Chica-Hernandez v. Italpresse U.S.A., Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

JOSE DAVID CHICA-HERNANDEZ, :

:

Plaintiff, :

: MEMORANDUM AND ORDER

-against- :

: No. 17-cv-6422 (KAM)(VMS)

ITALPRESSE U.S.A., INC. AND :

ITALPRESSE S.P.A., :

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Defendants.

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MATSUMOTO, United States District Judge:

Plaintiff Jose David Chica-Hernandez brought this

diversity action against Defendants Italpresse U.S.A., Inc.

(“IUSA”) and Italpresse S.P.A. (“ISPA”), alleging negligence,

strict products liability, and breach of warranty claims. (ECF

No. 1, Complaint (“Compl.”).) Upon the close of discovery,

Defendants moved for summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure, and to exclude testimony by

Plaintiff’s expert, Dr. Irving Ojalvo. (ECF Nos. 79, Notice of

ISPA’s Motion for Summary Judgment; 84, Notice of IUSA’s Motion

for Summary Judgment.) For the reasons set forth below,

Defendants’ motions to exclude Dr. Ojalvo’s testimony are denied.

Defendants’ motions for summary judgment are granted as to

Plaintiff’s manufacturing defect and breach of warranty claims,

which are dismissed. Defendants’ motions for summary judgment are

denied as to Plaintiff’s design defect and failure to warn claims.

IUSA’s motion for summary judgment on its cross claim against ISPA

for indemnification is denied without prejudice.

BACKGROUND

The Court has considered the facts set forth below from

the parties’ declarations and exhibits attached thereto, and the

Rule 56.1 Statements of Facts and opposing 56.1 Statements.1 Upon

consideration of the motions for summary judgment, the Court must

and will construe the facts in the light most favorable to the

non-moving party. See Capobianco v. City of New York, 422 F.3d

47, 50 n.1 (2d Cir. 2005). Unless otherwise noted, the following

facts are undisputed, or the opposing party has not proffered

evidence in the record to dispute them.

I. Factual Background

Plaintiff suffered an injury to his left hand on November

4, 2014, during the course of his employment at non-party Island

Architectural Woodworking Inc. (“IAWW”) when his left hand came

1 (See ECF Nos. 80, ISPA’s 56.1 Statement (“ISPA 56.1”); 81‒81-13, Park

Declaration in Support of ISPA’s 56.1 Statement (“Park Decl.”) and exhibits

attached thereto; 86, IUSA’s 56.1 Statement (“IUSA 56.1”); 88‒88-17, Van Etten

Declaration in Support of IUSA’s Motion for Summary Judgment and 56.1 Statement

(“Van Etten Decl.”) and exhibits attached thereto; 89‒89-41, Massaro Declaration

(“Massaro Decl.”) and exhibits attached thereto; 90, Plaintiff’s Response to

ISPA’s 56.1 Statement (“Pl. Resp. ISPA 56.1”); 92, Plaintiff’s Response to

IUSA’s 56.1 Statement (“Pl. Resp. IUSA 56.1”); 94-1‒94-10, Exhibits to ISPA’s

Reply Memorandum in Support of its Motion for Summary Judgment; 94-12, ISPA’s

Reply to Plaintiff’s 56.1 Statement of Additional Facts (“ISPA 56.1 Reply”).)

into contact with a nip point2 of the rollers of a glue spreader

component (the “Glue Spreader”) of a 2011 Italpresse Mark/C 16-

32/10 Automatic Pressing Line (the “Pressing Line”), manufactured

by ISPA and sold to IAWW by ISPA’s subsidiary, IUSA. (ISPA 56.1

¶ 1; IUSA 56.1 ¶¶ 5‒6.) The Glue Spreader component of the Pressing

Line was manufactured by a non-party entity, Osama Technologies,

and sold to ISPA. (IUSA 56.1 ¶ 99.) IUSA sold and delivered the

Pressing Line to IAWW in May 2011. (Id. ¶ 6.) Plaintiff commenced

this action against Defendants, alleging design defect,

manufacturing defect, and failure to warn, under negligence and

strict products liability theories, and breach of warranty claims.

(ECF No. 13, Amended Verified Complaint.)

Defendants’ Pressing Line is a machine that presses

together the faces of laminate and veneer paneling onto substrates

such as wood or foam board. (ISPA 56.1 ¶ 3; IUSA 56.1 ¶ 7.) The

Pressing Line consists of several components, including the Glue

Spreader, which has multiple rollers (or rotation cylinders) that

apply glue to the substrate. (Id.) The substrate is inserted

through the infeed side, or the front, and, once glue is applied,

the substrate exits from the outfeed side, or the back, of the

Glue Spreader. (IUSA 56.1 ¶ 8.) The rollers on the outfeed side

rotate in opposite directions. (Id.)

2 “A nip point is where two surfaces come into contact, creating a point where

an object can become caught or be pinched off.” Clarke v. LR Sys., 219 F. Supp.

2d 323, 326 (E.D.N.Y. 2002).

The Glue Spreader was equipped with the following safety

features that block access to and/or stop the operation of its

rollers: (1) a blue mesh guard located in the front (or infeed

side), which stops the rollers when lifted up; (2) a blue mesh

guard located in the back (or outfeed side), which stops the

rollers when lifted up; (3) a red emergency button that, when

pressed, stops the Glue Spreader; (4) a blue safety bar at knee

height in the front (or infeed side) which stops the rollers when

pressed; (5) a blue safety bar at knee height in the back (or

outfeed side) which stops the rollers when pressed; and (6) a

silver metal guard/grill positioned vertically in the back (or

outfeed side), which completely blocks access to the rollers.

(ISPA 56.1 ¶ 9; Pl. Resp. IUSA 56.1 ¶¶ 9‒10.) Electrical limit

switches3 integrated into the machine’s control system functioned

as an interlock control for the guards, (ECF No. 89-9, Exhibit 9

to Massaro Decl. (“Schwalje Dep. Tr.”), at 26:17‒21), such that

opening the guards would interrupt the electrical switches,

causing the rollers to immediately stop operating. (Id. at 29:16‒

22.)

In May 2011, when the Pressing Line, including the Glue

Spreader, was delivered to IAWW by IUSA, there were several warning

signs affixed to the Glue Spreader, both in writing and pictograms,

3 The Court notes that the terms “limit switch” and “interlock” are used

interchangeably in the parties’ submissions.

indicating the danger of nip points of the rollers. (ECF No. 88-

16, Exhibit H to IUSA’s Responses to Plaintiff’s First Set of

Interrogatories, at 12‒17.)4 One of the signs stated: “DANGER.

Pinch point. Crush hazard. Keep clear of rollers. Follow lockout

procedure before servicing.” (Id. at 16.) Another sign stated:

“WARNING. READ AND UNDERSTAND WELL THE INSTRUCTION MANUAL BEFORE

THE MACHINE RUNS. STOP THE MACHINE IF YOU HAVE TO BRING YOUR HANDS

NEAR TO [sic] THE CYLINDERS. KEEP ALL SAFETY DEVICES TO POSITION

WHILST THE MACHINES RUNS [sic]. DON’T USE FREE CLOTHES IF YOU ARE

NEAR TO [sic] A RUNNING MACHINE.” (Id. at 17.) The warning signs

included at least four pictograms, three of which depict a person’s

hand or arm being caught between rollers. (Id. at 15‒17.)

These warning signs were affixed to the Glue Spreader

when IUSA trained IAWW employees when IAWW first purchased the

Glue Spreader, (Pl. Resp. ISPA 56.1 ¶ 188), but the record does

not establish whether all the signs were present at the time of

Plaintiff’s accident in November 2014. And the parties’ expert

reports suggest that the sign that cautioned users to review the

instruction manual before running the Glue Spreader, stop the

machine before putting their hands near the rollers, ensure that

all safety devices are in position while the machine runs, and not

place any loose clothing near the machine while it runs, was only

4 The Court refers to the Electronic Case Filing (“ECF”) System’s pagination

for this specific document for ease of reference.

in Italian when the experts inspected the Glue Spreader in 2017

and 2018. (ECF Nos. 89-28, Exhibit 28 to Massaro Decl. (“Ojalvo

Suppl. Expert Report”), at 13; 89-22, Exhibit 22 to Massaro Decl.

(“Brickman Expert Report”), at 28); 89-30, Exhibit 30 to Massaro

Decl. (“Auflick Suppl. Expert Report”), at 11.)

