Plaintiff Anthony Rebmann sues Astec, Inc. d/b/a Astec of Tennessee and Astec Industries, Inc. (collectively, “Astec”) based on an incident on March 19, 2020, when, in the course of his employment at an asphalt plant, his left hand became entangled in an Astec baghouse screw conveyor. Astec has answered and has also filed a Third-Party Complaint against Rebmann’s employer at the time, Gernatt Asphalt Products, Inc. (“Gernatt”), claiming contribution and negligent training and supervision.
Astec sought to strike the report of Plaintiff’s life-care expert, Nadeem I. Hussain, M.D. and has also filed motions in limine to exclude the testimony of Plaintiff’s products-warnings (or “human factors”) expert, Gerald M. Goldhaber, Ph.D. and Plaintiff’s products-liability expert Thomas A. Berry, P.E.
Plaintiff has filed his own motion to exclude or limit the opinions of Astec’s expert, Dennis B. Brickman, P.E.
Safety Expert Witness
Dr. Gerald Martin Goldhaber has emerged as the nation’s leading safety warnings and communication expert. He is the publisher of the Goldhaber Warnings Report. His clients have included over 100 of the top 500 corporations in the U.S. Fifty of the top 100 law firms and government agencies, including the FDA (for whom he consulted on a new nutritional label). Goldhaber’s clients have also included the Consumer Product Safety Commission (CPSC) to establish guidelines for products ranging from All Terrain Vehicles (ATV’s) to soda bottles to in-line skates, the USDA for whom he has consulted about potential warnings for sugary products.
Physical Medicine And Rehabilitation Expert Witness
Dr. Nadeem Imran Hussain is a Physical Medicine & Rehabilitation specialist who has practiced medicine in New York since 2014.
Hussain is a licensed physician in the state of New York, and he is certified by the American Board of Physical Medicine & Rehabilitation.
Mechanical Engineering Expert Witness
Dennis Barry Brickman is an industry veteran with over 40 years of mechanical engineering and materials science experience.
Brickman has developed specialized expertise in the safety of children’s products, outdoor power equipment, tree care machinery, elastic cord products, and automatic door sensor systems.
Engineering Expert Witness
Thomas Alan Berry holds a Master of Science in Mechanical Engineering from Wichita State University and a Bachelor of Science in Mechanical Engineering from the same institution.
He has authored at least 15 peer-reviewed papers presented at ASAE/ASABE and ASME conferences between 1985 and 2013, covering topics such as PTO safety, agricultural equipment accidents, forklift tipover risks, pallet truck accidents, mower stability, and gasoline geysering hazards.
Discussion by the Court
A. Thomas Berry, P.E.
Plaintiff has retained Thomas Berry, P.E., as an engineering expert in this case. Berry has opined that Astec “knew or should have known of technically and economically feasible design alternatives that would have significantly reduced and/or eliminated the risk to operators without unnecessarily affecting the utility of the [baghouse] machine.”
Astec sought to exclude Berry’s opinions regarding causation and alternative designs, arguing that he “failed to properly test and validate his opinions, basing them instead on unsupported assumptions.”
1. Clearance Between Door and Nip/Shear Point
The first alternative design is to add “clearance between the access door opening and the nip/shear point created by the extremely small distance between the auger flighting and the housing.” According to Berry, “this could be accomplished by raising the edge of the access door opening or providing a grate guard for the lower area of the opening, or by utilizing a left-hand flighted screw that would move the nip area to the back of the auger rather than directly below the access opening.”
a. Testing
The Court concluded that Berry did not need to perform testing as to his alternative of raising the edge of the access door opening. Astec’s expert has asserted that “[f]lighted screw augers typically have a close clearance with respect to their housing [because] otherwise, material builds up and does not adequately move near the housing interior structure.” That is sensible and understandable, but the housing in the area at issue appears to be rectangular, containing a cylindrical auger. With that geometry, the Court concluded that no testing would be required to support Berry’s opinion that raising the lower edge of the access door opening could put the pinch/nip point beyond the reach of fingers when the hand is grasping the lower edge of the housing.
b. Cost
Astec asserted that Berry has failed to conduct a “meaningful” comparison of the cost versus utility of his proposed alternative designs.
