ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This mаtter came before the Court on June 16, 2014, on the motion of. Defendant Graco, Inc. (“Defendant”) for summary judgment. After carefully considering the written and oral arguments of the parties, and the relevant law, the Court GRANTS IN PART and DENIES IN PART Defendant’s motion for the reasons discussed below.
BACKGROUND
In this product liability case, Plaintiff Joshua Mariscal (“Plaintiff’) alleges that he was injured on July 29, 2012, while attempting to clean and repair a used, Graco Magnum X7 Airless Paint Sprayer
Plaintiff downloaded from Defendant’s website the Operation Manual for the Sprayer, and referenced these instructions immediately before the accident. See id. at 60:7-61:4. Plaintiff testified that he did not read the “entire” manual, and when asked if he read the “first few pages,” which contain warnings, he answered “probably not.” Id. at 71:6-16. Nonetheless, when asked whether he read the “Personal Protective Equipment” warning subsection of the Operation Manual, which appears in these first few pages, Plaintiff answered “Umm, probably not in its entirety, but yes, I ... I always go through the safety warnings.” Id. at 81:5-11. This section states: “Wear appropriate protective equipment when in the work area to prevent serious injury, including eye injury ...” Id. at 81:12-16; see also Docket No. 41-3 at 5 (Operation Manual reviewed at deposition); see also Operation Manual (“Operation Manual”) at 5, Rivord Deck Ex 4, Docket No. 41-14 (“You must wear appropriate protective equipment when operating, servicing, or when in the operating area of the equipment to help protect you from serious injury, including eye injury, inhalation of toxic fumes, burns, and hearing loss. This equipment includes but is not limited to: * Protective eye wear ....”).
The Warning section instructs the user that “[t]he following warnings are for the setup, use, grounding, maintenance and repair of the equipment. The exclamation point symbol alerts you to a general warning and the hazard symbol refers to procedure-specific risks. Refer back to these warnings. Additional, product-specific warnings may be found throughout the body of this manual where applicable.” Operation Manual at 3 (emphasis added). Plaintiff testified that he specifically referenced the section of the Operation Manual entitled “Pressure Relief Procedurе,” see Tr. 75:4-14, which contains hazard symbols that correspond to the specific danger of “skin injection” hazard and general warning, but does not'include the hazard symbol that corresponds to the need to wear personal protective equipment, including eye wear. See Operation Manual at 9-10.
Once Plaintiff determined that the Sprayer would not function properly after cleaning the filter and hose, he again eon-
Plaintiff sued Defendant in California Superior Court, in the County of Alameda, on April 30, 2013. Plaintiff alleged one cause of action for product liability, which contained three counts: (1) breach of implied warranty; (2) negligence; and (3) strict liability. On June 6, 2013, Defendant removed the case to this Court. Defendant answered the complaint, and moved for summary judgment on all claims on May 12, 2014.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is nо genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
A party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
A court need consider only the materials cited by the parties. Fed. R. Civ. P. 56(c)(3). A district court has no independent duty “to scour the record in search of a genuine issue of triable fact” and may “rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan,
DISCUSSION
Defendant moves for summary judgment on Plaintiffs claims for breach of warranty, strict liability for design defect and failure to warn, as well as negligence under theories of design defect and failure to warn. For the rеasons discussed below, the Court GRANTS IN PART and DENIES IN PART Defendant’s motion for summary judgment.
I. Evidentiary Objections
As a preliminary matter, Defendant objects to evidence Plaintiff submitted concurrently with his opposition briefing. See Objections, Docket No. 43. Specifically, Defendant objects to, and seeks to exclude from evidence, the May 22, 2014 Declaration of David Rondinone (the “Second Expert Opinion”), see Docket No. 42-1, as it states new expert opinions that should have been previously disclosed in Rondi-none’s Rule 26(a) expert disclosure (the “First Expert Opinion”), see Docket No. 41-7. Defendant also seeks to exclude the May 27, 2014 Declaration of Joshua Maris-cal (“Mariscal Declaration”), see Docket No. 42-2, on the grounds that it contains self-serving statements that contradict his deposition testimony. On June 9, 2014, the Court ordered Plaintiff to respond to Defendant’s evidentiary objection. On June 11, 2014, Plaintiff responded, asserting that the Second Expert Opinion merely restated opinions that were earlier disсlosed. Moreover, Plaintiff argued that Defendant was on notice of Plaintiffs asserted defect and theory of the case from the First Expert Opinion, and that any deficiencies in that prior disclosure were waived by Defendant’s failure to object or depose him. Plaintiff also argued that the Mariscal Declaration was not a sham declaration, and was therefore fully admissible.
