintiff’s arm into the
blade, does not require a conclusion that the workpiece did not
slide. Mr. Winter’s inability to calculate with mathematical
precision the force applied to Plaintiff’s left hand does not
undermine his opinion. Likewise, Mr. Arslanoglu’s lack of an
opinion on how far beyond the blade Plaintiff’s hand might have
travelled when thrown, the amount of force acting on Plaintiff’s
hand, the distance between Plaintiff’s torso and the front of
the saw, or on other factual details of the incident, does not
25

require a finding that Plaintiff’s proffered expert testimony is
not sufficiently reliable under Daubert and Rule 702.
For these reasons, Defendant’s cross-motion to exclude, or
alternatively limit, the opinions of Plaintiff’s liability
experts is denied.
II. Sanctions for Spoliation
In its motion for summary judgment, Defendant asks the
Court to dismiss Plaintiff’s complaint as a sanction for
spoliating critical evidence. Spoliation refers to the
destruction of evidence. Under New York Law, spoliation
sanctions may be appropriate where “a litigant, intentionally or
negligently, disposes of critical items of evidence involved in
an accident before the adversary has an opportunity to inspect
them.” Kirkland v. New York City Hous. Auth., 236 A.D.2d 170,
173 (1st Dept. 1997). A party moving for dismissal as a remedy
for the intentional or negligent destruction or loss of a piece
of evidence must demonstrate prejudice. Kirschen v. Marino, 16
A.D.3d 555, 556 (2d Dept. 2005). Courts have also found
dismissal to be a remedy where a party “alters, loses or
destroys key evidence before it can be examined by the other
party’s expert” and which is “prejudicial to the . . . ability
to present a viable defense.” Horace Mann Ins. Co. v. E.T.
Appliances, 290 A.D.2d 418, 419 (2d Dept. 2002). To warrant

26

dismissal, the Defendant must show “severe” prejudice. Kirkland,
236 A.D.2d at 174.
Defendant has raised two claims of spoliation against the
Plaintiff: (1) that Plaintiff’s liability expert Les Winter
spoliated evidence by altering the condition of a screw on the
subject saw before the Defendant’s liability experts could
examine it, and (2) that Plaintiff discarded the subject spindle
he had been cutting when the accident occurred before the
Defendant could examine it.
A. Spoliation of the Miter Saw
According to Plaintiff’s deposition testimony, the lower
guard that covers the blade of the subject saw during use was
working properly at the time of the incident—in other words, it
lowered to cover the blade as he attempted to cut into the
workpiece. During a joint inspection of the subject saw,
Plaintiff’s liability expert, Les Winter, shared that during his
initial private inspection of the subject saw on October 25,
2018 he observed that the lower guard was not functioning
properly and, to match Plaintiff’s description of the incident,
he tightened a guard bracket screw to re-enable the guard. Mr.
Winter documented the changes he made to the subject saw with
photographs and written notes.
Mr. Winter’s alteration to the saw was temporary,
reversible, and reported to Defendant’s liability experts. What
27

is more, Defendant’s own liability expert likewise made
alterations to the subject saw during their May 14, 2019 private
inspection, including full removal of the guard. As a result,
the Court concludes that while the fact that the lower guard was
not operable at the time Mr. Winter first inspected the saw may
be probative of the condition of the saw at the time of
Plaintiff’s injury, the temporary alteration does not warrant
dismissal of Plaintiff’s complaint. Defendant may question Mr.
Winter at trial regarding his alterations and may question Mr.
Woelfle as to the operation of the lower guard at the time of
the injury.
B. Spoliation of the Subject Spindle
Next, Defendant asserts that Plaintiff committed severely
prejudicial spoliation of the evidence when he discarded the
spindle he had been cutting at the time of incident before
Defendant’s liability experts had the opportunity to examine it.
The Defendant sets forth that the spindle Mr. Woelfle had been
cutting at the time of the accident is a critical piece of
evidence. According to Plaintiff’s liability expert, Mr. Winter,
Plaintiff’s injury occurred when the blade became “bound” in the
spindle, pushing it into the space between the saw’s fixed
fences on either side of the blade and causing the portion of
the spindle to the left of the blade to rotate counterclockwise
with a force significant enough to thrust Plaintiff’s left hand,
28

