Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.Posted: September 22, 2014
If you purchase a helmet that only protects part of your head, then you cannot sue for injuries to the part of your head not protected.
State: Georgia, US Court of Appeals for the Eleventh Circuit
Plaintiff: Lois Elaine Wilson
Defendant: Bicycle South, Inc.
Plaintiff Claims: Product Liability (breach of warranty, strict liability, and negligence)
Defendant Defenses: Assumption of the Risk and Open and Obvious
Holding: For the defendants
This case is fairly easy to understand, even though the opinion is quite complicated. The plaintiff was riding her bike from Florida to California. While traveling through Georgia she crashed suffering head injuries.
She sued claiming the rear wheel of the bike collapsed causing her crash. She claimed her head injuries were caused because the helmet failed to protect her head.
She sued the wheel manufacturer, Opportunities Inc., the bicycle manufacturer, Trek Bicycle Corporation and the retailer Bicycle South, Inc. The three defendants were found not liable at trial.
The jury did find the helmet manufacturer, Skid Lid Manufacturing Company liable for the plaintiff’s head injuries. The majority of the decision reviews the helmet issues. The plaintiff purchased the helmet for her ride. The helmet was a “half helmet” which only covered the top half of her head. The helmet came down to about the top of her ears.
The jury found in favor of the plaintiff on the head injury issue caused by the helmet manufacturer. The defendant Skid Lid moved for a judgment notwithstanding the verdict, (JNOV), which the court granted. The defendant helmet manufacturer appealed the decision.
A JNOV is effectively a motion filed by the losing party and the judge overrules the jury. This is a motion that is rarely granted and only done so to overcome extreme or unreasonable jury verdicts. The judge must find that no reasonable jury could reach the decision that was reached by the jury in the case. Normally this is because there are insufficient facts to support the claims or the jury applied the law incorrectly.
In this case, the JNOV seemed to have been entered because the jury ignored the defenses presented by the defendant.
Summary of the case
Georgia at the time of the decision allowed several defense to product liability claims, two of which were: Assumption of the risk and the “open and obvious” defects. Variations of these defenses are available in some, but not all states. The trial judge in this case granted the JNOV based on the Assumption of the Risk defense. The appellate court looked at both of these defenses.
The open and obvious defense states a plaintiff cannot recover from a defendant when the alleged defect is patent and obvious to the user.
The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. This determination regarding the peril is made on the basis of an objective view of the product. In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like.
This defense is not based on a defect in the product, only that the product will not or will do something that is patent, and open and obvious.
The defense applied here because the plaintiff when purchase the helmet purchased one that only covered part of her head. It was “obvious” that the helmet would not protect the part of her head that the helmet did not cover.
The assumption of risk defense is slightly different, but also applicable in this case. If the consumer knows of a defect in the product, is aware of the danger presented by the defect and proceeds to use the product anyway the plaintiff is barred from recovering. “The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head.”
The assumption of risk defense in Georgia is slightly more difficult to prove because the injured plaintiff must have known about the defect. (However, a defect only becomes one in pleadings after an injury has occurred.) What I mean by this is, as a manufacturer should point out the limitations of the product in the information supplied by the product. This provides the necessary notice to a user of the defect and provides a defense to the manufacturer.
The court also ruled on evidentiary issues in the case which are not important in understanding these issues.
So Now What?
For manufacturers, selling a product means more than just point out the great features of the product. You must warn the consumer of any problems or issues with the product and you must point out what the product cannot do.
That does not mean that you should point out your bicycle won’t get you to the moon. It might mean you should point out that the bicycle should only be ridden on roads if it is a road bike. Videos online show road bikes being ridden everywhere, but that does not mean as a manufacturer you should be liable when someone tries to ride the Monarch Crest Trail on your road bike.
As a retailer, you should point out the differences in products trying to specifically point out short comings about a product. This helmet has a MIPS system in side, this one does not.
Both of these defenses are easy to rely on, however not all states still allow the use of these defenses.
What do you think? Leave a comment.
Copyright 2014 Recreation Law (720) Edit Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Recfirstname.lastname@example.orgJames H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Opportunities, Incorporated, Trek Bicycle Corporation, Bicycle South, Inc., Skid Lid Manufacturing Company, Open and Obvious, Assumption of the Risk, Product Liability, Helmet, Wheel, Cycling, Bicycle, Bike,
Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682Posted: September 21, 2014
Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682
Lois Elaine Wilson, Plaintiff-Appellant, v. Bicycle South, Inc., a Georgia Corporation, et al., Defendants-Appellees
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682
October 30, 1990
SUBSEQUENT HISTORY: As Amended.
PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of Georgia. No.1: 85-cv-2658-CAM; Moye, Jr., Judge.
COUNSEL: Robert H. Benfield, Jr., Middleton & Anderson, Atlanta, Georgia, for Appellant.
For Trek Bicycle: Stephen F. Dermer, Smith Gambrell & Russell, Atlanta, Georgia.
For Bicycle South: Jonathan Mark Engram, Swift Currie McGhee & Hiers, Thomas E. McCarter, Atlanta, Georgia.
For Opportunities, Inc.: Tommy T. Holland, Carter & Ansley, Christopher N. Shuman, Atlanta, Georgia.
For Skid Lid: Palmer H. Ansley, Long Weinberg Ansley & Wheeler, David A. Sapp, Atlanta, Georgia.
JUDGES: Clark, Circuit Judge, Morgan and Hill, * Senior Circuit Judges.
* See, Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
OPINION BY: HILL
[*1504] HILL, Senior Circuit Judge
This appeal concerns a products liability action based upon alleged breach of warranty, strict liability, and negligence resulting in injuries to Lois Elaine Wilson (“Wilson”), appellant. Wilson incurred head injuries during an accident in Georgia while on a cross-country bicycle trip. The jury returned a verdict in favor of Wilson and against one defendant on a bicycle helmet defect claim, and against Wilson and in favor of three defendants on a bicycle wheel defect claim. The district court granted a judgment notwithstanding the verdict on the helmet claim. Plaintiff appeals [*1505] this grant and also alleges several other errors by the district court concerning the bicycle wheel claim.
A. Issues Presented
Appellant raises four distinct categories of issues on appeal. First, appellant claims that the district court erred in granting appellee Skid Lid Manufacturing Company’s (“Skid Lid”) motion for a judgment notwithstanding [**2] the verdict. Second, appellant contends that the district court improperly commented on the evidence. Third, she asserts that the district court committed reversible error by refusing to admit “similar accident” evidence. Finally, appellant maintains that the district court erred in charging the jury on the defense of “legal accident.”
We hold that the trial court did not err in granting the JNOV. Nor do the trial judge’s comments on the evidence provide cause for reversal. Similarly, we find appellant’s third and fourth contentions to be meritless.
B. Factual and Procedural History
On January 6, 1983, appellant purchased a Trek 614 touring bicycle. Trek Bicycle Corporation (“Trek”) manufactured the bicycle, Opportunities, Incorporated (“Opportunities”) assembled the bike’s rear wheel according to Trek’s specifications, and Bicycle South, Inc. (“Bicycle South”) sold the bike to appellant. The latter three parties will be referred to collectively as “the bicycle defendants.” On February 9, 1983, appellant also purchased, from a company not a party to this lawsuit, a bicycle helmet manufactured by Skid Lid. Rather than purchase a helmet covering her entire head, appellant chose [**3] one that only covered the top half of her head, coming down to about the top of her ears.
Wilson purchased the bike and helmet for a cross-country bicycling trip from Florida to California. Eight days into her trip, on April 23, 1983, Wilson sustained head injuries in a fall from the bicycle while she was riding downhill on a two-lane Georgia highway between Plains and Americus, Georgia. Between January 6 and April 23, Wilson had ridden approximately 1200 to 1600 miles on the bicycle.
The cause of appellant’s fall is disputed by the parties. Appellant maintains that the rear wheel collapsed into a saddle-like shape as a result of an improper manufacturing process and a failure to retrue the spokes of the wheel after the rim was assembled. Under this theory, the tension in the wheel, which was not released after the rim was formed and the wheel assembled, caused the spokes to loosen after use and led to the collapse. The bicycle defendants, on the other hand, maintain that the fall did not result from the wheel collapse, but that the wheel collapsed as a result of appellant’s fall from the bike. 1
1 The actual cause of the fall does not affect the issues currently before this Court.
[**4] The point of initial impact between Ms. Wilson’s head and the pavement was behind her left ear and below the edge of the helmet. As a result of the impact, she claims that she sustained three injuries. The first two, a basilar skull fracture and occipital scalp laceration, were not particularly serious and do not comprise the more serious damage. The more serious injury was a “contre-coup” (an injury to the opposite side of the head from the point of initial impact) brain contusion.
Alleging defects in the bicycle wheel and helmet, Ms. Wilson filed a complaint in this products liability action based upon breach of warranty, strict liability, and negligence. During the trial, appellant attempted to introduce evidence of a prior bicycle wheel defect claim brought by another party against Trek, Opportunities, and another bicycle store, alleging that the incidents were substantially similar. The trial court excluded the earlier incident.
At the beginning of his charge, the trial judge explained to the jury:
As a federal judge, I have the right, power, and duty to comment on the facts, to express my opinion with respect thereto . . . but remember, in the last analysis, every factual issue [**5] in this case must be decided by you, by you alone, and anything that anybody else in this room says [*1506] about the facts is a mere opinion, not binding upon you.
Subsequently, referring to witness testimony, the judge again emphasized that “as sole judges of the facts, you, the jury, and you only, must determine which of the witnesses you believe and what portion of their testimony you accept and what weight you attach to it.” Prior to analyzing and giving his opinion of the evidence that Ms. Wilson presented, 2 the judge again cautioned the jury that “you, as jurors, are at liberty to disregard each, every, and all comments of the court in arriving at your own findings of the facts.” At the conclusion of his remarks, the trial judge further emphasized:
Let me stress as strongly as I can that you, the jury, are the sole and only judges of the facts. The past several minutes I have been giving you [**6] my opinion with respect to matters committed solely to your decision, not mine. My comments are and can only be expressions of a personal opinion and are not binding on you in any way, shape, or form. Remember that in considering every issue in this case, including those to which I have just alluded, you must resort to your own recollection of the evidence, not that which I have just stated. . . . You must, in the diligent performance of your duty, rely on your recollection of all the evidence and not merely that which I may have called to your attention and emphasized.
2 The trial judge focused especially on items of derogatory information with respect to appellant’s expert, Mr. James Green.
On April 13, 1989, the jury returned a verdict in favor of appellant against appellee Skid Lid in the amount of $ 265,000 on the helmet claim. On the bicycle wheel claim, the jury returned a verdict against appellant and in favor of the bicycle defendants.
On April 21, 1989, appellee Skid Lid moved for a judgment notwithstanding the verdict, and on May 24 the trial court entered an Order granting the motion. The court did so because it found that Ms. Wilson had “assumed the risk of injury as to parts of her body patently not covered by the helmet.”
A. The Helmet & the Judgment Notwithstanding the [**7] Verdict
[HN1] We review the district court’s grant of a JNOV under the same standard as the district court used in determining whether to grant a JNOV. As we stated in Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988):
All of the evidence presented at trial must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” A motion for judgment n.o.v. should be granted only where “reasonable [people] could not arrive at a contrary verdict. . . .” Where substantial conflicting evidence is presented such that reasonable people “in the exercise of impartial judgment might reach different conclusion, [sic]” the motion should be denied. (citations omitted)
In applying this standard for the sufficiency of evidence, we also look to Georgia substantive law to determine whether Skid Lid deserved judgment as a matter of law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Salter v. Westra, 904 F.2d 1517, 1524 (11th Cir.1990).
Defendants in products liability actions have asserted two similar defenses in attempting to steer clear of liability, assumption of the risk and the “open and obvious [**8] rule.” 3 While the trial judge in this case based the JNOV on assumption of the risk, we also address the open and obvious rule because affirmance of the JNOV is proper even if based on a different rationale. See Paisey v. Vitale, 807 F.2d 889, 890 (11th Cir.1986).
3 This rule is also known as the “patent danger rule” and has its roots in a New York decision involving negligence law, Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). New York later abandoned the rule in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976).
[*1507] We need not reach the assumption of the risk issue if the helmet was not defective because Skid Lid would have breached no duty to Ms. Wilson. We thus initially address the open and obvious rule. [HN2] The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. Stodghill v. Fiat-Allis Construction Machinery, Inc., 163 Ga. App. 811, 295 S.E.2d 183, 185 (1982). This determination [**9] regarding the peril is made on the basis of an objective view of the product. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 393 S.E.2d 64, 66 (1990) (certiorari denied June 21, 1990). In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like. Stodghill is instructive in this respect. In Stodghill, the plaintiff was using a bulldozer manufactured by the defendants to clear felled trees from a construction site when a tree jumped over the bulldozer blade and struck him in the chest. The plaintiff claimed that the machine was defective because it had no protective metal cage surrounding the driver’s seat. The Georgia Court of Appeals recognized that the plaintiff “was obviously aware that the bulldozer he was operating had no protective cage and that the absence of this safety device exposed him to the danger of being injured by anything which might strike the driver’s compartment.” Id. 295 S.E.2d at 184. The court concluded that
“because the failure of the appellees in this case to install a protective cage over the driver’s seat of the bulldozer was an obvious characteristic of the machine [**10] which created no hidden peril and did not prevent the machine from functioning properly for the purpose for which it was designed, it cannot reasonably be considered a design or manufacturing defect under Georgia law.”
Id. at 185.
Similar to the absence of the protective cage on the bulldozer, it is or should be apparent to one who purchases an article of clothing or protective gear that the article can only protect that portion of the body which is covered. A person purchasing a bullet proof vest cannot realistically claim that he expected it to protect him from a bullet in the leg. Likewise, one purchasing a sleeveless t-shirt cannot protest that it should have protected him from a scrape on the arm. In the case at bar, rather than selecting a helmet covering her entire head, appellant elected to purchase a helmet that she knew covered only the top half of her head. She did know, or certainly should have known, that the helmet with less extensive coverage would not protect her from an impact to an area not covered by the helmet. Unlike a full helmet, the half-helmet was not designed to protect against impacts anywhere on the head. The extent of coverage was “an obvious characteristic [**11] of the [helmet] that created no hidden peril and did not prevent the [helmet] from functioning properly for the purpose for which it was designed.” Stodghill, 295 S.E.2d at 185. We thus find, as a matter of law, that the helmet was not defective under Georgia law. 4
4 We note that Georgia courts have been careful to avoid treating the American public as children where a peril is obvious or patent and the product thus not defective. In Weatherby, the five-year old plaintiff had been a passenger on an off-road motorcycle that did not have its gas cap in place. During the ride over uneven terrain, gasoline splashed from the open tank and ignited, causing burns to the plaintiff. The court found that an open fuel tank “surely suggests the possibility of spillage,” that because the fuel tank is located above the engine “gravity can be anticipated to bring the spilled fuel in contact with the engine and spark plug,” and that the dangers of spilled gasoline coming into contact with an engine are generally known. 393 S.E.2d at 67. The court consequently concluded as a matter of law that the peril of an open fuel tank resting over the engine and its spark plug was “an obvious or patent peril,” and that the product was thus not defective. Id. at 68.
[**12] Even if the failure to cover the full head were a defect, it is still beyond peradventure that appellant assumed the risk of injury to the parts of her body patently not covered by the helmet. [HN3] Under Georgia law, “‘if the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is [*1508] barred from recovery.'” 5 Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975) (citation omitted). The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head. Had appellant, somehow, been unaware that the helmet only partially covered her head, the result might be different. As counsel for appellant admitted at oral argument, however, there is no evidence that she thought the helmet covered more of her head than it did cover, or that she believed it would protect her from injury to parts of her body not covered. Nor do we find, after our careful review of the transcript, any testimony to that effect. As for the second portion of the test, unreasonable use, it seems axiomatic [**13] to say that it is unreasonable to use a helmet to protect a portion of the body that the helmet clearly does not cover.
5 This test, in contrast to the open and obvious rule, looks to the subjective perceptions of the user or injured party. Another difference between assumption of the risk and the open and obvious rule is that while the latter places the burden of proof on the plaintiff, the former places it on the defendant. Weatherby, 393 S.E.2d at 66. See also Annotation, Products Liability: modern status of rule that there is no liability for patent or obvious dangers, 35 A.L.R. 4th 861, 865 (1985) (discussing open and obvious rule and the differences from assumption of the risk).
In sum, the district judge properly granted appellee Skid Lid’s motion for a JNOV.
B. Comments on the Evidence
At the close of the case, the district judge employed the time-honored, though little used, right and duty of a federal trial judge to comment on the evidence. As the Supreme Court stated in Quercia v. United [**14] States, 289 U.S. 466, 469, 53 S. Ct. 698, 698-99, 77 L. Ed. 1321 (1932):
[HN4] In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. (citation omitted) In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. (citations omitted) Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies, and by showing them his opinion even in matters of fact; which is a great advantage and [**15] light to laymen. (citation omitted)
The trial judge will not be reversed unless his comments “excite a prejudice which would preclude a fair and dispassionate consideration of the evidence.” Id. at 472, 53 S. Ct. at 700. See also United States v. Hope, 714 F.2d 1084, 1088 (11th Cir.1983) (“[a] trial judge may comment upon the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not bound by his comments and as long as the comments are not so highly prejudicial that an instruction to that effect cannot cure the error”). 6 It is only where [*1509] this prejudice exists that the substantial rights of the parties are affected and Fed.R.Civ.P. 61 permits disturbing a judgment. 7 In assessing whether this prejudice exists and has affected the parties’ substantial rights, we consider the record as a whole and not merely isolated remarks. See Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 334-335 (5th Cir. Unit B June 1981). “The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues.” Bass v. International [**16] Bhd. of Boilermakers, 630 F.2d 1058, 1065 (5th Cir.1980) (citations omitted).
6 Other circuits have adopted similar language regarding a trial judge’s right to comment on the evidence. See, e.g., White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990); Johnson v. Helmerich & Payne, Inc., 892 F.2d 422 (5th Cir.1990); Vaughn v. Willis, 853 F.2d 1372 (7th Cir.1988); United States v. Munz, 542 F.2d 1382 (10th Cir.1976), cert. denied, 429 U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 555 (1977); Mihalic v. Texaco, Inc., 377 F.2d 978 (3d Cir.1967); Meadows v. United States, 144 F.2d 751 (4th Cir.1944); A number of practitioners and commentators have also assessed the role of the judge in a jury trial. See, e.g., Bancroft, Jury Instructions, Communications, Juror Substitutions and Special/Partial Verdicts: Selected Topics — The Principal Law, 340 Prac.L.Inst. 611 (1987); Loeffler, Project — Seventeenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1986-1987 (III. Trial: Authority of the Trial Judge), 76 Geo.L.J. 986 (1988); Murphy, Errors in the Charge, 14 Litig. 39 (1988).
7 [HN6] Fed.R.Civ.P. 61 provides in part:
“No error . . . is ground for granting a new trial . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
Appellants allege that the district judge went too far in commenting on the evidence and on the testimony of their expert, Mr. Green. We do not doubt that a trial judge could misuse his authority. 8 After careful review of the record, however, while we are not prepared in this case to suggest the outside limits on a trial judge’s comments, we are satisfied that the district judge here did not overstep his bounds. As recounted in Part I.B. of this opinion, he went to great lengths to assure that the jury understood that it was the sole fact-finder in the case. 9 When his remarks are considered in their entirety, on the facts of this case we find no prejudice affecting the substantial rights of the parties.
8 Perhaps one of the best examples of a jury charge that would constitute an abuse of authority today, but was permitted prior to Quercia, is Judge Emory Speer’s eight and one-half hour, 92 page charge in United States v. Greene, 146 F. 803 (S.D.Ga.1906), cert. denied, 207 U.S. 596, 28 S. Ct. 261, 52 L. Ed. 357 (1907). In testimony before a congressional committee looking into the possibility of impeaching Judge Speer, Alexander Lawrence (one of Greene’s defense attorneys) characterized the judge and his charge as follows:
He knows the jury, knows how to play on their passions, on their prejudices, as no living man that I have seen could do it; he has a faculty for marshalling evidence that I have never seen another living man able to marshal; and in that Greene & Gaynor case he charged that jury for eight hours and I will challenge any six prosecuting attorneys in the United States, from the Attorney General down, all of them together, to take that mass of testimony taking three months’ time that Judge Speer heard, and then put it down in as ingenious an argument against the defense as Judge Speer put it in that thing. It was a masterpiece of oratory, but a very poor thing when you come down to look at it from a judicial standpoint.
H. Res. 234, 63rd Cong., 2d Sess. (1914) (Minority Report of Representative Volstead).
Since, Quercia, many appeals courts have overturned cases where the trial judge has gone too far. See, e.g., Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 11 (2d Cir.1981) (trial judge’s comments to the jury gave all the arguments for the defendant, being “tantamount to directing a verdict” for defendant); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 761 (5th Cir.1979) (trial judge’s mistaken assertions virtually destroyed appellant’s circumstantial case, requiring reversal); Maheu v. Hughes Tool Co., 569 F.2d 459, 471-472 (9th Cir.1978) (trial judge’s comments amounted to “personal character reference” for witness and thus “went too far”).
9 It seems that the jurors responded to the trial judge’s direction that they were the sole fact-finders. The judge brought to their attention that appellant’s expert had been prepared to testify that the helmet was defective because of one set of facts and then shifted his reasoning when that set of facts was disproven; nevertheless, the jury still awarded appellant $ 265,000 against the helmet manufacturer.
In the course of his remarks, appellant also contends that the trial judge improperly restricted her case to the testimony of her one expert, Mr. Green. In stressing the importance of Mr. Green’s testimony to appellant’s case, the judge stated as follows:
In this case, as in every case, there are the two big main issues: one, liability, and, two, the amount of any damages proximately flowing therefrom. The plaintiff has the burden of proving each and every element of the plaintiff’s case. The plaintiff’s entire case here, and in meeting the elements which must be proved, rests upon the expert testimony, [*1510] that is, the expert opinion, of Mr. Green. Except for Mr. Green’s testimony, the plaintiff [**19] has not made out a case of liability. With Mr. Green’s testimony, the plaintiff has made out a legal case on liability; therefore, the court suggests that the first, immediate, and crucial issue in the case for you to determine is the credibility or the believability of Mr. Green.
After studying the record, we find no merit in appellant’s contention. We are inclined to agree with the trial judge that, without Mr. Green, the case would not have been one for the jury.
In sum, we find that on the facts of this case the trial judge’s comments to the jury, when taken as a whole, neither excited a prejudice affecting the substantial rights of the parties nor incorrectly instructed the jury.
C. The Allegedly Similar Accident
Appellant argues that the trial court erred by refusing to admit evidence of the collapse of another wheel manufactured by appellees Trek and Opportunity. Appellant sought to show appellees’ notice of a defect in the wheel, the magnitude of the danger, appellees’ ability to correct a known defect, the lack of safety for intended purposes, the strength of the product, the standard of care, and causation.