Plaintiff did not dispute the importance of cost in the analysis. But Plaintiff maintained that the associated costs were zero, nominal, required by industry standards, or otherwise based on Berry’s training, education, and experience.
As to cost, Berry asserted that raising the lip of the access opening could be provided “at no or little difference in cost.”
Absent special considerations that are not immediately apparent and that could be the subject of cross-examination, the Court agreed that no further explanation or analysis is necessary for Berry’s opinion that designing or cutting the port in the auger housing to place the lip of the access door at a higher point would carry little or no cost difference.
c. Efficacy
Astec also argued that Berry’s report lacks evidence that the proposed alternative designs “could have prevented” Rebmann’s injuries. Plaintiff maintained that the standard is not whether the design would have “prevented” the injury, but whether the design would have resulted in greater safety.
The Court agreed with Astec that designing the crossover screw with left flighting instead of right flighting would not have been materially safer. Berry asserted that the change “would move the nip area to the back of the auger.”
Raising the lower edge of the inspection door opening, however, does not suffer from the same problem. Astec correctly observed that Berry’s supplemental report recommends raising the edge by “a few inches” which is not a particularly precise specification. And if “a few inches” means just two or three inches, then Astec may be correct that the modification would not eliminate the risk of entanglement for a hand grasping the bottom edge of the inspection door opening. But the Court is not persuaded that Berry needed to calculate precisely how many inches the edge would have to be raised. It is apparent from the layout and geometry of the inspection door opening that raising the bottom edge by some number of inches—more than two but less than half the height of the inspection door opening—would put the nip/shear point more than a finger’s length away.
2. Bars on Lower Area of Access Opening, or Grate
a. Testing
Similar to the alternative of raising the bottom edge of the inspection door opening, the Court concluded that Berry did not need to test the alternative of adding bars across the lower area of the access opening. This solution is functionally identical to raising the edge of the door opening. The main difference is that that lower area of the access opening would be covered with parallel bars instead of solid metal.
b. Cost
Like the alternative of raising the bottom edge of the inspection door opening, Berry asserted that the cost of adding bars would be low; in his view, “less than $10-15.” Astec maintained that Berry’s cost estimate should be excluded for lack of any “meaningful explanation.”
The Court is not persuaded that more explanation is required; the proposed alternative design appears to involve ordinary components that could be incorporated into the inspection door opening at modest cost.
c. Efficacy
Similar to raising the bottom edge of the inspection door opening, adding a sufficient number of bars at the lower area of the opening would put the nip/shear point more than a finger’s length away. Astec argued that dust accumulation in the area would prevent visibility through the bars.
At his deposition, Berry conceded that dust accumulation between the bars would obstruct visibility if the bars were not cleaned off. Even if not cleaned off, the alternative design is for bars only on the lower area of the access opening; the upper area would still offer views into the enclosure. The Court concluded that Berry can testify to the bars as an alternative design.
3. Interlock
a. Testing
Berry’s third proposed alternative design would be to provide an interlock system “such that the augers could not operate with the access doors open or [without] a grate guard in place” to prevent contact with the running auger that would “still allow the dust to escape during the clearing operation and would allow visual inspection of the augers and shafts.”
There appears to be no dispute that interlock technology existed at the time the baghouse was designed and manufactured in the 1980s, But Astec asserted that Berry should have conducted testing to determine whether such a device “would work on the Baghouse.”
The Court agreed that adding an interlock device would be a “more substantial modification” to the Baghouse, and that the practicality and specifics of installation of an interlock depends on the machine to which it would be applied.
