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holding that the expert was not qualified to testify as an expert regarding the design of a laundry press machine because he “has never designed a machine of any kind, and has never worked with laundry machines in any capacity that bears on the conclusions he reaches in this case”
Summary of this case from Valente v. Textron, Inc.Opinion
No. 01-CV-8475 (ILG).
February 11, 2005
Gary A. Zucker, Zucker Ballen, P.C., Brooklyn, New York, Attorneys for Plaintiff.
Robert A. Calinoff, Calinoff Katz LLP, New York, New York, Attorneys for Defendants.
MEMORANDUM AND ORDER
INTRODUCTION
Plaintiff Pedro Barban ("Plaintiff" or "Barban") was severely burned while working with a laundry press machine that the predecessors of Rheem Textile Systems, Inc. ("Rheem") and Hoffmann/New York ("Hoffmann") manufactured (collectively, Rheem and Hoffmann are referred to as "Defendants"). He seeks to recover for the harm he sustained, alleging causes of action for strict liability, negligence and breach of warranty.
Defendants have moved this Court for an order pursuant to Fed.R.Evid. 702 that would preclude Plaintiff's expert, Stanley H. Fein ("Fein"), from testifying at the trial of this action on the ground that he fails to meet the prerequisites for receiving expert testimony under well-established Supreme Court precedent, includingDaubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 137 (1993). Defendants have also moved for an order granting them summary judgment on Plaintiff's claims. They argue that Plaintiff's strict liability and negligence claims should be dismissed for several reasons, including Plaintiff's failure to demonstrate that it was feasible for Defendants to have designed the pressing machine in a safer manner, Plaintiff's failure to proffer evidence that an operator of the press machine, as designed, would likely be harmed through use of the machine, and Plaintiff's failure to demonstrate that the alleged design defects of the pressing machine were a proximate cause of Plaintiff's injuries. With respect to the breach of warranty claim, Defendants assert that it is barred by the statute of limitations.
In opposition, Plaintiff argues that Defendants' attack on the qualifications and opinions of his expert go to the weight that a jury should give to his proffered testimony, and not its admissibility. Plaintiff further asserts that fact issues exist as to whether the press machine had a design defect or an inadequate warning.
For the reasons that follow, Defendants' motion for preclusion of Plaintiff's expert and for summary judgment is granted.
BACKGROUND
The relevant facts, viewed in the light most favorable to Plaintiff, are as follows. Plaintiff, a Mexican national, arrived in the United States on April 27, 1994. (Plaintiff's Deposition ("Pl. Dep.") at 7-11, attached as Exhibit K to the affidavit of Robert A. Calinoff ("Calinoff Aff.") sworn to on June 21, 2004). Between in or about 1997 and through September 5, 1999, he worked for Maxine Cleaners ("Maxine"), a dry cleaning establishment located in Brooklyn, New York. (Pl. Dep. at 12-14). During his employment with Maxine, Plaintiff worked six days a week on a pressing machine ironing clothes. (Id. at 14). The owner of Maxine taught Plaintiff how to use the pressing machine as he had no prior experience in the laundry business. (Id.) Plaintiff voluntarily terminated his employment with Maxine because the owner was on the verge of selling the business. (Id.)
Approximately two weeks later in early September 1999, AK Cleaner, Inc., another dry cleaning business in Brooklyn, hired Plaintiff to operate one of two pressing machines it had in its shop. (Pl. Dep. at 20). The difference between the two machines was the way in which the operator of the machine initiated use of it. With respect to one, which Plaintiff used regularly, the operator activated the machine by depressing a foot pedal and pulling the head down with his hand. (Id. at 28-31). The operator of the machine in question activated it by pulling a horizontal bar, or close bar, which caused the head to automatically close. (Id. at 28-29).
On September 25, 1999, Plaintiff was in the process of pressing a garment using the machine with the close bar. (Pl. Dep. at 17, 31). Suddenly, and without Plaintiff having touched any part of the machine, including the close bar which activated it, the head accidentally activated and lowered, causing Plaintiff's left hand to become lodged between the head and the buck of the machine. (Id. at 33-34). Plaintiff was unable to remove his left hand from the machine for at least twenty seconds. (Id. at 34). Plaintiff was subsequently taken to the hospital where he spent approximately three weeks receiving treatment for severe burns caused to his left arm. (Id. at 39-40).
The three most important pieces of the pressing machine for purposes of this case are the head, the buck and the close bar. The buck is the surface on which garments are placed for pressing. (Deposition Testimony of George Thomson taken on August 20, 2003 ("Thomson 8/20/03 Dep."), attached as Exhibit B to the affirmation of Gary A. Zucker ("Zucker Aff.") at 25). The head is the top surface of the machine which is mounted up and away from the buck to allow the operator access to place garments on the buck for pressing. (Id.) The close bar is used to operate the machine and has to be moved one-half inch up from its resting position to activate the machine. (Id. at 27).
Contrary to Plaintiff's deposition testimony, experts hired by both Plaintiff and Defendants testified that the head of the pressing machine could not have closed unless Plaintiff made contact with the close bar. (Thomson Dep. at 50-51, 77-78, Deposition of Stanley Fein ("Fein Dep."), attached to the Calinoff Aff. as Exhibit M, at 54-55).
Before the head was lowered completely, Plaintiff was able to remove his right hand from the buck. (Id. at 36).
Plaintiff testified that he used the subject machine only "sometimes," Pl. Dep. at 21, and that prior to his accident, he had used that machine between seven and ten times, including having used it to press two garments on the day of his injury. (Id. at 30-31). Plaintiff's colleague, Ms. Watson, testified that nothing was wrong with the machine on the day of Plaintiff's accident and she believes that Plaintiff used it because it was faster than the one he normally operated. (Id. at 26-27).
Calpurnia Watson was the other employee working for AK Cleaner who regularly operated the pressing machine. (Deposition of Calpurnia Watson ("Watson Dep."), attached as Exhibit D to the Zucker Aff., at 11-12).
The subject machine was manufactured on May 14, 1970, by an entity called New York Pressing. (Deposition of George Thomson dated August 25, 2003 ("Thomson 8/25/03 Dep."), attached as Exhibit C to the Zucker Aff at 18). Rheem Manufacturing acquired New York Pressing shortly after the pressing machine was manufactured, and then either incorporated or merged that entity into Rheem Textile Systems. (Id. at 18-19). Much later, Hoffman/New Yorker, Inc. purchased all, or substantially all, of the assets of Rheem Textile Systems. (Id. at 20).
Ms. Watson, who had used the machine in question for ten years, testified that during this time period, no one had an accident while operating it. (Watson Dep. at 35-36). At the time the pressing machine was manufactured and sold, and continuing through to at least April 26, 2004 (a period of 34 years) when Fein was deposed, it met all published safety standards and regulations, including those promulgated by ANSI, an association of dry cleaners, and the Occupational Safety and Health Administration. (Fein Dep. at 70-75, 95-96).
The pressing machine, as originally manufactured, had a dual stage pressure contact system which allowed for two different types of pressure to be exerted by the head on the buck. (Thomson 8/25/03 Dep. at 37). The first type, called contact pressure, is the default setting which provides sufficient power to move the head from the open to the closed position but which does not trigger the machine's steam pressure if any object, including a hand, greater than one-half inch in thickness, rests between the head and buck. (Id. at 37-38). Instructions accompanying the machine stated that the "action of the safety feature [wa]s to prevent the high pressure cylinder from being activated if anything half-an-inch thick or thicker, such as the operator's hand [wa]s left lying on the buck." (Id. at 40). Rheem, the successor to New York Pressing, had a practice of setting the contact pressure of pressing machines to one-half inch at the time of manufacture. (Id. at 43).
The second type, is a setting greater than one-half inch, which would allow the operator's hand to be caught in the machine. (Thomson 8/25/03 Dep. at 42-44). The instructions that accompanied the machine provided the purchaser with information about how to make the mechanical adjustment for changing the pressure setting from one-half inch to one higher. (Id. at 40-41). Making this mechanical adjustment was not obvious and required detailed knowledge of the machine. (Id. at 92). Although Defendants' expert testified that the dual stage pressure control system was set at two and one half inches when he inspected the machine in October 2000, no fact witness testified as to what the setting was on the date of Plaintiff's accident more than a year before. (Id. at 46).
The subject machine did not have any written warning on it stating that the pressure control system should not exceed a one-half inch setting because otherwise it may cause the operator's hand to become lodged in the machine if the head was depressed accidentally. (Thomson 8/25/03 Dep. at 91).
DISCUSSION
A. Admissibility of Fein's Proffered Expert Testimony
Before turning to the substantive arguments raised by Defendants with respect to their summary judgment motion, the Court addresses the admissibility of the expert report and testimony of Stanley H. Fein, which Plaintiff proffers to oppose Defendants' motion. Defendants argue that Fein does not have the requisite knowledge and experience to be qualified as an expert in this case, and that in any event, his testimony is unreliable and should be precluded. Defendants therefore urge the Court to disregard Fein's testimony in deciding their summary judgment motion. See, e.g., Cacciola v. Selco Balers, Inc., 127 F. Supp. 2d 175, 180 (E.D.N.Y. 2001) (where court excludes expert report as being inadmissible, summary judgment is decided on a record that does not include that evidence).
1. Fein's Qualifications
As a threshold matter, the Court must review Fein's qualifications as a design engineer. See Fed.R.Evid. 702. If he lacks the requisite qualifications, he cannot be permitted to testify as an expert.
Fein is a self-proclaimed engineering consultant, with bachelor's and master's degrees in mechanical engineering, and a master's degree in civil engineering. (Fein Dep. at 7). He spends fifty percent of his time consulting for building owners and managers on safety issues; twenty-five percent of his time buying real property and developing that property for investment purposes; and twenty-five percent of his time engaged in forensic consulting, advising clients, and giving testimony regarding design safety for different products, such as tools, and in the building maintenance industry generally. (Id.)
Fein conceded at his deposition that he has never designed any machines in any field. (Fein Dep. at 13-14). He has also never provided testimony, conducted studies, authored articles, or performed any other consulting work, specific to the dry cleaning industry. (Id. at 26-32). His only prior experience with pressing machines was forty years ago, when he worked in his father's dry cleaning business. At no time did he design or work on the safety features of pressing machines. (Fein Dep. at 14). He testified that none of the machines with which he had any familiarity had head guards. (Id. at 18).
The fact that Fein has never designed a machine of any kind, and has never worked with laundry machines in any capacity that bears on the conclusions he reaches in this case, compels the Court to preclude his testimony for the reason that he lacks the requisite qualifications and knowledge authorizing him to testify as an expert witness. As this Court has previously stated with respect to the admissibility of expert testimony, Fein's lack of relevant experience and qualifications plainly conveys "that whatever opinion he will ultimately express as to the cause of" Plaintiff's accident, "would be imaginatively speculative."Mannix v. Chrysler Corp., 2001 WL 477291, at *1 (E.D.N.Y. 2001) (precluding proposed expert testimony on motion for summary judgment) (Glasser, J.).
2. Fein's Testimony is Unreliable and Speculative
Not only does the Court conclude that Fein lacks the requisite qualifications as an expert in this case, his proffered testimony reveals a lack of even the barest of scientific rigor which is required of all experts in federal court. As set forth below, Fein's proffered testimony is unreliable and speculative and therefore inadmissible.
