Opinion
No. 2014–0960.
05-23-2017
Richard C. SNYDER, As Administrator of the Estate of Francisco Ortiz Garcia, Deceased, Plaintiff, v. DEERE & COMPANY, Cazenovia Equipment Co., Inc. and H. Becker, Inc., Defendants. Deere & Company, Third–Party Plaintiff, v. James L. Baker, Jr., Individually and d/b/a Forestview Farms, and Sweyolakan Farms, LLC, Third–Party Defendants.
Lipsitz Green Scime Cambria, LLP, By: Richard P. Weisbeck, Jr., Esq., Buffalo, Attorneys for Plaintiff 42 Delaware Avenue, Suite 120. Hodgson Russ LLP, By: Karalyn M. Rossi, Esq., Buffalo, Attorneys for Deere & Company. Hurwitz & Fine, P.C., By: David R. Adams, Esq., Buffalo, Attorneys for James L. Baker, Jr., Individually and d/b/a Forestview Farms. Barclay Damon, LLP, By: Alan R. Peterman, Esq., Syracuse, Attorneys for Sweyolakan Farms, LLC. Barth Sullivan Behr, By: David Walsh, Esq., Syracuse, Attorneys for Cazenovia Equipment Co., Inc. Lippman O'Connor, By: Matthew J. Duggan, Esq., Buffalo, Attorneys for H. Becker, Inc.
Lipsitz Green Scime Cambria, LLP, By: Richard P. Weisbeck, Jr., Esq., Buffalo, Attorneys for Plaintiff 42 Delaware Avenue, Suite 120.
Hodgson Russ LLP, By: Karalyn M. Rossi, Esq., Buffalo, Attorneys for Deere & Company.
Hurwitz & Fine, P.C., By: David R. Adams, Esq., Buffalo, Attorneys for James L. Baker, Jr., Individually and d/b/a Forestview Farms.
Barclay Damon, LLP, By: Alan R. Peterman, Esq., Syracuse, Attorneys for Sweyolakan Farms, LLC.
Barth Sullivan Behr, By: David Walsh, Esq., Syracuse, Attorneys for Cazenovia Equipment Co., Inc.
Lippman O'Connor, By: Matthew J. Duggan, Esq., Buffalo, Attorneys for H. Becker, Inc.
PHILLIP R. RUMSEY, J.
This action arises from the death of plaintiff's decedent, Francisco Ortiz Garcia, in an accident that occurred in the course of his employment on a farm on February 5, 2013, when he died after becoming entangled in a Woodchuck bedding spreader that was attached to a Model 240 skid steer loader manufactured by Deere & Company (Deere). The bedding spreader, which was not manufactured by Deere, was powered by the skid steer's auxiliary hydraulic power system. The skid steer was equipped with a seat safety switch, installed by the manufacturer, that permits full operation of the machine only when the operator is seated. When the operator leaves the seat of a Model 240 skid steer, the seat safety switch locks the boom and bucket functions and sets the parking brake; however, the engine and auxiliary hydraulic power system remain operational. On Model 300 skid steer loaders subsequently produced by Deere, the seat safety switch also deactivates the auxiliary hydraulic control system, unless the operator affirmatively overrides that function (see Affidavit of Richard P. Weisbeck, Jr., Esq., sworn to March 29, 2017 [Weisbeck Affidavit], Exhibit H [Transcript of Examination Before Trial of David Klas; herein Klas EBT Transcript], pp. 110–111).
Deere produced for examination before trial its employee, David Klas, an engineer who was serving as Manager of Product Safety when he was deposed on February 2, 2017. Deere has not designated Klas as an expert witness. Plaintiff's counsel posed several questions related to design of the safety features and the feasibility of alternative designs, which Deere's counsel directed that Klas not answer. Plaintiff now moves for an order: (1) compelling Klas to respond to questions that he was directed not to answer at the deposition; (2) compelling Deere to respond to the demand that it produce information regarding similar incidents; and (3) amending the scheduling order. Deere cross-moves for a protective order providing that: (1) Klas need not answer the questions that he was directed not to answer; (2) Klas need not answer any similar questions eliciting expert opinions; and (3) Deere need not supplement its response to demands numbered 5 and 6 in plaintiff's notice of discovery and inspection.