The trial judge denied the proffer on the grounds that the evidence [**20] was not probative because of the necessity for a considerable amount of extrinsic evidence to determine whether the incidents were sufficiently similar to meet the standards of Fed.R.Evid. 403. 10 [HN7] A trial judge has broad discretion over the admission of evidence, Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985), and we find that the district judge did not abuse his discretion. 11
10 The cause of the alleged similar incident had never been established because that case settled out of court. The parties in the instant case vigorously dispute the actual cause, demonstrating that even had the trial court reached the issue of whether the two incidents were similar this issue would have required a trial within a trial.
11 Because of our disposition of this issue, we need not reach the question of whether the two incidents were actually similar, and if so, whether the prior incident would have been properly excluded under Fed.R.Evid. 403.
D. The Charge on “Legal Accident”
In his [**21] instructions to the jury, the judge included a charge on “legal accident.” 12 To determine whether such a charge is appropriate, we first look to Georgia substantive law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.1979). [HN8] Georgia law permits a charge on “legal accident” where there is evidence in the record authorizing a finding that the occurrence was an “accident.” 13 Chadwick v. Miller, 169 Ga. App. 338, 344, 312 [*1511] S.E.2d 835, 840 (1983). 14 Where appropriate, the charge is valid in a products liability case. Kemp v. Bell-View, Inc., 179 Ga. App. 577, 579, 346 S.E.2d 923, 926 (1986).
12 This portion of the charge reads as follows:
Now, let me tell you that the mere fact that an accident happened or an occurrence happened from which injury stemmed standing alone does not permit a jury to draw any inference that the occurrence was caused by anyone’s negligence or by any defect.
Now, I have used the word “accident” loosely, as I think is commonly the practice, is interchangeable with the word occurrence producing injury, but in Georgia law accidental injury means, in connection with personal injury actions such as this, any injury which occurs without being caused by the negligence either of the plaintiff or of the defendants. The idea of accident removes responsibility for the cause of the injury if found to have occurred by reason of a legal accident as defined under Georgia law, that is, one which is caused by the negligence neither of the plaintiff or the defendants.
It is necessary that you find from a preponderance of the evidence in this case, in order to find for the plaintiff, that the occurrence and/or resulting injuries were the result of defect and/or negligence and/or breach of warranty to the exclusion of legal accident, as I have defined that term to you, because the plaintiff has the burden of proof, as I will charge you later, to demonstrate by a preponderance of the evidence that the occurrence did, in fact, result from defect and/or negligence and/or breach of warranty, to the exclusion of legal accident.
13 [HN9] “Accident” is defined as “an occurrence which takes place in the absence of negligence and for which no one would be liable.” Chadwick, 169 Ga. App. at 344, 312 S.E.2d 835.
14 Appellant cites Seaboard Coastline R.R. Co. v. Delahunt, 179 Ga. App. 647, 347 S.E.2d 627 (1986), for the proposition that a charge on “legal accident” can be given only where there is no evidence of negligence on the part of either party. The Georgia Court of Appeals recognized in Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 386 S.E.2d 696, 697 (1989), however, that Delahunt had misstated the law in Georgia.
Because the manner of giving jury instructions is procedural rather than substantive, it is governed by federal rather than state law. McCullough, 587 F.2d at 759. In reviewing alleged errors in jury instructions, we must determine whether the trial court’s charge, considered as a whole, “sufficiently instructs the jury so that the jurors understand the issues involved and are not misled.” Mark Seitman & Assocs., Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th [**23] Cir.1988) (citation omitted). We will only reverse if we are left with “a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. (citation omitted).
After careful review, we find evidence in the record that supports a charge on legal accident as defined by Georgia law. We are therefore satisfied that the district judge properly guided the jury with respect to this issue.
For the foregoing reasons, we AFFIRM the judgment of the district court.
However this bicycle product liability case is not over.
Plaintiff: John Sanny and Diana Sanny
Defendant: Trek Bicycle Corporation
Plaintiff Claims: design defect, failure to warn, and failure to provide post-sale warnings
Holding: Mixed ruling
This is not a final decision in this case; in fact, I suspect this case is still proceeding to trial. This opinion is one from a motion’s hearing decided May 8, 2013 to prepare for trial. I am always hesitant to write about a case when it is still ongoing; however, the case has great information on how courts look at issues in product liability claims.
The plaintiff taught tennis and other classes at the University of Minnesota. He would drive to work, park, then take his bike out of his car and ride the rest of the way to work. To put his bike in his car, he had to remove the front wheel of his bike, which used a quick release. A quick release is a skewer that goes through the wheel axle and using a lever action tightens the wheel to the front fork. The court does an excellent job of explaining how this works showing a real understanding of the facts of the case.
A quick release mechanism, like the one used in Sanny’s bicycle, involves three major components: a bicycle fork designed for quick release use, a front wheel designed for the same, and the quick release device itself. In a bicycle equipped for a quick release tire, the front “fork blades”–the arms of the bicycle which hold the wheel–each end in an open, u-shaped “dropout.” The front wheel has a hollow axle, meaning the axle has a narrow, cylindrical hollow space running its length. The quick release device is a skewer that has an adjustable nut on one end and a lever on the other.
To connect the wheel to the bicycle, the quick release skewer is placed through the hollow of the front wheel’s axle, so that it protrudes on either end by a small amount. The wheel is then placed between the fork blades, so that the dropouts fit on to the skewer, on either side of the wheel axle. To secure the wheel to the bicycle, the rider tightens the nut on one end of the quick release device and presses the lever inward 90 degrees (relative to the skewer) on the other [*5] end. The lever, acting as a cam, tightens the skewer so that the quick release device is pushing in on each dropout from the outside. This pressure ensures the wheel does not detach during riding; the wheel is essentially “pinched” in place.
One day while riding to work, the plaintiff realized he had forgotten his keys in his car and went back to get them. Getting close to a curb he popped or “bunny hopped” the front of his bike over the curb. The wheel came off and caught in the front brake stopping the bike and throwing the plaintiff into the sidewalk. He sustained injuries from the fall which generated the lawsuit.
The plaintiff sued the defendant bike manufacturer because the bike maker:
…negligently failed to incorporate a “secondary retention system” into the design of Sanny’s [plaintiff] bicycle, which would have acted as a safety mechanism when Sanny’s wheel detached. Plaintiffs also allege Trek failed to warn Sanny of the risk of front wheel detachment in bicycles without secondary retention devices. Finally, Plaintiffs argue they have stated a third claim alleging Trek’s post-sale failure to warn Sanny.
The defendant filed several motions (Motion for Summary Judgment, Motion to Exclude Testimony of Plaintiffs’ Expert Witness David Hallman, and Motion to Strike Changes to Deposition of Plaintiffs’ Expert David Hallman) which resulted in this opinion.
Summary of the case
The court first looked at the Design Defect claims of the plaintiff. Under Minnesota law to prove a design defect claim the plaintiff must prove three elements:
(1) the product was in a defective condition, unreasonably dangerous for its intended use; (2) the defect existed when the product left the manufacturer’s control; and (3) the defect proximately caused the plaintiff’s injury.
The three-part test is fairly common among the states. The test to determine if the three steps have been met is a balancing test. A product is defective if the manufacturer:
…fails to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.
What constitutes “reasonable care” will, of course, vary with the surrounding circumstances and will involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.
Because “reasonable minds” could differ, or there were good arguments on both sides, the issue had to go before a jury. A judge is usually limited when the evidence only favors one side or the other or the evidence is so weak it cannot prove a point. Consequently, any question about evidence the court finds credible must go before a jury.
In this case, there were arguments on both sides that the design was or was not defective.
A sub-argument of Design Defect is whether there was a Feasible Alternative Design. This means whether or not there was a feasible, safer alternative to the design at question. If there was a feasible alternative design that the manufacturer did not use, the design defect claim is successful for the plaintiff.
If, at the time the manufacturer designed the product at issue, a safer, feasible design existed, it weighs in favor of finding the contested design unreasonably dangerous. Implicit in this evaluation, however, is the balance between utility and safety. If the alternative design increases safety at the cost of performance or utility, it may warrant the conclusion that the alternative design is not feasible.
In this case, several alternative designs exist, which incorporate secondary retention devices. The issue argued by the defendant was whether any of the designs actually increased bicycle safety. The defendant and the plaintiff then argued that the accident statistics the Defendant had shown a likelihood, of the necessity of a new design or a separate retention system.
… a manufacturer’s notice of other accidents addresses whether a manufacturer exercised sufficient care to eliminate any unreasonable risk of harm from foreseeable uses of its product at the time of design.
Here again, good arguments on each side of the issue means this issue will go before the jury.
Failure to Warn
The failure to warn argument boiled down to this. “Plaintiffs allege Trek failed to properly warn Sanny about the danger of riding a quick-release bicycle not equipped with a secondary retention device.” Under Minnesota law to prove a failure to warn claim, the plaintiff must prove:
(1) the defendant had reason to know of the dangers of using the product; (2) the warnings fell short of those reasonably required, breaching the duty of care; and (3) the lack of an adequate warning caused plaintiff’s injuries.
The plaintiff must prove, under causation, that the warning would have caused him (or her) to “act in a way that would have avoided the injury.” A product warning only needs to warn about the inherent dangers and the proper use of the product. There is no requirement to warn of other design possibilities.
The defendant won this argument because the plaintiff could not prove the causation issue. The plaintiff had been using quick-release hubs for 30 years by the time the accident occurred and had owned and used this bike for 16 years. On this bike, he used the quick release every 2-4 weeks and knew he would crash if he did not attach the wheel properly. Consequently, the court could not find that more information would have caused the plaintiff to act differently.
Failure to warn claim is one that most manufacturers are concerned about because they understand it the most. You must warn your customers of all hazards of your product. You must also warn them of using the product improperly. The problem with this is the improper use of the product does not appear to the manufacturer until after the product is in the market place for a long period of time. Improper use of the product also must be evaluated with any other product the manufacture’s product is used with. An example of this is if consumers are using an ascender improperly this may not make any difference to the ascender. It may continue to work perfectly. However, the ascender manufacturer would be liable if the manufacturer knew consumers were using the ascender improperly in a way that damaged the rope the ascender was attached to, causing the injury.
Post-Sale Failure to Warn
This claim is one of rising argument and interest. The issue is the plaintiff argues that the defendant had a duty after the purchase of the product to warn against the risk or dangers of a product that the manufacturer learned about post-sale. Meaning after the product has been sold and the risk is identified, there is a legal burden on the manufacturer to notify all owners of the potential for injury. This is not the same as a recall because a part can fail, this based on the plaintiff using the product incorrectly.
Explained differently, a recall is based on the fact the part fails and is going to be or must be fixed. The post-sale duty to warn does not mean the product is defective or has a failure of any part. The issue is the manufacturer learning about ways the product can fail or be used incorrectly.
The court looked at an automobile tire product liability case and found the following factors that contribute to a manufacturer’s post sale duty to warn include:
(1) the defendant’s knowledge of problems with the product since the late 1950s, including the knowledge that the product might explode with little provocation; (2) the hidden nature of the danger; (3) the fact that when explosions did occur, serious injury or death usually resulted; (4) defendant remained in that line of business, continued to sell parts for use with the product and had advertised the product within five years of the plaintiff’s injury; and (5) defendant had undertaken a duty to warn of product dangers.
The court seems to argue that the post-sale duty to warn arises when the manufacture creates or accepts a post-sale duty to warn.
“Several decisions have indicated that “continued service, communication with purchasers, or the assumption of the duty to update purchasers, is a necessary element” for a post-sale duty to warn.”
At this time, you can avoid the issue of post-sale duty to warn by informing your customers that you have no liability for informing them of any risks. You are not accepting a new duty. However, that is not how this new area of the law appears to be heading. Whether or not you have accepted the duty to warn consumer’s post-sale is not indicated in all courts.
However, in this case, the plaintiff did not properly plead a post-sale duty to warn in his complaint nor could they prove that the defendant undertook the duty to warn consumers.
In addition, Plaintiffs have not demonstrated whether Trek undertook a duty to warn consumers, or whether Trek engaged customers in ongoing relationships in a way that would give rise to a post-sale duty to warn.
Nor did the plaintiff prove quick-release devices issues usually lead to an injury.
The court also looked at arguments raised by the defendant in regard to the plaintiff’s expert opinion which is procedural and evidentiary in nature, so I’m not going to review them here.
So Now What?
This case is not over, so any “opinion” about it is very premature. However, the opinion is well-written and very educational and for that purpose, I believe it should be brought to your attention no matter who wins or how.
Besides a great explanation of Minnesota Product Liability law, you need to be aware of the following:
Common Critical Manufacture’s Error in Product Liability Cases
Many manufacturers believe that if the error leading to the accident was solely the responsibility of the user, then the manufacturer has no liability. That is not true. Remember, knowledge or foreseeability is important in any negligence or product liability action. If the manufacturer knew that quick releases could be put on improperly leading to injury, then the manufacturer could be liable.
In fact, this issue, of consumer error, is used to prove the plaintiff’s claims because it is an injury that was foreseeable. “Whether the wheel detached due to user error is immaterial, as Trek concedes user error of the quick-release device is a foreseeable cause of injury.”
Post-Sale Duty to Warn
Post-sale duty to warn is the upcoming issue. If you collect information from the consumer for any purpose, you need to (1.) Disclaim any post-sale duty to warn and/or (2.) place that duty on the consumer. If you are collecting information for marketing, the clearly identify that information as such.
At the same time, evaluate the opportunities that can be presented if you continue to communicate with your consumers. Marketing makes promises that risk management must pay for; however, proper marketing can continue to educate the consumer and keep them coming back to your website to learn of any warnings.
There may be a safer way to do something.
If you hear of a manufacturer, inventor or anyone who may have a safer way for the consumer to use your product you need to check it out. You must balance the cost of the new way of using/designing/manufacturing and/or the utility of the product against the effectiveness of what you are doing/designing/manufacturing/using now. You have to see if the injuries are real and if the new idea will prevent or lessen injures.
In this case, you have to lead the industry; you cannot follow.
If you are a manufacturer, you need to consult with an attorney who is an expert in product liability issues to make sure you are not creating product liability claims.
What do you think? Leave a comment.
Copyright 2013 Recreation Law (720) Edit Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Recemail@example.comJames H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Bicycle, Cycling, Quick Release, Skewer, Trek, Product Liability, Design Failure, Post-Sale Duty to Warn, Duty to Warn, Unreasonable Dangerous, Failure to Warn, Feasible Alternative Design,
Sanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559
John Sanny and Diana Sanny, Plaintiffs, v. Trek Bicycle Corporation, Defendant.
Civil No. 11-2936 ADM/SER
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
2013 U.S. Dist. LEXIS 65559
May 8, 2013, Decided
May 8, 2013, Filed
CORE TERMS: bicycle, retention, wheel, secondary, deposition, unreasonably dangerous, sheet, manufacturer, errata, post-sale, front wheel, detachment, summary judgment, question of fact, duty to warn, equipped, warning, failure to warn, notice, skewer, design defect, alternative design, engineering, corrections, feasible, deponent, warn, fork, dropout, tip
COUNSEL: [*1] Terry L. Wade, Esq., Vincent J. Moccio, Esq., and Brandon E. Vaughn, Esq., Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN, on behalf of Plaintiffs.
Stephen J. Foley, Esq., Michael W. Haag, Esq., and Steven J. Erffmeyer, Esq., Foley & Mansfield, PLLP, Minneapolis, MN, on behalf of Defendant.
JUDGES: ANN D. MONTGOMERY, U.S. DISTRICT JUDGE.
OPINION BY: ANN D. MONTGOMERY
MEMORANDUM OPINION AND ORDER
Plaintiffs John and Diana Sanny assert claims of design defect, failure to warn, and failure to provide post-sale warnings against Defendant Trek Bicycle Corporation’s (“Trek”). 1 On March 22, 2013, the undersigned United States District Judge heard oral argument on Trek’s Motion for Summary Judgment [Docket No. 77], Motion to Exclude Testimony of Plaintiffs’ Expert Witness David Hallman [Docket No. 76] (“Motion to Exclude”), and Motion to Strike Changes to Deposition of Plaintiffs’ Expert David Hallman [Docket No. 70] (“Motion to Strike”). For the reasons stated herein, Trek’s Motion for Summary Judgment is granted in part, its Motion to Strike is granted, and its Motion to Exclude is granted in part.
1 Plaintiffs withdrew their claims for negligent failure to recall and negligent failure to advise [*2] the Consumer Product Safety Commission of a product hazard, conceding Minnesota law does not recognize these claims. Pls.’ Mem. Opp. Summ. J. [Docket No. 95] (“Pls.’ Opp.”) 48-49.
A. Sanny’s Accident
At the time of his accident in 2009, John Sanny (“Sanny”) taught tennis and other classes at the University of Minnesota’s Minneapolis campus. Vaughn Aff. [Docket No. 96] Ex. UU (“Sanny Dep.”), at 18, 33-34. In 1993, Sanny purchased a used Model 930 Single Track bicycle, manufactured by Trek in 1990. The bicycle had a quick release mechanism, which allowed Sanny to quickly remove and replace the front wheel. About every 2-4 weeks, Sanny commuted to Cooke Hall, where he had an office, by driving to campus, parking in a nearby surface lot, and then riding his bicycle the remainder of the trip. Id. at 14-15. To fit his bicycle inside his car, Sanny routinely removed the bicycle’s front wheel. Id.
On September 10, 2009, Sanny arrived at the campus parking lot in the morning, about one hour before his class. Id. at 30. Sanny removed his bicycle from his car and attached the front wheel. Id. at 15-18. He then rode his bicycle about two-and-a-half blocks to Cooke Hall and entered the [*3] building before realizing he had left his keys in his car. Id. at 21, 30-31. Sanny returned to his bicycle and headed back to the parking lot to retrieve his keys. Id. at 30-31. As he approached the parking lot, he “bunny-hopped” a curb to cross the street. Id. at 24-25, 31; Haag Aff. [Docket No. 85] Ex. 2 (Map of accident site). The front wheel of his bicycle came loose and caught on the front brakes, causing the bicycle to come to a sudden stop. Vaughn Aff. Ex. VV (“Hallman Report”), at 2. Sanny was thrown face-forward off of his bicycle. See id. The first campus police officer to respond found Sanny on the pavement, bleeding and suffering from serious head and facial injuries. Vaughn Aff. Ex. A (“Welsh Dep.”), at 45-46.
On or about September 19, 2011, Plaintiffs filed suit against Trek. Plaintiffs allege Trek negligently failed to incorporate a “secondary retention system” into the design of Sanny’s bicycle, which would have acted as a safety mechanism when Sanny’s wheel detached. Compl. 2. Plaintiffs also allege Trek failed to warn Sanny of the risk of front wheel detachment in bicycles without secondary retention devices. Id. Finally, Plaintiffs argue they have stated a third claim [*4] alleging Trek’s post-sale failure to warn Sanny. Trek argues Plaintiffs did not sufficiently plead this claim.
B. Quick Release Device
A quick release mechanism, like the one used in Sanny’s bicycle, involves three major components: a bicycle fork designed for quick release use, a front wheel designed for the same, and the quick release device itself. In a bicycle equipped for a quick release tire, the front “fork blades”–the arms of the bicycle which hold the wheel–each end in an open, u-shaped “dropout.” The front wheel has a hollow axle, meaning the axle has a narrow, cylindrical hollow space running its length. The quick release device is a skewer that has an adjustable nut on one end and a lever on the other.
To connect the wheel to the bicycle, the quick release skewer is placed through the hollow of the front wheel’s axle, so that it protrudes on either end by a small amount. The wheel is then placed between the fork blades, so that the dropouts fit on to the skewer, on either side of the wheel axle. To secure the wheel to the bicycle, the rider tightens the nut on one end of the quick release device and presses the lever inward 90 degrees (relative to the skewer) on the other [*5] end. The lever, acting as a cam, tightens the skewer so that the quick release device is pushing in on each dropout from the outside. This pressure ensures the wheel does not detach during riding; the wheel is essentially “pinched” in place.
The alleged danger with quick release wheels is the risk that the quick release nut and/or lever become loose or completely undone during a ride. Because friction is the primary force keeping the wheel attached to the bicycle, a loss of “grip” by the quick release device means the dropouts are simply resting on top of the quick release skewer. If the rider of the bicycle in this situation lifts the front of his bicycle off of the ground, makes a sharp turn, or takes a similar action, the rider risks lifting the dropouts off of the axle and detaching the front wheel in mid-ride. In the present case, Plaintiffs and Trek agree that Sanny’s action in “hopping” over a curb to cross the street caused the front fork of his bicycle to lift off of and thus detach from his front wheel.
A. Motion for Summary Judgment
1. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure states a court shall grant summary judgment if no [*6] genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. On a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). If evidence sufficient to permit a reasonable jury to return a verdict in favor of the nonmoving party has been presented, summary judgment is inappropriate. Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995) (citations omitted). However, “the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, ‘the dispute must be outcome determinative under prevailing law.'” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citations omitted).
2. Design Defect
To establish a design defect claim under Minnesota law, a plaintiff must present specific facts establishing three elements: (1) the product was in a defective condition, unreasonably dangerous for its intended use; (2) the defect existed when the product left the manufacturer’s control; and (3) the defect proximately caused the plaintiff’s injury. Westbrock v. Marshalltown Mfg. Co., 473 N.W.2d 352, 356 (Minn. Ct. App. 1991) [*7] (citing Bilotta v. Kelley Co., Inc., 346 N.W.2d 616, 624 (Minn. 1984)). Whether a product is defective is usually a question of fact; “only when reasonable minds cannot differ does the question become one of law.” Thompson v. Hirano Tecseed Co., Ltd., 456 F.3d 805, 809 (8th Cir. 2006).
For both negligence and strict liability claims, Minnesota courts use a “reasonable care” balancing test to determine whether a product is defective. Thompson, 456 F.3d at 809. Under this balancing test, a product is unreasonably dangerous, and thus defective, if the manufacturer:
fails to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.
What constitutes “reasonable care” will, of course, vary with the surrounding circumstances and will involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.
Mozes v. Medtronic, Inc., 14 F. Supp. 2d 1124, 1127 (D. Minn. 1998) (citing Bilotta, 346 N.W.2d at 621).
