Summary
granting summary judgment in a products liability case because there was no evidence of a defect
Summary of this case from Smith v. Herman Miller, Inc.Opinion
No. 02 Civ. 6652 (LLS).
March 1, 2005
OPINION and ORDER
Defendants' motion for summary judgment dismissing the complaint is granted for the reasons that follow.
Background
On November 3, 1999, Yura Davidov, plaintiff, fell off a ladder while standing on the third step and attempting to fit a drain pipe into a roof gutter.
The ladder had been designed and manufactured by defendant, Louisville Ladder Group, LLC. Plaintiff alleges design and manufacturing defects and inadequate warnings.
Plaintiff's theory of causation was based on a report by Dr. Irving Ojalvo, who opined that by the time plaintiff reached the third rung of the ladder, the right rear leg had "racked," or lifted off the ground because of forces causing its frame to twist during climbing. When plaintiff reached to his right to grasp and manipulate the drain pipe, his weight transferred to his right side, causing the right rear leg to come down hard and dislodge plaintiff from the ladder. In Dr. Ojalvo's opinion, racking is the "only reasonable cause" of plaintiff's accident. Ojalvo Report at 7.
Because plaintiff had testified at his deposition that all four legs of the ladder were on the ground when he fell off, defendants moved to preclude Dr. Ojalvo's opinion. Live testimony was heard on the motion: plaintiff testified on August 12, 2004 and Dr. Ojalvo testified on August 27, 2004. At the conclusion, this Court ruled:
Plaintiff's expert has constructed a theory whereby the right rear leg of the ladder was off the ground when the plaintiff stood on the third step and the theory, internally, is logical and reasonable and it finds some support in the demonstration made in court of the ease with which a ladder's rear steps may, during the climbing process, be lifted and turned sideways leaving one step — one rear step — slightly elevated.
This effect is most marked at the first step and if equal force is exerted by the climber at each step, the effect of the force diminishes somewhat at the higher steps.
The expert postulates that when plaintiff shifted his center of gravity on the third step, the raised rear leg descended creating a jolt which unbalanced the plaintiff and caused his fall and that conclusion finds support in the test which plaintiff's expert devised.
The difficulty with the expert's testimony does not really lie in internal inconsistencies but in the fact that an essential element of his theory is contradicted by the evidence in the case. The only factual evidence on the point regarding the rear leg and its elevation comes from the plaintiff himself and he testified at page 46 of the August 12, 2004 transcript as follows:
"Q As far as your knowledge is concerned, were the feet of the ladder still level on the ground, as far as you were concerned, when you were on the third step?
. . .
"A The four legs was on the ground.
"Q As far as you know, that's how it was when you were on the third step, is that true?
"A Yes. It's always the same."
"THE COURT: What was the answer?
"A Yes, it was on the ground."
Now, the plaintiff's expert in the teeth of that evidence can get very little comfort from the test he conducted which, whatever its merits as a test, lacks any present acceptance in the field and, in any event, only serves to support a conclusion which is in conflict with the factual evidence.
Now, an expert's opinion which is not based on the evidence in the case is little more than speculation and it cannot be the basis of a verdict in conflict with the uncontradicted evidence in the case. Accordingly, the expert's testimony is inadmissible and the motion to exclude it is granted.
August 27, 2004 Hearing Transcript at 100-02. An application for reconsideration was denied on September 24, 2004.
Defendants now move for summary judgment, arguing that without Dr. Ojalvo's testimony plaintiff cannot prove that a defect in the ladder caused the accident.
Discussion
A motion for summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To prevail on a motion for summary judgment, the moving party must "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). The burden is then on the non-moving party to set forth specific facts raising a genuine issue of fact for trial. Id. at 324, 106 S.Cr. at 2553. "All reasonable inferences and any ambiguities are drawn in favor of the nonmoving party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).
Defendants argue that Dr. Ojalvo's theory that one rear leg was off the ground was the plaintiff's sole theory of causation, and because that theory is contradicted by the only factual evidence on the point, there is no genuine issue of material fact for trial.
Plaintiff contends that there are two issues of fact which prevent summary judgment.
Plaintiff first argues "a question of fact exists as to whether the rear leg was raised at the time of this accident, causing plaintiff to fall." Wolfe Decl. at ¶ 10. Plaintiff's declaration in support of this contention (submitted in opposition to summary judgment) states:
1. My attorneys have advised me that my hearing testimony that "as far as I knew" all four rails of the ladder were resting on the ground at the time of my accident has been interpreted by the Court to mean that I knew that all four legs were resting on the ground.
2. I knew no such thing. When I climbed up the ladder on the date of accident, I did not know that the rear leg had become elevated above the ground.
Davidov Decl. at ¶¶ 1-2.
"[A] party may not create an issue of fact by submitting an affidavit in opposition to summary judgment that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). Indeed, this afterthought statement does not even serve its purpose: stating that "I did not know the leg was raised" does not prove that it was raised, nor contradict his earlier testimony that "the four legs was on the ground." In any event, plaintiff's last-minute declaration does not create a genuine issue of fact for trial.
Second, plaintiff argues that there is an issue whether the ladder's warnings were adequate, since they did not warn the user that the ladder might "rack." In light of the uncontradicted testimony that all four legs of the ladder were on the ground at the time of the accident, any theory of liability based on an assumption of racking is unsustainable.
In short, as in Brooks v. Outboard Marine Corporation, 234 F.3d 89, 92 (2d Cir. 2000), since
. . . the district court acted within its discretion in excluding [the expert's] testimony, the plaintiff has no evidence in the record to support his theory that the motor had a design defect which caused the accident or increased its severity. As a result, summary judgment [is] properly granted.
Conclusion
The Clerk shall enter judgment dismissing the complaint, together with costs and disbursements to defendants according to law.
So ordered.