At the time of receipt of the Pressing Line in May 2011,

IAWW was provided with two user manuals, one for the Pressing Line,

and a separate manual for the Glue Spreader. (ISPA 56.1 ¶ 5; IUSA

56.1 ¶ 15.)5 The manuals were in English and Italian. (ECF No.

89-4, Exhibit 4 to Massaro Exhibit (“Ortmayer Dep. Tr.”), at 38:19‒

39:18.) It is undisputed that Plaintiff reads and understands

little English, (Pl. Resp. ISPA 56.1 ¶ 193), and does not speak

Italian. (ECF No. 89-7, Exhibit 7 to Massaro Decl. (“Pl. Dep.

Tr.”), at 8:4‒6.)

5 Plaintiff fails to demonstrate that there is a material factual dispute as to

whether IAWW was provided with two user manuals, one for the Pressing Line and

another for the Glue Spreader. During his deposition, Alberto Salsa, the

corporate representative of ISPA, testified that there was a separate manual

for the Glue Spreader. (See ECF No. 89-1, Exhibit 1 to Massaro Decl. (“Salsa

Dep. Tr.”), at 22:5‒16 (Q. In 2014 and before that, was there a specific manual

or instruction manual or operator’s manual for the glue spreading machine

specifically? A. Yes.).) The portion of Salsa’s deposition testimony to which

Plaintiff cites in “disput[ing] that the machine was provided with two manuals,”

(Pl. Rep. ISPA 56.1 ¶ 5; Pl. Resp. IUSA 56.1 ¶ 15), relates to Salsa not being

aware that there were separate instructions for cleaning the Glue Spreader in

the Glue Spreader manual, not that there was a separate user manual for the

Glue Spreader. (Id. at 107:15‒25.) Additionally, the fact that Salsa himself

was not aware of the existence of the cleaning instructions does not create a

dispute of material fact as to whether the Glue Spreader manual contained such

instructions. Finally, Michael Lurz, an IAWW employee, testified that the

manuals were kept in a pouch affixed to the machine. (ECF No. 89-5, Exhibit 5

to Massaro Decl. (“Lurz Dep. Tr.”), at 12:7‒21, 14:6‒11).)

The accident at issue occurred on November 4, 2014, while

Plaintiff was cleaning or attempting to clean the Glue Spreader

for the first time by himself. (Pl. Resp. IUSA 56.1 ¶ 5; Pl. Resp.

ISPA 56.1 ¶ 30.) Plaintiff stood on the outfeed side of the Glue

Spreader and sprayed the rollers with water from a hose that he

was holding in his right hand. (Pl. Resp. IUSA 56.1 ¶ 74.) While

Plaintiff was spraying the rollers with water, the blue mesh guard

was down, or in a closed position, and Plaintiff saw the rollers

rotating. (Id. ¶ 75.) Plaintiff then lifted the blue guard with

his left hand while still holding the hose in his right hand. (Id.

¶ 77.) Plaintiff knew that the rollers were supposed to stop

rotating when the blue guard was lifted, but he did not look to

see if they were still rotating when he lifted the guard. (Id. ¶

78.) Plaintiff bent down to place the hose on a hook on the right

side of the Glue Spreader from where he was standing, (id. ¶ 79),

and as he was placing the hose down, he felt his left hand being

“squeezed,” and he realized that his left hand was caught in the

Glue Spreader. (Pl. Resp. IUSA 56.1 ¶ 80; Pl. Dep. Tr. at 50:6‒

51:4.) He pushed the blue safety bar with his knee, which stopped

the rollers. (Pl. Resp. IUSA 56.1 ¶ 80.) As a result of the

accident, Plaintiff suffered from a complete loss of his left ring

finger, and partial losses of his left small and long fingers.

(Pl. Resp. ISPA 56.1 ¶ 1; Pl. Resp. IUSA 56.1 ¶¶ 159‒60.)

Plaintiff had been working at IAWW for approximately one

month before the accident. (Pl. Resp. IUSA 56.1 ¶ 50.) Plaintiff

never operated machinery, and his job responsibilities included

cleaning the floors and bathrooms, helping the carpenters, moving

materials, preparing bunks for specific machines, and cleaning the

Glue Spreader. (Id.) Plaintiff’s brother, Jose Alex Chica-

Hernandez (“Alex”), taught Plaintiff how to clean the Glue Spreader

on two occasions, both approximately one week before the accident.

(Id. ¶ 52.) The two training sessions lasted less than fifteen

minutes and consisted of Plaintiff observing Alex cleaning the

machine. (Id. ¶¶ 52‒53.) Plaintiff received no other training on

how to clean the Glue Spreader. (Id. ¶ 52.)

Plaintiff testified that though he was aware that he

“cannot put [his] hand” near the rollers while they were moving,

(Pl. Dep. Tr. at 61:7‒14), he believed that “if the rollers were

moving” and he lifted up the blue mesh guard, “the machine would

stop.” (Id. at 61:15‒62:5.) Plaintiff also testified that prior

to the accident, he did not know that his hand could get caught in

the rollers and get injured. (Id. at 81:23‒82:3.) Plaintiff

testified that he did not read or look at any of the warnings on

the Glue Spreader before cleaning it, (id. at 80:15‒81:6), he did

not “know which were the instructions,” (id. at 80:25‒81:2), and

he did not review the user manual for the Pressing Line or for the

Glue Spreader. (Id. at 80:2‒5.)

Plaintiff submitted as an exhibit to the declaration of

Jay Massaro, counsel for Plaintiff, an email communication between

certain IUSA employees and certain individuals at Osama

Technologies indicating that IUSA had notice that its Glue Spreader

was involved in Plaintiff’s accident at least as of November 5,

2014, the day after the accident. (ECF No. 89-19, Exhibit 19 to

Massaro Decl. (“IUSA November 5, 2014 Email”).) The email chain

consists of two emails, the first of which is from a Crista at

IUSA to a Marco Tinti and a Simone Perozzi at Osama Technologies,

stating: “We have an urgent request for spare parts on the . . .

Glue Spreader sold to [IAWW]. Attached is a diagram of the parts.

They are needing items 6, 7, 8. Someone may have lost their hand

today in an accident. It was their fault for disabling the safety

switch on this grill! . . . Please send a sales offer to us for

these items . . . .” (Id.) The second email is a response from

Simone Perozzi that states, in relevant part, “Here is our offer

. . . Complete set with protection grill and ‘supports’ on the

sides . . . .” (Id.) There is no evidence in the record explaining

or illustrating “items 6, 7, 8” or the “Complete set with

protection grill and ‘supports’ on the sides.” After Plaintiff’s

accident on November 4, 2014, there is no evidence in the record

documenting any inspection of the Glue Spreader undertaken by IAWW

or Defendants, in the form of photographs, maintenance log,

reports, or notes, until 2018. (Cf. Lurz Dep. Tr. at 45:6‒48:24;

ECF No. 89-2, Exhibit 2 to Massaro Decl. (“Mojum Dep. Tr.”), at

83:20‒84:19.)

In September 2018, nearly four years after the accident,

IAWW requested that IUSA send a technician to service the Pressing

Line and the Glue Spreader. (Pl. Resp. IUSA 56.1 ¶ 20.) The IUSA

technician sent to service the machine discovered that the Glue

Spreader’s limit switches, integrated with the three guards to

stop the operation of the rollers when the guards were in an up or

open position, had been bypassed. (Ortmayer Dep. Tr. at 53:3‒13.)

The two limit switches for the blue guards (on both the infeed and

outfeed sides) were bypassed by means of wrapping tape around an

activation cam which caused the switches to stay active even when

the guards were lifted. (Id.) The third limit switch for the

silver metal guard/grill had corroded to a point where it was no

longer operational, and a jumper cable had been installed in the

electric panel to bypass the switch to keep the machine running.