which was holding the workpiece, into the path of the blade.
Defendant asserts that the condition of the spindle after the
incident is vital to their defense: that if the spindle was
fully severed—if it was cut clean—then Plaintiff’s assertion
that the blade became bound with the workpiece would be negated.
The Court disagrees that the absence of the spindle is
sufficient to form the basis of such a drastic sanction as
dismissing Plaintiff’s complaint in its entirety. The record
includes deposition testimony of a non-party witness identified
by the Plaintiff, Mr. Vincent Brege, who testified to Plaintiff
showing him the spindle after the accident. Mr. Brege testified
to the condition of the spindle: according to Mr. Brege “it was
mangled, like broken” on its end (ECF 80-27 at 99), and that
“you can just see where the saw blade chewed it up. That’s all
you can see,” (ECF 80-27 at 105). Mr. Brege’s testimony is
informative of the condition of the spindle after the incident
and can advise the jury as to whether the saw cut clean through
or whether the saw became bound in the spindle, causing Mr.
Woelfle’s hand to slide or be thrown into the path of the blade
with the left side of the spindle.
For these reasons, the Court denies Defendant’s motion to
dismiss as a sanction for spoliation of evidence.

29

III. Motions for Summary Judgment
A. Summary Judgment Standard
A court shall grant summary judgment if the moving party
carries their burden to show no genuine dispute as to any
material fact and establishes that they are entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). If the movant meets
their factual burden, the opposing party must set out specific
facts showing a genuine issue of material fact appropriate for
trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “[T]he
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). A fact
is “material” if it “might affect the outcome of the suit under
the governing law,” and a fact is genuinely in dispute “if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. at 248.
While the Court must view all inferences to be drawn from
the facts in the light most favorable to the nonmoving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986), a party may not “rely on mere speculation or
conjecture as to the true nature of the facts to overcome a
motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804
30

F.2d 9, 12 (2d Cir. 1986). “Mere conclusory allegations or
denials” are not evidence and do not create genuine issues of
material fact. Quinn v. Syracuse Model Neighborhood Corp., 613
F.2d 438, 445 (2d Cir. 1980). The trial court’s function when
deciding a motion for summary judgment “is not to weigh the
evidence or resolve issues of fact, but to decide, after
resolving all the ambiguities and drawing all inferences in
favor of the nonmoving party, whether a rational juror could
find in favor of that party.” Pinto v. Allstate Ins. Co., 221
F.3d 394, 398 (2d Cir. 2000).
B. Products Liability Law in New York
In a federal action based on diversity jurisdiction, the
law of the State of New York applies to all substantive issues.
Colon ex rel Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 81
(S.D.N.Y. 2001). Under New York Law, a plaintiff injured by an
allegedly defective product can bring a claim against the
product’s manufacturer under one or more of four theories of
liability: the theory of strict products liability, the ground
of negligence, and an action in contract for breach of express
or implied warranty. See Victorson v. Bock Laundry Mach. Co., 37
N.Y.2d 395, 400 (1975). Under any action for recovery in a
products liability case, the plaintiff must prove that the
injury complained of was proximately caused by a defect in the
product’s design, manufacturing, or warnings. See Fahey v. A.O.
31