Plaintiff's counsel attempted to ask Klas a number of questions related to safety design principles, feasibility of alternative designs for the skid steer loader at issue, and whether alternative designs would impair the intended function of the machine (see Weisbeck Affidavit, ¶¶ 22–29; Affirmation of Karalyn M. Rossi dated April 14, 2017, ¶ 21). Deere objected on the basis that questions sought expert opinions and that disclosure may be obtained from expert witnesses only under special circumstances not present in this case. Plaintiff contends that the questions relate to matters of fact, not opinion, and, in any event, he is entitled to obtain disclosure from Klas, who is employed by a party defendant.
The questions posed relate to the elements of a product design claim (see Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 [1983] ; 1A N.Y. PJI 3d 2:120 at 754, 784 [2017] ). It is a long-established principle that "the scope of disclosure for employees of a party, whether noticed as experts or not, is defined by CPLR 3101(a), rather than CPLR 3101(d), which governs the extent of disclosure in instances where non-employee expert witnesses are involved" ( Lippel v. City of New York, 281 A.D.2d 327, 328 [2001] [emphasis supplied]; accord Zambanini v. Otis El. Co., 242 A.D.2d 453 [1997] ; Glasburgh v. Port Auth. of N.Y. & N.J., 213 A.D.2d 196 [1995] ; Lingener v. State Farm Mut. Auto Ins. Co., 195 A.D.2d 838 [1993] ; Maser v. County of Onondaga, 90 A.D.2d 970 [1982], lv dismissed 58 N.Y.2d 1047 [1983] ; see also Wilson v. Metalcraft of Mayville, Inc., 13 AD3d 794 [2004] [in holding that plaintiff could not ask defendant manufacturer's employee for opinions regarding accident reconstruction, the court, citing Lingener, noted that plaintiff could have asked questions about design defects in the type of lawnmower at issue] ). Deere submitted no law for the proposition that the scope of disclosure from employees of a party is limited to factual matters; in that regard, it bears noting that each of the cases it cites, save one, relates to obtaining disclosure from non-employee expert witnesses. The only case that Deere cites that supports its argument that expert opinion testimony cannot be obtained from its employee, Lagman v. Overhead Door Corp ., 46 Misc.3d 1208(A), 2012 N.Y. Slip Op 52514(U), is a trial court decision that must yield to the overwhelming precedent of the Appellate Division cited above. Accordingly, Klas—or any other employee produced by Deere—is directed to appear for further deposition and to answer the questions identified in paragraphs 22–29 of the Weisbeck Affidavit, regardless of whether Deere designates the deposition witness as an expert. The court has not determined the propriety of any questions not specifically presented for resolution at this time (see L. Woerner, Inc. v. Travelers Cos ., 174 A.D.2d 1056 [1991] ).
Plaintiff demanded information regarding all accidents or lawsuits involving all machines manufactured by Deere "where there was a seat safety switch in the product and the occupant of the machine left the seat and was injured or killed" (Weisberg Affidavit, ¶¶ 49–50). Deere objected to these demands as being overly broad and unduly burdensome because they were not limited to either the specific model of machine involved, i.e., a Model 240 skid steer, or even to the type, or form, of machine involved, i.e., skid steer loaders. Notwithstanding its objection, Deere represented that it had no responsive information "related to any individuals injured by an attachment after leaving the cab of Model 240 skid steer with auxiliary hydraulic controls active" (id.,¶ 52 [emphasis supplied] ).
It bears noting that Deere made no representation with respect to whether it had any information about an individual who was killed by an attachment after leaving the cab of Model 240 skid steer with auxiliary hydraulic controls active.
