Articles & Publications 05.02.18

And The Defense Wins: Shareholders Jason Eckerly, William Mahoney, Madina Axelrod, and Steven Rosenblatt Featured in The Voice

The Voice, DRI's Weekly e-Newsletter

DRI members Jason Eckerly, William Mahoney, Madina Axelrod, and Steven Rosenblatt, shareholders in Segal McCambridge Singer & Mahoney’s Chicago and New York City offices, recently won motions to exclude two experts, as well as summary judgment on all counts brought against their pump manufacturing client. Plaintiff filed suit on seven counts, including strict and negligent product liability, breach of express warranty, breach of implied warranty, breach of third party contract, and a claim for damages pursuant to Connecticut’s Unfair Trade Practice Act (CUTPLA). Plaintiff sought punitive damages and attorney’s fees and costs.

In support of its case, Plaintiff disclosed two experts to testify regarding the alleged defective design of the pumps. Defendant argued the design defect expert’s report and use of a methodologically flawed survey and reliance on undisclosed facts rendered the expert’s report and testimony inadmissible. It further noted the expert failed to review critical materials regarding the pumps’ operation and maintenance when reaching her opinion. As to Plaintiff’s damages expert, Defendant argued the opinions impermissibly relied on assumptions with no factual support or expert analysis. Specifically noting the damages amounts were information provided by Plaintiff. The court agreed, barring both of Plaintiff’s experts. After barring Plaintiff’s experts, the court agreed that this is the type of complex case requiring an expert opinion as to defect and as to feasible alternative design. Absent admissible expert testimony combined with the undisputed fact that Defendant’s pumps complied with the project specifications, the court granted summary judgment on Plaintiff’s strict and negligent product liability counts. Further, the court found Defendant’s warranty was “clear, conspicuous, and enforceable,” and granted summary judgment on Plaintiff’s breach of express liability count. The court also found the executed purchase order expressly excluded any and all implied warranties counts. Finally, the court held Plaintiff’s breach of contract and statutory claims under the CUTPA were barred by the Product Liability Statute’s exclusivity clause which prevents double recovery. The court went even further to note that even if these claims were not barred they would still fail as Plaintiff was unable to provide any evidence as to the pumps’ defectiveness.

The case is Water Pollution Control Authority of the City of Norwalk v. Flowserve, US Inc. v. Gilbane Building Co., case number: 3:14-cv-00549-VLB, in the U.S. District Court for the District of Connecticut.

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