Smith Corp., 908 N.Y.S.2d 719, 723 (2010). In other words,
Plaintiff must prove the alleged defect in the product is a
substantial cause of the incident causing their injury. See
Caccese v. Liebherr Container Cranes, Ltd., 53 N.Y.S.3d 59, 61
(2017). A plaintiff may only recover in such an instance when,
at the time of the occurrence of their injury, the product was
being “used for the purpose and in the manner normally intended
or in a manner reasonably foreseeable.” Amatulli v. Delhi
Constr. Corp., 77 N.Y.2d 525, 532 (1991).
Here, Plaintiff’s complaint alleges products liability
claims against the Defendant on account of a defect in the
design, manufacture, and/or assembly of DW716 miter saws, in
addition to inadequate warnings or failure to warn of latent
dangers resulting from intended or foreseeable uses of the
subject saw.
The heart of Plaintiff’s evidence and argument lies in
Black & Decker’s undisputed design decision not to include a
clamp as standard equipment for the DW716 miter saw. Plaintiff
has offered no evidence through its experts or otherwise that
the subject saw is defective in its assembly or manufacture or
that the subject saw deviated from Black & Decker’s design. And
it is not in dispute that the Black & Decker neither
manufactured nor assembled the subject saw. Accordingly, as
Plaintiff has not pursued a manufacture or assembly claim that
32

is distinct from the design defect claim for failure to include
a clamp as standard equipment, the Court grants Defendant’s
motion for summary judgment as to the Plaintiff’s claims for
product liability under the theories of manufacturing or
assembly defects grounded in negligence, strict product
liability, and breach of warranty.
This Court’s inquiry will accordingly be limited to whether
Defendant is entitled to summary judgment on the causes of
action grounded in defective product design and failure to warn.
C. Defective Design Claims
“[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” or an unintended but reasonably
foreseeable use, and “whose utility does not outweigh the danger
inherent in its introduction into the stream of commerce.”
Hoover v. New Holland No. Am., Inc., 23 N.Y.3d 41, 60-61 (2014)
(citation and internal quotation marks omitted).
Strict liability in New York in the defective design
context applies when “a manufacturer . . . places into the
stream of commerce a defective product which causes injury.”
Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525, 532, 569 N.Y.S.2d
337, 571 N.E.2d 645 (1991). To succeed on a strict liability
claim, Plaintiff must show that a defective product caused the
33

Plaintiff's injury. See McCarthy v. Olin Corp., 119 F.3d 148,
154 (2d Cir. 1997). A prima facie case in strict products
liability for design defects under New York law requires
Plaintiff to show “that the manufacturer . . . marketed a
product designed so that it was not reasonably safe and that the
defective design was a substantial factor in causing the
plaintiff’s injury.” Voss v. Black & Decker Mfg. Co., 59 N.Y.2d
102, 107 (1983). The plaintiff bears the burden of establishing
“that the product, as designed, was not reasonably safe because
there was a substantial likelihood of harm and it was feasible
to design the product in a safer manner.” Id.
A plaintiff injured by an allegedly defective product may
also seek recovery under the theory of negligence through a
showing of duty, breach, proximate cause, and damages. A prima
facie case in New York for negligence in the design of a product
requires the Plaintiff to show: “(1) that the manufacturer owed
plaintiff a duty to exercise reasonable care; (2) a breach of
that duty by failure to use reasonable care so that a product is
rendered defective, i.e. reasonably certain to be dangerous; (3)
that the defect was the proximate cause of the plaintiff’s
injury; and (4) loss or damage.” BIC USA, 199 F. Supp. 2d at 82.
The premise of a negligence claim for products liability is that
the Defendant failed to act reasonably in their design, testing,
manufacturing, selling, inspecting, or marketing of a product.
34

See Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75
A.D.2d 55, 61–66 (4th Dept. 1980).
It has long been recognized in New York that there is
little or no difference between a cause of action for a
negligent design defect and one for strict liability based on
defective design. See Denny v. Ford Motor Co., 87 N.Y.2d 248,
662 N.E.2d 730 (1995). While the focus under a claim for strict
product liability is on whether the product as designed was
reasonably safe, the question under a negligence action is
whether the manufacturer acted unreasonably in designing the
product. See Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107
(1983). Nonetheless, “[p]roof that will establish strict
liability will almost always establish negligence. [Under either
theory] [i]n a design defect case the court is concerned with
the balancing of the alternative designs available against the
existing risk while taking into account the cost of the proposed
alternative.” Lancaster Silo & Block Co. v. N. Propane Gas Co.,
75 A.D.2d 55, 62, 427 N.Y.S.2d 1009, 1013-14 (1980). Given that
design defect claims under negligence and strict liability are
“virtually identical,” it is common for courts to assess the two
claims together for purposes of summary judgment. BIC USA, 199
F. Supp. 2d at 83; see also See Searle v. Suburban Propane Div.
of Quantum Chem. Corp., 263 A.D.2d 335, 700 N.Y.S.2d 588, 591
(3d Dep't 2000) (“[I]n a design defect case, there is almost no
35

difference between a prima facie case in negligence and one in
strict liability.”) (quoting Denny v. Ford Motor Co., 87 N.Y.2d
248, 258, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995)).
Analyzing both theories of liability together, the
Plaintiff must first show that the product, as designed, posed a
“substantial likelihood of harm.” Voss, 59 N.Y.2d 102, 108, 450
N.E. 2d 204 (1983). Second, Plaintiff must show that a safer,
technologically and economically feasible design alternative was
available at the time of manufacture. Fane v. Zimmer, 927 F.2d
124, 128 (2d Cir. 1991); Ruthosky v. John Deere Co., 651
N.Y.S.2d 717, 719 (3rd Dep’t 1997). Generally, New York courts
then apply a utility test through which the fact finder must
balance the risks created by a product’s design against its
utility and cost to assess whether a product is unreasonably
dangerous. See Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422,
454 (S.D.N.Y.1999) (citing Cover v. Cohen, 61 N.Y.2d 261, 266–67
(1984)). The seven factors considered under this test include:
“the likelihood that the product will cause injury, the ability
of the plaintiff to have avoided injury, the degree of awareness
of the product's dangers which reasonably can be attributed to
the plaintiff, the usefulness of the product to the consumer as
designed as compared to a safer design and the functional and
monetary cost of using the alternative design.” Scarangella v.
Thomas Built Buses, Inc., 93 N.Y.2d 655, 659 (1999) (citing Voss
36

v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107 (1983)).
Additionally, a jury may take into account “the likely effects
of [liability for failure to adopt] the alternative design on
... the range of consumer choice among products.” Scarangella,
93 N.Y.2d at 659 (citing Restatement [Third] of Products
Liability § 1, comment f). “The ultimate issue is whether the
product is reasonably safe, not whether it incorporated the
safest possible features.” BIC USA, 199 F. Supp. 2d at 84
(citing Cover, 61 N.Y.2d at 272).
Finally, Plaintiff must establish that the design defect
proximately caused Plaintiff’s injury. Speller ex rel. Miller v.
Sears, Roebuck and Co., 100 N.Y.2d 38, 41 (2003). In New York,
the test requires that the Defendant’s defective design be a
“substantial factor” in causing the injury. Id; see also Voss,
59 N.Y.2d at 107.
D. The Scarangella Exception
Under New York law, an exception to the product utility
test exists where the alleged design defect is the absence of an
optional safety feature from the standard equipment sold
accompanying a product. Under this exception:
The product is not defective where the evidence and
reasonable inferences therefrom show that: (1) the
buyer is thoroughly knowledgeable regarding the
product and its use and is actually aware that the
safety feature is available; (2) there exist normal
circumstances of use in which the product is not
unreasonably dangerous without the optional equipment;
37