A. The Second Expert Opinion
The Court excludes the Second Expert Opinion as an untimely and improper expert disclosure. Rule 26 requires that a
Here, the last day for Plaintiff to disclose the identity of any expert to be used at trial was March 3, 2014, and the last day to comply with the written report requirements of Rule 26(a)(2)(B) by providing a report containing the expert’s complete opinion was March 17, 2014. See Sept. 10, 2013 Pretrial Order at 2, Docket No. 32. The Pretrial Order explicitly states that “[flailure to comply with these deadlines will prevent a witness from testifying as an expert.” Id. The last day Plaintiff could serve a rebuttal report was May 17, 2014, and the close of all discovery, except for depositions of expert witnesses, was April 21, 2014. See id. at 1.
Rondinone provided his First Expert Opinion via his Rule 26 expert disclosure on March 25, 2014. The Second Expert Opinion, dated May 22, 2014, and submitted in support of Plaintiffs summary judgment opposition briefing on May 27, 2014, was therefore untimely.
Comparing the First and Second Expert Opinions is instructive. Rondinone disclosed the following in his First Expert Opinion:
II. Scope of Engagement
I was retained by plaintiff in this case to analyze the design failure of a Graco airless paint sprayer being used by plaintiff when he suffered severe and permanent injuries to his eyes. I was asked to determine why the sprayer “exploded” in plaintiffs face. I was also asked to review and comment on the warnings provided by Graco to users of the airless sprayer.
IV. Summary of Opinion
Based on my understanding of the issues in the complaint and the scope of my engagement, it is my preliminary opinion that:
(1) Graco Sprayer was capable of generating 3000 psi pressure;
(2) The method of pressure relief only functions when mechanism [sic] is not clogged. The instructions offer two methods to rеlieve pressure—turning the valve to “prime” and triggering the gun. The instructions also foresee an event when these actions do not relieve the pressure. They state “If you suspect the spray tip or hose is clogged or that pressure has not been relieved after following the steps above, VERY SLOWLY loosen tip guard retaining nut or hose end coupling to relieve pressure gradually, then loosen completely.” However, the design of the sprayer is such that if it is clogged, there is no method of noting the user that it is still under pressure, and thus the user may not be aware that the system is under pressure.
(3) The mechanisms for pressure relief (the gun and the prime valve) can get clogged if paint is left to dry in system, and Graco had foreseen that paint may be left in system and create clogs.
(4) There is no mechanism to notify the operator that the system is under pressure.
(5) Following the instructions can present the operator with hazardous conditions—(e.g. undoing a threаded joint when the system is under pressure with paint debris mixed with water) ....
First Expert Opinion at 2:22-3:11 (emphasis added), Docket No. 41-7. Thus, under Rule 26(a)(2)(B)(i), Defendant was entitled to rely on this expert disclosure as constituting a complete statement of all opinions Rondinone would express at trial.
The Second Expert Opinion, however, substantially enlarged the scope of Rondi-none’s previously disclosed expert opinion. In support of Plaintiffs opposition to summary judgment, Rondinone averred:
4.In my professional opinion the airless paint sprayer in question was defectively designed because, although acknowledging that their design for relieving pressure might not actually work to relieve pressure, Graco did nothing more to design or incorporate into the design a devise [sic], such as a gauge or digital readout that would tell the user that in fact the pressure had not been relieved when the steps to relieve pressure were followed.
5. That other mоdels of Graco airless sprayers currently on the market have pressure level digital readouts which clearly advise the user that the sprayer is still pressurized and the level of pressure. Graco, if they had chosen to do so, could have easily incorporated this into their design of the sprayer in question.
6. In my opinion, if Graco’s design had incorporated such a device, this accident would not have occurred because Mr. Mariscal would have been alerted to the fact that the sprayer was still pressurized.
