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

                                               3
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



                                                  4
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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