Full opinion text
OPINION AND ORDER SCHEINDLIN, District Judge. In the afternoon of January 2, 1998, then six year-old Josué Colon stole away with his youriger brother to play with their great-aunt’s disposable cigarette lighter in the bathroom while she was watching television. Tragically, Josué succeeded in igniting his own shirt, inflicting severe burns on his torso and neck. Josué, an infant under the age of fourteen by his mother, Iris Molina, and Iris Molina, individually, bring this personal injury action against defendant BIC USA, Inc. (“BIC”), based on common law tort theories of negligence, strict products liability and breach of warranty in connection with the design, manufacturing, testing, merchandising, and marketing of a BIC disposable butane lighter. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332 and venue is proper in this district. This Court denied BIC’s motion to dismiss on preemption grounds, holding that plaintiffs’ claims were not expressly or impliedly preempted by the Consumer Product Safety Act, 15 U.S.C. §§ 2051-2084. See Colon v. BIC, 136 F.Supp.2d 196 (S.D.N.Y.2000)(“Colon I”). Trial is set to begin on January 7, 2002. BIC now moves for summary judgment on the grounds that (1) the lighter that injured Josué was substantially modified after it left BIC’s control; (2) there can be no duty to warn when additional warnings would be superfluous under the circumstances; and (3) no genuine issue of material fact exists as to whether Josué removed the lighter’s safety feature. Defendant also moves to exclude the testimony of plaintiffs’ expert, John Nelson, on the ground that it fails the Daubert, Kumho Tire and Joiner criteria for admissibility of expert testimony. Further, defendant moves to dismiss Iris Molina’s claims for emotional and psychiatric injuries, as well as for pecuniary support, because she was not within the “zone of danger” and because an award of pecuniary support for the mother would be duplicative of any lost earnings award to Josué. Defendant also moves for separate trials on liability and damages. Finally, defendant brings the following motions in limine: (1) to limit the number of photographs and slides of Josue’s injuries; (2) to exclude the videotape of Josué in the hospital; (3) to exclude prior claims and complaints against BIC; and (4) to exclude expert testimony regarding plaintiffs’ claim that the lighter’s bright color was a design defect. Plaintiffs bring the following motions in limine: (1) to exclude the testimony of defendant’s expert, Lawrence Broutman, because it would be cumulative; (2) to exclude the testimony of defendant’s expert, Eric Peterson, because it would be cumulative, irrelevant and amount to improper legal testimony. Plaintiffs move to exclude all evidence of Josue’s prior conduct and activity as irrelevant and improper character evidence. Defendant’s motions (1) to dismiss Iris Molina’s claims, (2) to bifurcate the trial, and (3) to exclude all reference to color as a design defect are granted. Defendant’s motions to limit the number of visual representations of Josue’s injuries, and to exclude the hospital videotape, are granted with respect to the liability phase of trial, but denied with respect to the damages phase. The motion to exclude evidence of Josue’s prior conduct or activity is granted. Plaintiffs’ motion to exclude the testimony of Eric Peterson is granted, but their motion to exclude Lawrence Brout-man is denied. For the reasons set forth below, defendant’s motion for summary judgment is granted as to plaintiffs’ design defect claims including failure to warn, but denied as to their manufacturing defect claim. Defendant’s motion to exclude John Nelson’s testimony on alternative designs is granted, but Nelson may testify as both a lay and expert witness regarding causation in conjunction with plaintiffs’ claim for manufacturing defect. I. FACTUAL BACKGROUND A. The Accident On January 2, 1998, six-year-old Josué sustained burns to his torso and neck after igniting his shirt with a BIC lighter. See Plaintiffs Verified Amended Complaint (“Compl.”) ¶ 11. The incident occurred while Josué was staying with his aunt, Brunhilda Rivera, in Worcester, Massachusetts. See Defendant’s Local Civil Rule 56.1 Statement (“Def.56.1”) ¶ 1; Plaintiffs’ Response to Defendant’s Rule 56.1Statement (“Pl.56.1”) ¶ 1. Ms. Rivera purchased a red BIC J-15 lighter three days prior to the accident from Santiago’s Market in Worcester, Massachusetts. See Def. 56.1 ¶ 2; PI. 56.1 ¶ 2. She describes the lighter that she bought as having a red body, a