Derienzo v. Trek Bicycle Corp.

• Decision Date: 14 July 2005
• Docket Number: No. 02CIV6763CMGAY.,02CIV6763CMGAY.
• Citation: 376 F.Supp.2d 537
• Parties: David DERIENZO, Plaintiff, v. TREK BICYCLE CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

376 F.Supp.2d 537

David DERIENZO, Plaintiff, v. TREK BICYCLE CORPORATION, Defendant.

No. 02CIV6763CMGAY.

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

July 14, 2005.

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James Alexander Burke, Larkin, Axelrod, Trachte & Tetenbaum, L.L.P., Newburgh, NY, for Plaintiff.

Christopher G. Campbell, Loren H. Brown, Piper, Rudnick LLP, New York City, for Defendant.

MEMORANDUM DECISION DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND RULING ON THE ADMISSIBILITY OF PLAINTIFF'S EXPERTS' OPINIONS

MCMAHON, District Judge.

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 corporation² 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 Plaintiff has withdrawn a design defect claim.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 Trek Bicycle Corporation for Summary Judgment, dated Feb. 2, 2004, at 1, n. 1.)

Defendant requests a hearing under Federal Rules of Evidence 702 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

I. Facts

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 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 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, www.roadgap.com, which describes the Group's sports adventures.

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 claims it is not, (Pl. 56.1 at par. 5). Trek engineer Clint Kolda testified at his deposition 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.)

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.

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 him⁷) the original front fork with a used "Rock Shox Triple Clamp" fork.⁸ The parties agree that the Rock Shox fork 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

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.)

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 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 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

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 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 with the Bike when Ball purchased it, and Plaintiff did not produce any Owner's Manual that was...