Russo v. Keough's Turn of the River Hardware, LLC , 529 F. App'x 50 ( 2013 )

12-4196
Russo v. Keough’s
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 10th day of July, two thousand thirteen.
PRESENT: RALPH K. WINTER,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
———————————————————————
STEVEN A. RUSSO, JANET M. RUSSO,
Plaintiffs - Appellants,
v. No. 12-4196
KEOUGH’S TURN OF THE RIVER HARDWARE, LLC,
Defendant - Appellee.*
———————————————————————
APPEARING FOR APPELLANTS: MICHAEL FULLER SIRIGNANO, Cross River,
New York.
*
The district court ordered the caption of this case amended to terminate Werner
Co. as a party to this lawsuit, but it appears that the district court’s order was never
executed. Accordingly, the Clerk is respectfully directed to amend the caption to
conform to that above.
APPEARING FOR APPELLEE: DAVID M. POLLACK, Lewis Brisbois Bisgaard
& Smith, LLP, New York, New York.
Appeal from the United States District Court for the Southern District of New
York (Vincent L. Briccetti, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs-appellants Steven A. Russo (“Russo”) and Janet M. Russo brought this
action for negligence, strict products liability, breach of warranty, and loss of consortium
in Westchester County Supreme Court.1 Defendant-appellee removed the action to the
Southern District of New York. On September 25, 2012, the district court entered a
judgment granting defendant-appellee Keough’s Turn of the River Hardware LLC’s
(“Keough”) motion to preclude the testimony of Russo’s expert witness and for summary
judgment. On appeal, Russo challenges the district court’s judgment, arguing that the
district court erred both in excluding the expert’s testimony and in granting summary
judgment. Separately, Russo contends that summary judgment is itself violative of the
Seventh Amendment as that amendment was originally understood. We find all of these
arguments to be without merit, and therefore affirm the judgment of the district court. We
assume the parties’ familiarity with the facts, the record of prior proceedings, and the
specification of issues on appeal, to which we refer only as necessary to explain our
decision to affirm.
1
Because Janet Russo’s claims are solely for loss of consortium and are thus
derivative of her husband’s, we will refer to Russo in the singular for the reader’s
convenience.
2
We review a district court’s decision regarding the admissibility of expert
testimony for abuse of discretion, bearing in mind that “a decision to admit or exclude
expert scientific testimony is not an abuse of discretion unless it is manifestly erroneous,”
Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 160-61 (2d Cir. 2012) (internal
quotation marks and brackets omitted). A district court assessing the admissibility of
expert testimony acts as a “gatekeep[er]”: “it is charged with ‘the task of ensuring that an
expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.’”
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002), quoting
Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597 (1993). In assessing the reliability of
an expert’s testimony, “the district court should consider the indicia of reliability
identified in Rule 702,” Amorgianos, 303 F.3d at 265, namely (1) that “the testimony is
based on sufficient facts or data”; (2) that “the testimony is the product of reliable
principles and methods”; and (3) that “the expert has reliably applied the principles and
methods to the facts of the case,” Fed. R. Evid. 702. See also Nimley v. City of New
York, 414 F.3d 381, 396 (2d Cir. 2005), quoting Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999) (noting that in fulfilling its “gatekeeping” function, district courts should
“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”).
We cannot conclude that the district court abused its discretion, much less that the
district court reached a “manifestly erroneous” decision in precluding the of the testimony
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of Russo’s expert, Dr. Maletta. Dr. Maletta opined that Russo’s accident was caused by
the lack of uniformity in the ladder’s side rail thickness. But as the district court correctly
noted, Dr. Maletta provided no basis for this assumption, failed to review any design
specifications for the ladder at issue, and failed to conduct any tests to determine whether
the varying rail thickness rendered the ladder unable to support Russo’s weight. The
district court was therefore well within its discretion to conclude that Dr. Marletta’s
reasoning and methodology were unreliable and that his testimony was therefore
inadmissible. See Nimely, 414 F.3d at 396.
We review de novo a district court’s decision granting summary judgment. Sotomayor v.
City of New York, 713 F.3d 163, 164 (2d Cir. 2013). Without the testimony of their expert
witness, Russo’s claims fail because there would be no evidence from which a reasonable jury
could conclude that the ladder was defective. Moreover, the district court properly concluded
that a jury could not return a verdict for plaintiffs based on the theory of res ipsa loquitur,
finding that the plaintiffs could not establish that the ladder was in the exclusive control of the
defendant on the day of the accident. Although our cases applying New York law have not read
the “requirement of exclusive control . . . strictly,” Potthast v. Metro-North R.R. Co., 400 F.3d
143, 150 (2d Cir. 2005), we note that here, the ladder had not been under Keough’s exclusive
control for at least five years, and on de novo review, we find no evidence to support an
allegation that Keough had any control over or contact with the ladder after it had been sold to
Russo.
Finally, Russo’s argument that summary judgment violates the Seventh Amendment as
that amendment was understood at the time of its ratification in 1791 is unavailing. Summary
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judgment, like “many procedural devices developed since 1791 . . . [has] been found not to be
inconsistent with the Seventh Amendment.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336
(1979). The Seventh Amendment right to trial by jury “exists only with respect to genuinely
disputed issues of material fact.” Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006).
We have considered all of Russo’s remaining arguments and find them to be without
merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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