black locker, and a white warning label that read “Flammable” or “Inflammable.” See 2/26/01 Deposition of Brunhilda Rivera, Great-Aunt of Josué Colon (“Rivera Dep.”) at 16, 55-56. She did not have any other lighters in the house at the time of the accident. See PI. 56.1 ¶ 2; Rivera Dep. at 37-88. Plaintiffs contend that the lighter that the police retrieved several hours after the accident (“subject lighter” or “lighter”) is the same lighter that Ms. Rivera purchased three days earlier and that Josué used to injure himself. PI. 56.1 ¶ 3. The subject lighter no longer had a child-resistant safety latch (or “locker” or “child guard” or “safety feature”) when the police retrieved it. See Def. 56.1 ¶ 13; PI. 56.1¶ 13; Photograph of Subject Lighter Placed on 01/02/98 Note Written by Sgt. Mark Richardson (“01/02/98 Police Photograph”)(identifying subject lighter and transcribing Ms. Rivera’s address), Ex. E to 10/15/01 Declaration of John Nelson, Plaintiffs’ Expert (“Nelson Dec.”). Both Ms. Rivera and Iris Molina, who was present in the store where Ms. Rivera bought the lighter, recall that the subject lighter was purchased with a child-resistant safety latch attached to it. See Rivera Dep. at 16, 57; 1/4/01 Report of John Nelson (“Nelson Rpt.”) at 3 (referring to his 12/27/00 interview of Iris Molina). In fact, Ms. Rivera testified that she made sure that she purchased a lighter that was child-resistant. See Rivera Dep. at 57. Ms. Rivera testified that she did not let anyone borrow her lighter in the three days between its purchase and the accident, that she did not remove the subject lighter’s latch or any part of the lighter prior to the accident, and that she has never removed the “locker” or any part of any lighter in the past. See id. at 64, 62, 63-64; PI. 56.1 ¶ 9. She swears that the child-resistant locker was intact when she last used the lighter at 1:30 p.m. and placed it on the shelf in the living room. See Rivera Dep. at 63. On the day of the accident, Ms. Rivera smoked her last cigarette at 1:30 p.m. and placed the subject lighter on an approximately five foot high shelf in the living room, about six feet from where the two boys were watching television. See Def. 56.1¶ 10; PI. 56.1 ¶ 10; Rivera Dep. at 66, 35-36 (testifying that she always put her lighter on that shelf). She then sat down to watch television with Josué and his brother, Abdel. See Rivera Dep. at 35. Around 3 p.m. Josué and his brother asked permission to use the bathroom. See id. at 35, 44. Ms. Rivera agreed. See id. at 44. Ms. Rivera believes that either Josué or his brother climbed onto the back of a sofa or armchair to obtain the lighter, and went into the bathroom with it. See id. at 66. A few minutes later, Ms. Rivera heard screams coming from the bathroom and came running. See id. at 45 (“two or three minutes”), 50 (“a couple of minutes”), 70 (“a few minutes”). She found Josué crying, engulfed in flames from the waist up; she rolled Josué on the kitchen floor and doused him with water to put out the fire. Id. at 44, 50,68. After calling 911, Ms. Rivera asked the younger brother whether they had used matches to start the fire. See id. at 47. According to Ms. Rivera, Abdel responded, “No. He had the lighter.” Id. (referring to Josué). Ms. Rivera also testified that the younger brother told her that Josué had been “playing with a black thing ... moving [it], trying topulling that black thing and trying to light it up.” Id. at 48. Ms. Rivera found the subject lighter on the floor of the bathroom or the kitchen, and tossed it onto the dining room table. See id. at 42, 48 (not recalling whether it was the bathroom or kitchen). Josué testified that the lighter was easy to operate because it did not have a “little black thing” attached to it. See 3/28/01 Deposition of Josué Colon (“Josué Dep.”) at 35 (referring to the black locker). Jo-sué explained, “it turned on by itself when I switched it, but it didn’t have the thing on it,” later clarifying “the little black thing. I don’t know.” Id. at 34-35. He did not specify whether he meant that the black locker, or safety feature, was missing at the time he used it or at the time he or his brother took it from the shelf. Josué clarified that he simply pressed the metal part of the lighter with his thumb to ignite it. See id. at 36 (“[Q:] What part of the lighter did you touch? [A:] The metal part. When I touched, it went on.”). Jo-sué also denied that he had altered the lighter in any way. See id. at 35 (“[Q:] From the time you reached for the lighter on the shelf to the time you got to the