7. It is my opinion that the warnings, both on the sprayer and contained in the operations manual are inadequate and with specific regard to warning of the need of protective equipment, i.e., safety glasses when “Relieving Pressure” as described on page 9 of the manual such a warning is nonexistent. In addition, the “hang tag” identified as Exhibit 2 to Mr. Rivord’s declaration was not on the sprayer in question and even if it had been it does not warn of the risk of pressure not being relieved nor does it refer to the need to wear “Personal Protective Equipment.” If Graco believed that eye protection was needed when performing the steps to relieve pressure it should have included that warning on page 9 of the manual as they did on other pages of the manual such as page 10.
8. . In my opinion had adequate warnings been included in the operations manual this accident may or likely would not have occurred because Mr. Mariscal who, according to his deposition, was in the habit of wearing safety glasses, would have done so in this case.
9. In my opinion the warnings attached to Mr. Rivord’s declaration are inadequate and do not warn at all about the hazards of high pressure as it relates to the facts of this accident. If fact, said warnings say nothing whatsoever about wearing personal protective equipment. Finally, Graco’s “Quick Start-Up Guide” is totаlly inadequate and does not in any way warn of the need to wear “Personal Protective Equipment.”
Second Expert Opinion ¶¶ 4-9.
Rondinone, in this Second Expert Opinion, explicitly opines that the Sprayer was defectively designed by virtue of a failure to include a pressure gauge, that other sprayers on the market include such a gauge, that Defendant could have easily incorporated such a mechanism into the design of the Sprayer, and had Defendant done so, the accident would not have occurred because Plaintiff would have been alerted to the presence of pressure within the Sprayer. These opinions are new, as are Rondinone’s opinions as to the adequacy of the warnings. Plaintiff directs the Court to Occidental Fire & Casualty of North Carolina v. Intermatic Inc. for the proposition that Rule 37(c)(1) should not operate to exclude evidence where only “superficial differences” separate prior and supplemental expert opinion. See No. 2:09-CV-2207 JCM VCF,
Defendant contends that it was substantially prejudiced from this late disclosure. Defendant did not address the substance of the Second Expert Opinion when it moved for summary judgment because those opinions had not been disclosed. Consequently, Defendant did not address Rondinone’s expert opinions with respect to the placement of multiple warnings to wear eye protection, and the explicit opinion that the design defect of the Sprayer was a lack of a pressure gauge or device to alert the user that the Sprayer was pressurized. Defendant represents that it chose not to depose Rondinone because it concluded that his testimony would have been irrelevant at trial because he did not opine as to the adequacy of warnings or any defect in the sprayer, such that Defendant had “no reason to attack or question Mr. Rondinone’s qualifications to provide the opinions he provided, because he was not critical of the Graco design.” Objections at 5. Because the new opinions disclosed in the Second Expert Opinion changed this litigation strategy and “substantially prejudice[d] Graco in this litigation,” see id. Defendant objected to Plaintiffs submission of this evidence.
