LESSARD v. CATERPILLAR INC (2002)

Plaintiff appeals from a judgment granting defendant's motion for a directed verdict pursuant to CPLR 4401.   Supreme Court properly granted defendant's motion to strike the testimony of plaintiff's expert, a civil engineer, with respect to the allegedly defective design of a door-locking mechanism on a track loader manufactured by defendant.   Plaintiff's expert testified that he took several introductory mechanical engineering courses in college, from which he graduated in 1957, and is generally familiar with heavy construction vehicles.   He further testified, however, that he had no training in the design of such vehicles or their individual parts.   We cannot conclude that the court abused its discretion in determining that plaintiff's expert lacked “ ‘the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable’ ” (Williams v. Sharp Elecs. Corp., 216 A.D.2d 917, 629 N.Y.S.2d 699, quoting Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532;  see generally, Werner v. Sun Oil Co., 65 N.Y.2d 839, 840, 493 N.Y.S.2d 125, 482 N.E.2d 921;  Hileman v. Schmitt's Garage, 58 A.D.2d 1029, 1029-1030, 397 N.Y.S.2d 501).

We further conclude that the court properly granted defendant's motion for a directed verdict, given the inability of plaintiff to establish a prima facie case of design defect in the absence of expert testimony (see, Prosser v. County of Erie, 244 A.D.2d 942, 943, 665 N.Y.S.2d 216).   Plaintiff contends for the first time on appeal that he established a prima facie case through his own testimony and various patent documents and thus failed to preserve that contention for our review (see, Volpe v. Good Samaritan Hosp., 213 A.D.2d 398, 399, 623 N.Y.S.2d 330).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: