Bunt v. Altec Industries, Inc.

• Citation: 962 F.Supp. 313
• Decision Date: 18 April 1997
• Docket Number: No. 95-CV-73.,95-CV-73.
• Parties: Bernard C. BUNT, Jr. and Laura L. Bunt, Plaintiffs, v. ALTEC INDUSTRIES, INC., Defendant. ALTEC INDUSTRIES, INC., Defendant/Third-Party Plaintiff, v. OTSEGO RURAL ELECTRIC CO-OPERATIVE, INC., Third-Party Defendant.
• Court: U.S. District Court — Northern District of New York

962 F.Supp. 313

Bernard C. BUNT, Jr. and Laura L. Bunt, Plaintiffs, v. ALTEC INDUSTRIES, INC., Defendant.

ALTEC INDUSTRIES, INC., Defendant/Third-Party Plaintiff, v. OTSEGO RURAL ELECTRIC CO-OPERATIVE, INC., Third-Party Defendant.

No. 95-CV-73.

United States District Court, N.D. New York.

April 18, 1997.

COPYRIGHT MATERIAL OMITTED

Gozigian, Washburn & Clinton, Cooperstown, NY (Edward Gozigian, of counsel), for Plaintiffs.

Felt, Evans, Panzone, Bobrow & Hallack, LLP, Clinton, NY (E. Porter Felt, of counsel), for Defendant and Third-party Plaintiff.

Carl J. Cochi, Utica, NY, for Third-party Defendant.

MEMORANDUM DECISION AND ORDER

HURD, United States Magistrate Judge.

I. INTRODUCTION

On June 7, 1994, in the town of Middlefield, Otsego County, New York, the plaintiff, Bernard C. Bunt, Jr. ("Bunt" or "plaintiff"), in his capacity as a lineman for the third-party defendant, Otsego Electric Cooperative, Inc. ("Otsego"), was aloft in a bucket of a digger derrick¹ manufactured by the defendant, Altec Industries, Inc. ("Altec"). The plaintiff elevated the bucket through the use of controls attached to the boom of the digger derrick. In elevating the bucket to a point located on a power line pole, the controls became tangled in the power wires causing the bucket to break free from the boom of the digger derrick, falling approximately thirty to thirty-five feet to the ground. As a result, the plaintiff sustained severe and permanent injuries to his right foot.

In July 1995, the plaintiff commenced an action against Altec citing jurisdiction under 28 U.S.C. § 1332. The complaint maintained claims for negligence, breach of warranty, and strict products liability. Also included in the complaint was a claim for loss of consortium on behalf of the plaintiff Laura L. Bunt ("Mrs. Bunt"). Altec denied the material allegations in the complaint, raised certain affirmative defenses, including comparative negligence, and commenced a third-party action against Otsego for indemnity and/or contribution. Otsego denied the material allegations in the third-party complaint.

The case was tried in Utica, New York, between December 9, 1996, and December 13, 1996. The basic theory against Altec was that it was responsible for the accident because it designed, manufactured, and sold the digger derrick without a guard or shield over the bucket controls. At the conclusion of the trial, the jury returned a verdict in favor of the plaintiffs on all three claims. The jury also found the plaintiff comparatively negligent, assessing his fault at twenty percent (20%), and no negligence on the part of Otsego.

The jury awarded total damages of One Million Six Hundred Ninety-five Thousand Four Hundred Seventy-four Dollars ($1,695,474.00) to the Plaintiffs. The award was broken down into Eight Hundred Fifty Thousand Dollars ($850,000.00) past and future pain and suffering; Six Hundred Seventeen Thousand, One Hundred Ninety-seven Dollars ($617,197.00) past and future loss of earnings; Twenty-eight Thousand, Two Hundred Seventy-seven Dollars ($28,277.00) medical expenses to Bunt; and Two Hundred Thousand Dollars ($200,000.00) past and future loss of services to Mrs. Bunt. The award was reduced by twenty percent (20%), representing plaintiff's comparative fault. Following this computation, judgment against Altec was entered in favor of the plaintiff in the sum of One Million One Hundred Ninety-six Thousand Three Hundred Seventy-nine and 20/100 Dollars ($1,196,379.20); in favor of Mrs. Bunt in the sum of One Hundred Sixty Thousand Dollars ($160,000.00); and dismissing the third-party complaint.

II. MOTIONS

Altec has moved for an order pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, setting aside the verdict in favor of the plaintiffs and the judgment entered thereon, and directing that judgment be entered in favor of Altec on the ground that the jury's verdict was against the weight of the evidence. In the alternative, Altec has moved for an order pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, setting aside the verdict and the judgment entered thereon, and granting Altec a new trial on the grounds that the jury's verdict was against the weight of the evidence in both the main and third-party actions. Additionally, Altec maintains that it is entitled to a new trial because the damages awarded to the plaintiffs were excessive.

III. DISCUSSION

A. Rule 50(b) — Judgment as a Matter of Law.

1. Standard

This court can only grant judgment as a matter of law on a claim if that claim "cannot under controlling law be maintained." Fed.R.Civ.P. 50(a)(1). Judgment as a matter of law is to be granted "only when, viewing the evidence most favorably to the [nonmoving party], there can be but one conclusion as to the verdict that reasonable men could have reached." Weldy v, Piedmont Airlines, Inc., 985 F.2d 57, 59-60 (2d Cir.1993) (citations and quotations omitted); Slade v. Whitco Corp., 811 F.Supp. 71, 73 (N.D.N.Y.), aff'd, 999 F.2d 537 (2d Cir.1993). "The nonmovant must be given the benefit of all reasonable inferences." Weldy, 985 F.2d at 60. The defendant fulfilled the procedural necessity of moving for judgment as a matter of law before the case was submitted to the jury.² See Fed.R.Civ.P. 50(a)(2), (b); Slade, 811 F.Supp. at 73.

2. Expert Testimony

Altec requests that their motion pursuant to Rule 50(b) be granted because the plaintiffs have failed to prove that the digger derrick was defectively designed. Specifically, Altec argues that the plaintiffs failed to demonstrate via sufficient scientific evidence, by way of a qualified technical expert, that the lack of a guard on the upper controls of the digger derrick was a design defect.

Under the Federal Rules of Evidence, "a witness qualified as an expert by knowledge, skill, experience, training, or education" may give opinion testimony relating to "scientific, technical, or other specialized knowledge" if it will assist the jury in their understanding of the evidence or a determination of a fact in issue. Fed.R.Evid. 702. "Liberality and flexibility in evaluating qualifications should be the rule ... the expert should not be required to satisfy an overly narrow test of his own qualifications." Lappe v. American Honda Motor Co., 857 F.Supp. 222, 226 (N.D.N.Y.1994), aff'd, 101 F.3d 682 (2d Cir.1996). However, the expert is also reasonably confined to his subject of expertise and further prohibited from offering an expert opinion on an entirely different field or discipline. Id. at 227 (citing Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir.1991)).

Following the affirmation of a proposed expert as qualified, the Court must act as the "gatekeeper," ensuring that any scientific testimony admitted is relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 597, 113 S.Ct. 2786, 2794-95, 2798-99, 125 L.Ed.2d 469 (1993).³ However, the role as the gatekeeper is tempered by the liberal thrust of the Federal Rules of Evidence and the "presumption of admissibility." Borawick v. Shay, 68 F.3d 597, 610 (2d Cir.1995), cert denied, ___ U.S. ___, 116 S.Ct. 1869, 134 L.Ed.2d 966 (1996).

The admissibility of expert testimony involves a determination as to "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact." Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. The determination entails the "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, 113 S.Ct. at 2796. Therefore, such factors as peer review and publication, ability to be tested, rate of error, and the general acceptance in the scientific community should be considered. Id. at 593-94, 113 S.Ct. at 2796-97; McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir.1995). However, these factors alone are not dispositive, ultimately the inquiry is "flexible," focusing on the "principles and methodology" rather than the conclusions generated. Daubert, 509 U.S. at 594-95, 113 S.Ct. at 2797-98. Additionally, the trial court has broad discretion in admitting expert testimony. McCullock, 61 F.3d at 1042.

Altec contends that the plaintiff's scientific expert, Stephen Derby, Ph.D. ("Derby"), should not have been allowed to offer expert testimony. It claims that Derby's testimony should have been stricken from the record because he failed to qualify as an expert witness under the test set out in Daubert. Altec further contends that Derby had "never seen, studied, worked with, [or] designed" a digger derrick, aside from a casual observation on November 18, 1996. (Porter Felt Aff. ¶ 15). As evidence that Derby was unqualified to give expert testimony, Altec notes Derby's failure to cite the most recent ANSI⁴ standards in his report, and his apparent neglect to resolve the conflicting ANSI standards between aerial devices⁵ and digger derricks. In addition, the defendant claims that while Derby concluded that the upper controls of the digger derrick needed to be covered with a guard, on cross examination he stated that he did not develop a prototype guard, prepare any drawings, or propose any ideas as to how a guard could be installed.

Derby, who lectures on design safety at the Rensselaer Polytechnic Institute, has a Ph.D. and a Masters degree in mechanical engineering. In addition to lecturing on design safety, Derby also provides consulting services in the area of mechanical engineering. At trial, Derby's testimony focused primarily on the issue of a design defect regarding the upper controls of the digger derrick. Particularly, Derby offered an opinion which concluded that it was a design defect not to have a guard surrounding the upper controls of the digger derrick. Derby's testimony did not concern the viability, practicality, adequacy, or sufficiency of a proposed guard,⁶ but only the...