Fourth Department – Discovery: Roche v. Precision Shooting Equipment, et al.

Listen to this article

New York State Supreme Court, Appellate Division, Fourth Judicial Department

 Discovery

Expert inspection – Destructive testing

Roche v. Precision Shooting Equipment, et al.

CA 23-01435

Appealed from Supreme Court, Erie County

Background: The plaintiffs commenced an action for negligence and products liability for injuries sustained by the plaintiff when he was struck in the eye while using a compound bow manufactured by the defendant. The defendant moved to compel an inspection of the bow by its expert. After a visual inspection, the defendant moved for additional testing of the bow that would involve replacing a damaged component, restringing the bow, making certain evaluations with the string drawn, and then reinstalling the damaged component. The plaintiff appealed from an order granting the further inspection.

Ruling: The Appellate Division reversed. The court held that when seeking destructive testing a reasonably specific justification for such testing must be provided, including a movant’s belief that nondestructive testing is inadequate and that destructive testing is necessary. The defendant’s expert provided only a conclusory statement that restringing the bow with an undamaged component should better represent the condition it was in prior to the accident.

John A. Collins, of Lipsitz Green Scime Cambria, for the plaintiffs-appellants; Kevin J. Kruppa, of the Law Offices of John Wallace, for the defendant-respondent.

Oral argument video