Although it appeared that it would at least be possible to conduct testing of an interlock system applied to the Baghouse, the Court concluded that the lack of any testing or modeling weighs somewhat against admission of Berry’s opinions on the interlock design.
b. Cost
In his report, Berry asserted that integrating “interlocked doors and grate guards” into the Baghouse would cost “approximately $200 per opening.”
Astec maintained that Bery “gives no explanation, sources, or support” for that assertion.The Court agreed with Astec that further support is necessary for Berry’s price estimate because the cost estimate must consider more than purchase price.
Astec noted that Conveyor Equipment Manufacturers Association (CEMA) industry manual is “an industry group not focused on regulation (or authorized to regulate) but on voluntary standardization of conveyor design.” Even assuming that the CEMA manual purported to require interlocks for applications like the Baghouse, the manual would not constitute regulatory or binding authority. Thus, the cost of an interlock system remains relevant to the reliability inquiry.
c. Efficacy
Perhaps the most important consideration as to the interlock design is whether it would improve safety without negatively impacting maintenance and inspection. Berry and Rebmann both testified that Rebmann needed the crossover screw to be running while he was looking into the inspection door because he needed to determine whether the repair to the screw was successful.
The Court is unpersuaded on this point. If disabling the proposed interlock were the only way to accomplish the inspection, Plaintiff could argue that the time spent doing so could have called extra attention to the need for caution near the spinning auger. Moreover, disabling the interlock would not have necessarily been the only way for Rebmann to complete his task. One version of the interlock that Berry proposes is that it would prevent the augers from operating unless a grate guard was in place. In that scenario, Rebmann would likely have simply replaced the grate guard, rather than attempting to disable the interlock mechanism. The Court concluded that all of these questions about testing, cost, and efficacy of an interlock system are suitable for cross-examination but are not a basis to exclude Berry’s testimony on that alternative.
4. Safety Signs
There appears to be a dispute about whether Astec supplied safety signs on or near the inspection door when the product was delivered to Gernatt in 1984. No warning signs or labels are visible on or near the inspection door in the contemporaneous photographs. However, Astec Vice President George Francisco testified in 2024 that he worked for Astec for over 31 years, and that in his experience during that time, Astec would affix warning labels to areas like the inspection door on the baghouse at issue in this case.
a. Testing
Aster’s arguments about the proposed addition of safety signs or warning labels do not appear to include a lack-of-testing criticism. In the context of warning labels, the testing that is often most relevant involves “creating several warning labels that varied with respect only to a single characteristic and then gauging peoples’ reactions to the various labels.”
Here, in contrast, the inquiry is only the presence or absence of any warning labels at all. Testing might be helpful to determine how long a safety sign would remain attached or visible in a dusty and vibrating environment, but the court does not conclude that such testing was necessary here.
b. Cost
Berry asserted that safety signs at each access door could have been provided “at a cost of less than $3 each.” Astec faults that assertion as unsupported by any explanation or sources.
The Court concluded that no further support is required for the proposition that, at least compared to the total cost of a baghouse, industrial safety signs were relatively inexpensive in the 1980s. Whether special adhesion or paint might be required for equipment in a dusty and vibrating environment would be fair game for cross examination.
c. Efficacy
Astec contended that “there is a complete absence of factual support for Berry’s conclusion that the alleged failure to warn was a proximate cause of Plaintiff’s injuries.”
Astec cited Berry’s testimony stating that he agreed that “it’s reasonable to expect that [warnings on equipment] [are] not going to be read.” Plaintiff countered that “the general concept that not all warnings are followed, does not negate Astec’s responsibility to adequately warn.”
The Court agreed with Plaintiff on this point; safety signs and placards have long been established as “resulting in greater safety.” The Court’s reasoning below as to Astec’s motion to exclude Plaintiff’s products-warnings expert, Goldhaber, supports this conclusion.
B. Gerald Goldhaber, Ph.D.
1. “Unsupported Assumptions” on Effectiveness of Warnings
Astec contended that Goldhaber’s opinions are “premised on the false narrative that Plaintiff was told to get close to the moving screw to check it.”