The standards governing this part of Defendants' motion are well-established. Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. It provides "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in 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." As explained by Daubert, 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), district courts are "gatekeepers" for expert testimony and must ensure that "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702. Therefore, this Court must determine whether Fein's expert testimony "is relevant to the task at hand" and "rests on a reliable foundation." See, e.g., In re Rezulin Prods. Liability Litigation, 309 F. Supp. 2d 531, 540 (S.D.N.Y. 2004). Although Rule 702 sets forth specific criteria for the district court's consideration, these criteria are not exhaustive. The Court may consider a number of other factors in determining the reliability of the proffered testimony, including: (1) whether a theory or technique has been or can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the technique's known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and (4) whether a particular technique or theory has gained general acceptance in the relevant scientific community. See Wills v. Amerada Hess Corp., 379 F.3d 32, 48 (2d Cir. 2004) (citing Daubert, 509 U.S. at 593-94).
On October 20, 1999, Fein conducted an inspection of the subject pressing machine. (Id. at 48). He did not seek to ascertain whether the machine was repaired or otherwise modified between the time of Plaintiff's accident and his inspection of it. (Id. at 56). He also never saw designs or blueprints of the pressing machine. (Id. at 59).
In addition to the inspection, Fein reviewed the depositions of Plaintiff, Ms. Watson and Defendants' expert, George Thomson. (Fein Rept.).
Fein opined that Plaintiff's injuries were caused by Defendants' negligence because they designed, manufactured and supplied a machine that was inherently dangerous. Specifically, he noted that the pressing machine was dangerous because the close bar could be accidentally activated while the operator's hand was in the "nip point" of the machine, thereby allowing an operator's hand to get stuck on the buck after the head was depressed. (Fein Dep. at 82-84). He reached this conclusion, notwithstanding his acknowledgment that the pressing machine met all recognized written standards and regulations, which he rejected as being incompatible with ensuring the absolute "safety" of operators of the machine. (Id. at 72, 94). Fein asserted that despite the fact that the machine met all applicable safety requirements, it was not "state of the art," a term he defined as the knowledge that the manufacturer should have had at a particular moment of time based on safety research they were then conducting. (Id. at 71-74).
According to Fein, the machine was not "state of the art" because at the time that it was manufactured, "the potential hazard to operators for this machine had to have been well known" by Defendants. (Fein Rept. ¶ 2). His opinion is based on a bulletin which the manufacturer issued in 1971, after the pressing machine was manufactured and sold, advising of the potential hazards and safety concerns for operators of the machine. (Fein Rept. ¶ 1). However, Fein acknowledged that no other manufacturer designed a pressing machine with a safety guard at the time the pressing machine in this case was built, or that the manufacturer had the technological capability to do so in 1970. (Fein Dep. at 74). Fein conceded that he did not know what "state of the art" was in 1970. (Id. at 117).
Fein also opined that the machine should not have had an adjustable mechanism to allow an operator to change the high pressure setting discussed above. (Fein Dep. at 84). He testified, however, that he did not know what the machine's high pressure setting was on the date of the accident. (Id. at 60).
In addition, Fein concluded that the machine did not have an adequate warning to advise operators of the possibility of the accidental operation of the machine. (Fein Rept. ¶ 3). Nonetheless, he did not conduct any studies regarding what warnings, if any, were placed on similar machines at the time the one in question was manufactured or in what language the warnings should have been given. (Fein Dep. at 85-90, 109).
Fein testified that in reaching his conclusions, he disregarded Plaintiff's testimony about how the accident occurred because it was "physically impossible." (Fein Dep. at 55). In formulating his opinion, Fein also disregarded the conversation he had with an employee who was working at AK Cleaner on the day of Plaintiff's accident. (Id. at 51-52). He also disregarded the testimony of Ms. Watson that in the ten years that she used the machine, no one had an accident while operating it. (Id. at 81). Fein reasoned that people typically do not understand the cause of accidents with which they are involved. (Id. at 54-55). In place of Plaintiff's undisputed testimony about how the accident occurred, Fein, who obviously did not witness it, nevertheless seeks to provide his own version as to how he "believes" the accident occurred. (Id. at 55). This is anipse dixit in light of Plaintiff's contradictory and clear deposition testimony. Independent of any other deficiencies in his qualifications or in other parts of his testimony, this alone requires the Court to preclude his expert opinion testimony.See, e.g., Levine v. Sears Roebuck and Co., 200 F. Supp. 2d 180, 189 (E.D.N.Y. 2002) (Glasser, J).