Plaintiff has not demonstrated that the Second Expert Opinion, and the statements therein, was a “substantially justified” or “harmless” late disclosure, and thus did not advance a persuasive argument as to why Plaintiff should be allowed to rely upon this evidence in opposition to summary judgment or at trial. See Fed. R. Civ. P. 37(с)(1). Plaintiffs argument that the First Expert Opinion placed Defendant “on notice” as to the lack of pressure gauge defect is troubling because, under Rule 26(a)(2)(B)(i), Defendant was entitled to a complete disclosure of all opinions—not a sneak preview of a moving target. “Although Rule 26(e) obliges a party to ‘supplement or correct’ its disclosures upon information later acquired, this ‘does not give license to sandbag one’s
B. The Mariscal Declaration
“A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.” F.T.C. v. Publ’g Clearing House, Inc.,
II. Breach of Warranty Claim
Defendant moves for summary judgment on Plaintiffs claims for breach of warrаnty. Plaintiff failed to address these arguments in his opposition brief, and therefore conceded these claims. See Qureshi v. Countrywide Home Loans, Inc., No. 09-4198,
Defendant moves for summary-judgment on Plaintiffs strict liability design defect claim on the basis that Plaintiff cannot show by any competent evidence a design defect in the Sprayer, or how that defect caused his injury. “A manufacturer may be held strictly liable for placing a defective product on the market if the plaintiffs injury results from a reasonably foreseeable use of the product.” Saller v. Crown Cork & Seal Co., Inc.,
A. Consumer Expectation Test
The “consumer expectation test” permits a plaintiff to prove design defect by demonstrating that “the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” Id. at 426-27,
The consumer expectation test is appropriately invoked for Plaintiffs strict liability design defect claim. As a preliminary matter, Defendant is mistaken that “Plaintiff needs expert witness testimony to support” this test. See Mot. at 9:17-18. Plaintiff can establish liability under the consumer expectation test without the use of expert testimony. See Campbell,
Under Campbell, “once a plaintiff establishes that the consumer expectation test is properly applied to his or her case, the threshold for withstanding a motion for summary judgment [], thus permitting the jury to determine whether the allegedly defective product satisfied ordinary consumer expectations, is quite low.” Chavez v. Glock, Inc.,
B. Risk-Benefit Test
A product is defective under the risk-benefit test if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design. See Barker,
As discussed above, Plaintiff has made a prima facie showing that Defendant manufactured the Sprayer, that he was harmed, and that the Sprayer’s design was a substantial factor in causing his harm.
However, because Defendant’s failure to present risk-benefit evidence is due, at least in part, to Plaintiffs late expert disclosure, the Court will allow Defendant until July 11, 2014, to conduct discovery and disclose supplemental expert testimony with respect to risk-benefit analysis on the inclusion of a pressure gauge as an alternаtive design. Alternatively, if Plaintiff wishes to proceed to trial only on the consumer expectation test and not the risk-benefit test, he may file a stipulation abandoning his claim under the risk-benefit test. Any such stipulation must be filed on or before June 30, 2014, to allow Defendant sufficient time to complete discovery, if needed.
IY. Strict Liability Failure to Warn Claim
Plaintiff maintains that Defendant is liable for its failure to adequately warn of the dangers of the X7 Sprayer under a theory of strict liability. “Under California law, a product may be defective because of the absence of an adequate warning of the dangers inherent in its use. Even though the product is flawlessly designed and manufactured, it may be found defective within the general strict liability rule and its manufacturer or supplier held strictly liable because of the failure to provide an adequate warning.” Schwoerer v. Union Oil Co.,
Defendant moves for summary judgment on this claim on three grounds: (1) that Defendant’s warnings were adequate as a matter of law; (2) that Plaintiffs failure to read the warnings proximately caused his own injuries; and (3) that Plaintiff was actually aware of the risks, and thus reading additional warnings would have been irrelevant. The Court finds that genuine disputes of material fact preclude summary judgment on this claim.
First, Defendant’s warnings are not adequate as a matter of law. Defendant contends that it “provided multiple warnings in multiple sources with the Sprayer, including wаrnings of the risk of pressurized contents, the potential for eye injury, and the need to wear personal protective equipment, including protective eyewear, at all time while in the work area.” Mot. at 16:21-24; see also Rivord Decl. Exs. 1-3 (identifying embossed warning on Sprayer, hang tag, and Quick Start-Up Guide, which contain various warnings included with the Sprayer when sold new). Defendant points to the “Warnings” section of both the Operation Manual and Repair and Parts Manual as further evidence of the adequacy of the warnings. This section, which is identical in both, states: “The following warnings are for the ... maintenance and repair of the equipment. The exclamation point symbol alerts you to a general warning and the hazard symbol refers to procedure-specific risks. Refer back to these warnings. Additional, prod
You must wear appropriate protective equipment when operating, servicing, or when in the operating area of the equipment to help protect you from serious injury, including eye injury, inhalation of toxic fumes, burns, and hearing loss. This equipment includes but is not limited to: * Protective eye wear ....
Operation Manual at 5 (emphasis added). Defendant asserts that these warnings, and the absence of any admissible expert testimony on failure to warn, show that the warnings were adequate as a matter of law.