and (3) the buyer is in a position, given the range of
uses of the product, to balance the benefits and the
risks of not having the safety device in the
specifically contemplated circumstances of the buyer's
use of the product. In such a case, the buyer, not the
manufacturer, is in the superior position to make the
risk-utility assessment, and a well-considered
decision by the buyer to dispense with the optional
safety equipment will excuse the manufacturer from
liability.
Scarangella, 93 N.Y.2d at 661 (1999). Where each of these prongs
are satisfied, the buyer is in a better position than the
manufacturer to assess the safety of the product, and thus it
becomes the buyer who bears “the responsibility [of] the
decision on [whether] optional safety equipment presents an
unreasonable risk to users.” Id. at 660.
Defendant asserts that the Scarengella test applies to the
facts of this case as Plaintiff’s core contention is that Black
& Decker’s failure to include a clamp as standard equipment
accompanying the DW716 miter saw model constitutes a design
defect. In seeking summary judgment, Black & Decker argues that
it cannot be held liable for Mr. Woelfle’s injuries because he
was a knowledgeable user who chose not to purchase an optional
safety device that Black & Decker offered.
Plaintiff disputes that the Scarangella defense is
applicable to the facts of this case and moves the Court to
grant his motion for partial summary judgment dismissing the
Scarangella defense. According to Plaintiff, Defendant has

38

failed to establish the first element of Scarangella as the
Plaintiff explicitly testified that he was unaware of the
existence of clamps for use on saws. ECF 80-32 at 7.
The Court agrees that the Plaintiff’s testimony raises a
triable issue of fact as to whether he was actually aware of the
availability of clamps as an optional safety device for the
subject saw. See Mariani v. Guardian Fences of WNY, Inc., 194
A.D.3d 1380, 1381 (4th Dep’t 2021). While some New York courts
have held that when “knowledge of available safety options is
brought home to the purchaser, the duty to exercise reasonable
care in selecting those appropriate to the intended use rests
upon him,” Biss v. Tenneco, Inc., 64 A.d.2D 204, 207 (4th Dept.
1978), the more recent trend after Scarangella is that a
Defendant who proves only that “knowledge of [the] available
safety option [ ] [was] brought home” by the user, and the user
elected not to purchase it, has failed to meet their initial
burden at summary judgment to prove actual awareness of the
available safety option, Campbell v. International Truck &
Engine Corp, 32 A.D.3d 1184, 1185 (4th Dep’t 2006) (internal
citation and quotations omitted); see also Mariani V. Guardian
Fences of WNY, Inc., 194 A.D.3d 1380, 1381 (2021). The Court
therefore finds that Defendant failed to meet its initial burden
of demonstrating actual awareness of the availability of clamps
as an optional safety accessory for the subject saw. As
39

Defendants have failed to meet their initial burden under
Scarangella, the Court need not consider the remaining
Scarangella factors under Defendant’s motion for summary
judgment. See Passante v. Agway Consumer Prods., Inc., 12
N.Y.3d. 372, 381-82 (2009).
Nonetheless, Plaintiff is not entitled to summary judgment
dismissing the Scarengella defense as a triable issue of fact
remains as to Mr. Woelfle’s actual knowledge of the availability
of work clamps for use on the DW716 miter saw. First, Defendant
has submitted evidence that Plaintiff was a highly knowledgeable
consumer. Plaintiff testified to many years of professional and
personal experience using miter saws dating back to 1987. He
testified to his extensive use of various types of saws, to
using miter saws for several hours in a day, sometimes for
several days in a row, and to using miter saws to cut various
angles for different purposes. According to his testimony,
Plaintiff was comfortable using miter saws and never used a
clamp in any of his past experiences regardless of what brand of
miter saw he used, despite the fact that several miter saws sold
at the time supplied a clamp as standard equipment. Plaintiff
additionally testified that he was aware of the existence of
clamps for welding, though allegedly not for miter saws. And
finally, Plaintiff testified to reading the DW716 operator’s
manual—though he did not indicate when he did so—which
40