Plaintiff is not limited to obtaining information regarding incidents involving only the identical model to the one at issue in this action. Rather, plaintiff is entitled to information regarding claims or incidents similar in nature to the one in which plaintiff's decedent was killed involving machines that are sufficiently similar in design and operation to the machine that plaintiff was operating at that time (see Van Horn v. Thompson & Johnson Equip. Co., 291 A.D.2d 885 [2002] ; Galioto v. Sears, Roebuck & Co., 262 A.D.2d 1035 [1999] ; Winiecki v. Melroe Co., 252 A.D.2d 496 [1998] ; Soper v. Wilkinson Match (USA), 176 A.D.2d 1025 [1991] ; Whalen v. Kawasaki Motors Corp., 175 A.D.2d 667 [1991] ; Mestman v. Ariens Co., 135 A.D.2d 516 [1987] ; Johantgen v. Hobart Mfg. Co., 64 A.D.2d 858 [1978] ).
The following cases apply the same principle, but holds, in each case, that disclosure of incidents involving products beyond the specific product at issue was not proper because the party seeking disclosure had failed to establish that the additional products were sufficiently similar in design or function to the one that allegedly caused the harm (see Rozell v. Chicago Pneumatic Tool Co., 264 A.D.2d 930 [1999] ; DeDivitis v. International Bus. Machs. Corp., 228 A.D.2d 963 [1999] ; Latuso v. Black & Decker (U.S .), 198 A.D.2d 844 [1993] ).
Plaintiff has submitted evidence showing that all skid steer loaders manufactured by Deere since 1998 have been equipped with seat safety switches, auxiliary hydraulic power systems, and universal mounting systems for operation of a variety of attachments (see Klas EBT Transcript, pp. 66, 79–83, 85–86, 88–89). Plaintiffs have also submitted evidence showing that Deere manufactures a machine known as a compact track loader (CTL) that resembles skid steer loaders and is similar in design and function; specifically, that CTLs, like skid loaders, are equipped with seat safety switches, auxiliary hydraulic power systems, and universal mounting systems for operation of a variety of attachments (see Klas EBT Transcript, pp. 90–110; see also Reply Affidavit of Richard P. Weisbeck, Jr., Esq., sworn to April 19, 2017, Exhibits G–H). Accordingly, Deere must produce information responsive to plaintiff's discovery demands numbered 5 and 6 to the extent of producing all information and documents regarding accidents or lawsuits involving skid steer loaders and compact track loaders where there was a seat safety switch in the product and the occupant was injured or killed by an attachment mounted on such machine after leaving the seat of the machine with the auxiliary hydraulic power system active.
Based on the foregoing:
1. Plaintiff's motion is granted, to the extent specifically noted below, and is otherwise denied.
2. Deere's motion is denied.
3. Deere shall serve written responses to plaintiff's discovery demands numbered 5 and 6 that comply with this decision and order by June 30, 2017.
4. The scheduling order dated October 3, 2016 is amended in the following respects:
a. Depositions of all parties, including continuation of the deposition of Klas, or a witness designated by Deere, shall be completed by September 30, 2017.
b. All discovery, except expert disclosure, shall be completed by December 31, 2017.
c. Plaintiff shall file a trial note of issue no later than March 31, 2018.
This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry (see CPLR 5513 ).
The following documents were filed with the Clerk of the County of Tompkins:
Notice of motion dated March 29, 2017.
Affidavit of Richard P. Weisbeck, Jr., Esq., sworn to March 29, 2017, with Exhibits A–P.
Notice of cross-motion dated April 13, 2017.
Affirmation of Karalyn M. Rossi dated April 14, 2017, with Exhibits A–J.
Reply affidavit of Richard P. Weisbeck, Jr., Esq., sworn to April 19, 2017, with Exhibits A–I.
Original Decision and Order dated May 23, 2017.