The [*8] parties dispute whether Sanny’s bicycle was unreasonably dangerous because it had no secondary retention device. Viewed as a whole, the evidence submitted by the parties would allow reasonable minds to disagree regarding whether Trek used reasonable care in choosing not to include a secondary retention device in the design of Sanny’s bicycle. Each category of evidence presented by the parties is discussed below.
a. Feasible alterative design
While not a prima facie element of a design defect claim, an important factor in determining whether a product is unreasonably dangerous is the availability of a feasible, safer alternative design. Kallio v. Ford Motor Co., 407 N.W.2d 92, 96-97 (Minn. 1987); Young v. Pollock Eng’g Group, Inc., 428 F.3d 786, 789 (8th Cir. 2005). If, at the time the manufacturer designed the product at issue, a safer, feasible design existed, it weighs in favor of finding the contested design unreasonably dangerous. Implicit in this evaluation, however, is the balance between utility and safety. If the alternative design increases safety at the cost of performance or utility, it may warrant the conclusion that the alternative design is not feasible. See, e.g., Unrein v. Timesavers, Inc., 394 F.3d 1008, 1012 (8th Cir. 2005) [*9] (holding expert must demonstrate proposed safety modifications do not “interfere with the machine’s utility”); Sobolik v. Briggs & Stratton Power Prods. Group, LLC, No. 09-1785, 2011 U.S. Dist. LEXIS 33911, 2011 WL 1258503, at *4-5 (D. Minn. Mar. 30, 2011) (finding plaintiff had submitted sufficient evidence to create question of fact on issue of safety, despite defendants’ arguments that proposed design would harm utility).
Here, the parties agree several feasible, alternative designs exist which incorporate secondary retention devices. In bicycle design terms, “secondary retention device,” or “positive retention device,” refers to any kind of mechanism that acts as a failsafe in the event a quick release wheel loosens or detaches from a bicycle’s dropouts. One of the most common secondary retention devices found in bicycles are “tabbed tips” or “tab tips.” Normally, the dropouts to which the quick release skewer attaches are completely smooth. On a bicycle with tab tips, the dropouts are not flat but have extended, outward-curving edges. With this design, if a quick release nut and handle are not fully tightened, they may still “sit” in these tab tips and keep the wheel in place even if the front of the bicycle [*10] lifts off of the ground. In other words, tab tips act as a kind of safety railing to hold a quick release wheel that is no longer firmly attached. Another type of secondary retention device is the “peg and eyelet” device, which essentially adds two washers to either side of the quick release skewer; the washers are then attached to the bicycle fork blades using pegs or hooks that connect to holes punched into the washers.
Although Trek agrees that several feasible alternative designs exist, it disputes whether any of these designs–namely, whether any secondary retention device–actually increases bicycle safety. As discussed below, whether a secondary retention device would have increased the safety of Sanny’s bicycle is a key question of fact that a jury must resolve.
b. Trek’s record of wheel separation claims
Until his death in 1995, Robert Read served as Trek’s Director of Engineering and as the primary person tracking and evaluating the safety of Trek’s quick release bicycles. Read investigated all wheel separation claims from 1985 until 1995, and kept a record of reported claims. Haag Aff. Ex. O. In 1990, Read made the decision that Trek would incorporate secondary retention devices [*11] in all of its quick release bicycles, and Trek initially used both peg and eyelet, and tab tip designs. Id.; see also Vaughn Aff. Ex. P., at 4. By 1991, every new Trek bicycle had a secondary retention device of some kind. Vaughn Aff. Ex. P., at 4. Sanny’s bicycle, manufactured in 1990, was among the last of the bicycles manufactured by Trek without a secondary retention device.
Plaintiffs argue that Trek’s own use of tab tips, and peg and eyelet devices demonstrate the safety benefit that results from secondary retention devices. Since 1985, Trek has recorded 58 claims of wheel separation. See Vaughn Aff. Ex. X (Trek’s wheel separation claims list). A simple review of these claims indicate that the majority of wheel separations were reported from 1985 until the early 1990’s, after which the number of incidents reported per year began to decrease. See id. Plaintiffs argue that the year-over-year decrease in wheel separation incidents was the result of Trek’s decision to incorporate secondary retention devices in its bicycles starting in 1990. The correlation between decreased incident reports and use of secondary retention devices, according to Plaintiffs, is evidence that the feasible [*12] alternative designs increase the safety of Trek bicycles.
Trek disputes the necessity of secondary retention devices. Trek argues that although it has received claims of wheel separation in quick release bicycles, the number of reported incidents is extremely low compared to the total number of Trek bicycles sold. In particular, Trek argues that it was only aware of nine instances of wheel separation by 1990. See Haag Aff. Ex. Y (“Read Dep.”), at 152-53. 2 By that time, Trek had sold over a million bicycles, resulting in a wheel separation rate of about 0.0009%. See id. at 80. Trek also argues that four of these nine recorded incidents involved bicycles equipped with peg and eyelet style retention devices. As a result, Trek, through Read, decided bicycles without secondary retention devices had substantially the same level of safety as bicycles equipped with secondary retention devices. Id. at 82-84. Trek claims that it nevertheless adopted secondary retention devices to avoid litigation.
2 Although Read testified that Trek was only aware of nine claims of wheel separation by January 1990, Trek’s documents reflect 11 claims. Vaughn Aff. Ex. X. The reason for the discrepancy is unclear.
Trek [*13] also disputes Plaintiffs’ interpretation of the larger number of wheel separation claims. At oral argument, Trek stated that of the 58 total claims of wheel separation it recorded, about 32 of the bicycles involved had secondary retention devices, further demonstrating these devices’ failure to increase safety. By way of explanation, Trek notes that secondary retention devices are cumbersome, and increase the risk of user error in properly securing a quick release wheel. Trek argues that the decrease in wheel separation claims in the 1990’s did not result from any design change; on the contrary, Trek argues the decrease resulted from Trek’s campaign to educate riders on the proper use of quick release devices. Plaintiffs respond that although some wheel detachments may have occurred in bicycles designed to hold secondary retention devices, many of the 32 bicycles in question were not actually equipped with such devices at the time of the accidents. Plaintiffs also complain that Trek destroyed most of its files associated with older wheel separation claims, preventing Plaintiffs from further investigating the particular circumstances of each claim. See Pls.’ Opp. 37.
As an initial matter, [*14] it is necessary to address whether evidence of other wheel separation claims will be admissible at trial, as only facts based on admissible evidence may be considered at the summary judgment stage. See JRT, Inc. v. TCBY Sys., Inc., 52 F.3d 734, 737 (8th Cir. 1995). In the area of product liability litigation, evidence of similar injuries or incidents “may be relevant to prove a product’s lack of safety or a party’s notice of defects.” J.B. Hunt Transport, Inc. v. Gen. Motors Corp., 243 F.3d 441, 444 (8th Cir. 2001). Similar incident evidence also risks raising “extraneous controversial issues,” confusing the issues, and being more prejudicial than probative. Id. (citation omitted). As a result, the offering party has the burden of demonstrating that the past incidents are substantially similar to the incident at issue. Id. at 445. Ultimately, the admission of such evidence is in the trial court’s discretion. Arabian Agric. Servs. Co. v. Chief Indus., Inc., 309 F.3d 479, 485 (8th Cir. 2002); Hammes v. Yamaha Motor Corp. U.S.A., Inc., No. 03-6456, 2006 U.S. Dist. LEXIS 26526, 2006 WL 1195907, at *12, n.2 (D. Minn. May 4, 2006).
Here, Trek’s prior wheel separation incidents bear relevant similarities to Sanny’s accident. [*15] Every prior incident involved a bicycle with a quick release device, and it is logical to assume the bicycle wheel detached during foreseeable use. See, e.g., Schaffner v. Chicago & N.W. Transp. Co., 129 Ill. 2d 1, 541 N.E.2d 643, 660, 133 Ill. Dec. 432 (Ill. 1989) (reaching same conclusion in similar circumstances). Whether the wheel detached due to user error is immaterial, as Trek concedes user error of the quick release device is a foreseeable cause of injury. Def.’s Mem. Supp. Summ. J. [Docket No. 81] (“Def.’s Mem.”) 15. In this case, the parties agree that wheel separation incidents may be grouped together to demonstrate comparative safety and overall incident trends. See, e.g., id. at 14. In addition, the offered evidence is summary in nature and thus avoids the risk of unfair prejudicial effect. As a result, the evidence of Trek’s past wheel separation incidents is likely to be admitted in some form at trial.
Arguing against this conclusion, Trek cites Magistrate Judge Rau’s holding that Plaintiffs failed to demonstrate how Sanny’s injuries compare to the majority of injuries suffered in other wheel detachment accidents. See Order, Jan. 2, 2013 [Docket No. 69] 8. Before Judge Rau, Plaintiffs argued for the appropriateness [*16] of punitive damages in part by describing several specific examples of injuries suffered by Trek bicycle riders. Judge Rau properly held that Plaintiffs had failed to demonstrate that injuries as serious as Sanny’s had occurred in the majority of wheel detachment claims. Id. As a result, Judge Rau held Plaintiffs had not demonstrated injuries rising to the level of seriousness required by Minnesota’s punitive damages statute. Id. Here, the evidence at issue is not of past injuries, but of the wheel detachments themselves. As discussed above, this more limited evidence is probative of the design’s safety and Trek’s notice of prior accidents. See, e.g., Broun, Kenneth, McCormick on Evidence § 200 (7th ed. 2013) (when evidence of other accidents used to show manufacturer’s notice, similarity to accident at issue “can be considerably less” than for other purposes). As such, evidence of past wheel separation claims may be relevant at trial for a purpose other than that argued in the punitive damages context.
The admissible evidence of Trek’s prior wheel separation claims supports a finding that genuine issues of material fact exist. Among other things, evidence of prior accidents may demonstrate: [*17] (1) a design defect; or (2) the manufacturer’s knowledge that prior accidents had occurred. See Lovett v. Union Pac. R. Co., 201 F.3d 1074, 1081 (8th Cir. 2000). Regarding the former purpose, evidence of similar accidents may indicate that the product at issue is unsafe and thus defective. See id. Even accidents occurring after the accident in question may be probative of safety. 4 See Indep. Sch. Dist. No. 181, Brainerd v. Celotex Corp., 309 Minn. 310, 244 N.W.2d 264, 266 (Minn. 1976); Steenson, Michael K., et al., 27 Minn. Practice Series § 12.9 (2012 ed.). Regarding the latter purpose, a manufacturer’s notice of other accidents addresses whether a manufacturer exercised sufficient care to eliminate any unreasonable risk of harm from foreseeable uses of its product at the time of design. See, e.g., Hammond v. Compaq Computer Corp., No. 06-1670, 2009 U.S. Dist. LEXIS 90245, 2009 WL 3164797, at *4-5 (D. Minn. Sept. 29, 2009) (potential foreseeability of harm addressed in part whether manufacturer used reasonable degree of care in design).
4 In this case, evidence of accidents occurring after Sanny’s injuries may be relevant because, as Trek concedes, bicycles have a long useful life. As a result, bicycles manufactured at the same [*18] time as or before Sanny’s bicycle may have had wheel detachments after Sanny’s accident.
Trek’s history of wheel separation claims creates a question of fact regarding whether Trek exercised reasonable care in its failure to include a secondary retention device in its 1990 design of the bicycle Sanny later purchased. First, the parties dispute the significance of what these prior incidents demonstrate concerning the effectiveness of secondary retention devices. Plaintiffs argue Trek’s wheel separation claims decreased in the early 1990’s because of Trek’s use of secondary retention devices; Trek argues proper education in the use of quick release devices increased safety despite the presence of secondary retention devices. The parties’ differing but reasonable views of the same evidence demonstrates a question of fact. See, e.g., Riedl v. Gen. Am. Life Ins. Co., 248 F. 3d 753, 756 (8th Cir. 2001) (citation omitted). Second, the pre-1991 incidents of wheel separation are evidence that Trek had some notice of the risks associated with quick release devices, which creates a question of fact regarding the reasonableness of its decision to forgo secondary retention devices until 1990-91.
In [*19] addition, the parties’ disagreement over the specifics of the wheel separation evidence itself also precludes summary judgment. The parties simply disagree about how many of the pre-1991 wheel separations involved bicycles that had actually been equipped with secondary retention devices. Neither party has provided any evidence that conclusively resolves the discrepancy; instead, the parties rely on the contradictory recollections of deponents. See Read Dep. 152-53; Vaughn Aff. Ex. QQ (“Bretting Dep.”) 81-91. Further, Trek has no evidence showing that any of the bicycles involved in the recorded wheel detachments were actually equipped with secondary retention devices at the time of detachment. 5 A direct, factual conflict over Trek’s wheel separation data exists, and at summary judgment this conflict must be resolved in favor of Plaintiffs.
5 Trek also argues Plaintiffs have failed to present statistical evidence, such as through a study using epidemiological methods, that secondary retention devices have resulted in statistically significant increases in safety. However, such an analysis is not necessary to establish a question of fact in a design defect case. See, e.g., Sobolik, 2011 U.S. Dist. LEXIS 33911, 2011 WL 1258503, at *3 [*20] (holding even a single prior accident could establish question of fact); see also Hammond, 2009 U.S. Dist. LEXIS 90245, 2009 WL 3164797, at *4 (finding question of fact although product had been manufactured 1.5 million times and used without incident).
c. Industry standards
i. Industry publications
Industry standards at the time the manufacturer chose the design at issue is one factor in determining the manufacturer’s exercise of reasonable care. See, e.g., Buchanna v. Diehl Mach, Inc., 98 F.3d 366, 371 (8th Cir. 1996) (interpreting comparable Arkansas law and holding evidence of compliance with industry standards not conclusive proof of safety, but rather “competing evidence from which to choose”). Plaintiffs submit excerpts from patents, publications, books, and other materials indicating bicycle manufacturers and consumers had discussed the safety of quick release devices well before 1990. See, e.g., Vaughn Aff. Ex. J (excerpt from 1984 edition of American Bicyclist and Motorcyclist magazine noting availability of secondary retention devices). Trek does not dispute the veracity of these documents, nor does it offer any reason why Plaintiffs’ submitted evidence on this topic should be disregarded. Thus, this evidence [*21] further establishes a genuine question of material fact, as it suggests Trek knew or should have known that others in the bicycle industry had acknowledged the risk of harm resulting from quick release wheel separation, and that other manufacturers had already begun implementing secondary retention devices.
ii. Schwinn Bicycles
Plaintiffs also cite the actions of Schwinn Bicycles (“Schwinn”), another bicycle manufacturer, as evidence of the industry standard. In particular, Plaintiffs describe the development of the “Brilando clip” by Frank Brilando, a retired Schwinn employee. Testifying in a deposition for previous product liability litigation against Trek, Brilando stated that in the late 1960’s and early 1970’s Schwinn became concerned about the number of occurrences of quick release wheel separations. Vaughn Aff. Ex. D (“Brilando Dep.”), at 25-27 (testimony from Thurston v. Trek Bicycle Corp., No. PI-96-013351 (Hennepin Dist. Ct. 1998)). As a result, Schwinn halted sales of a particular bicycle model that used a quick release device. Id. at 88-89. Brilando then designed and patented the “Brilando clip,” two of which affix to the quick release skewer. When attaching a quick release [*22] wheel, the rider then manually clips the other ends of the Brilando clips to specially-mounted pegs extruding from the fork blades. Id. at 37-40.
Plaintiffs argue Brilando’s testimony demonstrates the safety conferred by secondary retention devices in general. Schwinn began incorporating Brilando clips into its quick release designs in 1976. From 1968 to 1985, Schwinn received 131 reports of wheel detachments in quick release bicycles without secondary retention devices. Vaughn Aff. Ex. E (Schaffner Stipulation). To Brilando’s knowledge, Schwinn did not receive a single report of wheel detachment in bicycles equipped with these secondary retention devices from 1976 to 1992, when Brilando retired. Id. at 55-56. From this evidence, Plaintiffs argue a jury could reasonably conclude secondary retention devices feasibly increase the safety of quick release bicycles.
Trek responds that Brilando’s testimony is both hearsay and irrelevant. In terms of admissibility, Trek argues Brilando’s deposition transcript is hearsay, and that Plaintiffs never noticed Brilando as an expert witness or submitted an expert report by him. Even if his testimony was admissible, Trek argues neither Brilando nor [*23] Schwinn considered quick release bicycles without secondary retention devices to be defective in the early 1990’s. See Schaffner v. Chicago & N.W. Transp. Co., 161 Ill. App. 3d 742, 515 N.E.2d 298, 113 Ill. Dec. 489 (Ill. Ct. App. 1987) (affirming jury verdict that a 1973 Schwinn bicycle was not unreasonably dangerous because it lacked secondary retention device), aff’d, 129 Ill. 2d 1, 541 N.E.2d 643, 133 Ill. Dec. 432; Brilando Dep. 149-50.
Based on the current record, at least some of Brilando’s deposition testimony from Thurston is likely to be admissible at trial. Plaintiffs’ counsel submitted an affidavit stating Brilando was unavailable as a witness in this case due to his age, physical condition, and deteriorating memory. Vaughn Aff. ¶ 4. Also, Brilando’s prior deposition was taken in a product liability lawsuit against Trek, in which Trek’s previous counsel had the “opportunity and similar motive to develop [the testimony] by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1)(B). As a result, Brilando’s testimony appears to qualify for an exception to the rule against hearsay. However, Trek is correct that Plaintiffs did not disclose Brilando as an expert witness. As a result, Brilando’s opinions are inadmissible; only his factual knowledge [*24] of Schwinn’s bicycle designs and safety record will be received in evidence.
Brilando’s testimony is an additional factor leading to the conclusion that there is a genuine question of fact for jury consideration. Brilando testified that Schwinn received zero claims of quick release wheel separations in bicycles equipped with the Brilando clips, which may lead a jury to conclude Schwinn’s secondary retention device increased the safety of quick release bicycles. Also, although Brilando’s knowledge was limited in some respects, his testimony is some evidence of the bicycle industry standards at the time Trek chose the design for Sanny’s bicycle.
iii. CPSC rules and ASTM standards
The parties argue at length regarding the significance of rules promulgated by the Consumer Product Safety Commission (CPSC) for bicycle safety. The CPSC is tasked with protecting the public against injury resulting from consumer products, and performs education, research, and rule-making functions. The history of how bicycle safety came under the CPSC’s purview is stated in Forester v. Consumer Prod. Safety Comm’n, 559 F.2d 774, 182 U.S. App. D.C. 153 (D.C. Cir. 1977), and a detailed summary is not necessary here. Of relevance, however, [*25] is the CPSC’s decision in 1978 to promulgate a rule addressing bicycle wheel hubs. See 16 C.F.R. § 1512.12. In § 1512.12, the CPSC required front wheel hubs to have positive retention devices but specifically exempted quick release bicycles. Id. § 1512.12(c).
The parties offer very different views of how the CPSC’s position on quick release bicycles evolved. Plaintiffs argue that bicycle manufacturers had previously only marketed quick release devices to bicycle racers, and that Schwinn, leading the industry, had only just begun marketing quick release devices to casual riders by 1978. Plaintiffs cite evidence that by 2004, the CPSC had begun urging ASTM International (formerly known as the American Society for Testing and Materials), an organization that adopts voluntary manufacturing standards, to take the position that all quick release devices should have secondary retention devices. See, e.g., Vaughn Aff. Ex. M. Trek responds that ASTM standards are entirely voluntary and that if the CPSC had truly determined quick release devices to be unsafe, the agency would have taken regulatory action. In addition, Trek cites a CPSC bicycle safety study from 1994 in which the agency concluded [*26] no revisions to its bicycle regulations were required. Haag Aff. Ex. N.
The evidence offered by the parties regarding the CPSC is of limited value. Although Plaintiffs credibly argue the CPSC had begun advocating for voluntary standards adopting the use of secondary retention devices, all of the cited evidence dates from 2004 or later: well after Trek designed Sanny’s bicycle. Conversely, Trek’s cited study from 1994 does reflect the CPSC’s determination that it did not need to revise its safety standards; however, the CPSC’s report did not specifically address quick release devices or secondary retention devices. Plaintiffs’ evidence also indicates that the CPSC may have chosen to pursue non-regulatory safety standards for quick release devices, and that bicycle companies had failed to report wheel detachments to the CPSC. In short, much of the CPSC evidence does not reflect industry standards in 1990; to the extent any of the evidence is relevant, it is conflicting and further raises questions of fact.
Ultimately, reasonable minds could disagree as to whether Trek used reasonable care in evaluating the balance between safety and utility at the time of the manufacture of Sanny’s [*27] bicycle. As Trek concedes, bicycle accidents often result in serious injury, and occasionally in death. Def.’s Mem. 5-7. However, Trek argues that the wheel detachment rate is so small that although serious injury or death is possible, the design at issue cannot be unreasonably dangerous, even if several feasible alternative designs exist. In 1990, Trek considered much of the same evidence now before the Court and decided to forgo secondary retention devices. In Trek’s view, these retention devices did not tangibly increase safety and also decreased the utility of the quick release device. Weighing the reasonableness of that decision, and the risk of harm against its seriousness, is a question of fact best decided by a jury. See Thompson, 456 F.3d at 809.
3. Failure to Warn
In addition to their design defect claim, Plaintiffs allege Trek failed to properly warn Sanny about the danger of riding a quick release bicycle not equipped with a secondary retention device. Under Minnesota law, a plaintiff claiming a failure to warn must show: “(1) the defendant had reason to know of the dangers of using the product; (2) the warnings fell short of those reasonably required, breaching the duty [*28] of care; and (3) the lack of an adequate warning caused plaintiff’s injuries.” Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 924 (8th Cir. 2004) (quotation omitted). To establish causation, a plaintiff must demonstrate that a warning would have caused him or her to act in a way that would have avoided the injury. See Ramstad v. Lear Siegler Diversified Holdings Corp., 836 F. Supp. 1511, 1516 (D. Minn. 1993).
Plaintiffs claim must fail for two reasons. First, Plaintiffs allege Trek failed to warn Sanny that his bicycle lacked a secondary retention device. However, a product warning need only warn about the inherent dangers and proper use of the product; there is no requirement that a product warning instruct the user as to other possible designs or products. See Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572, 582 (Minn. 2012).
Second, Plaintiffs cannot establish the element of causation. Sanny testified he had owned quick release bicycles since the late 1970’s and had at least a passing familiarity with quick release devices since that time. Sanny Dep. at 11-15. Sanny had owned this Trek bicycle for about 16 years before his accident. See id. at 14. During the year before his accident, [*29] Sanny testified he installed and removed his quick release wheel every 2 to 4 weeks and agreed that he was “perfectly competent” to do so. Id. at 14-15. In addition, Sanny also testified he knew he could crash if he did not properly secure his quick release device. 6 Sanny Dep. 46-51. Although causation is usually a question of fact, Sanny’s own testimony precludes Plaintiffs’ failure to warn claim in this case. Plaintiffs cannot show how warning Sanny as to the potential dangers and proper use of a quick release device would have caused him to act differently, because Sanny admits he already possessed all of the information that would be included in a legally adequate warning. See Ramstad, 836 F. Supp. at 1516.
6 At his deposition, Sanny initially disputed knowing how sudden the accident resulting from a wheel detachment could be, testifying, “I don’t think anybody has an idea they’re going to go crashing to the ground.” Sanny Dep. 48. Trek’s counsel then asked: “So you think you needed someone to tell you beforehand that if the front wheel became detached from the fork that you should have been warned there could be a catastrophic – you could fall off the bike?” Sanny answered, “No, [*30] sir.” Trek’s counsel confirmed, “You knew that?” Sanny responded, “Yes.” Id. at 48-49.