identifies clamps as an available safety device. For these
reasons, Defendant has submitted sufficient evidence to raise a
question of fact as to whether Plaintiff was actually aware of
the existence of clamps as optional safety equipment at the time
he purchased the subject saw.
On account of this genuine issue of a material fact, the
Court denies Plaintiff’s and Defendant’s motions for summary
judgment as to the Scarangella defense.
E. Risk-Utility Balancing Test
In support of the motion for summary judgment, Defendant
submits the reports and testimony of two experts. First, Mr.
George Pfreundschuh opined to the safety of the DW716 miter
saw’s design and suitability for its intended purpose and use.
Mr. Pfreundschuh testified that the subject saw was built in
accordance with prudent engineering and safety practice as well
as industry accepted custom and did not violate any applicable
design code or standard. Pfreundschuh Report at 37. According to
Mr. Pfreundschuh, the applicable industry standard, which he
identified as the Underwriters’ Laboratories UL 987 Standard for
Stationary and Fixed Electric Tools, Eighth Edition, dated
October 19, 2011 (hereafter UL987), did not require clamps to be
provided with miter saws. Black & Decker’s second expert, Mr.
Bodine, likewise testified that the subject saw was safe for its
intended and reasonably foreseeable uses.
41

Nonetheless, the Court finds that Plaintiff has submitted
sufficient evidence to withstand summary judgment under the
risk-utility test as genuine issues of material fact remain with
regard to the weight of the evidence concerning the subject
saw’s risks when balanced against its utilities and costs.
Plaintiff’s expert, Les Winter, opined that the subject saw
was “not reasonably safe and was defective.” Winter Report p.
12. According to Mr. Winter, the applicable industry standard is
found in a publication from the Power Tool Institute (PTI)
titled “Safety Is Specific,” which is self-described as
“Guidelines for the safe operation of widely used portable and
stationary power tools.” According to the miter saw section of
this publication, clamps should be used to secure a workpiece to
the table to avoid injuries when making a cut. The PTI
specifically instructs: “Never make free hand cuts. Holding the
workpiece by hand is unstable and may lead to loss of control.”
Moreover, Mr. Winter opined that the DeWalt instruction manual
for the DW716 subject saw “works in harmony with the PTI
requirements” as it also instructs a user to clamp a workpiece
to avoid operator injury. Winter Report p. 9. For these reasons,
Plaintiff argues that the subject saw was unreasonably safe
because it did not comply with the applicable safety standard or
even the safety instructions of its own manual.

42

Plaintiff has also submitted evidence that the subject saw
could have been designed safer. Mr. Winter concluded that
equipping the subject miter saw with a clamp constitutes a safer
alternative design that was available at the time Defendant
manufactured the DW716 miter saw, that equipping the miter saw
with the clamp does not impair the product’s function, and that
inclusion of the clamp would have been inexpensive and was
common practice by other miter saw manufacturers. Winter Report
pp. 12-13.
The role of balancing a product’s risks against its
utilities in products liability cases belongs to the jury. See
Voss, 59 N.Y.2d at 108. “It will be for the jury to decide
whether the product was not reasonably safe in light of all the
evidence presented by both plaintiff and defendant.” Id.
For the foregoing reasons, there exists an issue of fact as
to whether the subject saw had a design defect under the riskutility test for products liability as Plaintiff has presented
sufficient evidence for a jury to conclude that the saw as sold
without out a clamp presented a substantial likelihood of harm
and that a safer design alternative existed at the time it was
sold.
F. Proximate Cause
Defendant additionally argues that even assuming a design
defect has been shown, Plaintiff cannot show that the defect was
43