(Id.)6 There is no evidence in the record when the bypasses of

6 The Court finds that although the timing of the bypasses has not been

established, Plaintiff has failed to establish that there is a dispute of fact

as to whether the limit switch supervising the silver metal guard was bypassed

using a jumper wire. (Pl. Resp. IUSA 56.1 ¶ 21.) Plaintiff asserts that the

testimony of Mr. Ortmayer “that a jumper cable was utilized to disable one of

the three interlocks is inadmissible pursuant to the sham affidavit doctrine

because said testimony is directly contradicted by IUSA’s Interrogatory

Responses, which Mr. Ortmayer verified.” (ECF No. 91, Plaintiff’s Memorandum

of Law in Opposition to ISPA’s Motion for Summary Judgment (“Pl. ISPA Opp.”),

at 2.) The Court finds that Ortmayer’s deposition testimony does not contradict

his interrogatory response, which stated, “Plaintiff’s injuries were caused by

[IAWW] and other unknown parties that made material alterations to the Product

in the form of overriding safety measures by wrapping tape around portions of

the machine that, if unaltered, would prevent the press from operating with the

safety screens in the open position.” (ECF No. 88-16, IUSA’s Responses to

the interlocks with tape and wire occurred. (Id. at 57:3‒19.)

Specifically, the record does not establish whether the two tape

and one wire bypasses were present on the limit switches at the

time of delivery to IAWW in 2011, or on November 4, 2014, the date

of Plaintiff’s accident.

II. Dr. Ojalvo’s Proposed Expert Opinions

Dr. Ojalvo’s Expert Reports

Plaintiff primarily relies on the opinions of his

proposed expert witness, Dr. Ojalvo, to support his design defect

and failure to warn claims. The Court notes that Plaintiff

submitted two expert reports from Dr. Ojalvo, one dated February

2020 and the other dated August 2020, as exhibits to the

Declaration of Jay Massaro. (ECF No. 89-27, Exhibit 27 to Massaro

Decl. (“Ojalvo Expert Report”); Ojalvo Suppl. Expert Report.) On

the other hand, IUSA filed three Rule 26 Expert Disclosures from

Plaintiff, dated February 19, 2020, (ECF Nos. 88-11‒88-12),

September 8, 2020, (ECF No. 88-13), and September 21, 2020 (ECF

No. 88-14), and attached Dr. Ojalvo’s February 2020, September

2020, and August 2020 Expert Reports, respectively. ISPA states

Plaintiff’s First Set of Interrogatories, at 7.) See also Keepers, Inc. v.

City of Milford, 807 F.3d 24, 34 (2d Cir. 2015) (explaining that Rule 30(b)(6)

testimony “is ‘binding’ in the sense that whatever its deponent says can be

used against the organization . . . [b]ut Rule 30(b)(6) testimony is not

‘binding’ in the sense that it precludes the deponent from correcting,

explaining, or supplementing its statements.”). The Court finds, however, that

the record does not establish when the alterations bypassing the limit switches

occurred and whether the alternations existed at the time of Plaintiff’s

accident.

that Dr. Ojalvo’s September 2020 report was “retracted by

plaintiff’s counsel under a claim of privilege as a draft report.”

(ECF No. 82, ISPA’s Memorandum of Law in Support of its Motion for

Summary Judgment (“ISPA Mem.”), at 8 n.2.) Therefore, the Court

considers only Dr. Ojalvo’s February 2020 and August 2020 expert

reports for the purpose of deciding the instant motions. (See Pl.

Resp. ISPA 56.1 ¶ 148 (“The report stating ‘September 2020’ was a

draft report that was disclosed accidentally.”).)

Dr. Ojalvo had opined in his first expert report of

February 2020, that the Pressing Line was defectively designed

because the guards restricting access to the rollers “can easily

be opened without deactivating the power to the rollers,” not

having been equipped with “an interlocked guard (i.e. a device

that automatically cuts the power to the machine when the guard is

opened) and/or by another means such as a photoelectric presence

sensing device that would automatically cut power to the machine

when a body part or other foreign object entered the hazard zone.”

(Ojalvo Expert Report at 15.) In addition, Dr. Ojalvo had

concluded in February 2020 that Plaintiff’s incident could have

been avoided if the user manual contained clear, explicit

instructions on how to safely clean the rollers. (Id. at 18.)

Though Dr. Ojalvo testified during his deposition that he plans to

only present at trial the conclusions from his supplemental report

of August 2020, (see Ojalvo Dep. Tr. at 115:3‒18), the Court leaves

open the possibility of hearing Dr. Ojalvo’s testimony regarding

his February 2020 report.

In his supplemental report of August 2020, Dr. Ojalvo

states that at the time his initial report was issued in February

2020, he was “unaware of two important pieces of information that

[he was] only informed of this month [August 2020], when reviewing

three defense expert engineering reports” and that the

“[i]nformation in these reports led [him] to request depositions

given by the plaintiff’s coworkers at [IAWW] and members of the

defendants [ISPA] and [IUSA] organizations. The new information

. . . centers on the facts that 1) [the Glue Spreader] had been

tampered with so that its safety interlocks had been deactivated

and 2) there existed a use and maintenance manual for [the Glue

Spreader] not previously supplied to [him].” (Ojalvo Suppl. Expert

Report at 1.)

With respect to the Glue Spreader’s design, Dr. Ojalvo

opined that “[i]t may be stated to a reasonable degree of

engineering certainty that the [Glue Spreader] installed at [IAWW]

was unreasonably dangerous and a significant factor in the cause

of [Plaintiff’s injury]” because the limit switches supervising

the guards were “too easy to defeat.” (Id. at 11.) In support,

Dr. Ojalvo asserted that the Glue Spreader did not comport with

the industry standards at the time of its design and manufacture,

citing to the following: (1) Section 7.1.6 and E7.1.6 of the

American National Standards Institute (“ANSI”)7 safety standard

B11.19-2003 provide that “[i]nterlocks should be designed to

discourage the capability to easily bypass the interlock with

readily available items such as tape, pieces of metal, screws,

tools, etc.,” (ECF No. 89-31, Exhibit 31 to Massaro Decl., at

13); and (2) Section 5.7 of the International Organization for

Standardization (“ISO”) safety standard, amended in 2007, provides

that “interlocking devices shall be designed . . . so that they

cannot be defeated in a reasonably foreseeable manner. . . .

Typically, [defeat in a reasonably foreseeable manner] can mean

‘intended operation achieved manually or with a readily available

object.’”8 (ECF No. 89-24, Exhibit 24 to Massaro Decl., at 1‒2.)

As to an alternative design, Dr. Ojalvo opined that the

Glue Spreader could have used “interlocks that are difficult to

7 “ANSI standards are relied upon by the manufacturers of machinery and by

experts in various fields to conduct evaluations of the safety of machinery and

processes.” Del Civ v. Beloit Corp., 901 F. Supp. 539, 545 (E.D.N.Y. 1995).

8 Defendants contend that Dr. Ojalvo “does not rely on the appropriate ANSI

standard applicable to the subject machine . . . .” (ECF No. 94, ISPA’s Reply

Memorandum of Law in Support of its Motion for Summary Judgment (“ISPA Reply”),

at 1 n.1; see also ECF No. 95, IUSA’s Reply Memorandum of Law in Support of its

Motion for Summary Judgment (“IUSA Reply”), at 9 (“[P]laintiff makes repeated

references to engineering standards from [ANSI] and [ISO] in a futile effort to

demonstrate they were somehow violated and such violation is per se proof of a

defective design. However, the record is replete with references to their

inapplicability to the equipment/machinery involve herein . . . .”).) The Court

notes that whether a safety standard is applicable is typically a question for

the jury. See Mustafa v. Halkin Tool, Ltd., No. 00-cv-4851(DGT), 2007 WL

959704, at *8 n.14 (E.D.N.Y. Mar. 29, 2007) (“Before a promulgated safety

standard can even be considered by a jury in a products liability action, the

jury must first conclude that the standard represents the general custom or

usage in the industry.”). The Court concludes that the applicability of the

safety standards cited by Dr. Ojalvo, in addition to the other material factual

issues as to the design defect claim, set forth infra, should be determined by

the trier of fact.

bypass” and, as an example, identified a “Schmersal-type

electronic interlock,” which is “comprised of a solenoid locking

mechanism . . . and a locking key.” (Ojalvo Suppl. Expert Report

at 7.) According to Dr. Ojalvo, if Schmersal interlocks were used,

“when a guard door is mechanically opened, the electronic program

would remove motor power to the glue rollers and they would stop,”

thus “result[ing] in the machine providing a ‘lock/run’ closed

guard and an open guard ‘unlock/setup’ safety mode. Such a system

could not be easily defeated by readily available items such as

tape, pieces of metal, etc., and if used by Italpresse in their

glue machine, would have avoided [Plaintiff’s] injury.” (Id.) As

to causation, Dr. Ojalvo opined that “the violation of the ANSI

B11.19 and ISO standards regarding the use of readily defeated

interlocks was a significant proximate cause of [Plaintiff’s]

injury.” (Id. at 8.)