4. Post-Sale Failure to Warn
Plaintiffs also allege Trek had a duty to contact Sanny after his purchase of the bicycle to warn him about the risks of using a quick release device without a secondary retention mechanism. Minnesota has recognized a manufacturer’s post-sale duty to warn “only in special cases.” Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 (Minn. 1988). No specific test for establishing a post-sale duty to warn exists, but Hodder noted several factors warranting the recognition of a duty in that case, including:
(1) the defendant’s knowledge of problems with the product since the late 1950’s, including the knowledge that the product might explode with little provocation; (2) the hidden nature of the danger; (3) the fact that when explosions did occur, serious injury or death usually resulted; (4) defendant remained in that line of business, continued to sell parts for use with the product and had advertised the product within five years of the plaintiff’s injury; and (5) defendant had undertaken a duty to warn of product dangers.
Ramstad, 836 F. Supp. at 1517 (analyzing Hodder). [*31] Several decisions have indicated that “continued service, communication with purchasers, or the assumption of the duty to update purchasers, is a necessary element” for a post-sale duty to warn. McDaniel v. Bieffe USA, Inc., 35 F. Supp. 2d 735, 741 (D. Minn. 1999) (collecting cases).
As an initial matter, Trek argues Plaintiffs have not properly pled a claim for post-sale failure to warn. Trek argues that nowhere in the Complaint did Plaintiffs allege sufficient facts to state a claim under the basic notice pleading standards of Rule 8 of the Federal Rules of Civil Procedure and the fair notice requirements of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Plaintiff responds that the following allegations put Trek on notice of this claim:
The separation of the front wheel from the front fork of the subject Trek 930 Single Track bicycle and the resulting injuries to Plaintiff John Sanny were caused and contributed by the negligent conduct of Defendant. Said negligence includes, by way of example, but is not limited to, the following:
1. Negligent failure to incorporate a backup safety retention system into the design of the front wheel attaching mechanism to prevent the front wheel [*32] from detaching from the frame in the event the primary attaching mechanism came loose;
2. Negligent failure to advise customers of alternative designs employing such safety retention systems;
3. Negligent failure to advise consumers of the importance of such safety retention systems, and that unintentional misapplication of the primary attaching mechanisms was a known and recurring danger.
Compl. 2. In addition, Plaintiffs rely on a letter their counsel sent to Trek’s counsel before filing the Complaint, in which Plaintiffs cited Hodder and discussed post-sale failures to warn. Pls.’ Opp. 46.
Plaintiffs failed to state a claim for post-sale duty to warn in the Complaint. Under the pleading standards of Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), plaintiffs must state more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Plaintiffs have not even crossed this minimal threshold of stating a claim for post-sale duty to warn. Nothing in the above-quoted language would put Trek on notice that Plaintiffs had alleged a post-sale duty to warn claim, a claim that arises “only in special cases.” Plaintiffs did not allege [*33] Trek had a post-sale duty of any kind, nor did the Complaint even allude to Trek’s knowledge of a “hidden danger” or the existence of other Hodder factors. Although Plaintiffs explicitly discussed a post-sale duty to warn in their letter to Trek’s counsel, pre-litigation communications may not supplement legal pleadings. See, e.g., Garth v. White, No. 4:06-CV-1112 CAS, 2007 U.S. Dist. LEXIS 53062, 2007 WL 2128361, at *1 (E.D. Mo. July 23, 2007). Allowing such supplementation would defeat the purpose of pleading requirements, and allow plaintiffs to scatter hidden claims among their unfiled, unserved communications.
Even if Plaintiffs had stated a claim for a post-sale duty to warn, they have not demonstrated material questions of fact on that claim. Plaintiffs attempt to portray the potential risks associated with quick release devices as hidden by Trek from its own employees, making the risk more pernicious in nature and warranting a continuing duty to warn. But as Judge Rau observed, Plaintiffs’ own efforts to demonstrate the widely-known risks associated with quick release devices defeats this argument. Order, Jan. 2, 2013 at 6-7. In addition, Plaintiffs have not demonstrated whether Trek undertook a duty to [*34] warn consumers, or whether Trek engaged customers in ongoing relationships in a way that would give rise to a post-sale duty to warn. See McDaniel, 35 F. Supp. 2d at 741. Finally, while the potential for serious harm exists as a result of quick release devices, Plaintiffs have not demonstrated that serious harm “usually” results from use of such devices. Ramstad, 836 F. Supp. at 1517. Although no one factor is necessarily determinative under Hodder, Plaintiffs have not demonstrated the necessary “critical mass” to establish a post-sale duty to warn in this case.
B. Motion to Strike Errata Sheet
Trek’s second motion asks the Court to strike Plaintiffs’ expert David Hallman’s errata sheet from the record. Hallman is a materials/mechanical engineer with Crane Engineering, a company based in Plymouth, Minnesota. See Hallman Report. Hallman possesses degrees in mechanical engineering, and in materials science and engineering. He has also conducted limited research in the area of automobile accidents, and has attended conferences and seminars about vehicle accidents. Hallman has never professionally studied or worked on bicycles or bicycle design. Plaintiffs consulted Hallman for his opinions [*35] not only on the nature of Sanny’s accident, but also regarding Trek’s design choices and the safety of quick release devices.
Trek deposed Hallman on November 14, 2012. At the end of the deposition, neither Hallman nor Plaintiffs’ counsel requested the right to review and make corrections to Hallman’s testimony. Nevertheless, exactly 30 days later Hallman submitted an errata sheet indicating 57 edits to his deposition testimony. Many of his changes completely reverse or substantively amend Hallman’s original answers to Trek’s deposition questions. For example, Trek’s counsel asked Hallman about the kind of wheel hub Sanny’s bicycle had, and Hallman originally answered, “I don’t remember.” Haag Aff., Jan. 29, 2013 [Docket No. 73] Ex. Q (“Hallman Dep.”), at 50. On the errata sheet, Hallman changed this answer to “Sanny’s bicycle had a Sansin hub on the front wheel.” Id. at Ex. FF (“Errata Sheet”). In another instance, counsel asked Hallman if he knew of any engineering standards that might require a bicycle manufacturer to recall older designs, and Hallman answered, “No.” Hallman Dep. 104. On the errata sheet, Hallman changed this to: “Engineering standards, no. Engineering ethics (NSPE [*36] or ABET) would require it. An engineer’s primary responsibility is to protect the public. A recall would have done that.” Errata Sheet at 2. Several of Hallman’s edits actually include page and line citations to other depositions. Hallman did not provide any explanation for his changes.
Trek argues Hallman’s errata sheet not only fails to meet the technical requirements of the federal rules, it also abuses the purpose of the rules, making it impossible to fairly depose a witness. Plaintiffs respond that Hallman’s changes reflect clarifications or corrections consistent with Hallman’s reported opinions, and that some reflect information with which Hallman later became familiar.
The process for submitting an errata sheet is straightforward. Under Rule 30(e) of the Federal Rules of Civil Procedure allows a deponent or party, before the deposition is completed, to request the option to review the deposition transcript or recording and sign a statement listing changes “in form or substance” and “the reasons for making them.” Once the transcript or recording is available, the deponent or party making the request has 30 days to review and submit corrections. See Fed. R. Civ. P. 30(e).
Although [*37] the procedural requirements are clear, Courts have divided on the use of errata sheets to make changes beyond basic corrections. Several courts have followed the reasoning in Lugtig v. Thomas, 89 F.R.D. 639 (N.D. Ill. 1981), in which a deponent made 69 substantive changes to his deposition. The court held that the phrase “changes in form or substance” plainly allowed any changes, even when those changes contradicted original answers or were otherwise unconvincing. Id. at 641. However, the court required the original deposition testimony to remain a part of the record, and held opposing counsel could read the original deposition to the jury at trial. Id. The court also allowed opposing counsel to conduct an additional deposition if the errata sheet made the original deposition “incomplete or useless.” Id. at 642. These measures, the court held, would check abuse. Id.
Plaintiffs cite three decisions from this district to support its argument of allowing substantive changes. See ADT Sec. Servs., Inc. v. Swenson, No. 07-2983, 2010 U.S. Dist. LEXIS 3456, 2010 WL 276234, at *7-8 (D. Minn. Jan. 15, 2010), overruled on other grounds, 2010 U.S. Dist. LEXIS 74987, 2010 WL 2954545; Morse v. Walgreens Co., No. 10-2865, 2011 U.S. Dist. LEXIS 87709, 2011 WL 3468367, at *3 n.3 (D. Minn. Aug. 8, 2011); [*38] and Nw. Airlines, Inc. v. Am. Airlines, Inc., 870 F. Supp. 1504, 1508 (D. Minn. 1994). Although Hallman’s corrections far surpass the corrections made in these cases in terms of volume and substance, these decisions did indeed hold a deponent could substantially change one or more aspects of their deposition testimony.
Trek acknowledges a division among courts on the use of errata sheets, but argues that preventing depositions from becoming “take home examinations” is the better view. See Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992). In Greenway, the plaintiff made 64 significant changes to his deposition via an errata sheet. Id. at 323. The court ordered deletion of the changes, holding Rule 30(e) only existed to allow a party to correct errors made by the court reporter. The rule did not allow a deponent to “alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses.” Id. at 325. Numerous courts have agreed. See, e.g., Norelus v. Denny’s, Inc., 628 F.3d 1270, 1281-82 (11th Cir. 2010) (collecting cases). The Eighth Circuit has not yet taken a position on either side [*39] of the division of authority.
Ultimately, a flexible approach, such as the one articulated by the Third Circuit Court of Appeals, best serves the interests of fairness and efficiency. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 267-68 (3d Cir. 2010). In EBC, the court noted that allowing the original deposition to be read at trial, or allowing a supplemental deposition after the submission of an errata sheet, would offer “cold comfort” to a party that might otherwise have prevailed at summary judgment. See id. at 268. Likening the situation to the court’s view of “sham affidavits,” the Third Circuit held that a “one-size-fits-all rule” would not be appropriate. 7 Id. at 270. The court thus held district courts have the discretion to strike substantive changes made in errata sheets, if the deponent fails to provide “sufficient justification.” Id. EBC’s reasoning is persuasive, in particular because the Eighth Circuit has also articulated a flexible, though cautious, approach to striking “sham affidavits.” See, e.g., City of St. Joseph v. Sw. Bell Tel., 439 F.3d 468, 475-76 (8th Cir. 2006).
7 The “sham affidavit” doctrine, used in both the Third and Eighth circuits, permits courts [*40] to “ignore affidavits that contradict earlier deposition testimony without adequate explanation . . . .” EBC, 618 F.3d at 268; Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983).
In this case, Hallman’s errata sheet will be stricken. Significantly, and unlike in the cases cited by Plaintiffs, neither Hallman nor Plaintiffs’ counsel exercised their right to review Hallman’s deposition transcript and submit a signed sheet of corrections. Since 1991, Rule 30(e) has required either the deponent or a party to request the right to review and sign before the conclusion of the deposition. Fed. R. Civ. P. 30(e) advisory committee’s note. Here, neither Hallman nor Plaintiffs made this request, either before or after the deposition concluded, and they have not articulated good cause for failing to do so. In addition, Hallman did not state a single explanation or justification for his numerous and substantive edits. Trek’s motion to strike could be granted on these bases alone.
Just as importantly, Hallman’s edits unquestionably reflect an attempt to bolster the substance and credibility of his testimony, and the submission of these edits occurred just after the [*41] deposition deadline had passed and shortly before the dispositive motion deadline. See Stip. to Amend Scheduling Order [Docket No. 16]. Many of Hallman’s “corrections” include citations to the record, to statutes and jury instruction models, and to engineering standards never once mentioned in the original deposition. Reading Hallman’s original deposition to the jury as a counterbalance to his edited testimony would offer “cold comfort” to Trek, which seeks to exclude his expert witness testimony at the dispositive motion stage. See EBC, 618 F.3d at 268. Similarly, allowing Trek to further depose Hallman as this stage could cause significant inefficiency and delay. Under the circumstances of this case, Hallman’s errata sheet will be stricken.
C. Motion to Exclude Expert Testimony
Finally, Trek moves to exclude Hallman’s testimony as Plaintiffs’ expert. Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The rule states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the [*42] trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. Rule 702 reflects but does not codify the holding of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and the cases interpreting Daubert, including Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Fed. R. Evid. 702 advisory committee’s note.
Under Daubert, trial courts act as “gatekeepers” to ensure that: the proposed expert testimony is useful to the factfinder in deciding the ultimate fact issue; the expert witness is qualified; and the proposed testimony is “reliable or trustworthy in an evidentiary sense. . . .” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). In addition to Rule 702, trial courts may consider several factors set out by Daubert for determining reliability, including: (1) whether the theory can be (and has been) tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error; and [*43] (4) whether the theory enjoys general acceptance in the relevant scientific community. Daubert, 509 U.S. at 593-94. Courts have also considered whether “the expertise was developed for litigation or naturally flowed from the expert’s research.” Lauzon, 270 F.3d at 687.
No single Daubert or Rule 702 factor is determinative. Instead, the trial court must evaluate reliability in a flexible manner, as the Daubert factors may not necessarily apply “to all experts or in every case.” Kumho, 526 U.S. at 141. Thus, the trial court has broad discretion not only in ultimately determining reliability, but also in how it determines reliability. Id. at 142. Finally, the trial court should generally resolve doubts about the usefulness of an expert’s testimony in favor of admissibility. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006). “Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001).
Hallman produced two reports. In support of each, Hallman reviewed patents, Trek’s promotional and safety materials, documents produced in this and [*44] other litigation, and the Minnesota jury instruction guide. Hallman also visited stores and casually observed bicycles in use. In terms of testing, Hallman used equipment to test the strength of properly and improperly affixed quick release devices on a single Trek bicycle, and he also studied the results from Trek’s similar, internal tests. See Hallman Dep. 49-50. Hallman did not similarly test the effect of secondary retention devices, nor did he review similar testing by another party. With this background, Hallman opined that the design of Sanny’s bicycle was unreasonably dangerous, and that tab tips or a similar secondary retention device would have prevented Sanny’s accident. Hallman also evaluated Sanny’s bicycle and concluded that Sanny’s quick release became loose while it was locked to a bicycle post outside of his workplace, shortly before Sanny’s accident.
1. “Unreasonably Dangerous” Opinion
Trek asserts that Hallman reached his ultimate conclusion–that Sanny’s bicycle was unreasonably dangerous–without reliable bases and without the proper qualifications. Trek argues Hallman’s definition of “unreasonably dangerous” relies on circular logic and that his overall opinion is [*45] not based on data but on his own self-serving assertions. It also argues Hallman neither conducted tests nor conducted a statistically reliable study of data demonstrating an increase in safety from secondary retention devices. Trek also argues Hallman has no professional experience in bicycle safety or design, a prerequisite for experts in this case.
Hallman’s ultimate opinion regarding whether Sanny’s bicycle was “unreasonably dangerous” must be excluded. In his deposition, Hallman never clearly articulated his definition for “unreasonably dangerous.” Instead, Hallman circuitously defined an unreasonably dangerous product as one that was “more likely to cause injury” than a product that was not unreasonably dangerous. Hallman Dep. 5-6. As discussed above, “unreasonably dangerous” is a key legal consideration in a design defect claim. While an expert may testify as to the ultimate question before the factfinder, he may be prevented from doing so if his testimony in this regard is more likely to confuse a jury than aid it. Cf. United States v. Kelly, 679 F.2d 135, 136 (8th Cir. 1982) (allowing expert to testify as to ultimate question in part because testimony used commonly understood [*46] legal terms, thus avoiding risk of confusion).
In addition, Hallman did not conduct any testing of secondary retention devices. Hallman tested the reliability of a quick release device operating without a secondary retention mechanism, and also studied similar tests by Trek. He thus concluded that an improperly-affixed device could easily come loose. But Hallman conducted no similar analysis for bicycles equipped with secondary retention devices. On the other hand, because manufacturers have sold various secondary retention devices in the market for many years now, testing is not necessarily a requisite for an opinion about safety. See, e.g., Young, 428 F.3d at 790.
Here again, however, Hallman did not conduct any repeatable analysis in support of his opinion that a bicycle without secondary retention devices is unreasonably dangerous. Under Rule 702, the court’s primary concern is an expert’s methodology, not their conclusions. Bonner, 259 F.3d at 929. Hallman did not use a particular method to reach his ultimate conclusion. Instead, he simply reviewed deposition transcripts and Trek’s wheel detachment data and formed his opinion. See Hallman Dep. 23-25. Nothing about this opinion derives [*47] from scientifically reliable or repeatable methods; it simply affirms Plaintiffs’ view of the evidence without adding insight. A jury could, and should, draw its own conclusions about the testimony and data using common sense. Hallman’s view that Sanny’s bicycle was unreasonably dangerous would not assist the jury.
2. Failure to Warn Opinion
Because the Court grants Trek’s motion for summary judgment on Plaintiffs’ failure to warn claim, Hallman’s testimony in this area is irrelevant. Even if Plaintiffs’ failure to warn claim survived, Hallman’s testimony would not be admissible. In the failure to warn context, experts typically opine regarding a warning’s design or content, or whether a warning could have prevented the accident in question. See, e.g., Finke v. Hunter’s View, Ltd., 596 F. Supp. 2d 1254, 1263 (D. Minn. 2009). Here, Hallman opines only that Trek should have advised Sanny and other consumers of the risk in riding without secondary retention devices. See Pls.’ Mem. Opp. Mot. to Exclude [Docket No. 92] 5; Hallman Aff. Ex. 2 (“Hallman Supp. Report”), at 6. Put plainly, Hallman’s opinions address Trek’s legal duty to warn, and must thus be excluded.
3. Opinions Regarding Bicycle [*48] Mechanics and Sanny’s Accident
Although the above expert opinion testimony previously discussed will be excluded, Hallman does have admissible testimony which may aid the jury. Hallman’s analysis of how quick release devices function, and their potential for wheel detachment without secondary retention devices, are based on mechanical principles within Hallman’s expertise and derived from both Hallman’s and Trek’s own tests. Also, testimony derived from Hallman’s study of Sanny’s bicycle is based on the close analysis of metal deterioration and usage marks, and is within Hallman’s expertise as a materials and mechanics engineer. Although Hallman’s primary expertise centers on automobile accidents, many of the same reconstruction principles could arguably apply here. Because Trek offers no specific argument against these opinions, and because the opinions may aid the jury, these opinions will not be excluded at this stage. 8
8 Trek focused on the wholesale exclusion of Hallman’s testimony, and did not make specific arguments as to each of Hallman’s opinions. The admissibility of opinions not excluded here may be addressed by the parties at or before trial.
Based on the foregoing, [*49] and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Trek’s Motion for Summary Judgment [Docket No. 77] is GRANTED IN PART and DENIED IN PART.
2. Trek’s Motion to Strike Changes to the Deposition of Plaintiffs’ Expert David Hallman [Docket No. 70] is GRANTED.
3. Trek’s Motion to Exclude Testimony of Plaintiffs’ Expert [Docket No. 76] is GRANTED IN PART and DENIED IN PART; the testimony of David Hallman is limited as set forth above.
BY THE COURT:
/s/ Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: May 8, 2013.
Derienzo v. Trek Bicycle Corporation, 376 F. Supp. 2d 537; 2005 U.S. Dist. LEXIS 14402; 57 U.C.C. Rep. Serv. 2d (Callaghan) 863Posted: September 12, 2011
Derienzo v. Trek Bicycle Corporation, 376 F. Supp. 2d 537; 2005 U.S. Dist. LEXIS 14402; 57 U.C.C. Rep. Serv. 2d (Callaghan) 863
David Derienzo, Plaintiff, – against – Trek Bicycle Corporation, Defendant.
02 CIV 6763 (CM) (GAY)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
376 F. Supp. 2d 537; 2005 U.S. Dist. LEXIS 14402; 57 U.C.C. Rep. Serv. 2d (Callaghan) 863
July 14, 2005, Decided
DISPOSITION: [**1] Defendant’s motion for summary denied in full. Plaintiff’s design defect claim withdrawn.
COUNSEL: For David Derienzo, Plaintiff: James Alexander Burke, Larkin, Axelrod, Trachte & Tetenbaum, Newburgh, NY.
For Trek Bicycle Corporation, Defendant: Christopher G. Campbell, Piper, Rudnick, LLP, New York, NY; Loren H. Brown, DLA Piper Rudnick Gray Cary US LLP, New York, NY.
JUDGES: Colleen McMahon, U.S.D.J.
OPINION BY: Colleen McMahon
[*541] MEMORANDUM DECISION DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND RULING ON THE ADMISSIBILITY OF PLAINTIFF’S EXPERTS’ OPINIONS
This is an action to recover damages for personal injuries sustained by Plaintiff David DeRienzo when his bicycle frame failed on July 4, 2001, in Newburgh, New York. 1 Plaintiff, a New York resident, commenced this action against Defendant Trek Bicycle Corporation (“Trek”), a Wisconsin corporation 2 and the manufacturer of the bicycle at issue, asserting claims of negligence, breach of warranty, and strict products liability (including claims of manufacturing defect and failure to warn). Plaintiff has withdrawn a design defect claim. (See Plaintiff’s Memorandum of Law in Opposition to the Motion of Defendant [**2] Trek Bicycle Corporation for Summary [*542] Judgment, dated Feb. 2, 2004, at 1, n. 1.)
1 The action was originally filed in New York State Supreme Court, Orange County; Defendant filed a Notice of Removal in this Court on August 23, 2002.
2 The Plaintiff does not contest diversity jurisdiction. However it is unclear from the papers where Defendant is incorporated. Defendant stated in its Answer, dated September 24, 2002, that it is a Wisconsin corporation with its principal place of business in Waterloo, Wisconsin (par. 2). However, in its Notice of Removal, Defendant stated that it is a Michigan corporation with its headquarters in Waterloo, Wisconsin. For purposes of diversity, it is irrelevant whether Defendant is a Wisconsin or Michigan corporation, as long as it is one of the two and not New York. Referring to the Answer, the more authoritative and more recent document, I will assume for purposes of this motion that Defendant is a Wisconsin corporation.
Defendant requests a hearing under Federal Rules of Evidence 702 [**3] and 104(a) — a Daubert hearing — to evaluate Plaintiff’s experts, and moves for summary judgment on the strict products liability manufacturing defect, failure to warn and breach of warranty claims. 3
3 Defendant did not move for summary judgment on the negligence claim.
Except where noted, the following facts are undisputed:
Plaintiff was the rider of a used, modified 1998 Trek Y5 mountain bike (the “Bike”) that crashed on July 4, 2001 in Newburgh, New York. Defendant Trek designed and manufactured the aluminum frame on the Bike. As evidenced by the description “used” and “modified,” Plaintiff was not the original purchaser of the Bike, and, at the time of the accident, the Bike had been modified and did not consist of all original Trek components.
The accident did not occur while Plaintiff was simply riding the Bike. Rather, Plaintiff was landing after jumping or dropping the Bike five to eight feet off a ledge created by a rock sticking out of [**4] the side of a hill.