At his deposition, Goldhaber asserted that Robert Rebmann, Anthony Rebmann’s uncle and immediate supervisor, directly ordered Anthony Rebmann to “first clean the dust out, and inspect those augers.”
The fact that Robert Rebmann agreed that the “check” required the augers to be turning does not prove that he expressly instructed Anthony Rebmann to perform the check. Based on its review of Robert Rebmann and Anthony Rebmann’s testimony, the Court agreed with Astec that there is no support for the proposition that Robert Rebmann expressly instructed to carry out a “check” or “inspection” of the repaired crossover screw (or how to perform that check). The Court therefore agreed to limit Goldhaber’s testimony insofar as he might opine that Rebmann received instructions to put aside his training, background, or common sense.
Astec has a further criticism about the factual basis for Goldhaber’s report: Astec contended that his opinions “disregard that Plaintiff habitually ignored safety protocols, safety training and safety procedures.” The original report, dated August 8, 2024, did not discuss Rebmann’s prior safety incidents. The Court concluded that, at best, it is debatable whether Rebmann’s prior workplace injuries and a verbal reprimand for failing to wear a hardhat show that he “habitually ignored” safety protocols, training, or procedures. In any case, Goldhaber has addressed Rebmann’s prior safety incidents in the supplemental report.
2. Goldhaber’s Own Testimony and Writing on Effectiveness
Astec further argued for exclusion of Goldhaber’s opinion about the effectiveness of warning signs or placards as being “in direct contradiction to his own testimony and work on the effectiveness of warnings.”
However, the inquiry is not whether warning signage would have made the user aware of a danger of which they were previously unaware. The inquiry is whether a warning would have increased the user’s awareness of the danger. Rebmann testified that if warning signs or labels had been present “it would have made me think about becoming—it would have made me think about coming in close proximity a little bit more.” A jury can assess that testimony, and the Court will not exclude Goldhaber from offering similar testimony.
3. Warnings Standards as of 1984
Goldhaber’s report specifically faults Astec for failing to comply with ANSI Z535.4, which lie asserts “has been in effect since 1968.” Astec insisted that “in reality, the first version of the ANSI Z535.4 standard for product safety signs and labels was published in 1991, seven years after the Baghouse was manufactured and delivered to Gernatt.” Plaintiff maintained that ANSI Z35.1-1968 was approved in September 1968 and that the Occupational Safety and Health Administration (OSHA) “adopted this standard in 1971, requiring workplaces to comply with it starting August 31, 1971.”
Astec cited a post on the ANSI website indicating that ANSI Z535.4’s “initial publication” was in 1991—after the Baghouse was manufactured in 1984.
The Court accepts that as true, but Astec’s argument on this point fails to account for the fact that ANSI Z535.4’s predecessor is USAS 235.1. And federal regulations incorporated the Z35.1-1968 standard in 1984.
For all of the above reasons, the Court denied Astec’s motion to exclude Goldhaber’s testimony.
C. Nadeem Hussain, M.D.
Astec contended that Hussain’s report is “an entirely new report that fails to contradict, challenge, or rebut Defendant’s corresponding report,” and that it is “not based on any new or previously unavailable information that would trigger a duty for Plaintiff to supplement its report.”
There is no dispute that Hussain’s report cannot qualify as an initial expert disclosure. Plaintiff’s deadline for initial expert disclosures was August 30, 2024, and Plaintiff submitted Hussain’s report well after that date.
The Court concluded that Hussain’s report is partly a proper rebuttal and partly and improper new expert report. Insofar as the report violates the discovery rules, the Court considers the following factors below.
a. Plaintiff’s Explanation
Plaintiff’s explanation is that he offered Hussain’s report “to contradict or rebut evidence on the same subject matter.”