With respect to the warning signs on the Glue Spreader,

Dr. Ojalvo opined that “[i]t may be stated to a reasonable degree

of engineering certainty that the [Glue Spreader] installed at

[IAWW] was unreasonably dangerous and a significant factor in the

cause of [Plaintiff’s injury]” because there was no “sufficiently

explicit warnings on the [Glue Spreader] itself in English (and

perhaps in Spanish) instructing users to read and understand the

technique for cleaning the rollers . . . .” (Id. at 11.) Dr.

Ojalvo stated that the warning sign cautioning users to read and

understand the user manual before using the machine was written

only in Italian, did not explicitly reference the designation/name

and number of the Glue Spreader, and did not make it clear to the

user that it was referring specifically to the user manual for the

Glue Spreader. (Id. at 9.) Furthermore, Dr. Ojalvo stated that

“the inclusion of warnings in Italian on a machine for use in an

English speaking country serves to clutter the message and reduce

its effectiveness.” (Id.) Dr. Ojalvo opined that Plaintiff’s

incident likely would not have occurred with more explicit warnings

on the Glue Spreader and gave the following alternative warnings

as examples:

•

“MAKE SURE THAT GUARDS COVERING THE ROLLERS ARE CLOSED WHEN

ROLLERS ARE MOVING”;

•

“ONLY CLEAN THE GLUE MACHINE ROLLERS REMOTELY USING THE

MACHINE SCRUB BRUSHES”; and

•

“IF ROLLER CLEANING IS REQUIRED WITH GUARDS OPEN MAKE SURE

THE ROLLERS ARE NOT TURNING.”

(Id.)

Dr. Ojalvo’s Deposition Testimony

Dr. Ojalvo testified that on October 2, 2017, he

inspected the Pressing Line, including the Glue Spreader, and

interviewed Plaintiff. (Ojalvo Dep. Tr. at 18:9‒14, 19:13‒18.)

He testified further that, at the time of the inspection, he could

not tell whether there were limit switches equipped to the Glue

Spreader. (Id. at 82:19‒83:14.) Dr. Ojalvo testified that, prior

to his deposition on January 7, 2021, he had not seen Exhibit J to

IUSA’s Responses to Plaintiff’s First Set of Interrogatories,

which are photographs taken by IUSA’s technician in September 2018,

almost four years after Plaintiff’s accident, when the Pressing

Line was serviced at the request of IAWW. (Id. at 120:17‒121:6.)

The photographs demonstrated the ways in which the three limit

switches for the safety guards of the Glue Spreader were bypassed

as of 2018. (Id.) When asked whether the two limit switches for

the blue mesh guards (one on the infeed side and the other on the

outfeed side) that were bypassed using tape were also bypassed

electrically, Dr. Ojalvo answered that he does not know. (Id. at

120:17‒123:8.) As to the limit switch for the silver metal

guard/grill that was bypassed using a jumper wire, Dr. Ojalvo

testified that does not know whether it “was easily bypassed

electrically.” (Id. at 108:6‒109:3 see id. (“Q. Okay, do you know

if this was easily bypassed electrically? A. I don’t know. Q.

And that relates to the subject machine. There’s an instance where

you don’t know, perhaps, specific data about the capabilities of

the existing interlocks on this machine, correct? A. That’s right.

I couldn’t get that out of the manual.”).)

When asked to describe his methodology, Dr. Ojalvo

testified that his methodology was “[t]o do an inspection with the

plaintiff present . . . for him to describe how the accident

occurred, to look at the manuals that were available regarding the

operation and maintenance of the machine and eventually to have

the information regarding the people who were knowledgeable about

the interlock defeat and to have available the standards associated

with machine interlocks that [he] cited [in his expert report].”

(Id. at 166:21‒167:13.) Dr. Ojalvo testified that he did not

conduct any testing for this case other than his reenactment of

the accident based on his interview of Plaintiff to determine

whether the accident could have occurred as described by Plaintiff.

(See id. at 45:16‒46:21, 47:23‒49:14, 49:21‒50:1; 50:9‒52:4,

78:22‒79:23.)

With respect to a feasible alternative design, Dr.

Ojalvo testified that he did not propose a specific alternative

limit switch that should have been equipped on the Glue Spreader

but opined generally that there were many available at the time

that could have been used that were harder to bypass. (See id. at

175:2‒176:79, 179:11‒180:810.) He also testified that he did not

research “which model interlock would have been best suited for

[the Glue Spreader].” (Id. at 171:18‒20.) And because he did not

propose a specific alternative interlock, Dr. Ojalvo did not “build

an exemplar proposed interlock,” (id. at 170:24‒171:5), prepare “a

circuit diagram of [the] proposed interlock design,” (id. at

179:11‒13), or perform any “failure modes or effects analysis” of

the proposed design, (id. at 14‒16). Additionally, though Dr.

Ojalvo had opined in his August 2020 supplemental expert report

that a Schmersal type interlock would have prevented Plaintiff’s

9 Q. . . . You’re proposing or you opined in this case this machine was

defectively designed but your position is that you have not proposed a

reasonable alternative design that if it had been used would have prevented

this accident. Fair statement?

. . .

A. I did not propose a specific design that would have been acceptable. But I

had enough information to make the statement that it was possible.

Q. But possible is certainly different than reasonable, would you say? Would

you agree?

A. I would include the word reasonable in my definition.

Q. And so do you have -- just so I’m clear, are you or are you not proffering

a reasonable alternative design that would have prevented this accident in this

case?

A. Only in generalities, not specific detail.

Q. What does that mean, sir, only in generalities, not in specific details? I

don’t understand what you’re saying.

A. I’m saying that given the machine, given the spaces that are available, given

the technology of interlocks that were available at the time the machine was

designed and manufactured, that there were sufficient possibilities to come up

with multiple designs that would have satisfied the [safety] standards.

10 Q. Can you state to a reasonable degree of engineering certainty that your

proposed interlock design would have prevented the plaintiff’s injury?

A. Well I don’t have a specific design, I have a concept. And I’m aware of

what was available to the manufacturer at the time. And I think that I could

effectively design something if asked to do it.

Q. So if I understand your testimony correctly, you have opined that the machine

was defective in its design because the interlocks could be bypassed, you have

said it’s possible to build a [sic] interlock that cannot be bypassed or not

easily bypassed but you have not proposed any alternative design in this case;

is that fair to say?

A. Correct. Only generalities.

accident, he could not confirm during his deposition whether the

interlocks that were equipped on the Glue Spreader were in fact

Schmersal interlocks. (Id. at 167:14‒168:7.) And when asked

whether he was aware of any other glue spreader machine that

incorporates a Schmersal interlock, Dr. Ojalvo answered, “No. I

haven’t done a study of that.” (Id. at 180:19‒22.)

As to the adequacy of the warning signs that were on the

Glue Spreader, Dr. Ojalvo testified that his biggest criticism is

“the lack of any indication” that there is a user manual specific

to the Glue Spreader. (Id. at 190:24‒191:7.) He testified that

the pictograms displayed the hazards adequately, (id. at 187:14‒

16), and the font sizes of the written warnings were sufficient,

(id. at 187:3‒13). Dr. Ojalvo testified that had not tested his

proposed warning, nor published his proposed warnings in a peer-

reviewed publication, (id. at 187:17‒23), and that none of his

opinions in this case were peer reviewed. (Id. at 166:21‒167:13.)

Finally, Dr. Ojalvo supplemented his expert report during the

deposition to include the opinion that the user manuals for the

Pressing Line and the Glue Spreader were both inadequate and that

their inadequacy was a primary factor in the cause of Plaintiff’s

accident. (Id. at 150:23‒151:2.)

LEGAL STANDARD

Summary judgment shall be granted to a movant who

demonstrates “that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A fact is ‘material’ for these purposes

when it ‘might affect the outcome of the suit under the governing

law.’” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,

104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). No genuine issue of material fact exists

“unless there is sufficient evidence favoring the nonmoving party

for a jury to return a verdict for that party.” Anderson, 477

U.S. at 249. “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id. at

249‒50 (internal citations omitted).