It is not disputed that Plaintiff was seriously injured in the accident, although he does not elaborate on the nature or extent of his injuries. (See Complaint, dated July 31, 2002, at par. 22.)
A. Plaintiff’s Mountain Biking Background
Plaintiff has an extensive background in mountain biking, and has ridden mountain bikes since age 12. He has mountain biked over various terrain, including the Catskill Mountains and the Swiss Alps. Plaintiff claims to have gone over hundreds of jumps and drop-offs (sometimes referred to as “drops”), and has been taken to the hospital on at least two occasions for treatment after mountain biking incidents.
Around the time of the accident, Plaintiff regularly biked with four friends: Anthony Carubia, C.J. Bivona, Thomas Mueller and Anthony Coneski (collectively, the “Group”). Of the Group, Coneski and Bivona worked in bicycle shops. Plaintiff considers Coneski a mountain bike expert.
During the summer of 2001, before the accident, Plaintiff stated that, on an “average” ride, he and the Group would videotape themselves riding mountain bikes and watch each other “hit jumps.” (DeRienzo Dep. at 118:12-119:2.)
In addition to [**5] mountain biking, the Group also engaged in other outdoor sports together, such as surfing, skateboarding and skiing. Plaintiff apparently had a discussion about ski-jumping over a roadway with Mueller, 4 which inspired Plaintiff’s use of the name “roadgap” for a website he maintained, http://www.roadgap.com. which describes the Group’s sports adventures.
4 Plaintiff clarifies that this stunt was never actually attempted, only discussed. (Pl. 56.1 at par. 50.)
Plaintiff participated in (and was apparently the first of the Group to try) “lake jumping,” in which the goal is to ride one’s bike off a jump into a lake. Mueller claims to have witnessed Plaintiff jumping a bike — not necessarily the Bike — into a lake at least 25-30 times.
B. The History of the Bike
The 1998 Trek Y5 model is a “full-suspension” mountain bike. Defendant claims the Y5 is also a “cross-country” mountain bike, (Def. 56.1 at par. 5), but Plaintiff [*543] claims it is not, (Pl. 56.1 at par. 5). Trek engineer Clint Kolda testified at his deposition [**6] that the Y5 was designed as a full-suspension bike that could be used for “hard” off-trail riding, but that taking a Y5 over a 5-foot drop would likely be considered a crash. 5 (Kolda Dep. at 11:12-15.)
5 This seemingly important fact — and the related testimony of Mr. Kolda — was not referenced in Plaintiff’s 56.1 Statement; rather Plaintiff only mentioned it on page 4 of his brief. With respect to jumping, Mr. Kolda stated that the Y5, “Reasonably . . . could probably take a small dropoff.” (Id. at 12:8-18.) When asked how he arrived at that conclusion, Mr. Kolda stated, “There’s always going to be uneven portions of the road. Like a kid rides his bike off a curb. It’s a dropoff.” (Id. at 12:20-25 (emphasis added).) When asked if he meant, “A small dropoff, you mean several inches, several feet?” Mr. Kolda replied, “I can’t answer that. I don’t know.” (Id. at 13:2-6.) However, when asked whether he could “foresee that the consumer would utilize the Trek Y5 while off-trail, to jump heights of 4 or 5 feet,” Mr. Kolda answered, “It was assumed that the bike would be ridden off-road. It was assumed that the bike would be ridden hard off-road. I don’t know that anybody would anticipate somebody would take it off of a 5-foot jump and not consider that to be a crash type situation.” (Id. at 44:16-45:1.) If Plaintiff establishes that Mr. Kolda was indeed employed as a design engineer by Trek during the period when the Y5 model bike was being manufactured, then Mr. Kolda would be testifying as a fact witness, not as an expert.
[**7] One Jeremy Ball of Spokane, Washington was the original purchaser of the Bike and the person who sold the Bike to Plaintiff over the internet sometime in the fall of 1999. 6 Ball told Plaintiff the Bike was “a great bike,” but he said that there were “cosmetic blemishes” on the frame.
6 Ball does not remember when he purchased the Bike. (Ball Dep. at 10:5-7.)
Plaintiff purchased the Bike sight unseen. When the Bike was delivered to Plaintiff, it was disassembled and wrapped in bath towels. Plaintiff reassembled the Bike himself. Plaintiff noticed some marks on the down tube, “Just like normal, like wear, like scuffs, maybe like some ping marks from maybe rocks or something like that.” (DeRienzo Dep. at 122:19-123:4.)
Prior to Plaintiff’s purchase, Ball had modified the Bike, though to what extent is not clear. At some time prior to the accident, Ball replaced (or had someone replace for him 7) the original front fork with a used “Rock Shox Triple Clamp” fork. 8 The parties agree that the Rock Shox fork [**8] is designed to handle a heavier load from the rider, including loads created by jumps and drop-offs. In fact, a Trek catalog (Pl. Exh. 18) includes a section entitled, “Off Road,” listing the different Y model bikes (the Y5 among them) and their features, showing that the Rock Shox fork is available on certain models (but not the Y5). 9
7 Ball cannot remember whether he replaced the fork himself or had someone do it for him, but that is irrelevant to this decision.
8 The Rock Shox fork is sometimes referred to by the parties as a “Rock Shox Judy” fork. According to a 1998 Trek catalog, attached as Exh. 18 to the Affidavit of James Alexander Burke in Opposition to Motion to Dismiss, dated Jan. 21, 2004, there do appear to be several versions of Rock Shox forks, of which the Rock Shox Judy is one.
9 Specifically, beside the picture of each model of bike, there is a list of the features that have been upgraded from one model to the next. The Y5, for example, includes a “Manitou Stylet 8 suspension fork” on its list of features upgraded from the Y3 model. The Y Glide model, in turn, lists the Rock Shox fork as one of the upgrades from the Y5 model, meaning (presumably) that the Y Glide model is superior to the Y5 because it comes with, among other features, a Rock Shox fork instead of the Y5’s standard Manitou fork. Page two of the catalogue shows that the Y33 and Y11 models also come with versions of Rock Shox forks, which are listed as upgrades from the Y22 and Y5 models. There is nothing in the catalogue indicating that any type of Rock Shox fork is inappropriate for the Y5 model; the catalogue shows only that a Rock Shox fork is standard on some Y models but not the Y5 model.
[**9] [*544] When Plaintiff received the Bike, it had pedal supports (“cranks”) and handlebars that were not manufactured by Trek. In fact, Defendant contends that, at the time of the accident, nothing but the frame remained of the original Bike. (Def. 56.1 Statement at par. 3.) Plaintiff disputes this but admits that at least the wheel rims, tires, brakes, gear system, pedals and handlebars had been replaced. 10 (Pl. 56.1 Statement at par. 83.)
10 While the Trek catalogue shows that certain standard components on various Trek bikes may be made by different companies, such as Shimano “cranks” and brakes, this fact is irrelevant in light of Plaintiff’s admission that the listed parts were replaced.
Although Ball refused to testify (or did not remember anything) about his use of the Bike prior to selling it to Plaintiff, he described himself as an “aggressive” mountain biker. Ball has raced mountain bikes all over Washington, Idaho and Montana, and has described his typical course as being “rocky,” with jumps measuring two [**10] to eight feet and drop-offs measuring three to twelve feet. Ball estimates that he has fallen about 1,000 times using various mountain bikes. Of those 1,000 incidents, he estimates that he flew over the handlebars 30-50% of the time. It is not clear how many of these incidents, if any, involved the Bike at issue in this case.
During the two years before the crash, Plaintiff rode the Bike at least every other day, and sometimes daily. He estimates that he put more than 1,000 miles on the Bike.
Plaintiff engaged in three different types of riding: “urban assault” riding, dirt jumping and mountain biking. While urban assault riding, Plaintiff stated that he and the Group would ride around at night through the streets of Newburgh and Poughkeepsie and “jump off ledges and stuff.” (DeRienzo Dep. at 69:17-18.)
Coneski stated in his deposition that he thought Plaintiff enjoyed urban assault riding more than other types of riding. Coneski also stated that Plaintiff “really liked jumping off stuff” and that he witnessed Plaintiff performing more than 500 jumps and drops. Coneski does not indicate whether any of these 500 jumps and drops involved the Bike at issue here or whether some were [**11] made using other bikes. Coneski acknowledged that landing on concrete is “really harsh” on a bicycle frame and said that Plaintiff’s urban assault riding was “a little rough.”
Plaintiff did “dirt jumping” with the Bike, which, according to Coneski, “is where you go to a stop where there’s two dirt jumps, where there’s a lip and a landing and just do that all day or as long as you want. That’s dirt jumping.” (Coneski Dep. at 217:25-218:4.) Plaintiff and the Group jumped their bikes four or five times a week in an area where they built eleven dirt ramps. The tallest ramp was five feet high. Coneski testified that he only saw Plaintiff damage a bike one other time before the accident — “I seen him bend a wheel real bad in the front once” — but Coneski did not indicate whether Plaintiff was riding the subject Bike at the time. (Coneski Dep. at 234:16-235-24.) 11
11 Plaintiff bought the Bike from Ball in the fall of 1999. Coneski testified that he thinks the incident where Plaintiff bent a front wheel happened in the summer of 1999, which would mean Plaintiff could not have been riding the subject Bike at the time. (Coneski Dep. at 234:25-235-2; Def. 56.1 Statement at par. 24.)
[**12] In addition to urban assault riding and dirt jumping, Plaintiff used the Bike for mountain biking or “off-road” riding. Plaintiff estimated that he took the Bike over approximately 200 jumps and drop-offs [*545] before the accident, with the highest being ten feet off the ground. Coneski stated in his deposition that in his (non-expert) opinion, Plaintiff’s use of the Bike put the Bike close to, or possibly past, the point where the aluminum frame would be “stressed.”
The day before the crash at issue in this case, Plaintiff was involved in an incident in which the front wheel of the Bike hit the ground at an angle of between 50 and 70 degrees, causing Plaintiff to go flying over the handlebars. Plaintiff claims not to have been injured in this incident.
C. The Owner’s Manual and Warning Sticker
The parties dispute almost everything about the Owner’s Manual and warning stickers.
Each party submitted a different version of a Trek Owner’s Manual with its moving papers. The version submitted by Defendant contains sterner, more prominent warnings about the dangers of various aspects of mountain biking than the version submitted by Plaintiff. It is not clear which version actually was issued [**13] with the Bike when Ball purchased it, and Plaintiff did not produce any Owner’s Manual that was in his possession during discovery. If an Owner’s Manual was issued to Ball when he first purchased the Bike, it is not part of the record.
Plaintiff’s Exhibit 14 is a Trek “All-Terrain Bicycle Owner’s Manual” that, according to an email from defense counsel (attached to the copy of the Owner’s Manual in Pl. Exh. 14), “would have accompanied most 1998 Trek Y-5 bicycles when they were purchased new.” This Owner’s Manual is copyrighted 1997 by Trek and carries the notation, “Trek P/N 971475.” I will refer to this as the “1997 Manual.”
Defendant’s Exhibit 3 is also a Trek “All-Terrain Bicycle Owner’s Manual.” It appears similar to Plaintiff’s Exhibit 14. However, Defendant’s version is copyrighted 1998 and carries the notation, “Trek # 990264.” I will refer to this version as the “1998 Manual.” 12
12 Defendant’s 56.1 Statement at par. 6 states, “Trek issued an Owner’s Manual with the 1998 Trek Y5 that contained a number of safety instructions and warnings, including the following warning about potential frame damage from jumping,” and then quotes warning text that I address more fully below. That text does not appear in the 1997 Manual, the version apparently sent by defense counsel to Plaintiff. Plaintiff states in par. 6 of its 56.1 Statement, “There is no citation by Defendant to any evidence except a 1998 Trek All-Terrain Bicycle Owners Manual. It is unclear whether Defendant is referring in general to the Y5 bike, or is referring to the subject Y5 bike. The original owner of the subject [bike] does not remember if he received an owner’s manual, and the Plaintiff does not think he received an owner’s manual . . . Defense counsel previously represented that a different Owners Manual ‘would have accompanied most 1998 Trek Y-5 bicycles when they were new.'” It is not clear why defense counsel would have produced one version of the Owner’s Manual to Plaintiff during discovery and then sent a different version with its motion papers.
[**14] The 1997 and 1998 Manuals contain substantially different warnings.
For example, page 2 of the 1998 Manual has a box at the bottom of the page that shows the word, “WARNING” in bold against a dark background, with a “!” symbol on a dark triangle. I will refer to the combination of “WARNING” with the “!” on the triangle, bold and highlighted, as the “Warning Sign.” The Warning Sign is accompanied by the following text: “Read Chapter 1 now! It contains important safety information which you should read thoroughly before you ride your new bicycle.” Page 3 shows the Warning Sign at the bottom of the page with the following text: “In this manual, the warning sign [*546] indicates there is the possibility of death or serious injury if an error is made in handling or operation.” Page 5 shows the Warning Sign and states, “Before you ride your new bike, you should read this entire chapter. It includes safety, operational, and riding information that you should know before riding your new bicycle!” Page 6 shows the Warning Sign and states, “This is not a comprehensive maintenance program. Check the entire bicycle carefully. If you spot a problem, do not ride the bike until it has been corrected. [**15] If you are not certain if your bike has a problem, take your bike to your Trek dealer.” Page 15 states, with the Warning Sign, “Never modify your frameset in any way, including sanding, drilling, filing, or by any other technique. Such modifications will void your warranty, may cause your frame to fail, and may contribute to loss of control resulting in personal injury.” The same text appears on page 55 with the Warning Sign. In fact, the 1998 Manual contains the Warning Sign with various accompanying text on 23 of its 56 pages (occasional pages show two Warning Signs with different text).
By contrast, the 1997 Manual does not contain any Warning Sign logos, although it does contain some of the same text. Page 2 has text in a box that says, “IMPORTANT! — Read Chapter 1 now! It contains important safety information which you should read thoroughly before you ride your new bicycle.” This is the same text as the warning on page 2 of the 1998 Manual, but without the Warning Sign. As there are no Warning Sign logos in the 1997 Manual, there is no analogous warning to the one on page 3 of the 1998 Manual that the Warning Sign indicates risk of “death or serious injury if an error is made [**16] in handling or operation.” On page 5 of the 1997 Manual, a text box states: “IMPORTANT! Before you ride your new bike, you should read this entire chapter. It includes safety, operational, and riding information that you should know before riding your new bicycle!” This is similar to the warning on page 5 of the 1998 Manual. Page 6 states, “IMPORTANT: This is not a comprehensive maintenance program. Check the entire bicycle carefully. If you spot a problem, do not ride the bike until it has been corrected. If you are not certain if your bike has a problem, take your bike to your Trek dealer.” This is the same text that appears on page 6 of the 1998 Manual. Page 12 states, “WARNING: Never modify your frameset in any way, including sanding, drilling, filing, or by any other technique. Such modifications will void your warranty, may cause your frame to fail, and often contribute to a loss of control resulting in a personal injury.” Page 48 contains a substantially similar warning. 13 The warnings on pages 12 and 48 of the 1997 Manual are similar to the warnings that appear on pages 15 and 55 of the 1998 Manual. In addition, page 22 of the 1997 Manual contains a text box that states, [**17] “CAUTION: Never ride any bicycle that is not operating properly.” The Court could not find a similar warning in the 1998 Manual (other than the text in the warnings on page 6 of both Manuals). The 1997 Manual contains text boxes with the words, “CAUTION,” “WARNING” or “IMPORTANT” on 21 of its 52 pages.
13 The warning on page 48 of the 1997 Manual merely omits the reference to the warranty: “WARNING: Never modify your frameset in any way, including sanding, drilling, filing, or by any other technique. Doing so may cause your frame to fail or in other ways contribute to a loss of control resulting in a personal injury.”
The most important warning in the 1998 Manual — for purposes of this case — is found on page 12 and takes up approximately [*547] 1/3 of the page. It states (with the Warning Sign):
Jumping your bicycle, performing bicycle stunts, severe off road riding, downhill riding, or any abnormal bike riding can be very dangerous. These activities increase the stress on your frame and components and can [**18] lead to premature or sudden failure of your bicycle frame or components. Such failure could cause a loss of control resulting in serious injury or death.
Industry pictures and videos of these kinds of activities depict very experienced or professional riders. If you choose to jump your bicycle, use it for stunts, or use it in a severe offroad [sic] or downhill environment, carefully inspect your frame and components for signs of fatigue before and after each ride.
Remember; it is much easier to have an accident resulting in serious personal injury in these situations even if your bicycle performs as intended. Use suitable protective gear, including a certified bicycle helmet.
The only “warning” about jumping in the 1997 Manual is at the very bottom of page 10, in regular text (with no text box, Warning Sign or other graphic) and takes up approximately 1/10 of the page. It states in full: “Avoid jumping. Bicycles are not made for jumping. Doing so may cause your frame to fail. Never ride your bicycle in such a manner as to propel your bicycle airborn [sic], including riding over steps and curbs.” This “Avoid jumping” text is the last of five text segments on page 10, [**19] the other four being (in order, from top to bottom): “Wear a helmet,” “Know and observe your local bicycle riding laws,” “Use special care when off-road riding,” and “Use good shifting techniques.” On the opposite (facing) page, there is a text box with the word “CAUTION” and two segments (including bold text) about the dangers of riding at night and in wet conditions. On page 20, there is a list of the IMBA Rules of the Trail
In sum, the warnings on pages 2, 5, 6, 12 and 48 of the 1997 Manual are analogous to the warnings on pages 2, 5, 6, 15 and 55 of the 1998 Manual, except that the warnings in the 1998 Manual are accompanied by Warning Signs and the ones in the 1997 Manual are not. The warning about the specific dangers of jumping is unique to the 1998 Manual, as is the warning that “death or serious injury” could result from errors in operating a bicycle. The free-standing warning against riding a bicycle that is not operating properly is unique to the 1997 Manual, as is the very brief and inconspicuous warning not to jump a bicycle. Interestingly, the 1998 Manual, which contains the more conspicuous and arguably more severe warning about jumping, does not state that a Trek bicycle [**20] should not be used for jumping. The 1997 Manual, by contrast, flatly (though inconspicuously and briefly) states that bicycle should not be used for jumping, but fails to state what the dangers of doing so would be.
Ball testified that he does not remember whether he ever got a Y5 Owner’s Manual when he originally bought the Bike, and he does not remember whether he sent any literature with the Bike when he sold it to Plaintiff. (Ball Dep. at 50:12-18.) When asked if he received an Owner’s Manual with the Bike when he bought it from Ball, Plaintiff stated, “I don’t think so.” (DeRienzo Dep. at 106:17-19.)
Defendant also claims in its 56.1 Statement, pars. 7 and 8, that the 1998 Y5 model came with a sticker on the frame, reading:
WARNING! NEVER RIDE YOUR BICYCLE WITHOUT A HELMET. YOUR OWNER’S MANUAL CONTAINS CRITICAL SAFETY INFORMATION. [*548] READ YOUR OWNER’S MANUAL BEFORE YOU RIDE THIS BICYCLE. IF YOU DON’T HAVE AN OWNER’S MANUAL, SEE YOUR LOCAL DEALER.
Defendant included copies of the sticker as Def. Exhibit 4. However, the copies are not evidence in support of the assertion that the stickers were placed on this Bike in 1998, and Defendant’s 56.1 Statement cites no [**21] testimony from anyone at Trek to the effect that stickers were affixed to any 1998 models of the Y5. Therefore, the assertion does not comply with Local Rule 56.1, which requires that, [HN1] “Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).” (Emphasis in original.) 14
14 Of course, Plaintiff does not cite any evidence that such stickers were not affixed to the Bike, in support of the assertions in paragraphs 7 and 8 of Plaintiff’s 56.1 Statement. Instead, all Plaintiff offers is Ball’s testimony in response to the question about whether there was a sticker on the Bike when he bought it: “I don’t believe — I don’t remember.” (Ball Dep. at 69:4-8.) If Defendant can prove that it was Trek’s practice to put those warning stickers on all of the Y5 model bikes, then Ball’s statement that he does not remember whether there were any on his Bike would not suffice to raise a genuine issue of fact.
[**22] D. The Accident
On July 4, 2001, Plaintiff was riding with Mueller, Carubia and Coneski in a wooded area on Cronomer Hill in Newburgh, New York. Carubia was videotaping the others going over jumps and drop-offs. Prior to the accident, Plaintiff had been riding for more than one hour. During that time, Plaintiff did between eight and ten drops.
At one point prior to the accident, the riders approached a drop from a large rock onto a ladder bridge. According to Coneski, Plaintiff contemplated the drop for about twenty minutes and then decided not to do it because, “It just freaked him out.” (56.1 Statements at par. 95.)
The riders subsequently approached the area where the accident occurred, a drop-off of between five and eight feet created by a boulder approximately the size of a car sticking out of the side of Cronomer Hill. Defendant states, in par. 99 of its 56.1 Statement, without citation, that, “Trees and bushes flank the cliff on both sides.” Plaintiff disputes this, but also provides no citation to contrary evidence. Defendant cites the Expert Report of Gerald P. Bretting, P.E., for the assertions that the area leading up to the cliff is angled downward at 18 degrees, and [**23] that the landing area is angled downward at 30 degrees. (Def. 56.1 Statement at pars. 100-101.) Plaintiff disputes this, (pars. 100 and 101 of Pl. 56.1 Statement), citing only Mueller’s testimony that the slope of the ground leading up to the cliff is “Maybe 10-15 degrees. Not a big slope,” (Mueller Dep. at 242:3-7), and Coneski’s testimony that the “take-off” area is “nice flat rock.” (Coneski Dep. at 314:9-14.) 15
15 Bretting visited the site of the accident and stated in his Report that the takeoff area rolled “to near vertical over approximately one foot.” He stated that the vertical drop of the boulder is 5.2 feet and the approximate vertical drop of DeRienzo as he came off the boulder would have been 9.0 feet. He stated that the landing surface has an average down slope of 30 [degrees]. (Expert Report of Gerald P. Bretting, P.E., par. 11, Def. Exh. 2.) Plaintiffs experts’ reports do not offer opinions on the angles at the site or estimate the height of the drop, and the Court cannot locate deposition testimony to that effect (and Plaintiff has not highlighted any).
[**24] Defendant paraphrases (with some errors) the testimony of Coneski regarding [*549] the landing area. (Def. 56.1 at par. 102.) Coneski’s testimony about the landing area was that there are
some rocks and roots, because it’s not a pretty high drop. Four feet or whatever, it isn’t that high. But you land on pretty choppy stuff. . . It’s not real bad, but it’s a little choppy. . . [The rocks are] pretty big, but they’re in the ground. Just the tops are sticking up. And there’s one root that comes right across.
(Coneski Dep. at 313:9-314:2.) According to Coneski, the “coolest part” of this drop is that the rider cannot see the landing area until his bike is already off the boulder. For this reason, the riders used twigs to indicate where the perfect landing spot would be. Specifically, Coneski stated:
We’ll take two twigs and make like a little, narrow spot. Because you can’t tell from up top. When you’re up top all you can see is the top, and the ground is gone. . . We brushed stuff away [from the landing area] with our feet. . . There was like a groove that went right through the rocks, and we put twigs there and kind of lined it up.
