1 13-1456-cv Valente v. Textron, Inc. UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION A 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 Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 10 th day of March, tw o thousand fourteen. PRESENT: REENA RAGGI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges

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---------------------------- ---------------------------- -------------- MATTHEW J. VALENTE, JAMES VALENTE, individually and as father of MATTHEW J. VALENTE, Plaintiffs-Appellants , v. No. 13-1456-cv TEXTRON, INC., EZ GO DIVISION OF TEXTRON INC., Defendants-Appellees

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANTS: DAVID H. SCHULTZ (Laurel A. Wedinger, on the brief ), Barry, McTierna n & Moore LLP, New York, New York.

APPEARING FOR APPELLEES: DAVID S. OSTERMAN (Andrew J. Scholz, Brendan T. Fitzpatrick, on the brief ), Goldberg Segalla LLP, Princeton, New Jersey.2 Appeal from a judgment of the United States District Court for the Eastern District of New York (Margo K. Brodie, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on March 19, 2013, is AFFIRMED.

Plaintiffs Matthew Valente and James Va lente appeal from an award of summary judgment in favor of defendants Textron, In c. and EZ Go Division of Textron, Inc., on Valente’s strict liability an d negligence design defect cl aims for damages allegedly sustained when Valente was operating a golf car manufactured by defendants. 1 Valente

contends that the district c ourt erred in precluding the tes timony of his expert Kristopher Seluga after a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and that, even absent Seluga ’s testimony, the district court erred in granting summary judgment. We assume the parties’ familiarity with the underlying facts and the record of prio r proceedings, which we refe rence only as necessary to explain our decision to affirm. 1. Expert Testimony

We review a district court’s deci sion regarding the admi ssibility of expert testimony for abuse of discre tion, and will not reverse unle ss the decision is manifestly

1 Because James Valente’s claim is entirely derivative of his son’s, our resolution of this appeal as to Matthew Valente applies equally to James Valente. Accordingly, all further references to “Valente” in this or der allude to Matthew Valente.3 erroneous. See Olin Corp. v. Certain Underw riters at Lloyd’s London , 468 F.3d 120, 133 (2d Cir. 2006). That is not this case.

Valente contends that the district court a bused its discretion in excluding Seluga’s testimony that yaw instability—r esulting from a design defect in the use of a two-wheel rear braking system as opposed to a four -wheel braking system—was responsible for Valente’s accident. In fact, the district c ourt’s thoughtful and thorough explanation for excluding Seluga’s testimony convincingly de monstrates that it acted well within its

discretion. Regardless of whether Seluga’s simulati on model was sufficiently validated, the district court concluded that his opinion tes timony was inadmissible ba sed on his use of a 0.53 coefficient of friction to support his c onclusion. Although Valente argues that any concerns about this coefficient go to weight , and not admissibility, it is well-settled that where, as here, a trial judge finds that assu mptions underlying expert testimony “are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison,” it has the discretion to ex clude the testimony. Zerega Ave. Realty Corp. v. Hornbeck Offshore Tr ansp., LLC, 571 F.3d 206, 2 13–14 (2d Cir. 2009) (internal quotation marks omitted). There is no dispute that the coefficient of friction was the determining factor in Seluga’s opinion that yaw instability was re sponsible for Valente’s accident. But the 0.53 coefficient of friction used by Se luga, based on flat surface testing, was approximately 40% lower than the coeffici ent measured by Seluga and defendants’4 expert on the actual path, as we ll as the coefficient relied upon by Selugain a 2006 peerreviewed article where he concluded that his simulations “consistently” showed that “rear wheel only braking configuratio n does not lead to large ya w instabilities.” J.A. 2942. Thus, the district court acted well within its discretion in concluding that Seluga’s 0.53 coefficient derived from testing that was no t comparable. Moreover, Seluga admitted that sand and dirt, both of which were present duri ng the tests producing a 0.53 coefficient of friction, could have an impact on the coeffici ent of friction. Beyond his own observation that the accident path was near locations where sand and dirt were present, however, Seluga was only able to spec ulate that such conditions were present on the day of the accident. The district court’s decision not to credit th is speculation was not an abuse of discretion, particularly given Se luga’s admission that his photographs of the accident site did not depict sand on the path. Nor do we identify abuse of discretion in the district court’s determination that Seluga’s proposed opinion te stimony was not supported by simulation results using the 0.53 coefficient of friction. Seluga admitted that he used the 0.53 coefficient because he “wanted to see if this accident could happen in a certain way and the lowest friction value that was measured is the most likely to see if it could happen.” J.A. 414–15. Indeed, Seluga continued to use a 0.53 coefficient in his simulations despite acknowledging that

