Vicuna v. O.P. Schuman & Sons, Inc., 13–cv–2834–ERK

Decision Date31 October 2017
Docket Number13–cv–2834–ERK
Citation298 F.Supp.3d 419
Parties Federica VICUNA and Martin Varelas, Plaintiffs, v. O.P. SCHUMAN & SONS, INC., S.K.S. Equipment Co., and AmeriPak Inc., Defendants.
CourtU.S. District Court — Eastern District of New York

Gregory J. Cannata, Alison Cannata Hendele, Gregory J. Cannata & Associates LLP, New York, NY, for Plaintiffs.

Lisa M. Fitzgerald, Scott Warren Bermack, Ropers Majeski Kohn & Bentley, New York, NY, for Defendants.

MEMORANDUM & ORDER

KORMAN, District Judge

Plaintiffs Federica Vicuna and her husband Martin Varelas bring this action against S.K.S. Equipment Co. ("S.K.S."), AmeriPak, Inc. ("AmeriPak"), and O.P. Schuman & Sons, Inc. ("Schuman"). Plaintiffs allege numerous claims sounding in products liability based on a workplace injury that plaintiff Vicuna sustained while using a machine that S.K.S. manufactured under its AmeriPak brand name. S.K.S. is now a defunct company. Schuman has purchased much of the assets once under the control of S.K.S., including the AmeriPak brand name.

There are currently four motions pending. First, the plaintiffs move for reconsideration of my order dated May 19, 2015. That order granted Schuman's motion for summary judgment on the plaintiffs' so-called independent failure to warn claim. Second, Schuman moves to preclude the plaintiffs' proffered expert witness. Third, Schuman moves for summary judgment seeking dismissal of nearly all remaining claims outstanding against it. Fourth is the plaintiffs' motion for leave to amend their complaint.

BACKGROUND
I. Factual Background

On February 22, 2012, plaintiff Vicuna was injured while using a Model 60 packaging machine manufactured by S.K.S. See First Federica Vicuna Depo., Sept. 5, 2014, 10:1–17:17, ECF No. 47–2. This occurred during the course of her work for Muffins ‘n’ More, Inc. in Brooklyn, New York ("Muffins ‘n’ More" or "plaintiff's employer"). Id. The Model 60 is known in the packaging industry as a "horizontal wrapper." See Eng'g Report, Eric Heiberg, July 29, 2016, ECF No. 94–14, at 2–4. Model 60s use a conveyor belt to move baked goods towards a point of operation where plastic film is wrapped around them. Id. Once the plastic film covers the baked goods, the machine then cuts and seals the plastic film with a descending heating element that forms a pinch point. Id.

While operating a Model 60 in "manual mode," the plaintiff crushed and burned three of her fingers, requiring amputation. See AmeriPak Model 60 Operator's Manual, ECF No. 89–9, at 1–9; First Sterner Depo., Sept. 19, 2014, 115:5–7, ECF No. 47–5; First Vicuna Depo. 10:23–11:9; 37:4–18. Unlike when in "automatic mode," the Model 60 can run in manual mode without a polycarbonate guard in place to protect operators from contacting the pinch point. See Operator's Manual, at 1–9; First Sterner Depo. 47:18–49:16. Without the polycarbonate guard in place, the pinch point is exposed and an operator is free to place his or her hand into that area. Indeed, Vicuna's employer directed her to sometimes operate the Model 60 in manual mode so that she could place her hand very close to the pinch point area. This allowed her to adjust certain "small" baked goods so that they would not "bounce around" and become damaged at the pinch point. See First Vicuna Depo. 54:10–25. The plaintiff was performing this precise task when her accident occurred.

The operator's manual for the Model 60 expressly contemplates that operators will use the machine in manual mode for "setup" as well as for "jogging" of the machine. See Operator's Manual, at 1–9. The operator's manual also states that "GUARDS MUST BE IN PLACE BEFORE OPERATING." Id. at 1–7. Plaintiff Vicuna was apparently never given a copy of the operator's manual, nor any other written instructions for the machine. First Vicuna Depo. 29:22–30:15; 32:7–18. The plaintiff testified that she did not realize that placing her fingers near the machine's moving parts was dangerous. Id. at 49:18–50:19; 53:8–14. She testified that she would not have operated the machine in such a manner had she known of the danger. Id. She did not remember seeing any warning decals on the machine the day of the accident. Id. at 49:12–17.

A decal of some sort was in fact present on the Model 60 based on my review of a photograph taken in December 2012, roughly 9 months after the plaintiff's accident. In the photograph, the decal is difficult, if not impossible, to decipher. See Photograph AmeriPak Model 60, Dec. 4, 2012, ECF No. 98–1. Schuman asserts that the decal warned against placing an operator's hand near the pinch point. See Def.'s Reply Mem. Supp. Mot. Summ. J., Feb. 17, 2017, ECF No. 99, at 8–9. Importantly, whatever the decal portrayed, it appears that the decal was positioned such that an operator could see it only when the protective guard was horizontal and already secured in place, and not when the guard was vertical and unsecured—i.e., when a warning would be useful. See Photograph AmeriPak Model 60.