(Coneski Dep. at 317: [**25] 25-318:17.) 16
16 Defendant claims Coneski said they placed twigs “along the edge of the cliff to guide them toward the safe landing area.” (Def. 56.1 at par. 105.) Plaintiff disputes this characterization, (Pl. 56.1 at par. 105), noting that Coneski testified that twigs were put on the landing area. Coneski’s testimony is clear: they put twigs on the landing area, in the groove between the rocks — not, as Defendant claims, along the edge of the cliff.
Plaintiff was the first to go over the drop where the accident occurred. When Coneski was asked whether Plaintiff was “trying to go first to prove himself again, because he hadn’t done the previous drop,” Coneski replied, “Maybe. I don’t know.” (Coneski Dep. at 381:18-21.) 17 Plaintiff approached the takeoff area from about thirty feet away. Plaintiff believed he needed to approach the drop with “a good amount of speed” in order to avoid somersaulting. Coneski thought Plaintiff was approaching the drop too slowly and worried that Plaintiff would land the front [**26] wheel first. Coneski stated in his deposition that he cannot do drops as slowly as Plaintiff was approaching this drop because his “front end dies.”
17 In a typical mischaracterization, Defendant claims that Coneski testified that he “thought Plaintiff was trying to prove himself after failing to do the previous drop.” (Def. 56.1 Statement at par. 108.) Purported disputes over the witnesses’ deposition testimony (like the ones noted in this section) were easily resolved by reviewing the subject testimony. Such “disputes” do not create a genuine issue of fact because the witnesses’ statements are clear. The parties also failed to reference much of the relevant testimony in the record, which I have reviewed thoroughly, adding citations where necessary.
While in the air, Plaintiff believed the Bike was “fairly level” to the landing surface. And at some other point during the jump, the front end of the Bike tipped down towards the ground.
Plaintiff does not recall what part of the Bike hit the ground first. Mueller [**27] and Coneski viewed the accident (what they could see of it) from behind (i.e., up the hill from the boulder, since DeRienzo was the first to go over the drop). Mueller stated that Plaintiff’s “front end gradually dropped.” Coneski stated that Plaintiff’s “front wheel was pretty low” and “too low” while Plaintiff was in the air. Coneski also characterized Plaintiff’s body position as he took off as “a little forward” but he also stated that “everything else was okay,” and that Plaintiff did “everything right to try to fix” his position in the air. Specifically, Coneski said Plaintiff put his body [*550] “really, really far back trying to pull the front end up.” (Coneski Dep. 384:9-21.)
Plaintiff thinks that “the bike broke like almost exactly when I somehow touched the ground.” (DeRienzo Dep. 176:4-6.) He does not know if any part of the Bike hit a rock as he landed. (Id. at 175:17-24.) Coneski did not see the frame break, but he stated that he thought the frame broke when Plaintiff hit the ground on landing. (56.1 Statements at par. 125.) Mueller stated that he saw Plaintiff land the Bike front wheel first, but the Court cannot locate any testimony about whether Mueller saw the frame [**28] break.
Plaintiff stated that he “first realized the bike had broke [sic] when I was sitting there and my face felt like it was on fire and my friend Thomas [Mueller] was like, ‘Don’t move.’ He is like, ‘Your bike just broke.'” (DeRienzo Dep. 176:17-21.) Plaintiff realized he had gone over the handlebars when he woke up, but he didn’t remember actually going over. (Id. at 176:25-177:16.)
Plaintiff testified that, had the frame not broken, “I am absolutely positive I would have landed successfully.” (DeRienzo Dep. at 177:6-.7.) Coneski stated that he had “seen people land front wheel like that and have no problem. So that’s — I don’t know if he crashed because of the frame or if it really was totally his fault.” (Coneski Dep. at 393:17-21.)
II. Summary Judgment Standard
[HN2] A party is entitled to summary judgment when there is no “genuine issue of material fact,” and the undisputed facts warrant judgment for the moving party as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In addressing a motion for summary judgment, “the court must view the evidence in the light [**29] most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Whether any disputed issue of fact exists is for the Court to determine. Balderman v. United States Veterans Admin., 870 F.2d 57, 60 (2d Cir. 1989). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once such a showing has been made, the non-moving party must present “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The party opposing summary judgment “may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment.” Anderson, 477 U.S. at 248. [**30]
The key to understanding this case is as follows: Plaintiff alleges that he performed the jump in a manner that would have resulted in a successful landing — like all the landings before it — had the Bike frame not failed. Plaintiff further argues that Defendant knew people were using the Y5 model for jumping but that it was not designed or reasonably fit for that use, and that Defendant failed to adequately warn of this danger. Defendant argues, to the contrary, that Plaintiff would have fallen on this occasion even if the frame had not failed, because of his poor position in the air, and that it was Plaintiff’s history of misusing the Bike — and not a defect — that [*551] made it susceptible to failure on this particular occasion. Defendant implies that the failed jump caused the frame to break, and not the other way around. Defendant also argues that it did not market the Y5 model for jumping, that it did warn of the dangers of jumping a Y5 model bike, and that Plaintiff’s failure to read any such warnings is fatal to his claims. Most important, Defendant asserts that Plaintiff has not adduced evidence sufficient to raise a genuine issue of material fact [**31] concerning what caused the accident. As discussed below, I disagree.
Each of the challenged claims — manufacturing defect, failure to warn and breach of warranty — requires proof that the accident was caused by a failure of the Bike’s frame. See, e.g., Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106, 450 N.E.2d 204, 463 N.Y.S.2d 398 (1983); Gilks v. Olay Co., Inc., 30 F. Supp. 2d 438, 443 (S.D.N.Y. 1998). Since there are scientific and technical issues involved in this determination, expert proof is required. See, e.g., Tiner v. General Motors Corp., 909 F. Supp. 112, 117 (N.D.N.Y. 1995) (citing Food Pageant, Inc. v. Consol. Edison Co., 54 N.Y.2d 167, 445 N.Y.S.2d 60, 429 N.E.2d 738 (1981)). Thus, if plaintiff cannot show that the failure of the Bike frame caused the accident (an assertion that requires the support of admissible expert testimony), the case is over, under any theory. See, e.g., Clarke v. Helene Curtis, Inc., 293 A.D.2d 701, 701-02, 742 N.Y.S.2d 325, 326-27 (2d Dep’t 2002) (granting summary judgment where defendant “established its prima facie entitlement to summary judgment by demonstrating that [**32] there was no causal link between its product and plaintiff’s injuries and plaintiff’s expert’s report was “speculative and conclusory” and “devoid of any reference to a foundational scientific basis”).
Since no one who was present at the time and place of the accident has testified that he observed the frame break apart, no one who was there offers any evidence about causation, and Plaintiff does not argue otherwise. Rather, Plaintiff offers the testimony of two experts that, taken together, purportedly add up to a hypothesis that the failure of the frame caused the accident.
As discussed below, I find that the opinion of Plaintiff’s metallurgical expert, Harold W. Paxton, Ph.D. — that the frame failed because of a defect — gives rise to the reasonable inference that the frame failure caused Plaintiff’s accident. Thus, in order to address the most important question first — causation — I will evaluate Paxton’s qualifications and methodology first. Because Paxton opines on the existence of a defect, I address the sufficiency of Plaintiff’s strict products liability manufacturing defect proof, with respect to summary judgment, at the same time.
Plaintiff’s second expert is John [**33] S. Allen, an electrical engineer with extensive experience in the areas of cycling, cycling safety, and trends in cycling. While Allen offers an opinion that the failure of the Bike frame caused Plaintiff’s accident, for the reasons discussed below, I find that he is not qualified to give such testimony. Allen’s Report also addresses the questions of whether Trek marketed the Y5 for jumping, and whether Trek adequately warned of the dangers of using a Y5 for jumping, areas in which Allen is qualified to testify. I address the sufficiency of Plaintiff’s proof for his failure to warn and breach of warranty claims when I evaluate Allen’s qualifications and methodology.
A. Evaluation of Experts Generally
An evaluation of expert testimony begins with Federal Rule Evidence 702, which states:
[HN3] If scientific, technical, or other specialized knowledge will assist the trier of [*552] 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, if (1) the testimony is based upon sufficient facts or data, [**34] (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.
Rule 104(a) states in part that, [HN4] “Preliminary questions concerning the qualification of a person to be a witness. . . or the admissibility of evidence shall be determined by the court.” Historically, expert scientific testimony was inadmissible unless it was derived from “generally accepted” scientific techniques. See Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923). Rejecting the Frye standard as too restrictive, but reasoning that Rule 702 “clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify,” the United States Supreme Court articulated a new standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., a toxic tort case involving the question of whether the prescription drug Bendectin caused birth defects. 509 U.S. 579, 589-90, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). [HN5] Under Daubert, a trial court “faced with a proffer of expert scientific testimony” must determine, pursuant to Rule 104(a),
whether [**35] the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
Id. at 592-93. Thus, the testimony “must be supported by appropriate validation” and must have “a valid scientific connection to the pertinent inquiry,” but it does not necessarily have to be “generally accepted.” Id. at 590. Simply put, the testimony must be scientifically valid and relevant to the case at hand. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315-16 (9th Cir. 1995) (“Daubert II”).
[HN6] Two key factors in performing a Daubert analysis are whether the scientific technique can be tested, and whether it has been subjected to peer review and publication. Daubert, 509 at 580. Two other factors bearing on the inquiry are “the known or potential rate of error” and the “existence and maintenance of standards controlling the technique’s [**36] operation.” Id. at 594. Referring to Frye, the Daubert Court stated, “A ‘reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within the community.” Id. Finally, the Daubert Court noted that the standard under Rule 702 is a flexible one, focused “solely on principles and methodology, not on the conclusions they generate.” Id. at 595; see also Amorgianos v. AMTRAK, 303 F.3d 256, 265 (2d Cir. 2002) (cited in Wantanabe Realty Corp. v. City of New York, 2004 U.S. Dist. LEXIS 1225, No. 01-Civ.-10137 (LAK), 2004 WL 188088 at *2 (S.D.N.Y. Feb. 2, 2004) (noting that “a district court should consider the indicia of reliability, including, but not limited to, (1) whether the testimony is grounded in sufficient facts, (2) whether the underlying methodology is reliable, and (3) whether the witness has applied the methodology reliably to the facts”).
The Supreme Court clarified Daubert in two subsequent cases, General Electric Co. v. Joiner, 522 U.S. 136, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997), also a toxic tort [*553] case, and [**37] Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999), a products liability case. In Kumho Tire, a car’s tire blew out, resulting in an accident that killed one passenger and injured others. Plaintiffs sued the manufacturer, alleging that the tire was defective. Plaintiff relied on the testimony of an engineer who had written a report based on “visual and tactile inspection” of the blown tire. Id. at 155. The trial court applied the Daubert factors listed above and found that the engineer’s report lacked sufficient indicia of reliability. Id. at 145. The Eleventh Circuit reversed, holding that Daubert did not apply to non-scientific expert opinions. The Supreme Court reversed the Eleventh Circuit, finding (i) that [HN7] one or more of the four Daubert factors may be applied to experience-based expert reports, and (ii) that the trial court’s “gatekeeping” function created by Daubert applies to all expert testimony, not just scientific expert testimony. Id. at 147-51. The Court stated that the object of Rule 702 “is to make certain that an expert, whether basing testimony upon professional studies [**38] or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152.
[HN8] Noting that “there are many different kinds of experts, and many different kinds of expertise,” the Kumho Tire Court honed the Daubert inquiry for experience-based expert testimony to include examination of how often an experience-based methodology has produced erroneous results and whether such a method or preparation is generally accepted in the relevant community. 526 U.S. at 151.
[HN9] The proponent of expert testimony bears the burden of proving the admissibility of that testimony by a preponderance of the evidence. See, e.g., Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346, 353 (S.D.N.Y. 2003).
Because Plaintiff has supplied the Expert Reports, testimony, background and professional associations of Paxton and Allen, I find that further submissions by the parties would not add to my analysis. Accordingly, I conduct the Daubert hearing on the papers. 18 See, e.g., Wantanabe, supra, 2004 U.S. Dist. LEXIS 1225, 2004 WL 188088 at *1 n.1 (finding witness’s trial testimony [**39] in the form of a deposition taken de bene esse, an earlier deposition and the expert’s written report provided sufficient information for the court to rule on the admissibility of that expert’s testimony); Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 436-37 (S.D.N.Y. 1999) (addressing an issue fully briefed by the parties where the court had no reason to believe any new information would be presented in the future); see also Greenwood v. Koven, 880 F. Supp. 186, 191-92 (S.D.N.Y. 1995) (concluding that it would be wasteful not to decide an issue that the parties had had a full opportunity to brief).
18 Plaintiff consented to a Daubert hearing in its January 23, 2004 letter to the Court, although I note consent is not necessary.
B. Harold W. Paxton (Manufacturing Defect, Causation)
Plaintiff offers the opinion of Harold W. Paxton, Ph.D, that the Bike frame failed due to a defect — a fatigue crack that propagated through the frame’s down tube, caused by excess weld [**40] metal that was deposited on the interior of the tube at the weld cite during the manufacturing process. (Report of Harold W. Paxton, Ph.D., Pl. Exh. B, at 10.)
[*554] 1. Paxton’s Qualifications, Methodology and Conclusions
Harold W. Paxton, Ph.D., is the U.S. Steel University Professor (Emeritus) of Metallurgy 19 and Materials Science at Carnegie Mellon University. Paxton is a Fellow of the American Association for the Advancement of Science, the American Society for Metals, the American Society for Metals and the Mining, Metallurgical and Materials Society of AIME (TMS), as well as a member of the National Academy of Engineering and the Directors of Industrial Research. A consultant to industry and author of many technical papers, primarily in the field of physical metallurgy, Paxton has been a guest lecturer around the world and has received multiple international honors in the field of metallurgy. 20 (See Pl. Exhs. 2, A.)
19 According to Webster’s II New Riverside University Dictionary, “Metallurgy” is defined as, “1. The science or procedures of extracting metals from their ores, of purifying metals, and of creating useful items from metals. 2. Knowledge and study of metals and their properties in bulk and at the atomic level.” Neither party supplied a definition.
20 Paxton received his Bachelor of Science and Master of Science degrees in 1947 and 1948 from the University of Manchester and his Ph.D. in 1952 from the University of Birmingham. He joined Carnegie Mellon in 1953 and in 1966 became the Head of the Department of Metallurgy and Materials Science and Director of the Metals Research Laboratory. He was Visiting Professor of Metallurgy and Materials Science at Imperial College, London, in 1962-63 and at the Massachusetts Institute of Technology in 1970 and served two years as the first Director of the Division of Materials Research, National Science Foundation, in 1971-73. He is Past Chairman of the General Research Committee of the American Iron and Steel Institute and in 1982 was President of the American Institute of Mining, Metallurgical and Petroleum Engineers. Returning to Carnegie Mellon in 1986, Paxton taught in the Materials Science and Engineering department, ran a Master’s program in Manufacturing Engineering, and did research on international policy issues in the steel industry. (See Pl. Exhs. 2, A.)
Paxton’s Report, dated June 20, 2003, includes [**42] the following information about his methodology and testing of Plaintiff’s Bike:
The Bike was delivered to him on January 4, 2002 and was in his uninterrupted possession until December 17, 2002. Shortly after receipt, he carried out a preliminary nondestructive examination, involving inspection of the fracture site at low magnification, and photographic recording of selected areas. This inspection revealed that the fracture showed three parts. There was an apparent crack at the edge of the weld zone (15 mm) at the topmost point of the tube and immediately contiguous to the weld with no smooth curvature where the weld met the tube. Well-defined “shear lips” were visible roughly parallel to the sides of the weld but separated from it. Finally, there was a tear through the remainder of the frame tube, which allowed complete separation of the Bike into two pieces held together only by cables. (Paxton Rep. at 2.)
These preliminary observations required destructive evaluation for confirmation, leading to the development of a testing protocol agreed upon with the defense team. (The protocol is attached as Appendix A to Paxton’s Report.) According to the Report (p. 3), a metallurgical expert [**43] for Defendant, David Williams, and defense counsel agreed on a protocol to be carried out at MATCO Associates. 21 Following [*555] the protocol, the cylindrical section attached to the upper frame member was removed from the post that connects the front fork to the handlebars, recorded at each stage photographically by the defense (and the photographs were provided to Paxton.) The other side of the fracture, the upper frame member, was significantly deformed at both ends of the major axis of the elliptical tube frame during the crash, and was thus set aside to provide material for chemical analysis and mechanical testing.
21 Neither party describes what MATCO Associates is, however, Defendant has not argued that this was an improper venue for the tests, so I will not address it. It also appears that it was MATCO technicians who actually performed some or all of the actual tests, but that these technicians followed the protocol agreed upon by Paxton and Williams and counsel for both parties.
Optical microscopy (not [**44] defined in the Report, but evidently, from the text of the analysis, a visual inspection of the fracture site with magnification) was also performed at MATCO. The Report includes photographs and illustrations of this procedure. Paxton concluded that the “grain size” was “larger than in the bulk,” and that “when Trek welded the subject frame enough heat was applied locally for a longer time than normal from an excess of weld metal such that the grain size was increased.” (Report p. 6.)
He also concluded that, “Virtually all of the hardness measurements” near a tested weld site were below those expected for the type of aluminum used in this frame (6061 aluminum) at that weld juncture. (Id.) 22
22 Paxton subsequently abandoned his conclusion about the hardness of the aluminum and the significance of the larger grain size. See discussion, supra pp. 30-31.
Based on these results, Paxton states that he and the defense reached a decision to perform destructive testing on the actual fracture to learn more. [**45] (Report at p. 8.) The procedure is described as follows:
Figure 12 shows the attachment of the “down tube” to the “head tube”. Previous examination was on the other (mating) half of the fracture, and on Weld II. A and B are areas of excess weld metal which had penetrated during assembly. A is adjacent to the fracture and is shown more clearly in Figure 13. B, shown also in Figure 14, was at the bottom of the attachment and was not examined further.
The lines 1, 2 and 3 were where cuts were made to enable examination. The cut along line 1 roughly parallel to the fatigue fracture (Figures 15 and 16) served principally to enable cuts to be made along lines 2 and 3. [Figures 12-17 are photographs of the fracture site taken from various angles, and showing where lines had been drawn on the actual metal to indicate where the cuts would be made to analyze the metal around the fracture.]
The cut along line 3 is shown in Figure 17. The sample was polished, examined in the unetched state and then etched in modified Poulton’s reagent prior to photography. Part of the head tube was discarded for convenience prior to mounting.
A view of the cut along line 2 is shown in [**46] Figure 18. The smaller piece was used for metallographic examination. The excess weld metal (A) is clearly visible. At a higher magnification, one may also see an imperfect joint between excess weld metal A and the down tube, which in effect serves as a crack which propogates into the weld metal. . .
Cut 2 deliberately did not pass through the center of A, and thus a further grinding of some 1 mm. was carried out, with further metallography to allow some 3-D appreciation to be obtained. . .
(Id.) Based on these tests, Paxton reached the following conclusions:
The bike failed by a classical fatigue crack which propagated through the [*556] down tube until the static load could not be supported and the tube tore.
Both [of the welds that were examined] showed that excess metal deposited on the interior during the welding process caused a variety of cracks. In particular, we note that the areas near the fracture show several types of cracks or tears created by uncontrolled welding in the manufacturing process, any of which could have propagated, but were pre-empted by the crack which actually did propagate to failure. The relatively low hardness, corresponding [**47] to lower strength, allowed fatigue to occur more readily.
I do not mean to imply that all TREK bikes would suffer from the inadequacies of the DeRienzo model, but this particular machine did not receive the manufacturing quality which is expected by following TREK’s prescribed processes.
In my view, with a reasonable degree of scientific certainty, the presence of excess weld metal which could not be detected by the TREK standard external inspection was a substantial factor in causing the fatigue crack.
(Report p. 10.)
One of Defendant’s overarching criticisms of Paxton is that he has done no research on the subject of aluminum since the mid-1960’s, has never done analysis of aluminum welds or fatigue cracks, has never observed testing of aluminum welds, and has only a “general understanding” of the authoritative research that has been done on aluminum weld integrity. (Id.) According to Defendant, Paxton does not have “the faintest idea” about the mountain biking industry and has never analyzed a bicycle frame failure. (Id. at 12.)
While it appears that most of Paxton’s research has focused on steel, I find that his extensive education and teaching background [**48] in the field of metallurgy generally, as well as his broad and prestigious professional associations, indicate that he is qualified to undertake analysis of an aluminum bicycle frame like the one in this case. He is a distinguished professor of metallurgy with many years’ experience, multiple awards and many publications in the field. The fact that Paxton has more experience analyzing steel than aluminum goes to the weight of his testimony. See, e.g., Byrne v. Gracious Living Indus., 2003 U.S. Dist. LEXIS 2552, No. 01-Civ-10153 (LAK), 2003 WL 446474 at *1 and n.1 (S.D.N.Y. Feb. 25, 2003).
Paxton’s testimony is also offered for a proper purpose. He offers a scientific opinion that may help the trier of fact determine an ultimate issue in the case: namely, what caused the Bike’s frame to fail. See, e.g., LinkCo, Inc. v. Fujitsu Ltd., 2002 U.S. Dist. LEXIS 12975, No. 00-Civ-7242 (SAS), 2002 WL 1585551 at *1 (S.D.N.Y. July 16, 2002) (noting that expert testimony is admissible when it helps a jury understand facts that are “outside common understanding”). Paxton’s opinions address only the question of why the Bike frame failed (and not whether the frame failure caused Plaintiff to fall), but that is no [**49] bar to admissibility. Moreover, a reasonable inference can be drawn that a defective frame would have caused the accident. See, e.g., Jarvis v. Ford Motor Co., 283 F.3d 33, 45-46 and n.6 (2d Cir. 2002) (finding that existence of a “causative defect” can be inferred from circumstantial evidence) (quoting Hunter v. Ford. Motor Co., 37 A.D.2d 335, 325 N.Y.S.2d 469, 471 (3d Dep’t 1991)).
Defendant’s specific criticisms of Paxton’s Report begin with the comment that Paxton should have investigated the history of this particular Bike, something he concedes he knows nothing about. (Def. Mem. at 12.) According to Defendant, in spite of this lack of knowledge, Paxton assumed, for purposes of his analysis, that the Bike had a “moderate” crash history, even though he concedes that a drop of [*557] eight feet (like those regularly performed by Plaintiff) constitutes a “major episode” with respect to the frame. (Id.) Defendant further contends that Paxton should have visited the site of the accident but did not. (Id.)