Plaintiff argues, however, that there is ambiguity in the warning section which Plaintiff referenced prior to the incident based on his own testimony and other admissible evidence. Plaintiff testified that he read the “Pressure Relief Procedure” of the Operation Manual prior to the incident, which he had accessed on his iPad. See Tr. 60:7-61:4; 64:12-65:2; 75:4-14. The hazard symbols listed under the Pressure Relief Procedure section include: 1) the exclamation point symbol, and 2) symbols that relate to Skin Injection Hazard. Compare Operation Manual at 9 (listing hazard symbols associated with procedure-specific risks) with id. at 2-3 (explaining symbols). Nowhere does the hazard symbol for personal protective equipment appear in the Pressure Relief Procedure section. Notwithstanding the admonition to wear safety glasses at all times found in the Warning section of the Operation Manual and elsewhere, Plaintiff has presented evidence that the specific page covering the pressure relief procedure he utilized did not include an explicit warning to wear protective eye glasses. A reаsonable interpretation of the use of the hazard symbols is that unless the particular symbol is present under a specific activity, the associated danger is not present while performing that activity. Viewing this evidence in a light most favorable to Plaintiff, and as adequacy of a warning is usually a question for the jury, Plaintiff has presented a genuine dispute of material fact that precludes summary judgment on this claim.
Defendant’s additional arguments in favor of summary judgment on this claim are without merit. Defendant asserts that Plaintiff did not read the warnings at all, and thus Plaintiffs failure to warn claim fails for lack of causation. See Mot. at 18:18-19 (citing Tr. 71:6-16) (Plaintiff testifying that he “probably” did not read the “beginning part of the manual”). Defendant is correct “that a defendant is not liable to a plaintiff if the injury would have occurred even if the defendant had issued adequate warnings,” Huitt,
Q. Did you read [the Personal Protective Equipment warning] before you were working on the sprayer?
A. Umm, probably not in its entirety, but yes, I ... I always go through the safety warnings.
Tr. 81:8-11 (emphasis added). When viewed in a light most favorable to Plaintiff, he testified that he “always” goes through the safety warnings, and did read at least some of the safety warnings in the Operation Manual. Thus, the Court cannot conclude that undisputed evidence shows that Plaintiff failed to read the warnings, such that no stronger warning would have prevented the harm.
Additionally, Defendant argues that Plaintiffs failure to warn claim also fails because undisputed evidence shows that Plaintiff was actually aware of the risks associated with—and need to wear eye glasses while using—the Sprayer, and that his disregard of those known risks negates his failure to warn claim. See Mot. at 18-20. “Strict liability for failure to warn does not attach if the dangerous propensity is either obvious or known to the injured рerson at the time the product is used.” Gonzales v. Carmenita Ford Truck Sales, Inc.,
Y. Negligent Design Claim
A plaintiff alleging a design defect claim under a negligence theory must prove “that the defect in the product was due to negligence of the defendant.” Chavez,
A [designer/manufacturer/etc.] is negligent if [it] fails to use the amount of care in [designing manufacturing/etc.] the product that a reasonably careful [designer/manufacturer/etc.] would use in similar circumstances to avoid exposing others to a foreseeable risk of harm. In determining whether [the defendant] used reasonable care, you should balance what [the defendant] knew or should have known about the likelihood and severity of potential harm from the product against the burden of taking safety measures to reduce or avoid the harm.
CACI 1221. Therefore, a product is not negligently designed so long as “the manufacturer took reasonable precautions in an attempt to design a safe product or otherwise acted as a reasonably prudent manufacturer would have under the circumstances.” Barker,
Plaintiff presents no admissible evidence regarding what a reasonably careful designer or manufacturer would have done with respect to the design of the Sprayer. Defendant presents evidence that an independent testing agency issued a report that the X7 Sprayer complied with industry standards, see Rivord Decl. Ex. 6, Docket No. 41-24, and Defendant’s Product Safety and Compliance Manager averred that the Sprayer was manufactured in accordance with Defendant’s practices, and was not defectively manufactured or designed. See Rivord Expert Disclosure at 4:1-10, Docket No. 41-5. Having excluded the Second Expert Opinion, Plaintiff has failed to present any admissible evidence about what amount of care in designing or manufacturing the Sprayer a reasonably careful designer or manufacturer in the industry would have used in similar circumstances to avoid exposing users to a foreseeable risk of harm while undertaking the Pressure Relief Procedure utilized by Plaintiff. Thus, Plaintiff has produced no other admissible evidencе from which a jury could deduce the appropriate standard of care, which is fatal to his negligent design defect claim. Accordingly, the Court GRANTS summary judgment to Defendant on this claim.