When bringing a motion for summary judgment, the movant

carries the burden of demonstrating the absence of any disputed

issues of material fact and entitlement to judgment as a matter of

law. Rojas, 660 F.3d at 104. In deciding a summary judgment

motion, the court must resolve all ambiguities and draw all

reasonable inferences against the moving party. Flanigan v. Gen.

Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

A moving party may indicate the absence of a factual dispute by

“showing . . . that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). Once

the moving party has met its burden, the nonmoving party “must

come forward with admissible evidence sufficient to raise a genuine

issue of fact for trial in order to avoid summary judgment.”

Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322‒23 (1986)).

DISCUSSION

I. Design Defect

In New York, “to establish a prima facie case in strict

products liability for design defects, the plaintiff must show

that the manufacturer breached its duty to market safe products

when it marketed a product designed so that it was not reasonably

safe and that the defective design was a substantial factor in

causing plaintiff’s injury.” Voss v. Black & Decker Mfg. Co., 450

N.E.2d 204, 208 (N.Y. 1983). The design of a product is “not

reasonably safe” if “a reasonable person would conclude that the

utility of the product did not outweigh the risk inherent in

marketing a product designed in that manner.” Id. “The plaintiff,

of course, is under an obligation to present evidence that the

product, as designed, was not reasonably safe because there was a

substantial likelihood of harm and it was feasible to design the

product in a safer manner.” Id. “This standard demands an inquiry

into such factors as (1) the product’s utility to the public as a

whole, (2) its utility to the individual user, (3) the likelihood

that the product will cause injury, (4) the availability of a safer

design, (5) the possibility of designing and manufacturing the

product so that it is safer but remains functional and reasonably

priced, (6) the degree of awareness of the product’s potential

danger that can reasonably be attributed to the injured user, and

(7) the manufacturer’s ability to spread the cost of any safety-

related design changes.” Denny v. Ford Motor Co., 662 N.E.2d 730,

735 (N.Y. 1995) (citation omitted).

The Court finds that there are genuine issues of material

fact precluding the grant of summary judgment for Defendants on

the design defect claim. Specifically, Defendants’ primary theory

is that the bypassing of the safety interlocks by third parties,

rather than a defective design, was the cause of Plaintiff’s

accident. Plaintiff’s theory is that the safety interlocks were

too easily bypassed due to Defendants’ defective design.

Furthermore, though the parties presume that the same bypasses of

the safety interlocks that were discovered by IUSA in 2018 existed

at the time of Plaintiff’s 2014 accident and, in turn, caused the

accident, there is no evidence in the record establishing such

presumption. In fact, Defendant IUSA’s representative admitted

that he did not know when the bypasses were applied. (See Ortmayer

Dep. Tr. at 57:3‒19 (“Q. Now, . . . as far as the discovery that

the . . . interlock switches had been disabled, and the jumper

wire bypassed the switch, and those types of things. Was there

any way to determine when this may have been done? Or how long it

may have been that way? A. No. Q. So there is nothing, to your

knowledge, definitive showing that that is the way the machine

would have been back in 2014 on November 4th?” . . . A. No.”).)

Indeed, the record includes only the IAWW service and maintenance

records for its machines, including Defendants’ Pressing Line and

Glue Spreader, from 2018 and 2019, but not from 2011 when IAWW

purchased the Pressing Line up to 2014, the year Plaintiff’s

accident occurred. (See Lurz Dep. Tr. at 45:6‒48:24.) Nor does

the record contain any IAWW service and maintenance records between

2014 and 2018. (Id.) And Defendants have not proffered any of

their own service and maintenance records for the machine that

injured Plaintiff preceding the September 2018 inspection by IUSA.

Plaintiff submitted as an exhibit an email exchange on

November 5, 2014 in which an individual named Crista at IUSA made

a request to Osama Technologies for certain spare parts for the

Glue Spreader, “items 6, 7, 8,” on behalf of IAWW. (IUSA November

5, 2014 Email.) There is no explanation or diagram of “items 6,

7, 8.” In that same email, Crista wrote, “[s]omeone may have lost

their hand today in an accident. It was their fault for disabling

the safety switch on this grill.” (Id.) In response, a Simone

Perozzi at Osama Technologies offered to send a “[c]omplete set

with protection grill and ‘supports’ on the sides . . . .” (Id.)

The Court notes, without determining whether the parties would be

able to lay the proper foundation for this document at trial, that

though the email communication may suggest that the limit switch

for the silver metal guard/grill had been “disabl[ed]” in 2014, it

is not clear whether the disabling was done in the same manner

that it was found in 2018, by using a jumper wire to bypass the

switch, or whether the bypassed switch that had corroded to a point

of being inoperable in 2018 was also corroded and inoperable on

November 4, 2014, the day of Plaintiff’s accident. And if the

limit switch had corroded by November 2014, less than four years

after the Pressing Line was purchased brand new by IAWW, the jury

could find that the limit switch was defectively designed. The

email also makes no mention of the two limit switches for the blue

mesh guards. Thus material issues of fact remain as to Defendants’

theory that a design defect did not exist and did not cause

Plaintiff’s accident.

Furthermore, the diagram of the parts, referred to in

the email from IUSA’s Crista to Osama Technologies, displaying the

parts of the Glue Spreader that needed to be replaced, described

as “items 6, 7, 8,” is not before the Court. (Id.) It is also

unclear why the silver metal guard/grill had to be replaced in its

entirety, along with the “‘supports’ on the sides” if the accident

occurred due to the “disabling [of] the safety switch on [the]

grill.” (Id.) The service and maintenance records in the

possession, custody, and control of Defendants are not before the

Court. As such, because there are material issues of fact related

to whether the corrosion of the safety interlock and bypasses found

in 2018 by IUSA’s technician also existed at the time of

Plaintiff’s accident and caused the accident, the Court must deny

summary judgment in favor of Defendants. In addition, Dr. Ojalvo’s

expert opinion as to design defect is that the Glue Spreader was

defectively designed either because: (1) its rollers failed to

stop when the blue guard was lifted up; or (2) its safety

interlocks were too easily overridden with objects that were

readily available, in violation of the relevant industry safety

standards at the time. Dr. Ojalvo’s second design defect theory,

proffered in his August 2018 supplemental expert report, is based

on the same factual presumption that the bypasses of the safety

interlocks that were discovered in 2018 also existed in 2014 and

caused Plaintiff’s accident, which the Court finds is not

established by the record evidence. Consequently, the Court also

denies Defendants’ motions to exclude Dr. Ojalvo’s expert opinion

as to defective design.

II. Failure to Warn

A. Admissibility of Dr. Ojalvo’s Testimony

Before considering the merits of Defendants’ motions for

summary judgment on failure to warn, the Court, as a threshold

matter, must address Defendants’ argument that Dr. Ojalvo’s

opinion as to the adequacy of the warnings should be excluded as

inadmissible. See Cohalan v. Genie Indus., Inc., No. 10-cv-

2415(JMF), 2013 WL 829150, at *2 (S.D.N.Y. Mar. 1, 2013) (“Because

on a summary judgment motion a ‘district court properly considers

only evidence that would be admissible at trial,’ a court may—and

sometimes must—decide questions regarding the admissibility of

evidence, including expert opinion evidence, on a motion for

summary judgment.”) (citations omitted).

The admissibility of expert testimony is governed by

Federal Rule of Evidence 702, which provides:

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 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. Thus, pursuant to Rule 702, the Court must

make several determinations before admitting expert testimony: (1)

whether the witness is a qualified expert; (2) whether the opinion

is based on reliable data and methodology; and (3) whether the

expert’s testimony will assist the trier of fact to understand the

evidence or determine an issue of fact. See Beruashvili v. Hobart

Corp., No. 05-cv-1646(ENV), 2010 WL 11622750, at *4 (E.D.N.Y. July

15, 2010).

Though it is “[t]he proponent of the expert testimony

[who] bears the burden of establishing by a preponderance of the

evidence that the admissibility requirements of Rule 702 are

satisfied,” Zsa Zsa Jewels, Inc. v. BMW of N. Am., LLC, 419 F.

Supp. 3d 490, 511 (E.D.N.Y. 2019) (internal quotation marks and

citation omitted), “the district court is the ultimate

‘gatekeeper.’” United States v. Williams, 506 F.3d 151, 160 (2d

Cir. 2007) (citations omitted). See Kumho Tire Co. v. Carmichael,

526 U.S. 137, 152 (1999) (holding that whether the area of

expertise of a proffered expert witness is technical, scientific,

or more generally “experience-based,” the district court, in its

“gatekeeping” function, must “make certain that an expert, whether

basing testimony upon professional studies or personal experience,

employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.”).