I do not find these arguments persuasive on the issue of the admissibility of Paxton’s Report, because Paxton’s conclusion that the Bike had defective [**50] welds is not necessarily undermined by the Bike’s history or the scene of the accident. If anything, these factors go to the weight of Paxton’s testimony, not its admissibility. Further, as noted above, Plaintiff’s burden at this stage is to show that a defect in the product was a “substantial factor” in causing the accident, not that it was the “sole” cause. Even if environmental factors or the history of the Bike were found to have contributed to the failure, those elements would not automatically completely preclude a welding defect from having substantially contributed to the failure. Thus, they are not a basis for rejecting Paxton’s testimony.
Defendant quotes Paxton’s testimony that a proper failure analysis would include a “quantitative assessment of the forces and loads” created by the failure event, and his concession that he never calculated such loads. (Id. at 13.) Again, I do not find this criticism to be fatal to Paxton’s testimony because his conclusion that the product was defective was based on empirical testing of the Bike itself, not on speculative calculations. 23
23 As above, I note that a jury could decide to give Paxton’s report less weight on the basis that he had not calculated the loads.
[**51] Defendant claims Paxton changed his theories about the frame failure repeatedly until about two months before his report was due. (Def. Mem. at 15.) Defendant states that it confronted Paxton at his deposition with errors in his analysis of the hardness of the aluminum, and that Paxton conceded that the aluminum was within Trek’s hardness specifications. 24 (Def. Mem. at 13-14.) Clearly, Paxton has abandoned (since issuing his Report) his theory that the aluminum in the frame was not sufficiently hard. If he should testify to a defect in the hardness at trial, Defendant is, of course, free to cross-examine him.
24 Defendant points out that Paxton said he was “embarrassed” by mistakes made by his technician, who incorrectly machined a sample, broke it in an unintended manner, took thickness measurements from the wrong part of the sample, and miscalculated the tensile strength of the sample. (Def. Mem. at 13.) Defendant also points out that Paxton admitted he failed to follow the standards of the American Society for Testing Materials (ASTM), that he misinterpreted the results because he used the wrong conversion chart, and then misread that chart. (Id. at 14.) Paxton’s deposition transcript confirms these claims.
[**52] Paxton also conceded at his deposition that the enlarged grains he found were not near the fracture site. (Def. Mem. 14; Paxton Dep. at 196:22-197:1). 25 The grain size theory does not seem to be relevant to the conclusions about the weld defect, however, and so does not provide a basis for precluding his testimony. Defendant will be free to cross-examine Paxton on any of his abandoned theories if they come up at trial. 26
25 Defendant also criticizes Paxton’s conclusions about the grain size because Paxton admitted he compared a 100x magnification photo of the allegedly enlarged grains to 50x and 200x magnification photos of what he contended to be normal size grains, conceding that it would be more reasonable to compare photos at the same magnification.
26 Defendant notes that Paxton abandoned another theory at his deposition, that the Bike frame had failed in mid-air, a theory he admitted was based on nothing but speculation. (Def. Mem. at 14.)
[*558] Attacking Paxton’s final conclusion that weld deposits [**53] on the interior of the aluminum frame tubing caused microscopic cracks that were a substantial factor in the frame failure, Defendant claims: (i) Paxton identified three types of cracks but did not attribute the final failure to any one of them; (ii) Paxton testified that it is “not honest” to attribute the frame failure to any one of the alleged manufacturing defects, although they had “real potential” to cause the failure; (iii) Paxton stated there is no such thing as a “perfect” weld, and that all welds have microscopic imperfections, which do “not necessarily” render a frame defective. Defendant also argues that Paxton admitted aluminum will always fail if it is loaded with enough force — defect or no defect — and that a hypothetical perfect frame would fail first in the exact spot where this bike failed if subjected to a strong enough force. (Id.)
In response, Plaintiff quotes Paxton’s Affidavit, dated January 21, 2004 (Pl. Exh. 2), specifically, portions thereof that criticize the conclusions of Defendant’s expert, Gerald P. Bretting, P.E. (professional engineer): 27
3. Briefly summarizing the conclusions stated in the report, my opinion is that the bicycle frame [**54] failed due to a fatigue crack which propagated through the “down tube” until the static load could not be supported and the tube tore. In the course of the manufacturing process, excess weld metal was deposited on the interior of the tube at the weld of the “down tube” and the “head tube”. In the area of the fracture, there were several types of cracks or tears created by uncontrolled welding in the manufacturing process. While it is not possible to identify the specific crack that actually propagated, any one of these cracks could have propagated through the tube to cause the failure. Furthermore, it is probable that one of these cracks actually did propagate to failure, because it is far, far easier for a pre-existing crack to propagate than for a new crack to be created by stresses bending a surface with no pre-existing crack.
4. I have reviewed the affidavit submitted by defense expert Gerald P. Bretting in support of the defendant’s motion for summary judgment. Mr. Bretting agrees that fatigue cracks existed in the area of the “head tube” – “down tube” joint . . . Mr. Bretting provides no support for his assertion that these fatigue [*559] cracks were created by stresses resulting [**55] from prior hard use of the bicycle. . . His scenario is in fact extremely unlikely because, as stated above, it would have been far easier for one of the pre-existing cracks created during the manufacturing process to propagate than for a new crack to be created by stresses bending a surface with no pre-existing crack.
(Pl. Mem. at 23 (quoting Paxton Aff.))
27 Neither party quoted Bretting’s Affidavit at any length in their briefs. Defendant quoted Paxton in its critique of Paxton’s Report, but it did not quote Bretting. Bretting’s Affidavit is attached as Exh. 2 to Def. Notice of Motion. In it, Bretting concludes (among other things) that there were fatigue fractures that existed prior to the ultimate failure, (p. 7), that were created by repeated stresses above the endurance limit of the material used (p. 9); the front wheel was in usable condition after the accident (id.); “pocketing the front wheel on a landing at 50 – 55 [degrees] above the horizontal will result in pitch-over occurring at horizontal decelerations greater than 0.15 g’s” (p. 10); fatigue fractures would have been readily visible (p. 11); the Bike was “not defective in either design or manufacture and was safe for its intended and foreseeable use” (p. 12); the Bike “is not a bicycle that was designed for free-riding” (p. 12); the existence of fatigue cracks had no effect on the causation of this crash (id.); the accident created an “extreme overload condition” that would have approached “the yield limit of a new frame” (id.); Plaintiff was in the process of pitching over the handlebars in this accident “regardless of the frame failure” (p. 13); Plaintiff did not orient his bicycle correctly during the jump, and the failure of the frame “did not affect the crash kinematics of the rider” (p. 14). The admissibility of Bretting’s opinions is not at issue until Plaintiff has established that he can withstand this motion for summary judgment, but Plaintiff also has not challenged Bretting’s qualifications. Bretting appears more than qualified, as a professional engineer with extensive education and training, to advance the opinions above.
[**56] Defendant’s criticisms of Plaintiff’s abandoned theories are much stronger than its criticism of his final opinion that the frame was defective because of excess weld metal deposits. First, Paxton did attribute the final failure to one of the cracks (without specifying which one), noting that it was “probable” and would have been “far easier” for one of the identified fatigue cracks to propagate than for a new crack to form. Second, the fact that Paxton conceded there is no such thing as a “perfect” weld does not, in and of itself, mean that this particular defective weld had the same inconsequential defects as some other welds. Clearly, Paxton opined that this weld was more defective. Defendant has failed to point out any actual error of fact or flaw in reasoning in Paxton’s weld conclusions, thus these criticisms are merely “forensic quibbles” that would go to the weight, and not the admissibility, of Paxton’s opinions. Byrne, supra, 2003 U.S. Dist. LEXIS 2552, 2003 WL 446474 at *1 n.1.
In general, I find that Paxton’s methodology carries sufficient indicia of scientific reliability to warrant submission to a jury under Daubert and its progeny and the Federal Rules of Evidence. Most [**57] significant in this regard is Paxton’s uncontroverted assertion that Defendant’s own metallurgical expert and defense counsel agreed upon the protocols by which Paxton analyzed the Bike’s frame. This alone indicates to the Court that Defendant’s critique of Paxton’s methodology does not render the testimony beyond the scientific pale.
In addition, Paxton’s described procedures tend to indicate to the Court that he carried out a thorough and scientific analysis of the frame, and that these tests formed the basis for his conclusion that fatigue cracks caused by excess weld material were a substantial factor in causing the frame to fail. See, e.g., Byrne, supra, 2003 U.S. Dist. LEXIS 2552, 2003 WL 446474 at *1 (finding sufficient indicia of reliability in expert’s background and the foundation for his opinions, despite a lack of empirical tests on the product that failed and no articulated hypothesis about the cause of failure) (internal citation omitted); see also Bruno v. Toyotomi U.S.A., Inc., 203 F.R.D. 77, 79 n.2 (N.D.N.Y. 2001) (noting that expert was qualified because he held a Ph.D. in the field, had 30-plus years of experience, had published over 100 technical papers [**58] and advised in numerous court cases). Paxton observed the actual Bike, analyzed the welds joining the head tube and down tube where the Bike failed, subjected the fracture site to magnification, and performed destructive chemical analyses. And while Defendant has pointed out several errors in Paxton’s abandoned theories, it has not discredited Paxton’s methods or conclusions regarding the allegedly defective weld.
I also note that Paxton’s qualifications, methodology and final conclusions do not contain the flaws that ordinarily cause an expert’s opinion to be excluded. See, e.g., In re Rezulin Products Liability Litigation, 369 F. Supp. 2d 398, 411-25 (S.D.N.Y. 2005) (excluding expert testimony where expert relied on studies that were only tangentially relevant and ignored relevant, contradictory studies); Davidov v. Louisville Ladder Group, LLC, 2005 U.S. Dist. LEXIS 3117, No. 02-Civ-6652, 2005 WL 486734 at *2 (S.D.N.Y. Mar. 1, 2005) (excluding expert report that [*560] was inconsistent with facts of case); Housing Works, Inc. v. Turner, 362 F. Supp. 2d 434, 447-48 (S.D.N.Y. 2005) (excluding illogical expert report that failed to address facts that would, by common [**59] sense, dictate different conclusions from those reached by the expert); Macaluso v. Herman Miller, Inc., 2005 U.S. Dist. LEXIS 3717, No. 01-Civ-11496 (JGK), 2005 WL 563169 at *6 (S.D.N.Y. Mar. 10, 2005) (excluding expert testimony where expert did not examine actual item in question and his analysis was based on incorrect factual assumptions that rendered all of his subsequent conclusions “purely speculative”); Mink Mart, Inc. v. Reliance Ins. Co., 65 F. Supp. 2d 176, 181 (S.D.N.Y. 1999), aff’d,12 Fed. Appx. 23 (2d Cir. 2000) (excluding expert report where it was based on speculation and not evidence that product in question malfunctioned).
Having determined that Paxton may testify as an expert, I turn to the issue of whether Plaintiff has met his burden to withstand summary judgment on the manufacturing defect claim. I find that he has.
2. Elements of Manufacturing Defect
[HN10] Under New York law, a “manufacturer who places a defective product on the market that causes injury may be liable for the ensuing injuries. A product may be defective when it contains a manufacturing flaw.” Liriano v. Hobart Corp., 92 N.Y.2d 232, 237, 700 N.E.2d 303, 677 N.Y.S.2d 764 (1998) [**60] (“Liriano I”) (internal citation omitted). A manufacturing defect is a flaw that results from the manufacturer’s plans not being carried out correctly, usually caused by an error during the product’s manufacture or assembly. See Van Deusen v. Norton Co., 204 A.D.2d 867, 868-69, 612 N.Y.S.2d 464 (3d Dep’t 1994); Opera v. Hyva, Inc., 86 A.D.2d 373, 376-77, 450 N.Y.S.2d 615 (4th Dep’t 1982). The crux of a strict liability manufacturing defect claim is the product’s failure to perform as expected due to an error in the manufacturing process that resulted in a defect. 28 Rainbow v. Albert Elia Bldg. Co., 79 A.D.2d 287, 294, 436 N.Y.S.2d 480 (4th Dep’t 1981); aff’d, 56 N.Y.2d 550, 449 N.Y.S.2d 967, 434 N.E.2d 1345 (1982).
28 [HN11] Negligence is not an element in a manufacturing defect case; where a manufacturing defect causes injury, recovery may be had regardless of whether the manufacturer used reasonable care. Caprara v. Chrysler Corp., 52 N.Y.2d 114, 123-24, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981).
[**61] [HN12] To recover for damages for a manufacturing defect (to recover under any strict liability theory, including failure to warn, addressed later in this opinion), a plaintiff must show that the defect was a “substantial factor” in causing his injuries. Bruno, supra, 203 F.R.D. at 78-79; Donald v. Shinn Fu Co. of Am., No. 99-Civ-6397 (ARR), 2002 WL 32068351 at *6 (E.D.N.Y. Sept. 4, 2002) (noting that plaintiff is required to show defect was the “proximate cause” of the injury) (citing Colon v. Bic USA, Inc., 199 F. Supp. 2d 53, 84 (S.D.N.Y. 2001)). A plaintiff asserting a strict liability claim must also show that (i) the product is not reasonably safe as marketed; (ii) the product was used for a normal purpose; (iii) that the plaintiff, by the exercise of reasonable care would not have both discovered the defect and apprehended its danger; and (iv) that the plaintiff would not have otherwise avoided the injury by the exercise of ordinary care. Urena v. Biro Manuf. Co., 114 F.3d 359, 363 (2d Cir. 1997) (citing Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d Cir. 1991)); see also Brazier v. Hasbro, [**62] Inc., 2004 U.S. Dist. LEXIS 4064, No. 99-Civ-11258 (MBM), 2004 WL 515536 at *5 (S.D.N.Y. Mar. 16, 2004).
[HN13] If a defendant’s expert states that a defect in its product could not be the cause of the accident, plaintiff must [*561] rebut this assertion with admissible expert testimony. Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 42, 760 N.Y.S.2d 79, 82, 790 N.E.2d 252, 255 (2003). Where causation is disputed, however, and plaintiff has provided “detailed, non-conclusory expert depositions and other submissions” refuting defendant’s theory, summary judgment is not appropriate. Id. at 43-44 (concluding that the issue of what caused a fire was for a jury to decide, where each side’s experts had competently interpreted burn patterns differently); see also Donald, supra, 2002 WL 32068351 (denying summary judgment where genuine issue of fact existed as to whether mechanic’s failure to use jack stand was proximate cause of his injuries, and noting that accidents are rarely “monocausal” and that determination of whether defect was substantial cause is usually one for a jury). In fact, for a defendant to be entitled to summary judgment on causation, it [**63] must show that plaintiff’s actions were the “sole” cause of his injuries, not merely a substantial contributing factor. Donald, supra, 2002 WL 32068351 at *6; Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 534, 569 N.Y.S.2d 337, 571 N.E.2d 645 (1991) (denying summary judgment where defendant failed to show that plaintiff’s conduct in diving into an above-ground pool was “sole” cause of injuries, sufficient to break chain of causation, where question of fact existed as to whether in-ground installation of above-ground pool created illusion of depth). Where plaintiff and defendant each have competent experts whose opinions are reliable but who reach opposite conclusions on causation, summary judgment is not appropriate. Donald, supra, 2002 WL 32068351 at *7. Cf. Amatulli, supra, 77 N.Y.2d at 533-34 and n.2 (affirming summary judgment on design defect claim where expert opinion was based on “bare conclusory assertions”).
In analyzing the sufficiency of Plaintiff’s evidence, I note first that Paxton’s Affidavit (including portions not quoted by Plaintiff) refutes Defendant’s expert’s theory of causation with [**64] a detailed critique, based on his expertise in metallurgy and the facts of the case. (See Affidavit of Harold W. Paxton, Ph.D., Pl. Exh. 2, pars. 4-8). Paxton states that (i) Bretting agrees there were fatigue cracks in the head-tube/down-tube joint but fails to provide any support for his assertion that these cracks were caused by prior hard use of the Bike; (ii) Bretting fails to account for the fact that the front wheel was in usable condition even after the accident, even though Bretting concludes that the front wheel of the Bike must have been “pocketed” by an exposed rock on landing, which would have bent or buckled it; (iii) Bretting fails to show that his exemplar frame “fairly simulated the condition of the fatigue crack” in the Bike at the time of the accident; and (iv) Bretting states that the Owner’s Manual warns riders to inspect the frame for signs of fatigue, however, according to Paxton, such fatigue cracks “are frequently invisible even to trained eyes.” 29 (Id.) On this basis, Plaintiff defeats Defendant’s motion for summary judgment on the manufacturing claim. See Donald, supra, 2002 WL 32068351 at *7; Speller, supra, 100 N.Y.2d at 42. [**65]
29 Paxton’s Affidavit also alleges the required elements that the Bike was not reasonably safe as marketed and that the defect was latent, and would not have been discovered or avoided using ordinary care.
Further, as noted above, I find that Paxton’s own theories that a defective weld caused the frame to fail are credible and could lead to the inference that the fame failure caused the accident. See, e.g., Jarvis, supra, 283 F.3d at 45 and n. 6. Accordingly, [*562] Defendant has also failed to prove that Plaintiff’s actions were the “sole” cause of his accident, and it is not entitled to summary judgment on the manufacturing defect claim on this basis either. See, e.g., Speller, supra, 100 N.Y.2d at 43-44. 30
30 As discussed more fully below, a reasonable jury could find that jumping is a “normal” use of a bicycle. Cf. Brazier, supra, 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *4-6 (finding that “normal” use requirement was not satisfied where injury was caused by child’s insertion of a toy ball into its mouth, and where no allegation was made that the ball was defective or unsafe for ordinary uses of throwing, bouncing, rolling and catching).
[**66] C. John S. Allen (Failure to Warn, Breach of Warranty)
Plaintiff offers the opinion of John S. Allen that the Y5 model bike was not designed for jumping and that Defendant failed to adequately warn consumers about this fact and about the dangers of jumping a Y5. (See Pl. Mem. at p. 5.) Allen’s opinions undergird Plaintiff’s failure to warn and breach of warranty claims. (Id. at 6-8.)
1. Allen’s Qualifications
Allen’s purported areas of expertise are less traditional than Paxton’s. Allen received a Bachelor of Science degree from the Massachusetts Institute of Technology in Electrical Engineering in 1975. His curriculum vitae lists his thesis as, “Designing, Patenting and Marketing an Innovative Musical Instrument.” He also received a Bachelor of Arts degree from Middlebury College in German Literature in 1968.
Allen has been a Certified League of American Bicyclists Effective Cycling Instructor/League Cycling Instructor since 1982, and served as an Effective Cycling advisor “for Massachusetts” from 1990-95. His “Bicycling Affiliations” include membership on the Board of Directors of the Massachusetts Bicycle Coalition, an “advocacy organization,” since 2003. From [**67] 1989-1992 he served as President of the predecessor organization, Boston Area Bicycle Coalition, and he served as Director of that group from 1982-85 and from 1987-1994. He has been active in the “Coalition” since 1977.
Allen also has been a member of the Board of Directors of the League of American Bicyclists, a national bicyclists’ organization. From 1989-1993, he served as a member of that group’s Consumer Affairs Committee, and drafted a policy on helmet laws. He was the founder and a member of that group’s Massachusetts State Legislative Committee, and initiated the effort to draft a bicycle headlight bill signed into law in 1983, drafting a helmet bill signed into law in 1993. He states that he has been a “State Legislative Representative” since 1984, but it is not clear whether he means that he actually serves as a representative in the State government, or whether this role is an internal one with the League of American Bicyclists. He has been a League member since 1979, and a member of the Bicycle Committee of the National Council on Uniform Traffic Control Devices since 2003. In his capacity as a League member, he served on an advisory panel to the National Council on Uniform [**68] Traffic Control Devices from 2000-03. Allen also is a member of various local cycling and bicycle safety organizations.
His “employment in the field of cycling” includes membership on a team that developed a national curriculum for police about bicycling in 2002, under contract with the Massachusetts Bicycle Coalition. In 2002, he was a “juror” for a bicycle industry design competition in Taiwan. In 2001, he assisted the Governor’s Highway Safety [*563] Bureau in development of materials on bicycle safety. Since 1995 he has been conducting a study of bicycle use on the island of Martha’s Vineyard.
Allen co-authored “Sutherland’s Handbook for Bicycle Mechanics,” and “Sutherland’s Handbook of Coaster-Brake and Internally-Geared Hubs.” He contributed to various Massachusetts State bicycling booklets and publications in the late 1980’s and early 1990’s. In the 1970’s and 1980’s, Allen co-authored various bicycling manuals and articles. Allen’s curriculum vitae also notes that he is an avid cyclist, averaging 3,000 — 5,000 miles on a bicycle per year. (See Pl. Exh. A.)
Based on his background and experience, I find that Allen is qualified as an expert in the areas of the history of [**69] cycling, cycling trends and habits, and cycling safety. In these areas, he has extensive experience and expertise beyond that of an ordinary person. Since this case involves questions of whether Plaintiff’s use of the Bike for jumping should have been foreseen by Trek, Allen’s testimony may assist the trier of fact.
Given his lack of advanced scientific or technical training, however, I conclude that Allen is not qualified to testify about matters involving bicycle design or metallurgical engineering. (Allen’s undergraduate degree was in electrical engineering; a bicycle is not an electrical device.) Nor may he testify to matters the jury is capable of assessing for themselves, e.g., the content and adequacy of any warnings and the content of the videotape of the accident.
Plaintiff attached Allen’s Affidavit to its moving papers but failed to include his actual Report. Fortunately, it was supplied by Defendant. In the Report, dated June 25, 2003, 31 Allen states that he reviewed Paxton’s Report, as well as the depositions of DeRienzo, John Platt, 32 Jeremy Ball, a Jeff Amundsen, 33 Clint Kolda, Trek Catalogs from 1997-2001, documents produced by both parties in discovery, [**70] the video of the accident “at normal speed and in slow motion,” selected frames as photographs, the Bike itself, and various bicycle-related literature (excerpts of which are attached to his Affidavit). He also took his own series of photographs of the Bike.
31 The letterhead on which Allen submitted his Report includes a caption with four bullet points listing what, I assume, he advertises as his professional services: “Technical writing, translation; Mechanical design, acoustics; Consultant on bicycling; Effective Cycling instructor.”
32 It appears from the excerpts of Platt’s deposition submitted by Plaintiff that he is another Trek engineer, though the matter is far from clear, as the portion of his deposition that would detail his experience and employment was not included. I do not base any of my findings on this assumption, however, and the matter can be resolved at a later date.
33 Neither party submitted any portion of the deposition transcript of Amundsen, so the Court has no idea who he is or what he said. As with Platt, however, nothing in this opinion rests on any assumption about Amundsen, so the matter need not be resolved here. If issues later arise about the testimony of Platt or Amundsen, and if any of Allen’s admissible conclusions are called into question as a result, those issues will be resolved at that time, and nothing I say in this opinion should be construed to prescribe a certain result in that analysis.
[**71] Allen’s Report begins with a short section entitled, “Description of crash.” Since the video on which this description must be based will likely be one of the key pieces of evidence admitted in this case, this section of the Report only describes evidence that the jury itself will view. Allen’s description of a crash he did not witness adds nothing to the evidence itself and does not purport to explain an issue beyond lay ken. He may not testify about [*564] the matters discussed in this section of his Report. See Turner, supra, 362 F. Supp. 2d at 448.