VI. Negligent Failure to Warn
To prevail on a claim for negligent failure to warn, a plaintiff must prove that: “(1) the defendant manufactured, distributed, or sold the product; (2) the defendant knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner; (3) the defendant knew or reasonably should have known that users would not realize the danger; (4) the defendant failed to adequately warn of the danger or instruct on the safe use of the product; (5) a reasonable manufacturer, distributor, or seller under the same or similar circumstances would have warned of the danger or instructed on the safe use of the product; (6) the plaintiff was harmed; and (7) the defendant’s failure to warn or instruct was a substantial factor in causing the plaintiffs harm.” Rosa v. City of Seaside,
Defendant did not point out an absence of evidence to support Plaintiffs case in this respect. In opposition to summary judgment, Plaintiff argues that testimony from Defendant’s own expert, Mr. Rivord, shows that the model of sprayer was marketed to unsophisticated users, and this violated the standard of care. See Opp’n at 16-17, Docket No. 42. With the exclusion of the Second Expert Opinion, in which Plaintiffs expert opines about the adequacy of warnings, the Court is unclear how Plaintiff can meet this evidentiary burden at trial. The Court concludes, however, that the parties failed to adequately develop thе record regarding the reasonableness of Defendant’s decision not to provide more specific warnings (i.e. including the hazard symbol relating to personal protective gear in the Pressure Relief Procedure section of the Operation Manual). Thus, the level of care exercised by Defendant remains an open question, and summary judgment is inappropriate. The Court DENIES Defendant’s motion to the extent it moves for summary judgment on Plaintiffs negligent failure to warn claim.
CONCLUSION
For the foregoing reasons, the Court:
(1) SUSTAINS Defendant’s Evidentia-ry Objection to Plaintiffs Second Expert Opinion, and EXCLUDES said opinion from use in this motion for summary judgment and at trial;
(2) OVERRULES Defendant’s Eviden-tiary Objection to the Mariscal Declaration;
(3) GRANTS summary judgment on Plaintiffs breach of warranty claim;
(4) DENIES summary judgment on Plaintiffs strict liability design defect claim;
(5) DENIES summary judgment on Plaintiffs strict liability failure to warn claim;
(6) GRANTS summary judgment on Plaintiffs negligent design defect claim; and
(7) DENIES summary judgment on Plaintiffs negligent failure to warn claim.
As discussed above, if Plaintiff wishes to proceed to trial оnly on the strict liability design defect claim under the consumer expectation test, and not the risk-benefit test, any stipulation abandoning his claim under the risk-benefit test must be filed no later than June 30, 2014. Should Plaintiff decline to stipulate, Defendant shall have until July 11, 2014, to conduct discovery and disclose supplemental expert testimony on this issue.
IT IS SO ORDERED.
Notes
. Defendant asserts, and Plaintiff does not dispute, that the Operation Manual that Plaintiff identified at his deposition differs slightly but not in any substantive respect from the Operation Manual included with the Sprayer, and available on Defendant’s website. Compare Tr. 81:15-17; Docket No. 41-3 at 5 with Rivord Deck ¶¶ 7, 10 & Operation Manual. See also Mot. at 3 n. 1, Docket No. 41.
. All references to "Rule” or "Rules” hereinafter refer to the Federal Rules of Civil Procedure.
. Defendant notes that Plaintiff’s First Expert Opinion disclosure on March 25, 2014, while technically after the March 17, 2014 deadline, was arrived at with the consent of Defendant, as both parties agreed that Defendant would not move to enforce the deadline, provided Plaintiff extended additional time for Defendant to provide its Rule 26 expert witness disclosures. This date shifting, however, does not appear material to the present dispute, and Plaintiff does not argue to the contrary.
. Plaintiff need not rely on expert testimony to establish his prima facie case under the risk-benefit test. See, e.g., McCabe,
. Defendant clarifies that it did not invoke the "sophisticated user” defense in its motion for summary judgment. See Reply at 4, Docket No. 44. Accordingly, the Court does not reach