Fein failed to offer any alternative designs that the manufacturer could have used in 1970, contending that as an expert in this case, he was not required to do so. (Fein Dep. at 64). He blithely opines in conclusory fashion that the machine should have contained a head guard. (Fein Rept. ¶ 1). He explains that a "head guard was made available in 1971 to protect exactly the type of accident" in this case, see Fein Rept. ¶ 1, but he does not proffer and is not aware of any evidence that a head guard was used on similar machines by different manufacturers at or prior to the time the pressing machine in this case was manufactured.
Fein acknowledged that as an engineer, the utility of an alternative design must be considered in tandem with safety concerns, but admits that he did not undertake any study to determine whether, and how, the proposed head guard would impact the utility of the machine. (Fein Dep. at 97-98). This is the touchstone of what an engineering expert in a design defect case should do. See, e.g., Kass v. West Bend Co., 2004 WL 2475606, at *6 (E.D.N.Y. Nov. 4, 2004) ("[c]ourts have repeatedly rejected expert testimony where a proposed theory or alternative design was not properly tested" for safety or utility) (citing cases, citations omitted). Fein's failure to test his proposed alternative, to determine its impact, if any, on the machine's utility, or to identify a pressing machine model manufactured in 1970 with a head guard (or that such technology existed at that time), drives the Court to exclude evidence of the feasibility of the head guard alternative.
To the extent that Fein contends that the pressing machine should not have permitted the owner to adjust the dual stage pressure control setting above one-half inch, which he contends caused Plaintiff's injury, he has no knowledge of what the setting of the machine was on the date of the accident and his opinion is therefore baseless. As indicated above, no witness has proffered testimony concerning what the pressure control setting was on the date of the accident, and Fein only noted that the setting was two and a half inches a month later when he inspected the machine. (Fein Dep. at 60). Fein's conclusion that the adjustable pressure control setting was a design defect and contributed to Plaintiff's injury is therefore entirely speculative. Fein has conducted no analysis nor has he apparently even considered how useful the pressing machine would have been if the operator was unable to change the dual stage pressure control system to press clothes that are thicker than one-half inch, which further renders his conclusion in this regard meritless.
Fein's opinion that the failure of the pressing machine to have a warning "to advise operators of the potentially hazardous condition of the possibility of accidental operation of the machine" was a cause of Plaintiff's injury is not supported by the facts. As noted above, there is no record support for the proposition that Plaintiff activated the machine unintentionally through contact with the close bar, and thus Fein does not explain how the warning, even if it were able to be placed on the machine, would have prevented Plaintiff's accident. (Fein Rept. ¶ 3). The total absence of factual support for Fein's conclusion — that the alleged failure to warn was a proximate cause of Plaintiff's injuries — renders Fein's opinion inadmissible.
Also troubling to the Court is the fact that Fein never made any inquiry whether repairs or modifications were made to the pressing machine between the time of Plaintiff's accident and his inspection of the press. (Fein Dep. at 51). Fein also testified very broadly that "if a machine injures somebody, it is the defect of the machine, not of the operator." (Id. at 93). This contradicts the well-established principle in tort law that a manufacturer is not an insurer against injury, nor must the product be accident proof. See, e.g., Biss v. Tenneco, Inc., 64 A.D.2d 204, 207, 409 N.Y.S.2d 874, 876 (4th Dep't 1978). That startling view also drives the Court to conclude, that without anything more and based only upon the fact that Plaintiff was injured, Fein is predisposed to the view that the machine was the cause. It was precisely that pretense of expertise, characterized as "junk science," at which Daubert was aimed.