At the same time, Court recognizes that the Rule 702 inquiry is

“liberal and flexible,” Zsa Zsa Jewels, 419 F. Supp. 3d at 511,

with a general presumption of admissibility. Id.

If the expert testimony is found to be inadmissible

under Rule 702 and excluded, “the summary judgment determination

is made by the district court on a record that does not contain

that evidence. Such an analysis must be conducted even if

precluding the expert testimony would be outcome determinative.”

Humphrey v. Diamant Boart, Inc., 556 F. Supp. 2d 167, 173‒74

(E.D.N.Y. 2008) (citations omitted).

1. Qualifications

Dr. Ojalvo is a licensed Professional Engineer in New

York, Connecticut, Florida, and California. (ECF No. 88-12,

Exhibit B to Plaintiff’s Rule 26 Expert Disclosure dated February

19, 2022, Curriculum Vitae of Irving U. Ojalvo (“Ojalvo CV”), at

2; Ojalvo Dep. Tr. at 8:2‒5.) He holds a bachelor’s degree in

biomedical engineering from the City College of New York, a Master

of Science degree from the Massachusetts Institute of Technology,

and a Doctor of Science degree from New York University. (Ojalvo

CV at 2.) He was a professor of mechanical engineering at the

University of Bridgeport from 1982 to 1990. (Id.) Dr. Ojalvo is

also active in professional organizations, including the Society

of Automotive Engineers, the Human Factors & Ergonomics Society,

and the Institute of Transportation Engineers. (Id.) Dr. Ojalvo

testified that he has significant experience designing warnings

for industrial machines and consumer products, and in the field of

human factors. (Ojalvo CV; Ojalvo Dep. Tr. at 202:11‒204:8.)

Defendants do not contend that Dr. Ojalvo is unqualified to opine

on the adequacy of the warning signs at issue, and the Court finds

him qualified.

2. Reliability and Relevance

“In assessing the reliability of a proffered expert’s

testimony, the court’s inquiry under Daubert focuses not on the

substance of the expert’s conclusions, but on the principles and

methodology used to generate the conclusions.” Clarke, 219 F.

Supp. 2d at 332. Expert testimony should be excluded when it is

“speculative,” “conjectural” or based on assumptions that are “so

unrealistic and contradictory as to suggest bad faith.” Boucher

v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.1996) (internal

quotation marks and citations omitted). See Barban v. Rheem

Textile Sys., Inc., No. 01-cv-8475(ILG), 2005 WL 387660, at *6

(E.D.N.Y. Feb. 11, 2005) (“It is by now well settled that Daubert

and its progeny requires the Court to close the gate to opinion

evidence . . . that is bottomed upon nothing more than speculation

and guesswork.”). Moreover, courts are not required to admit

expert opinion evidence that is “connected to existing data only

by the ipse dixit of the expert. A court may conclude that there

is simply too great an analytical gap between the data and the

opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997) (citation omitted).

In Daubert v. Merrell Dow Pharms., Inc., the Supreme

Court articulated several factors to guide district courts in

assessing the reliability of expert testimony: (1) whether the

expert’s theory or technique has been or can be tested; (2) whether

it has been subjected to peer review and publication; (3) its known

or potential rate of error; and (4) its general acceptance by the

relevant scientific community. 509 U.S. 579, 593‒94 (1993). The

four factors, however, are not exhaustive and ought to be applied

flexibly, as they “may or may not be pertinent in assessing

reliability, depending on the nature of the case, the expert’s

particular expertise, and the subject of his testimony.” Kumho

Tire, 526 U.S. at 150 (internal quotation marks and citation

omitted). Indeed, “[e]xpert engineering testimony may rest on

scientific foundations, the examination of which invokes the

Daubert factors directly, but may also rest on the personal

knowledge or experience of the engineer.” Cacciola v. Selco

Balers, Inc., 127 F. Supp. 2d 175, 180 (E.D.N.Y. 2001); see Kumho

Tire, 526 U.S. at 156 (“[N]o one denies that an expert might draw

a conclusion from a set of observations based on extensive and

specialized experience.”). Where, as here, an engineering expert

proffers opinions based on his education and experience, not all

four Daubert factors may be applicable to the Court’s reliability

analysis; even so, it may still be appropriate for the trial judge

to ask, for example, “how often an engineering expert’s experience-

based methodology has produced erroneous results, or whether such

a method is generally accepted in the relevant engineering

community.” Cacciola, 127 F. Supp. 2d at 180 (internal quotation

marks and citation omitted).

As to Dr. Ojalvo’s opinions on the adequacy of the

warnings on the Glue Spreader and his proposed alternative

warnings, Defendants contend that they are “no more than off-the-

cuff challenges to the Glue Spreader’s current warnings without

any substantial support.” (ISPA Mem. at 26.) Specifically, they

argue that Dr. Ojalvo’s proposed warnings were not tested nor peer

reviewed, and that Dr. Ojalvo “had not so much as thought about

which signal words would be used in these warnings” and “could not

identify any glue spreader on the market that applied his proposed

English language warnings.” (Id.; IUSA Reply Mem. at 10.) The

Court notes that Defendants fail to cite any case that supports

their proposition that proposed alternative warnings, like

proposed alternative designs, must undergo testing as to

feasibility or that their feasibility must be demonstrated through

examples of similar machines in the marketplace that incorporate

the proposed warnings. But cf. Santoro ex rel. Santoro v.

Donnelly, 340 F. Supp. 2d 464, 482 (S.D.N.Y. 2004) (admitting an

expert’s opinion on the inadequacy of warnings, noting that the

expert based his opinion on “his experience in consumer safety and

on several articles on warnings and labeling.”). Given that Dr.

Ojalvo has significant experience with designing warnings for

industrial machines and in the field of human factors, (Ojalvo CV;

Ojalvo Dep. Tr. at 202:11‒204:8), the Court finds that Dr. Ojalvo’s

testimony as to the design and effectiveness of the warnings is

reliable and will assist the jury in deciding Plaintiff’s failure

to warn claim. Fed. R. Evid. 702.

B. Summary Judgment

“A defendant may be liable under a negligence or strict

products liability theory by failing to adequately warn of a

potentially harmful aspect of the product. There is no difference

between the prima facie elements of a failure to warn claim

sounding in negligence and one sounding in strict products

liability.” Mustafa, 2007 WL 959704, at *17. See Enright v. Eli

Lilly & Co., 570 N.E.2d 198, 203 (N.Y. 1991) (noting that a failure

to warn claim “couched in terms of strict liability, is

indistinguishable from a negligence claim.”) (citation omitted).

Either way, a failure to warn plaintiff must show “(1) that a

manufacturer has a duty to warn; (2) against dangers resulting

from foreseeable uses about which it knew or should have known;

and (3) that failure to do so was the proximate cause of harm.”

Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 84

(S.D.N.Y. Dec. 19, 2001). A manufacturer generally has a duty to

warn against: (1) latent dangers resulting from the foreseeable

uses of its product about which it knew or should have known; and

(2) dangers of reasonably foreseeable unintended uses of a product.

Clarke, 219 F. Supp. 2d at 329. “Under New York law, the jury

does not need expert testimony to find a warning inadequate, but

may use its own judgment considering all the circumstances.”

Billiar v. Minn. Mining & Mfg. Co., 623 F.2d 240, 247 (2d Cir.

1980).

The New York Court of Appeals has described the standard

for evaluating failure to warn claims as “intensely fact-specific,

including but not limited to such issues as feasibility and

difficulty of issuing warnings in the circumstances; obviousness

of the risk from actual use of the product; knowledge of the

particular product user; and proximate cause.” Liriano v. Hobart

Corp. (“Liriano I”), 700 N.E.2d 303, 309 (N.Y. 1998) (internal

citation omitted). Given this fact-intensive inquiry, as the

Second Circuit has emphasized, “[t]he adequacy of the instruction

or warning is generally a question of fact to be determined at

trial and is not ordinarily susceptible to the drastic remedy of

summary judgment.” Urena v. Biro Mfg. Co., 114 F.3d 359, 366 (2d

Cir. 1997) (citations omitted); see Liriano v. Hobart Corp.