The Model 60 horizontal wrapper was the first in a line of wrapping machines that S.K.S. manufactured and marketed under the AmeriPak brand name. See First Sterner Depo. 34:15–24. S.K.S. discontinued the Model 60 around 1999. S.K.S. then sold the last machine of that model in 2004, though production continued on other models within the AmeriPak line. See William Schuman Aff., Sept. 12, 2013, ECF No. 47–7, at ¶ 10. Although S.K.S. thrived for a period, by 2004 its sales had decreased and it was forced to either sell the business or allow a bank takeover. See First Sterner Depo. 37:14–21; 38:13–21.

Around December 2004, defendant Schuman purchased certain S.K.S. assets for approximately $300,000. See Asset Purchase Agreement, ECF No. 47–1, at ¶¶ 1, 2. The primary purpose of the asset sale was for Schuman to obtain the AmeriPak product line and continue the line under its own control. See William Schuman Depo., Sept. 18, 2014, ECF No. 74–3, 22:4–15; 51:20–24. Indeed, Schuman obtained blueprints and patents for the AmeriPak line of machines. See First Sterner Depo. 75:11–76:19. Schuman also obtained the goodwill that came with the AmeriPak line along with a list of customers and purchase records. See Schuman Depo. 40:2–19; 60:2–8; 60:23–61:19. After Schuman purchased the assets of S.K.S., all eight S.K.S. employees joined Schuman. See First Sterner Depo. 36:3–14; Schuman Depo. 63:19–22; Jim O'Shea Depo., Sept. 19, 2014, ECF No. 49–4, 17:1–7; 55:23–57:20.

Numerous documents were brought from the S.K.S. facility to the Schuman facility following the asset purchase. Specifically, an engineering folder was brought to the Schuman facility. This folder contained a one-page "alternative electronic schematic" for the S.K.S. manufactured Model 60. See O'Shea Depo. 23:11–22; 27:2–5; 27:21–28:9; 53:6–15; 60:18–21; 61:2–12; Resp. to Pls.' Supp. Not. to Produce, June 27, 2016, ECF No. 98–4, at 5; Second Sterner Depo., July 5, 2016, ECF No. 89–5; 257:4–8. The alternative schematic provided a workaround design that, through rewiring, altered the Model 60. This alteration made it so that the Model 60 could not operate in any mode—neither automatic nor manual—without the polycarbonate guard in place to protect operators. See Second Sterner Depo. 255:10–256:5.

Whether Schuman technically purchased this engineering folder and the alternative schematic is unresolved on the record. Schuman asserts repeatedly that the folder and schematic are "S.K.S. documents" and "not Schuman documents." See, e.g. , William Schuman Aff., Jan. 18, 2017, ECF No. 90–1, at ¶ 15. Schuman further claims that it was not aware of these documents until as late as July 2016, roughly three years after this litigation began. See, e.g. , Def.'s Mem. Opp'n Pls.' Mot. for Reconsideration, Jan. 20, 2017, ECF No. 90, at 6. Nevertheless, the documents have been stored at Schuman's facility since around the time of the S.K.S. asset sale in 2004. Moreover, at least two of Schuman's long-time employees testified that, at all pertinent times, they were readily familiar with these documents. See O'Shea Depo. 23:11–22; 27:2–5; 27:21–28:9; 53:6–15; 60:18–21; 61:2–12; First Sterner Depo. 16:1–8; 36:12–17; 44:10–13; Def.'s Mem. Opp'n Pls.' Mot. for Reconsideration, at 6.

Since its asset purchase in 2004, Schuman has continued designing and manufacturing the line of AmeriPak horizontal wrappers originally created by S.K.S. Today, however, Schuman incorporates rewiring similar (if not identical) in nature to that set out in the S.K.S. alternative electronic schematic mentioned above. See Eng'g Report, at 11. Thus, new wrappers manufactured by Schuman cannot operate in either automatic or manual mode unless the protective guard is secured in place. See Second Sterner Depo. 257:19–258:11.

Around January 2012, roughly seven years after the asset purchase and approximately seven weeks before plaintiff Vicuna's injury, her employer, Muffins ‘n’ More, contacted Schuman to request spare parts and an operator's manual for its Model 60 horizontal wrapper. See Schuman Depo. 105:14–106:17; 110:10–24; Manual Invoice, Jan. 5, 2012, ECF No. 49–12; Parts Invoice, Jan. 12, 2012, ECF No. 49–13. Soon after the request from Muffins ‘n’ More, Schuman mailed the desired spare parts and operator's manual. Muffins ‘n’ More had not purchased any parts from Schuman prior to this time. Nor is there any evidence of contact after this point. See Schuman Depo. 112:6–113:14.

The operator's manual included a personalized cover page designating AmeriPak as "a division of O.P. Schuman and Sons, Inc.," although the substance of the manual was written by S.K.S. See Operator's Manual, at 1; First Sterner Depo. 44:19–45:17. The second page of the manual was also personalized. It stated in effect that "this manual has been prepared for Muffins ‘n’ More" and then listed the contact information for the Schuman sales department. Operator's Manual, at 2. The operator's manual did not include any alternative schematics, not even the one-page...

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