the proximate cause of Mr. Woelfle’s injury. As previously
discussed, proximate cause is an essential element of
Plaintiff’s burden.
Defendant does not dispute the use of a clamp in this
circumstance would likely have prevented Mr. Woelfle’s injury,
or in other words, that non-use of a clamp was a substantial
factor in causing the injury. Instead, Defendant submits that
the question is not whether use of a clamp would have prevented
the injury, but whether, had Black & Decker supplied the clamp
as standard equipment, Mr. Woelfle would have used the clamp to
make this particular cut. In support of this argument, Defendant
argues that a clamp was not required for this type of cut and
that it was not Plaintiff’s general practice to use clamps, not
only for this type of cut, but for any cut using a miter saw.
ECF 80-10 at 94. Under this line of reasoning, Defendant asserts
that the absence of the clamp as standard safety equipment for
the DW716 miter saw was inconsequential and not a substantial
factor in causing the injury.
Nonetheless, based on Plaintiff’s injuries, his use of the
subject saw at the time of the accident, and the possibility
that the miter saw’s blade embedded in the workpiece rather than
severing it and sharply forced the workpiece to rotate counterclockwise, thereby pulling the user’s left arm to the right
towards the blade, Plaintiff has raised sufficient questions of
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fact regarding whether the absence of the clamp as standard
equipment was a substantial factor in his injury for purposes of
proximate cause. “Proximate cause is a question of fact for the
jury where varying inferences are possible.” Miranda v. City of
New York, 84 N.Y.2d 44, 51 (1994). In this case, a reasonable
juror could make an inference that based on Mr. Woelfle’s use of
the subject saw and other miter saws in the past with no clamp,
he would not have used the clamp in this circumstance.
Alternatively, the jury could infer that had Black & Decker
included the clamp as standard safety equipment, Mr. Woelfle
would have learned of the existence of clamps as a safety
feature for the DW716 miter saw, made a practice of using it,
and used it in this instance. At summary judgment, the Court is
tasked with drawing all reasonable inferences in favor of the
non-moving party, and must accordingly give this second
inference greater weight. For these reasons, Defendant’s motion
for summary judgment is denied on the issue of proximate cause.
G. Failure to Warn
In New York, failure to warn claims are identical under
strict liability and negligence theories of recovery for
products liability. See Anderson v. Hedstrom Corp., 76 F. Supp.
2d 422, 439 (S.D.N.Y. 1999). To establish a claim for failure to
warn, a plaintiff must show that a “manufacturer has a duty to
warn against dangers resulting from foreseeable uses about which
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it knew or should have known and that failure to do so was the
proximate cause of the harm.” Burke v. Spartanics, Ltd., 252
F.3d 131 (2d Cir. 2001). A manufacturer’s duty to warn extends
to “(1) warn against latent dangers resulting from foreseeable
uses of its product of which it knew or should have known”; “(2)
warn of the danger of unintended uses of a product provided the
uses are reasonably foreseeable”; and “(3) warn against the
dangers of foreseeable misuse of its product.” Liriano v. Hobart
Corp, 92 N.Y.2d 232, 240 (1998). An “adequate warning or
instruction . . . is one that is understandable in content and
conveys a fair indication of the nature and extent of the danger
to a reasonably prudent person.” Cooley v. Carter-Wallace, Inc.,
102 A.D.2d 642, 646 (4th Dept. 1984). A warning’s location is
also relevant, and a manufacturer may be held liable where a
warning was included in the manual, but not on the product
itself. See, e.g., Samyn v. Ariens Co., 177 A.D.3d 917, 919 (2d
Dept. 2019) (finding manufacturer liable when snowblower’s
manual provided warning against putting hands near moving parts,
but no warning was on the product itself); LaPaglia v. Sears
Roebuck & Co., Inc., 142 A.D.2d 173, 178 (2d Dept. 1988)
(whether plaintiff would have heeded on-product warnings despite
warnings in manual was a question for the jury).
In some circumstances, a manufacturer’s failure to provide
adequate warnings does not lead to liability where the user was
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already aware of the specific hazard that harmed them. See Call
v. Banner Metals, Inc., 45 A.D.3d 1470, 1471 (4th Dept. 2007);
Barclay v. Techno-Design, Inc., 129 A.D.3d 1177, 1180-81 (3d
Dept. 2015) (finding no liability where injured party had actual
knowledge of the specific hazard that caused their injury). The
adequacy of a warning and the user’s knowledge, however,
concerns the “particular risk of harm” associated with the