the low end of the coefficien t range was actually 0.54. Moreover , even assuming the reliability of the 0.53 coefficient, Seluga te stified that his simulation would predict a rollover due to yaw instability somewhere between 25% an d 50% of the time. The5 purpose for which Valente sought to offer Seluga’s testimony, however, was not that

under certain circumstances there was a 25 % chance that the accident could have

occurred as a result of the defect in the golf car, but rather th at the design defect actually caused the accident “to a reasonable degree of engineering certaint y.” Seluga Expert Rep. 14, J.A. 273. Where, as here, data is “simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate th e exclusion of that unreliable opinion testimony.” Ruggiero v. Warner -Lambert Co., 424 F.3d 249, 253 (2d Cir. 2005) (internal quotation marks omitted). Here, the district court reasonably concl uded that Seluga’s selection of a 0.53 coefficient of friction and the low prediction rate resulting from the use of this number rendered Seluga’s opinion unreliable. Accord ingly, we identify no abuse of discretion in the exclusion of Seluga’s testimony. 2. Summary Judgment

We review an award of summary judgment de novo, resolving all ambiguities and drawing all inferences in favor of the nonmovant, and we will affirm only if the record reveals no genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Nagle v. Marron, 663 F.3d 100, 104– 05 (2d Cir. 2011). Under New York law, a pl aintiff establishes a prima facie case of product liability for a design defect by showin g that (1) the manufa cturer marketed a product designed so that it was “not reasona bly safe” and (2) the defective design was a substantial factor in causing plaintiff’s in jury. Voss v. Black & Decker Mfg. Co., 596 N.Y.2d 102, 107, 463 N.Y.S.2d 398 (1983). Here, defendants put forth admissible evidence that the brake design was safe, th at an alternative design would not have prevented the accident, and that Valente’s operation of the golf car caused the accident. With Seluga’s testimony properly excluded, the record is devoid of any evidence supporting Valente’s theory that the golf car had a design defect or that such a design defect likely caused his accident. See Amor gianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 271 (2d Cir. 2002) (affirming dist rict court’s grant of summary judgment because, without expert eviden ce, plaintiffs did not have “any admissible evidence in support of their theory of causation”); Bro oks v. Outboard Marine Corp., 234 F.3d 89, 92 (2d Cir. 2000) (“Having determined that the district court acted within its discretion in excluding [plaintiff’s expert testimony], the pl aintiff has no evidence in the record to support his theory that the motor had a de sign defect which caused the accident or increased its severity.”). Indeed, assumi ng arguendo that, as Valente contends, the applicable burden of proof requ ired him “simply to establis h a reasonable probability that the accident was caused by [defendants’] ne gligence,” Williams v. KFC Nat’l Mgmt. Co., 391 F.3d 411, 420 (2d Cir. 2004), because Valente admitted to turning the wheel and eyewitnesses testified that th e golf car collided with a so lid object, no reasonable juror

could conclude that Valente met this burd en based on the circ umstantial evidence. Accordingly, the district court properly granted summary judgment to defendants on Valente’s strict liability and neg ligence design defect claims.7 We have considered Valente’s remaining arguments on appeal and conclude that they are without merit. Acco rdingly, the judgment of the di strict court is AFFIRMED.

FOR THE COURT: CATHERINE O = HAGAN WOLFE, Clerk of Court