(“Liriano II”), 132 F.3d 124, 131 (2d Cir. 1998) (stating that

courts have “squarely h[e]ld that it is up to the jury to decide

whether the manufacturer, in fact, has a duty to warn.”) (citations

omitted); Johnson v. Johnson Chem. Co., Inc., 588 N.Y.S.2d 607,

610 (2d Dep’t 1992) (“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 misuse,

are ordinarily questions for the jury.”) (citations omitted);

Cooley v. Carter–Wallace Inc., 478 N.Y.S.2d 375, 376 (4th Dep’t

1984) (“The adequacy of the warning in a products liability case

based on a failure to warn is, in all but the most unusual

circumstances, a question of fact to be determined at trial.”).

1. Knowledge of the User

Notwithstanding the foregoing considerations, a court

may nevertheless dismiss a failure to warn claim as a matter of

law where the plaintiff cannot prove that the absence of warning

proximately caused his injury. See Liriano I, 700 N.E.2d at 308

(no causation where “the injured party was fully aware of the

hazard through general knowledge, observation or common sense”).

A plaintiff’s knowledge of a given risk does not change a

manufacturer’s duty to warn but “goes to the analytically distinct

issue of whether a putative breach of that duty was a cause of

[the] plaintiff’s injury.” Burke v. Spartanics, Ltd., 252 F.3d

131, 138 (2d Cir. 2001). A defendant can show the lack of proximate

cause by demonstrating the futility of warnings, through evidence

that plaintiff was fully aware of the hazard through general

knowledge, observation, or common sense. See also Gonzalez v.

Morflo Indus., Inc., 931 F. Supp. 159, 168 (E.D.N.Y. 1996)

(“[W]here a warning would not have increased the particular injured

user’s awareness of the danger, failing to warn cannot be said to

have been the proximate cause of the accident.”).

To fall under the knowledge of the user exception,

Plaintiff “must have known about the specific hazard that caused

the injury, and must have appreciated the severity of the danger.

Although in appropriate cases a court may as a matter of law decide

that a manufacturer’s warning would have been superfluous given an

injured party’s actual knowledge of the specific hazard that caused

the injury, where reasonable minds might disagree as to the extent

of [the] plaintiff’s knowledge of the hazard, the question is one

for the jury.” Leibstein v. LaFarge N. Am. Inc., 689 F. Supp. 2d

373, 388‒89 (E.D.N.Y. Feb. 12, 2010) (internal quotation marks and

citations omitted).

Though Defendants argue that Plaintiff was fully aware

of the danger posed by placing his hand near moving rollers, (ISPA

Mem. at 24; ECF No. 85, IUSA’s Memorandum of Law in Support of its

Motion for Summary Judgment (“IUSA Mem.”), at 18 (“plaintiff

acknowledged that he recognized the danger posed by moving rollers

and he knew not to put his hands near them while they were

rotating.”)), the Court finds that reasonable minds could differ

as to the extent of Plaintiff’s knowledge of the danger posed by

the Glue Spreader, which, unbeknownst to Plaintiff, included the

risk of its limit switches either failing or being bypassed and

failing to stop when the guard was lifted during cleaning.

Specifically, the Court notes Plaintiff’s testimony that though he

was aware that he “cannot put [his] hand” near the rollers while

they were moving, (Pl. Dep. Tr. at 61:7‒14), he believed that “if

the rollers were moving” and he lifted up the blue mesh guard,

“the machine would stop.” (Id. at 61:15‒62:5.) Accordingly, the

Court concludes that there are genuine issues of material fact

concerning the extent of Plaintiff’s knowledge of the danger

presented by the Glue Spreader, and declines to grant summary

judgment on failure to warn based on Plaintiff’s knowledge of the

risk.

2. Open and Obvious Risk

A court may also dismiss a failure to warn claim as a

matter of law where the manufacturer had no duty to warn because

the hazard was patently dangerous or posed an open and obvious

risk. See Liriano I, 700 N.E.2d at 308 (“Where a danger is readily

apparent as a matter of common sense, there should be no liability

for failing to warn someone of a risk or hazard which he [or she]

appreciated to the same extent as a warning would have provided.

Put differently, when a warning would have added nothing to the

user’s appreciation of the danger, no duty to warn exists as no

benefit would be gained by requiring a warning.”) (internal

quotation marks and citation omitted) (alteration in original).

In contrast, “the open and obvious defense generally should not

apply when there are aspects of the hazard which are concealed or

not reasonably apparent to the user.” Id.

The open and obvious inquiry goes to the manufacturer’s

duty and depends on, not what any particular plaintiff understands

about the risk, but whether reasonably foreseeable users of the

product would perceive it to be open and obvious. Burke, 252 F.3d

at 137‒38. And “[t]he class of reasonably foreseeable users will,

of course, encompass a spectrum of persons with widely varying

abilities and experience bearing on their perception of the hazards

at hand.” Id. at 138. Plaintiff’s own knowledge, though a

relevant reference point, does not determine the outcome of the

open and obvious inquiry, which is an objective one, and whether

a reasonably foreseeable user of the Glue Spreader would consider

the potential risk of its use to be open and obvious is a fact-

intensive inquiry that is more appropriate for the jury. The Court

also notes that the nonobvious nature of the potential danger

presented by the failure or bypassing of the interlocks is

demonstrated by the fact that Plaintiff’s expert, who has three

degrees in mechanical engineering, did not notice the interlocks

at the time of his inspection in October 2017. Accordingly, the

Court concludes that there are genuine issues of material fact on

whether the hazard presented by the Glue Spreader is open and

obvious.

Finally, the Court respectfully declines to grant

summary judgment on failure to warn in favor of Defendants based

on their argument that the allegedly inadequate warnings were not

the proximate cause of Plaintiff’s injury because Plaintiff, who

reads and understands little English, did not read the warning

signs or the user manuals. Courts have found that “a plaintiff .

. . may be able to prevail under New York law with respect to his

failure to warn claim, even though it is undisputed that he failed

to read the warnings, if he can demonstrate that adequate warnings

would have come to the attention of a third party, such as fellow

workers or an employer, and they would have informed him of those

warnings.” Humphrey, 556 F. Supp. 2d at 181; see, e.g., Sorto-

Romero v. Delta Intern. Mach. Corp., No. 05–cv–5172(SJF), 2007 WL

2816191, at *12 (E.D.N.Y. Sept. 24, 2007) (“[I]n light of

Plaintiff’s inability to read the warnings, Plaintiff may be able

to prove causation whereby a third party may have conveyed the

warning to him.”) (citing New York cases); Mustafa, 2007 WL 959704,

at *19 (“[Plaintiff] could prove the requisite ca[usa]l link in

light of his inability to read the warning . . . under a theory of

causation whereby [a] third party may have conveyed the warning to

him.”); Derienzo v. Trek Bicycle Corp., 376 F. Supp. 2d 537, 570

(S.D.N.Y. 2005) (“the ‘realities of society’—i.e., the realties 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.”) (citation omitted);

Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 445 n.24 (S.D.N.Y.

1999) (a witness who felt concerned about plaintiff’s use of a

trampoline but did not say anything might have voiced her concern

had adequate warnings accompanied the product).

In the instant case, it is undisputed that at least Alex

and German Monterosa speak Spanish, and Michael Lurz testified

that IAWW had “several people that speak English and Spanish” to

“interpret, if need be.” (Lurz Dep. Tr. at 52:20‒22.) Because it

is possible that if the jury finds that adequate warnings regarding

the machine could have come to the attention of Alex, Monterosa,

or other IAWW employees and, in turn, the warnings could have been

conveyed to Plaintiff, a jury could also find the requisite causal

link necessary for Plaintiff to sustain failure to warn.11

Similarly, the Court finds that notwithstanding IAWW’s purported

failure to adequately train Plaintiff, the jury could find that

adequate signs nonetheless could have prevented Plaintiff’s

injury.

For the reasons stated above, Defendants’ motions for

summary judgment on Plaintiff’s failure to warn claim are denied.

11 Though Defendants presented evidence that Alex, Monterosa, and Lurz did not

read the user manuals, (ECF No. 89-8, Exhibit 8 to Massaro Decl. (“Alex Dep.

Tr.”), at 21:9‒14; ECF No. 89-6, Exhibit 6 to Massaro Decl. (“Monterosa Dep.

Tr.”), at 67:20‒23; Lurz Dep. Tr. at 12:4‒6), this does not preclude a finding

of fact that adequate warnings posted on the face of the Glue Spreader may have

prevented Plaintiff’s injury.