product. Cooley, 102 A.D.2d at 649. Accordingly, generalized
directions on the proper use of a product or warnings that a
product is dangerous without explaining the nature of the
precise danger may be inadequate. Id.
In this case, Defendant argues that summary judgment on the
failure to warn claim is warranted. Citing Plaintiff’s
deposition testimony, Defendant argues that Plaintiff was a
highly knowledgeable consumer: he used the subject saw for
several years without a clamp and without incident, he knew of
the dangers of putting a body part in the path of the blade, and
he read the manual. ECF 80 at 13 (citing ECF 80-1 at 90–94).
According to Defendant, these facts are sufficient to establish
that Plaintiff had actual knowledge of the specific potential
hazard of cutting unclamped workpieces such that Black & Decker
may not be held liable for failure to warn.
The Court disagrees. First, Defendant’s motion for summary
judgment does not dispute that Plaintiff’s hand was
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unintentionally brought into the path of the blade. While a
dispute does exist as to whether Plaintiff’s hand slid along the
fence of the saw into the blade or was thrown into the blade
when the workpiece was bent in a counterclockwise direction,
Defendant has not asserted that Plaintiff intentionally
positioned his hand in the path of the blade nor within the 6inch “no hand zone” on either side of the blade. Accordingly,
neither warnings against putting one’s hand near the blade nor
Plaintiff’s knowledge of the danger of putting body parts near
the blade are sufficient to excuse Black & Decker for liability
for failure to warn in this case.
Second, a triable issue of fact exists as to the adequacy
of the warnings contained in the manual for the subject saw.
While the manual does, in several places, caution the user to
“always use a work clamp to maintain control and reduce the risk
of workpiece damage and personal injury,” those warnings are
clarified with explanations for when to use a clamp, for
instance “when your hand will be dangerously close to the blade
within 6 inches,” or because of an irregularly shaped workpiece.
ECF 80 at 14. In other words, it is unclear whether the manual
is suggesting use of a clamp in all circumstances, or only in
certain circumstances, none of which are applicable here.
Moreover, those warnings never address the dangers of binding or
kickback associated with failure to clamp a workpiece to the
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table. Id. Defendant also does not assert that the product
contained any on-product warnings to inform the user of the
dangers of failing to use a clamp associated with kickback or
binding. ECF 80-30. Finally, the manual for the subject saw is
highly inconsistent. For instance, on the same page that the
manual warns the user to “always use a clamp,” the manual
depicts an image of a “PROPER CUT” showing a user securing the
workpiece by hand, without a clamp. In sum, the warnings
contained in the manual do not clearly direct a user whether or
not there is any danger associated with not using a clamp when
the user can hold the workpiece more than 6 inches away from the
blade and the workpiece is not an irregular shape.
“The 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 Mf. Co., 114 F.3d 359, 365–66 (2d Cir. 1997). The facts of
this case demonstrate the “intensely fact specific” nature of
failure to warn claims, Liriano. 92 N.Y.2d at 243. Given the
inconsistencies in the manual, the lack of warnings on the
subject saw, and Plaintiff’s alleged lack of knowledge of the
danger of a kickback when making cuts without a clamp, the Court
concludes that this case is improper for summary judgment.
Accordingly, Defendant’s motion for summary judgment of
Plaintiff’s failure to warn claim is denied.
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H. Breach of Express and Implied Warranties
Finally, Defendant’s motion for summary judgment on
Plaintiff’s actions for breach of implied and express warranty
action is unopposed. The Court therefore deems Plaintiff to have
abandoned these theories, and any cause of action upon them is
dismissed. See Mortka v. K-Mart Corp., 222 A.D.2d 804, 804 (3d
Dept. 1995).
CONCLUSION
For the reasons set forth above, Plaintiff’s motion to
exclude the opinions of Defendant’s liability experts is denied
(ECF 81); Defendant’s cross-motion to exclude the opinions of
Plaintiff’s liability experts is denied (ECF 86); Defendant’s
motion for summary judgment is granted in part and denied in
part (ECF 80); and Plaintiff’s cross-motion for partial summary
judgment is denied (ECF 85).

DATED at Burlington, in the District of Vermont, this 7th day of
July, 2023.

/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

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