In short, Fein's report, and deposition testimony, must be rejected. It is by now well settled that Daubert and its progeny requires the Court to close the gate to opinion evidence, such as Fein's, that is bottomed upon nothing more than speculation and guesswork. In "Law and Other Things" (University of Cambridge Press, 1937) at page 250, Lord MacMillan, put it eloquently thus:
Of one thing I am certain, and that is that no scientific man ought ever to become the partisan of a side; he may be the partisan of an opinion in his own science if he honestly entertains it; but he ought never to accept a retainer to advocate in evidence a particular view merely because it is the view which is in the interests of the party who has retained him to maintain. To do so is to prostitute science and to practice a fraud on the administration of justice.
For the foregoing reasons, Defendants' motion to preclude Fein's testimony is granted.
B. Negligence and Strict Liability Claims
Having ruled Plaintiff's expert testimony inadmissible, Plaintiff "has no evidence to support his claim[s] that amount to [any]thing more than that he was injured" while using the pressing machine manufactured by Defendants. Mannix, 2001 WL 477291, at *5. Nonetheless, for the sake of completeness, the Court examines his substantive claims below.
The summary judgment standard is well established. Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A genuine issue as to a material fact exists when there is sufficient evidence favoring the nonmoving party such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Therefore, the nonmoving party "may not rest upon the mere allegations or denials" of its pleadings; rather, its response must go beyond the pleadings to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). However, when evaluating a motion for summary judgment, "[t]he courts must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. American Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
1. Applicable Law
Plaintiff asserts both a claim for negligence and strict liability. The latter claim for strict liability has two components — design defect and failure to warn. As an initial matter, the Court notes that the question whether these two causes of action are substantively similar remains unsettled. While New York courts generally consider design defect and negligence claims "functionally synonymous," Denny v. Ford Motor Co., 662 N.E.2d 730, 735-36, 87 N.Y.2d 248, 258, 639 N.Y.S.2d 250, 255-56 (1995), the Second Circuit has construed this characterization as dicta, and therefore continues to view this aspect of products liability law in New York as unsettled.Jarvis v. Ford Motor Co., 283 F.3d 33, 63 (2d Cir. 2002),cert. denied, 537 U.S. 1019 (2002). Nonetheless, because Plaintiff must essentially make out the same prima facie case under both theories, the Court will analyze the claims together after discussing the governing legal principles.See, e.g., Benner v. Becton Dickinson Co., 214 F.R.D. 157, 164-65 (S.D.N.Y. 2003).
i. Negligence
To make out a prima facie case for negligence in New York, Plaintiff must show (1) that the manufacturer owed Plaintiff a duty to exercise reasonable care; (2) breach of that duty so that a product is rendered defective, i.e., reasonably certain to be dangerous; (3) that the defect was the proximate cause of Plaintiff's injury; and (4) loss or damage. See, e.g., McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997).
ii. Strict Products Liability
"As the law of strict products liability has developed in New York, a plaintiff may assert that the product is defective because of a mistake in the manufacturing process or because of improper design or because the manufacturer failed to provide adequate warnings regarding the use of the product." Voss v. Black Decker Mfg. Co., 59 N.Y.2d 102, 106-07, 463 N.Y.S.2d 398, 401, 450 N.E.2d 204, 207 (1983) (citations omitted). Of the three types of products liability theories recognized under New York law, Plaintiff asserts that the pressing machine suffered from a design defect and an inadequate warning. With respect to both theories, Plaintiff must proffer evidence that the alleged design defect or inadequate warning was the proximate cause of his or her injury. See McCarthy, 119 F.3d at 154.
a. Defective Design
"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; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce."Scarangella v. Thomas Built Buses, Inc., 93 N.Y.2d 655, 659, 695 N.Y.S.2d 520, 522, 717 N.E.2d 679, 681 (1999) (quotations omitted). In a strict liability claim for defective design, Plaintiff must show: (1) the product as designed posed a substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and (3) the defective design was a substantial factor in causing Plaintiff's injury. See Voss, 59 N.Y.2d at 107; Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134-35 (2d Cir. 1999).