III. Manufacturing Defect

Plaintiff advised the Court in his letter response to

IUSA’s letter motion for a pre-motion conference, dated April 5,

2021, that he withdraws “any claims of allegations of manufacturing

defects.” (ECF No. 77.) Though Plaintiff did not state the same

in his response to ISPA’s letter motion for a pre-motion

conference, (ECF No. 76), the Court concludes that summary judgment

for Defendants on the manufacturing defect claim is appropriate,

based on Plaintiff’s failure to present any evidence supporting

this claim, or opposing ISPA’s motion for summary judgment on the

manufacturing defect claim. Thus, because Plaintiff has either

abandoned or failed to support his manufacturing defects claim,

summary judgment dismissing this claim is granted based on

Defendants’ evidence in the record. See Cuntan v. Hitachi KOKI

USA, Ltd., No. 06–cv–3898(RRM), 2009 WL 3334364, at *18 (E.D.N.Y.

Oct. 15, 2009) (“In his response to the defendants’ motion for

summary judgment, plaintiff makes no claim that he is pursuing

damages on the theory of a manufacturing defect and provides no

evidence in support of such a claim. As a result, plaintiff either

has abandoned his manufacturing defect claim altogether or has

failed to meet his burden of proving that any such defect was a

‘substantial factor’ in causing his injuries.”).

IV. Breach of Warranty

Defendants move for summary judgment on Plaintiff’s

breach of express and implied warranty claims on statute-of-

limitations grounds. The Court finds that Defendants are entitled

to summary judgment on the breach of warranty claims. The statute

of limitations on a breach of warranty claim is four years, see

N.Y. U.C.C. § 2-725, and the claim accrues upon delivery of the

warrantied product. See Solorio v. Asplundh Tree Expert Co., No.

02-cv-8035(RJS), 2009 WL 755362, at *5 n.10 (S.D.N.Y. Mar. 23,

2009) (“Claims for breach of implied and express warranties in New

York are governed by a four-year statute of limitations, measured

from the tender of delivery of the goods. The statute of

limitations for a breach of warranty claim, whether implied or

express, begins to run at the time the product is placed in the

stream of commerce or at the time of the original sale of the good

by the manufacturer, regardless of when the injury was sustained.”)

(citing N.Y. U.C.C. § 2-725(1); Heller v. U.S. Suzuki Motor Corp.,

477 N.E.2d 434 (N.Y. 1985); last citation omitted). Thus, the

Plaintiff’s breach of warranty claims accrued in May 2011 when

IUSA delivered the Pressing Line to IAWW, and the claims became

stale in May 2015. Plaintiff did not bring this action until

November 3, 2017. Hence, his breach of warranty claims are time

barred and summary judgment is granted on these claims.

The Court respectfully rejects Plaintiff’s argument that

certain language in the Heller decision stands for the proposition

that “an injured consumer can file a breach of warranty claim

within three years of the date of accident.” (Pl. ISPA Opp. at

28.) The Heller decision did not consider whether an injured

plaintiff’s breach of warranty claim accrues on the date of the

injury. Rather, the issue before the court in Heller was whether

plaintiff’s breach of implied warranty claim accrued on the date

of sale to plaintiff by the retailer, or on the earlier date of

the transfer of the motorcycle by the distributor to the immediate

purchaser, who then apparently transferred it to the retailer that

later sold it to Plaintiff. 477 N.E.2d at 435. The court held

that a breach of implied warranty claim in a personal injury action

against a manufacturer or distributor “accrues on the date the

party charged [U.S. Suzuki Motor Corp.] tenders delivery of the

product, not on the date that some third party sells it to

plaintiff.” Id. at 436. The court reasoned that “[a] major

purpose of the uniform acts, and for the Statutes of Limitation

they contain, is to eliminate jurisdictional variations so that

concerns doing business nationwide will not be governed by

different periods of limitation. . . . [which] is frustrated . .

. and the period of exposure to lability becomes unpredictable if

the cause of action accrues at the date of sale to the plaintiff

. . . .” Id. at 437. Thus the court in Heller did not confront

the issue of whether breach of warranty claims accrue at the time

of the plaintiff’s injury.

Plaintiff relies on the following language in Heller to

support his position that his breach of implied warranty claim is

timely because the instant action was brought within three years

of Plaintiff’s accident: “A consumer who acts within three years

of the date of the accident or four years from the date of sale,

as the pertinent statutes provide, may now maintain causes of

action in New York to recover against both immediate and remote

parties based on express or implied warranty, negligence or strict

products liability.” Id. The quoted language was in response to

the dissenting opinion that imposing a four-year statute of

limitations from the date of delivery by the charged party would

result in a plaintiff being “time-barred from prosecuting a cause

of action before he ever had one.” Id. at 439 n.4. The Heller

court stated that its decision “does not limit available remedies

generally,” so that plaintiffs in personal injury actions,

notwithstanding the four-year statute of limitations for breach of

implied warranty which accrues upon delivery by the charged party,

may nonetheless bring a strict products liability claim within

three years of the date of the injury. Id. 436‒37 (emphasis

added). See also id. at 435‒36 (stating that personal injury

actions based on implied warranty, sounding in contract, were

developed “to impose strict liability on manufacturers and sellers

for defects in their products” and that some States, including New

York, eliminated the traditional privity requirement for such

actions to allow purchasers to recover from remote parties;

however, “there [was] no need to recognize an action on implied

warranty for personal injuries . . . if the jurisdiction

recognize[d] a tort action in strict products liability as New

York [did]” and “[t]he tort remedy permits the injured plaintiff

to seek redress from remote parties in the distributive chain

regardless of privity.”). As such, the Court grants Defendants’

motions for summary judgment and dismisses Plaintiff’s breach of

express and implied warranty claims as time barred.

V. IUSA’s Cross Claim for Indemnification Against ISPA

Finally, the Court denies summary judgment as to IUSA’s

cross claim for indemnification against ISPA. In a strict

liability action, “a seller or distributor of a defective product

has an implied right of indemnification as against the manufacturer

of the product.” Noveck v. PV Holdings Corp., 742 F. Supp. 2d

284, 297 (E.D.N.Y. 2010) (citation omitted). The Court, however,

declines to prematurely decide the issue of indemnification unless

and until it is established that ISPA is liable. As New York

courts have noted, “[when] it has not yet been determined whether

any party’s negligence contributed to [an] accident, a finding of

common-law indemnity is premature” Barraco v. First Lenox Terrace

Assoc., 810 N.Y.S.2d 8, 11 (1st Dep’t 2006). See also Brockman v.

Cipriani Wall Street, 947 N.Y.S.2d 34, 36 (1st Dep’t 2012).

Additionally, it is undisputed that Ortmayer, IUSA’s

representative, trained at least two IAWW employees in May 2011,

when IAWW purchased the Pressing Line, and Ortmayer testified

during his deposition that his training covered both safety and

maintenance issues with respect to the machine. (Ortmayer Dep.

Tr. at 11:16:15.) The Court finds that there are triable issues

of fact as to whether ISPA is liable based on the design and the

warning signs of the Glue Spreader, and whether IUSA was negligent

in its training of the IAWW employees. Thus, IUSA’s cross claim

against ISPA at this juncture is premature, and IUSA’s motion for

summary judgment is denied without prejudice.

CONCLUSION

Based on the foregoing analysis, Defendants’ motions to

exclude Dr. Ojalvo’s testimony is denied as to his opinion on the

design of the Glue Spreader, and as to his opinion on the adequacy

of the warnings on the Glue Spreader. Defendants’ motions for

summary judgment are granted as to Plaintiff’s manufacturing

defect and breach of express and implied warranty claims, which

are dismissed. Defendants’ motions for summary judgment are denied

as to Plaintiff’s design defect and failure to warn claims. IUSA’s

motion for summary judgment on its cross claim for indemnification

is denied without prejudice.

The parties are directed to appear for a telephone

conference with the undersigned on April 1, 2022 at 10:00 a.m. to

advise the Court how they plan to proceed with this case, and to

contact Magistrate Judge Scanlon by close of business on March 14,

2022 to arrange for a settlement conference and the completion of

a Final Joint Pre-Trial Order. Judge Scanlon’s schedule

permitting, the parties should schedule a settlement conference

before the April 1st conference with the undersigned.

SO ORDERED.

/s/

Hon. Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

Dated: Brooklyn, New York

March 13, 2022