The majority of Hussain’s life-care plan did not repel, counteract, or disprove the opposing expert’s diagnostic report. But there are exceptions: Hussain’s inclusion of massage therapy implicitly contradicts the opposing expert’s opinion that it is not medically necessary, and Hussain’s inclusion of costs for prosthetics and related supplies for Rebmaim’s lifetime implicitly challenges the opposing expert’s remark about prosthetic abandonment. This factor is therefore mixed.
b. Importance of Hussain’s Testimony
In general, a second life-care plan is not particularly important to Plaintiff’s case. But medical opinions on the necessity or utility of the highest dollar-value treatments are very important to Plaintiff’s damages case. This factor is also mixed.
c. Prejudice to Astec
Plaintiff argued that Hussain’s report does not prejudice Astec, particularly because Astec had “an opportunity to rebut his report in writing and did so.”
Astec maintained that allowing Hussain would result in significant prejudice. The Court is not persuaded that any of the items that Astec lists weigh significantly in favor of striking Hussain’s report. Instructions to the jury can mitigate concerns about giving more weight based on the quantity of evidence. The discovery order can be amended without prejudicing either side. Preparing to oppose a second life-care expert will require some additional expense, but it is not excessive in proportion to all the other expenses in this litigation.
d. Possibility of Continuance
Finally, Plaintiff asserted that a continuance is possible because “there is time afforded by the current case management order to complete expert discovery and depositions; and there is no trial date.”
In December 2024, when Plaintiff filed his opposition to Astec’s motion to strike Hussain’s report, the Court had ordered expert depositions completed by March 15, 2025. Now, in mid-2026, all of the deadlines in that prior order have passed. However, it remains true that there is no trial date set in this case.
For the reasons discussed above, the Court declined to strike Hussain’s report. The Court instead elects to grant Astec an opportunity to serve a surrebuttal report.
D. Dennis Brickman, P.E.
Plaintiff sought preclusion of Brickman’s March 2025 report, arguing that it is untimely insofar as it contains new information and references.
The first issues are whether Brickman’s March 2025 report is a timely and proper supplementation. Plaintiff has identified no court order altering the deadline, and because no trial date has been set, Rule 26(a)(3)(B)‘s 30-day deadline has not yet expired.
The Court therefore rejected Plaintiff’s assertion that Brickman’s March 2025 report is untimely supplementation. The more significant dispute is whether it is proper “supplementation” at all.
Plaintiff argued that Brickman’s March 2025 report is not supplementation, asserting that Brickman “undertook new work and testing based on information and materials that were equally available to him at the time of his first report.”
For the reasons above, the Court rejected Astec’s explanations for providing the “supplemental” report. In the Court’s view, Brickman’s March 2025 opinions regarding the AGSCO mesh guard are of limited importance because Berry cited that manufacturer’s product only as an example. The AGSCO product’s one-inch openings might allow a finger to pass through, but a different screen with openings smaller than one inch could be specified. Moreover, even a screen with one-inch openings would have been safer than no screen at all.
At the same time, Brickman’s March 2025 opinions about reduced visibility from the proposed interlocked mesh guard are more detailed than his opinion on that topic in his October 2024 report. Plaintiff asserted that failure to exclude Brickman’s March 2025 report or related testimony would result in “extreme” prejudice. The Court concluded that any such prejudice can be mitigated by granting Plaintiff the opportunity for a surrebuttal.
Held
- The Court denied Astec’s motion in limine to exclude Gerald Goldhaber’s testimony.
- The Court granted in part and denied in part Astec’s motion in limine to exclude Thomas Berry’s testimony.
- The Court denied Astec’s motion to strike the expert report of Nadeem Hussain.
- The Court denied Plaintiff’s motion to preclude the opinions of Dennis Brickman.
Key Takeaway
Turning to the question of the proper sanction for failure to conform to the discovery rules, the Court considers (1) the party’s explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.
Case Details:
| Case Caption: | Rebmann V. Astec, Inc. |
| Docket Number: | 1:21cv879 |
| Court Name: | United States District Court, New York Western |
| Order Date: | July 13, 2026 |