The next section is entitled, “About welded aluminum as a bicycle frame material.” This section of the Report states that steel tubing was the “traditional material for bicycle frames until the early 1970’s.” It describes some of the characteristics of steel, noting that bicycle frames made of steel “have traditionally carried a lifetime warranty against frame failure due to breakage.” It then describes how aluminum came to be used as a material for bicycle frames, discusses specific characteristics of aluminum, and compares its performance (as a metal, not specifically as a bicycle frame material) with that of steel. [**72] This paragraph describes aluminum’s progression to failure and describes what can happen if aluminum welding is not carried out “very carefully.”
Allen may testify about the history of bicycle frames, which metals were used when (and why). But he may not testify about the specific characteristics of steel and aluminum, the comparison of these metals, the description of aluminum’s progression to failure, and the description about what can happen if aluminum is welded without care. All of this is beyond Allen’s expertise, and thus is not admissible. Indeed, Allen’s comments about the properties of steel and aluminum would have been entirely proper — and only could be proper — coming from Paxton or someone with his level of training in metallurgy.
The next section is entitled, “Reinforcing the joints of bicycle frames.” It begins with a statement that, “Several measures have been used to increase the strength of bicycle tubing near the joints, where it is weakened by brazing or welding and is subject to the highest stress.” Allen then describes two types of reinforcement, added material such as “lugs” and “gussets,” and varied thickness in the ends of the tubes called “butted tubing. [**73] ” He states that, “Such measures can produce a lighter-weight frame while providing strength where it is needed.” The first sentence of the next paragraph states that, “The DeRienzo frame used tubing of constant cross-section, and with no added reinforcement at the head tube-main tube joint.” He then opines that the frame would have failed even if the joint had been reinforced.
I will allow Allen to testify about the common methods for reinforcing a bicycle frame. He may also opine that such techniques allow for strength and lighter weight, since his conclusion is one that is more likely based on his considerable knowledge and experience in the field of bicycling than on any scientific analysis.
However, Allen’s statement that this Bike was not reinforced will not be admitted. The jurors will see for themselves that there are no “lugs” or “gussets” or varied thickness in the tubing. Allen may tell the jury that methods for reinforcement exist and describe what they are and why reinforcement is important.
I also decline to allow Allen to opine that this Bike’s frame would have failed even if it had been reinforced. Allen is not qualified to speculate on issues of engineering and bicycle [**74] design.
A section entitled, “Replacement of components” follows. The only admissible opinion in this section about which Allen may testify at trial is the last sentence: “Replacement of original equipment parts is a normal and expected condition of bicycle use and maintenance.” As Allen is an expert on the history of bicycling and the habits of bicycle riders, his knowledge in this area exceeds that of the average lay person. His opinion is helpful to the trier of fact because it addresses whether Plaintiff’s use of the Bike — including his replacement of many parts — should have been expected by Trek.
[*565] The rest of that paragraph states that (i) some components on the Bike were not original (for which the jury will not need an expert, since Plaintiff himself will testify to his replacing specific parts); (ii) that the replacement of the front fork was the “only one” of these replaced parts that might have affected the stress on the frame (which is a question of bicycle design or engineering, beyond Allen’s expertise); and (iii) that there was no evidence that the replacement Rock Shox fork malfunctioned (again, a question of bicycle engineering). He may not opine about any of this.
[**75] The next section is entitled, “Use of the bicycle off road.” This section describes the history and development of mountain biking as a sport, its origins in BMX racing, and the way mountain bikes are commonly used. Significantly, Allen states that Plaintiff’s type of “hard use in off-road riding . . . is entirely foreseeable and to be expected.” He also states that, “The expectation of cyclists has always been that any bicycle component which did not show immediate evidence of damage — typically, a bent frame, fork, rim or axle, or a pinch-flatted tire — was still serviceable.” This testimony is admissible.
Allen’s comments about what the Trek catalogs show (i.e., that “Trek was well aware of rough use, telling of riding over large logs, and the like”) are not necessary, since the jury will be able to examine the catalogs and read the text for themselves. Likewise, his comments about what Paxton’s testing showed are not admissible (as only Paxton need testify to his own results).
The last paragraph of that section appears to be an analysis of the forces exerted on the frame during the landing. I will not allow Allen to opine on this issue.
Allen’s Report closes with a list of [**76] his conclusions. The only admissible opinions in the conclusion are (1) that the “use of the DeRienzo bicycle off-road, including jumps and drop-offs within limits that did not cause immediately obvious damage to the bicycle, was a normal and expected use;” and (2) that the “replacement of components on the DeRienzo bicycle was a normal and expected condition of use of a bicycle.”
Defendant attacks Allen’s qualifications, specifically claiming that his opinions are inadmissible because: (i) Allen is a cycling safety instructor with no training or qualifications with respect to bicycle design, “wouldn’t consider” himself an expert in bicycle design, and concedes that designing a bicycle frame would involve “issues of material science and structural engineering, which are beyond” his expertise; (ii) there is no proof that Allen has special training in interpreting warning labels; (iii) Allen has no special knowledge about mountain biking, has owned only one mountain bike which he gave up after 20 miles because the sport was “too stressful,” has never jumped a mountain bike, has never seen a mountain bike crash, and acquired his only knowledge about mountain biking from reading consumer [**77] mountain biking books between his deposition and providing his report; (iv) Allen offers no reliable methodology, analysis or testing to support his opinion that the Y5 model is not designed for jumping or that Defendant’s warning about jumping is defective, cites no standards, authorities or testing, and offers no proof that the alternative warnings he references are more effective than Defendant’s warnings about stunt jumping or that these manufacturers’ customers have fewer accidents or injuries; (v) Allen’s opinion that Defendant failed to warn a rider to use a full-face helmet was not included in his expert report nor mentioned during his deposition; and (vi) Allen does not address the conspicuousness of Defendant’s existing warning and offers no alternative. (Def. Mem. at pp. 23-24; Def. [*566] Reply Mem. at pp. 6, 8-10.) As he did with Paxton, Plaintiff only quotes from Allen’s Affidavit, dated January 28, 2004, in a manner that can be read (very liberally) to refute Defendant’s arguments.
While I agree with some of Defendant’s assertions — most notably, that Allen is not qualified to testify to matters involving bicycle design engineering — I find that many of Allen’s opinions [**78] are in fact based on his experience and knowledge as an expert in bicycling history and current trends in cycling. See Kumho Tire, supra, 526 U.S. at 138-39.
To sum up, Allen may testify to the following (only): 34
1. Steel tubing was a traditional material for bicycle frames until the early 1970’s. Bicycles frames made of steel traditionally carried a lifetime warranty against frame failure due to breakage. In the 1970’s aluminum tubing bicycle frames were developed, which were lighter and stiffer than the steel frames.
2. Replacement of original equipment parts is a normal and expected condition of bicycle use and maintenance.
3. Mountain biking grew out of BMX racing. Hard use of a mountain bike in off-road riding is foreseeable and expected. Cyclists expect that a bicycle component that does not show signs of damage is still serviceable.
34 I do not prescribe the wording of Allen’s admissible testimony, only the subjects on which he may opine. No opinions of Allen that were not testified about at his EBT are admissible. See Endorsed Memo, dated December 5, 2003.
[**79] Having determined the parameters of Allen’s admissible testimony, I turn now to the question of whether Plaintiff has met its burden to withstand summary judgment on the failure to warn and breach of warranty claims. I find that he has.
2. Failure to Warn
[HN14] Under New York law, a manufacturer who places a defective product on the market that causes injury may be held strictly liable for the ensuing injuries if the product is not accompanied by adequate warnings for the use of the product. Liriano I, supra, 92 N.Y.2d at 243. The failure to warn must be a proximate cause of plaintiff’s injuries. See Voss, supra, 59 N.Y.2d at 107.
[HN15] The elements of a failure to warn claim are: (i) a danger existed to a significant portion of defendant’s consumers requiring additional warning; (ii) the alleged danger was known or reasonably foreseeable; and (iii) a proposed alternative warning would have prevented Plaintiff’s accident. Gebo v. Black Clawson Co., 92 N.Y.2d 387, 392, 681 N.Y.S.2d 221, 224, 703 N.E.2d 1234 (1998). A plaintiff does not have the burden, at the summary judgment stage, to show that an adequate warning would have prevented [**80] his injury. Liriano v. Hobart Corp., 170 F.3d 264, 271 (2d Cir. 1999) (“Liriano II”). Where the type of injury suffered by plaintiff is “exactly the kind of injury” that a warning might have prevented,
rather than require the plaintiff to bring in more evidence to demonstrate that his case is of the ordinary kind, the law presumes normality and requires the defendant to bring in evidence tending to rebut the strong inference, arising from the accident, that defendant’s negligence was in fact a but for cause of the plaintiff’s injury.
Id. at 271 (citing Zuchowicz v. United States, 140 F.3d 381, 388 nn. 6-7 (2d Cir. 1998)).
Some courts in this Circuit have held that a manufacturer may be held liable for injuries caused by its
failure to warn of the dangers arising from the foreseeable misuse [*567] or modification of the product as well. See Liriano I, supra, 92 N.Y.2d at 240; Hedstrom, supra, 76 F. Supp. 2d at 445 (noting that manufacturer has a duty to warn of danger of reasonably foreseeable, unintended uses and misuses of a product); see also Beneway v. Superwinch, Inc., 216 F. Supp. 2d 24, 29-30 (N.D.N.Y. 2002) [**81] (denying summary judgment where there were questions about whether it was reasonably foreseeable that customers would use a product a certain way and whether defendant adequately warned users of the existence of and need for an optional safety latch). Under this line of cases, evidence that a manufacturer might reasonably have foreseen a particular type of misuse raises an issue of fact that precludes the granting of summary judgment. Darsan v. Guncalito, 153 A.D.2d 868, 871, 545 N.Y.S.2d 594 (2d Dep’t 1989); see also Miller v. Anetsberger Bros., Inc., 124 A.D.2d 1057, 1059, 508 N.Y.S.2d 954, 956 (4th Dep’t 1986) (question of fact existed as to whether defendant had a duty to warn plaintiff of the danger of cleaning a machine while rollers were operating, given that safety was easy to disengage, manufacturer knew users cleaned while rollers were operating and also knew that it was more convenient to do so). The Liriano I court noted that there is “no material distinction between foreseeable misuse and foreseeable alteration of a product,” and that, “in certain circumstances, a manufacturer may have a duty to warn of dangers associated with the [**82] use of its product even after it has been sold.” 92 N.Y.2d at 240 n.2. This is a fact-specific inquiry. Id. In addition, “A manufacturer’s superior position to garner information and its corresponding duty to warn is no less with its ability to learn of modifications made to or misuse of a product.” Id. at 240-41.
Other courts have held that strict liability cannot attach unless a product is being used in a “normal” manner. See, e.g., Brazier, supra, 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *5 (noting that Hedstrom and Beneway were decided after Urena, supra, 114 F.3d at 364 n.2, but failed to mention that case, which adhered to the requirement that the use had to be “normal”). 35
35 I decline to reconcile these two lines of cases until necessary — that is, if or when the jury in this case concludes that modifying and/or jumping a Y5 bike is a “misuse” of such a bike. For reasons discussed below, however, I find it highly unlikely that a jury would so conclude, because Plaintiff was riding the Bike when he jumped it and had the accident. This case is nothing like Brazier, where a child tried to eat a toy ball and that use was not considered “normal.” 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *6.
[**83] [HN16] An expert opinion accompanied by submissions showing industry-wide advertisements encouraging a particular use of a product is probative on the issue of whether defendant knew its product was being used in a certain manner. Amatulli, supra, 77 N.Y.2d at 533-34 and n.2. This duty is not open-ended, however, and a manufacturer is not required to insure that subsequent owners and users will not adapt the product to their unique uses. Liriano I, supra, 92 N.Y.2d at 238. 36
36 The Liriano case involved a plaintiff whose hand was caught in a meat grinder manufactured by defendant. The machine came with a safety latch, which, arguably, would have prevented plaintiff’s injuries, but someone had removed the safety before plaintiff used the machine. One question was whether the defendant could be liable for failure to warn of the dangers of using the machine without the safety, even though the existence of the safety feature precluded a design defect claim. The Second Circuit Court of Appeals certified this question to the New York Court of Appeals, which answered the question in the affirmative. Even though the case at bar no longer includes a design defect claim, the Liriano case is instructive in its examination of a manufacturer’s duty (under that line of cases) to warn of the dangers of using a modified product, where the manufacturer knew or should have known that consumers were modifying its product in a certain way. But see, e.g., Urena, supra, 114 F.3d at 364 n.2 (noting that a manufacturer cannot be strictly liable when its product has been “substantially altered” but concluding that a question of fact existed as to whether plaintiff’s injury was caused by a defect or a modification).
[**84] [*568] [HN17] The adequacy of a warning is generally a question of fact for the jury. See Urena, supra, 114 F.3d at 366. The adequacy of a warning is only a question for the judge when the warning is accurate, clear and unambiguous. See, e.g., Hayes v. Spartan Chem. Co., 622 So. 2d 1352 (Fla. Dist. Ct. App. 1993). A warning that is inconspicuously located and written in small print may be deficient. Arbaiza v. Delta Int’l Mach. Corp., 1998 U.S. Dist. LEXIS 17886, No. 96-Civ-1224 (RJD), 1998 WL 846773 (E.D.N.Y. Oct. 5, 1998).
[HN18] One issue that typically precludes summary judgment on a failure to warn claim is whether the information contained in any issued warning was “commensurate with the manufacturer’s knowledge of the nature and extent of the dangers from foreseeable use of its product.” Cooley v. Carter-Wallace Inc., 102 A.D.2d 642, 648-49, 478 N.Y.S.2d 375 (4th Dept. 1984); Johnson v. Johnson Chem. Co., Inc., 183 A.D.2d 64, 69, 588 N.Y.S.2d 607 (2d Dept. 1992) (noting that “Whether a particular way of misusing a product is reasonably foreseeable, and whether the warnings which accompany a product are adequate to deter such potential [**85] misuse, are ordinarily questions for the jury.”)
Finally, [HN19] failure to read a warning is not dispositive. Hedstrom, supra, 76 F. Supp. 2d at 445. While it is true that, in many cases, a plaintiff who admits that he failed to read a warning that was issued with the product will have failed to show that any deficiency in that warning was the proximate cause of his injuries, plaintiff’s failure to read an insufficiently conspicuous or prominent warning will not necessarily defeat the causation element of a failure to warn claim. See, e.g., Sosna v. Am. Home Products, 298 A.D.2d 158, 158, 748 N.Y.S.2d 548 (1st Dep’t 2002) (citing Hedstrom, supra, 76 F. Supp. 2d at 443-44 and Johnson, supra, 183 A.D.2d 64 and distinguishing those two cases from the situation where a plaintiff has simply alleged a warning was substantively inadequate but has failed to read it); Arbaiza, supra, 1998 U.S. Dist. LEXIS 17886, 1998 WL 846773 at *7 (finding that plaintiff, who could not read English, could bring a failure to warn claim even though he admitted that he did not read the warning that accompanied the product, which was in English [**86] and arguably inconspicuous). The Hedstrom court also noted that summary judgment is particularly inappropriate where a third party might have read a warning and passed it on to the plaintiff. 37 76 F. Supp. 2d at 445.
37 The Hedstrom court examined the “realities of society” in determining whether a warning might have been conveyed to plaintiff via a third party. Hedstrom, supra, 76 F. Supp. 2d at 445 n. 22; see also Ferebee v. Chevron Chem. Co., 237 U.S. App. D.C. 164, 736 F.2d 1529, 1539 (D.C. Cir.), cert. denied, 469 U.S. 1062, 105 S. Ct. 545, 83 L. Ed. 2d 432 (1984). The Hedstrom court noted that a witness to the accident, who testified that she was concerned about how plaintiff was using the product but did not say so at the time, might have spoken up had an adequate written warning accompanied the product. Hedstrom, supra, 76 F. Supp. 2d at 445 n.23. Similarly, the Ferebee court noted that “if the jury could reasonably have found that the information on an adequately labeled [product] would have been communicated to the plaintiff — even if he personally did not read the warning — the failure to provide such warning could validly be treated as a proximate cause of [plaintiff’s] injury.”
[**87] [*569] Plaintiff asserts that his use of the Bike for jumping was typical of aggressive mountain bikers — so, normal and not a misuse — and that Trek was aware that riders such as he would purchase a Trek Y5 bike for jumping. Allen’s admissible opinions support this claim. Plaintiff asserts that Trek did not warn of the dangers of jumping at all, and that its buried admonitions in an Owner’s Manual to check the frame for damage were inadequate because they were inconspicuous and also because a visual inspection of the frame would not lead to the discovery of the type of damage that caused the frame to fail — namely, fatigue cracks in the head tube/down tube weld. (Pl. Mem. at 2-3.)
Defendant counters that jumping was not a normal use of a Y5 bike, that Plaintiff misused the Bike causing damage to the frame, that Trek did adequately warn of the dangers of jumping a Y5 Bike, and, as above, that any possible failure to warn was not the proximate cause of the accident in any case. Specifically, Defendant claims Plaintiff cannot recover for failure to warn because (i) Plaintiff admits he never saw an Owner’s Manual; and (ii) the accident was caused by his misuse of the Bike and his poor jumping [**88] technique. (See, e.g., Def. Mem. at pp. 1-3, 20-22.)
Since Allen’s testimony that jumping is an “entirely foreseeable” and “expected” use of a mountain bike is admissible, I find that Plaintiff withstands summary judgment on that issue. Further, Allen opines that it was foreseeable that a user would modify a bike the way Plaintiff modified this Bike, i.e., by replacing (among other components), the standard fork with a Rock Shox fork, which the parties agree is designed for jumping (see supra p. 5). This could lead to an inference that Trek knew users would modify Y5 bikes to make them more suitable for jumping.
Further, Exhibits B, C, and D to Allen’s Affidavit are copies of pages from mountain biking books, all of which include references to jumping and some of which show pictures of mountain bikers airborne on their bikes. In addition, Plaintiff’s Exh. 18 shows pages of a 1998 Trek Catalog that includes at least one picture of an airborne mountain biker (the page shows Y model bikes, but not the Y5 model, which appears on the next page, where there is no picture of a rider). Based on this evidence and Allen’s testimony, a jury would be entitled to find that it [**89] is both common for mountain bikers to jump their bikes and common for Trek consumers to modify Y5 model bikes to make them more suitable for jumping. See, e.g., Amatulli, supra, 77 N.Y.2d at 533-34. 38 If a jury so concluded, it could also conclude that Trek knew or should have known it had a duty to warn explicitly of the dangers of using a Y5 model for jumping. See, e.g., Darsan, supra, 153 A.D.2d at 871.
38 Of course, at this stage I do not conclude that Plaintiff has proven these things, only that it has adduced enough proof to submit the issue to a jury.
As for the Owner’s Manual, the fact that the parties submitted two different versions with substantially different warnings and graphics is enough to raise triable issues of fact on the failure to warn claim. Moreover, both Manuals contain warnings on almost half of their pages, which could lead a jury to conclude that any warning against jumping was inconspicuous — in either Manual. See Arbaiza, supra, 1998 U.S. Dist. LEXIS 17886, 1998 WL 846773 [**90] at *7; Sosna, supra, 298 A.D.2d at 158. Thus, it is far from clear whether Trek warned Y5 users not to jump or of the dangers of jumping, and if it did, whether those warnings were conspicuous and/or adequate. Thus, even if I adhere to the stricter standard barring failure to warn claims where [*570] a plaintiff has failed to read a conspicuous or adequate warning, Plaintiff’s claims withstand summary judgment. There is also a dispute about whether Trek pasted a warning on the Bike itself — and, if so, to which version of the Owner’s Manual it referred — which precludes summary judgment.
In addition, based on Hedstrom and Ferebee, a jury could conclude that, had an adequate warning against jumping been issued with the Bike (or Y5’s generally), the “realities of society” — i.e., the realities of the mountain biking community — might have resulted in Plaintiff’s friends advising him not to use a Y5 model for jumping, even if Plaintiff had not read the warning himself. 76 F. Supp. 2d at 445 nn. 22, 23. Thus, Defendant’s motion for summary judgment on the failure to warn claim must be denied.
3. Breach of Warranty
[HN20] A plaintiff injured by a defective [**91] product may recover for breach of warranty under New York law. This remedy, grounded in various provisions of the New York Uniform Commercial Code, has not been subsumed by the tort cause of action for strict products liability. See Castro v. QVC Network, Inc., 139 F.3d 114, 117-18 (2d Cir. 1998); Denny v. Ford Motor Co., 87 N.Y.2d 248, 256, 662 N.E.2d 730, 639 N.Y.S.2d 250 (1995).
[HN21] A product must be “fit for the ordinary purposes for which such goods are used” to be considered merchantable under New York’s version of the Uniform Commercial Code. Brazier, supra, 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *4 (quoting N.Y. U.C.C. § 2-314(2)(c)). Thus, liability for breach of warranty depends on “the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners.” Denny, supra, 87 N.Y.2d at 258-59. Accordingly, a plaintiff must show that the product “was being used for the purpose and in the manner intended.” Beneway, supra, 216 F. Supp. 2d at 30. Privity of contract is not required in a personal injury action for breach of warranty. Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 411, 488 N.Y.S.2d 132, 477 N.E.2d 434 (1985). [**92]
[HN22] Where there are questions about whether a product was being used in a reasonably foreseeable manner, summary judgment is not appropriate. Id. at 30.
Thus, Plaintiff’s breach of warranty claim requires proof that the Bike did not meet expectations for performance because it failed during his jump or landing, which was a reasonably foreseeable use of the Bike. As noted above, Plaintiff has supplied admissible evidence sufficient to raise a genuine issue of fact on the question of whether the Y5 was marketed for use in jumping. This, combined with Clint Kolda’s testimony, noted above, that taking a Y5 model bike off a 5-foot drop would constitute a “crash,” could indicate that jumping was reasonably foreseeable, but that the Y5 was not designed or reasonably safe for such use. See Beneway, supra, 216 F. Supp. 2d at 30; cf. Brazier, supra, 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *4 (granting summary judgment on a breach of warranty claim, where child had placed ball in mouth and where “no reasonable jury could conclude that a toy ball is performing an ordinary purpose when a child inserts it into his mouth.”) Accordingly, Defendant’s motion for summary judgment [**93] on breach of warranty also must be denied.
(1) Defendant’s motion for summary is denied in full.
(2) Plaintiff’s experts, Harold W. Paxton, Ph.D., and John S. Allen, are [*571] qualified to testify within the parameters set by this opinion.
(3) Plaintiff has withdrawn his design defect claim. The remaining claims sound in negligence, breach of warranty and strict products liability (manufacturing defect and failure to warn).
This constitutes the decision and order of the Court.
Dated: July 14, 2005