The opinion of the court was delivered by: Hillman, District Judge
This is a personal injury case that occurred while plaintiff Anthony Glielmi*fn1 was operating a forklift during a training exercise during work hours seriously injuring his right arm. Defendants filed two summary judgment motions, one arguing that plaintiffs' claims should be dismissed because they owed no duty to plaintiff, and the other arguing that plaintiff's expert's opinion is unreliable. For reasons set forth below, defendants' motion regarding the duty owed to plaintiffs will be denied, and their motion regarding plaintiffs' expert will be granted in part and denied in part.
This Court exercises subject matter jurisdiction
pursuant to 28 U.S.C. § 1332 (diversity). Plaintiffs are citizens of New Jersey; defendant The Raymond Corporation is a New York corporation with its principal place of business in New York; and defendant Arbor Material Handling, Inc. is a Pennsylvania corporation with its principal place of business in Pennsylvania. The amount in controversy is alleged to exceed $75,000.00.
Plaintiff Anthony Glielmi was an employee of Superior Pool Products, a division of Pool Corporation ("Superior"), in Blackwood, New Jersey. Superior had decided to increase the capacity of its warehouse by "re-racking" or narrowing the distance between the warehouse's racks. Since forklifts operated by a driver sitting down could no longer make ninety degree turns in the re-racked area, Superior purchased a stand-up forklift from The Raymond Corporation ("Raymond"). Raymond forwarded the sales order to its dealer, defendant Arbor Materials Handling, Inc. ("Arbor").
The purchased stand-up forklift was not ready by the delivery date and, therefore, on February 6, 2008, Arbor delivered a rental stand-up forklift to Superior. On that day, Arbor employees Jennifer Clay and Bruce Marshall arrived at Superior to provide assistance with the rental. Clay and Marshall gathered employees who were to be trained on the stand-up forklift into an area of the warehouse. The area in the warehouse for the demonstration was about sixteen to twenty feet wide. Marshall thought the area was too small for the demonstration and, before it began, Marshall asked Superior branch manager Russell Bacon if there was a bigger area they could use. Bacon said there was not. Marshall testified that he would have preferred an area about thirty by thirty-five feet. Another Superior employee, Graziano Mastrobuono, suggested to Marshall that the demonstration be given at the loading dock but did not receive a response.
Before the demonstration started, plaintiff left the area to unload a truck which had arrived. While plaintiff was unloading the truck, Marshall first demonstrated the forklift controls with the machine turned off and then turned it on to demonstrate steering and operation of the so-called "dead man's pedal." Marshall then asked the Superior employees if anyone would like to try using the forklift. Mastrobuono got up on the forklift and was able to work the controls without incident but stated that the controls were "sensitive."
Plaintiff returned to the demonstration and Marshall told him to try out the forklift. Plaintiff responded that he had just arrived, that he did not hear Marshall's demonstration, and that he was apprehensive about getting on it. Marshall responded that there was "nothing to it" and that he would show him what to do. Plaintiff got on the forklift and while driving it, lost control and backed into a rack, pinning his arm against the rack and crushing his forearm.
Plaintiff alleges that as a result of the injury to his forearm, he is in constant pain and needs his wife to help him shower, dress, buckle his shoes, and cut his food. Plaintiff states that if he had health insurance*fn2 he would see a psychiatrist because he feels down all the time. Plaintiffs brought claims of negligence, breach of warranty, strict liability, and loss of consortium. In support of their claims, plaintiffs rely on the opinion of Nicholas J. Barta as their liability expert.
Defendants filed motions for summary judgment arguing that they owed no duty to plaintiff and, therefore, cannot be liable. Defendants also argue that Barta's expert opinion should be excluded because it is not reliable and, therefore, plaintiffs cannot prove their claims.
A. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
B. Duty Owed by Defendants
Defendants argue that they are not responsible for plaintiff's injuries because Occupational Safety and Health Administration (OSHA) regulations place responsibility for employee safety on the employer. Defendants maintain that ...