With respect to the first factor, "[t]he plaintiff . . . is under an obligation to present evidence 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 safe manner." Voss, 59 N.Y.2d at 108. Courts have recognized that "some products, for example knives, must by their very nature be dangerous in order to be functional." McCarthy, 119 F.3d at 155 (citing Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717, 720, 403 N.E.2d 440, 443 (1980)). "There must be something wrong with the product, and if nothing is wrong there will be no liability."Id.
Second, Plaintiffs must show that a safer, feasible design alternative existed at the time of manufacture. See Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d Cir. 1991); Ruthosky v. John Deere Co., 235 A.D.2d 620, 622, 651 N.Y.S.2d 717, 719 (3d Dep't 1997) (stating that alternative designs must be "economically and technically feasible" when the product is manufactured); Cover v. Cohen, 61 N.Y.2d 261, 266-67, 473 N.Y.S.2d 378, 380, 461 N.E.2d 864, 866 (1984) ("available alternatives" must exist such that a reasonable person, balancing the product's risks, cost and utility against the alternative's risk, cost and utility, would conclude that it should not have been marketed). The ultimate issue is whether the product is reasonably safe, not whether it incorporated the safest possible features. Id.
"This standard demands an inquiry into such factors as: (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 manufacturer's ability to spread the cost of any safety-related design changes." Denny, 87 N.Y.2d at 257 (citing Voss, 59 N.Y.2d at 109).
Third, and finally, the plaintiff must show that the defective design was the proximate cause of Plaintiff's injury. See Robinson, 49 N.Y.2d at 479. Because an accident may have "more than one proximate cause," the test is whether Defendants' defective or unreasonably dangerous design can be shown to be a "substantial cause" of the injury. Bush v. Lamb-Grays Co., 246 A.D.2d 768, 771, 668 N.Y.S.2d 64, 67 (3d Dep't 1998).
Ultimately, the inquiry in a design defect case "requires a fact finder to make a judgment about the manufacturer's judgment" in choosing to design a product in a certain way. Denny, 87 N.Y.2d at 258. Therefore, courts have analyzed negligence and strict liability claims for design defect under a single test: Plaintiff bears the burden of presenting evidence that (1) the product as designed posed a substantial likelihood of harm, (2) a feasible alternative existed, and (3) the defective design caused Plaintiff's injury. See Kass, 2004 WL 2475606, at *12;Voss, 59 N.Y.2d at 107-08.
As set forth above in connection with the discussion concerning Fein's proposed testimony, Plaintiff has failed to present any admissible evidence with respect to elements two and three. Plaintiff himself did not proffer testimony relating to a feasible alternative. Indeed, his expert, whose testimony the Court has precluded, see infra, failed to even conduct a study regarding alternative designs. See, e.g., Fane, 927 F.2d at 128 (plaintiffs have not offered evidence of a feasible, safer alternative design in order to survive summary judgment). Equally significant, in light of Plaintiff's testimony that the head of the pressing machine inadvertently fell on his hand without him having touched the close bar, Plaintiff is unable to offer any proof that any alleged design defect was the proximate cause of his injuries, no matter how serious and unfortunate they were.
b. Failure to Warn
Plaintiff's failure to warn case suffers from a similar defect. A plaintiff asserting a failure to warn, must establish that (1) a manufacturer has a duty to warn; (2) against dangers resulting from foreseeable uses about which it knew or should have known; and (3) that failure to do so was the proximate cause of the harm. "A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known." Liriano v. Hobart Corp., 92 N.Y.2d 232, 237, 677 N.Y.S.2d 764, 766, 700 N.E.2d 303, 305 (1998). In other words, the manufacturer must anticipate those uses of its product that are reasonably foreseeable, and even if those uses are unintended, warn consumers about their danger. See id. "Once a warning is given, the focus shifts to the adequacy of the warning. . . . [New York] courts have required . . . that warnings must clearly alert the user to avoid certain unsafe uses of the product which would appear to be normal and reasonable."Cooley v. Carter-Wallace Inc., 102 A.D.2d 642, 646, 478 N.Y.S.2d 375, 377 (4th Dep't 1984) (citations omitted).
There are two situations in which a manufacturer of a product has no duty to warn of known or foreseeable dangers. First, a manufacturer has no duty to warn users of a product of its dangers if they are obvious or well known. Burke v. Spartanics Ltd., 252 F.3d 131, 137 (2d Cir. 2001). Second, "when the user is fully aware of the nature of the product and its dangers, . . . the manufacturer cannot be held liable for failure to warn him." Billiar v. Minnesota Mining and Mfg. Co., 623 F.2d 240, 243 (2d Cir. 1980). In this case, Defendants have asserted the "knowledgeable user" exception against Plaintiff. This exception rests on the principle that a supplier of goods is better able to prevent accidents than its consumers, since its knowledge of and ability to detect dangers is generally superior. When, however, the user of a product is actually aware of the danger the product poses, this assumption falls away. "Put differently, when a warning would have added nothing to the user's appreciation of the danger, no duty to warn exists as no benefit would be gained by requiring a warning." Liriano, supra, 92 N.Y.2d at 247;see also Andrulonis v. United States, 924 F.2d 1210, 1222 (2d Cir. 1991). Except in rare cases, courts apply the knowledgeable user exception to professionals or other experts who are experienced with the product in question. Billiar, 623 F.2d at 243. New York courts have consistently found the exception to apply when plaintiffs are experienced professionals asserting a claim relating to a tool of their profession. See, e.g., Travelers Ins. Co. v. Federal Pacific Elec. Co., 211 A.D.2d 40, 44, 625 N.Y.S.2d 121, 124 (1st Dep't 1995) (knowledgeable user exception applied to a claim stemming from an electrical fire when plaintiff was an electrician).
The Court finds that Plaintiff is a knowledgeable user of the pressing machine. He was trained on the machine that he operated while employed by Maxine. (Pl. Dep. at 12-14). Moreover, Fein testified that AK Cleaner was not negligent in the manner in which Plaintiff was trained to use the subject machine. (Fein Dep. at 93). At the time of his accident, moreover, Plaintiff had more than three years of experience working with different pressing machines on a daily basis. Plaintiff is therefore properly treated as a professional dry cleaner to whom no duty to warn was owed.
The Court notes that Ms. Watson testified that she instructed Plaintiff not to use the subject machine. (Watson Dep. at 12). Therefore, Plaintiff's argument that no warning was given to him is baseless.
Plaintiff's failure to warn claim also fails because he has offered no evidence that the failure to warn was a proximate cause of his injury. Plaintiff's only proffered evidence on this point came from Fein, whose testimony the Court precluded as discussed above. This claim is therefore without merit and must be dismissed.
C. Breach of Implied Warranty of Merchantability and Fitness
Under New York Law, section 2-725 of the Uniform Commercial Code ("UCC") governs Plaintiff's cause of action for breach of implied warranty for the sale of goods. See, e.g., Chase Manhattan Bank, N.A. v. T N plc, 905 F.Supp. 107, 112 (S.D.N.Y. 1995); Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 410, 488 N.Y.S.2d 132, 133, 477 N.E.2d 434, 435 (1985). Section 2-725 of the UCC mandates that a claim for breach of implied warranty must be brought within four years after the cause of action accrued. N.Y.U.C.C. § 2-725; Heller, 64 N.Y.2d at 409. In New York, the law is clear that such a claim accrues at the time the product, in this case, the pressing machine, is delivered to the initial purchaser. Id.
In this case, it is undisputed that New York Pressing delivered the pressing machine that caused Plaintiff's accident in 1970. Plaintiff filed this action more than thirty years later, on November 30, 2001. Thus, Plaintiff's claim for implied breach of warranty is barred by the applicable statute of limitations and is therefore dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motions to preclude the testimony of Stanley H. Fein and for summary judgment are granted. Accordingly, the clerk of court is respectfully requested to close this case.
SO ORDERED.