bathroom, did you do anything to the lighter? [A:] No.”). But see infra Part III.D.3 (holding that there is a genuine issue of fact as to whether Josué removed the safety feature himself, despite Josue’s testimony to the contrary). The police were the first strangers to arrive on the scene after Ms. Rivera dialed 911. See Rivera Dep. at 49 (testifying that three or four officers arrived “a few minutes” after she called 911 and that they arrived before the ambulance). The ambulance arrived shortly thereafter. See id. at 49. The police found the subject lighter on the kitchen table (also referred to as the dining room table by Ms. Rivera) and impounded it. See 01/03/98 Worcester Police Department Report by Sgt. Mark Richardson (“A pink colored butane lighter was later observed on the kitchen table and is believed to be the lighter used by Joshua [sic]. It was taken into our possession, along with most of the remains of the charred shirt.”); Rivera Dep. at 55 (“[The police officer] took it [the subject lighter] from the table.”). B. BIC’s J-15 Model Lighter The subject lighter is a BIC J-15 model lighter manufactured with a “Child Guard” safety latch. See Rule 26 Report of Paul Labrum, BIC’s Director of Corporate Quality (“Labrum Rpt.”) at 2 (“The lighter is a J-15 model fixed-flame Child Guard lighter manufactured in Spain during week 28, 1995.”). In order to operate the fighter, the user must push the Child Guard latch “in and up” to access the valve actuator. See 7/13/94 Letter from BIC to Michael T. Bogumill, Compliance Officer at the Consumer Product Safety Commission (“CPSC”) (“7/13/94 Safety Report”), Ex. AA to 8/14/01 Affidavit of Anthony Tagfia-gambe (“Tagfiagambe Aff.”), Defendant’s Attorney, at 1 (describing operation of the J-15 fighter). The latch otherwise obstructs the downward movement of the actuator. See id. With the latch in the “up” position, the user must depress the actuator while rotating the spark wheel with her thumb. See id. The valve actuator delivers isobutane gas up to where the wheel generates sparks to ignite the fuel and create a flame. See id. Once the latch is released, the Child Guard returns to its closed or latched position. See id. The Child Guard was designed to make it very difficult for young children, who lack fine motor skills and the requisite strength, to operate the fighter. See Rule 26 Report of Paul Adams, BIC’s Area Manager for Lighter Development (“Adams Rpt.”) at 5. For children ultimately able to operate the fighter, the purpose of the Child Guard was to delay operation to allow for the possibility that adult supervision would resume. See id. Plaintiffs do not dispute that the fighter, manufactured according to specifications, meets the applicable CPSC standard for child-safety. See id. at 3; Labrum Rpt. at 3. The standard requires that at least 85% of children under age five must be unable to override the safety feature. See 16 C.F.R. § 1210. Using surrogate fighters which beep rather than ignite, defendant has conducted tests to determine how many children are able to override the feature. See Adams Rpt. at 3. Defendant’s tests of the J-15 model lighter have shown that 95% of children age five and under are unable to override the Child Guard safety feature. See 7/13/94 Letter from BIC to Michael T. Bogumill, Compliance Officer at CPSC (“7/13/94 Safety Report”), Ex. AA to Tagfiagambe Aff., at 2 (reporting test results of children using model J-15 surrogate lighter). Over the course of defendant’s testing of its enhanced child-resistant fighters, including the J-15 fighter, not one of the 5,000 children under age 5 has been able to completely disable the Child Guard by removing it. See Adams Rpt. at 4; 8/29/01 Affidavit of Paul Adams (“Adams Aff.”) ¶ 11. Plaintiffs have conducted no tests to show how many children are able to override the feature or whether any children are actually able to remove it. See 7/11/01 Deposition of John Nelson, Plaintiffs’ Expert (“Nelson Dep.”) at 238. Using various tools, some smokers pry the safety guard from the J-15 model fighter to permit ease of use. One device for prying out the safety feature is the Quick Fix tool. See 7/27/01 Deposition of Paul Adams, Plaintiffs’ Expert (“Adams Dep.”) at 98-99. BIC is aware of the Quick Fix tool and is otherwise cognizant of the fact that the Child Guard feature aggravates some of its customers, and that many of these customers remove the feature from their lighter. See id. at 98-99 (admitting that BIC was aware of the Quick Fix tool, and had in fact purchased some for testing purposes); 1/08/96 BIC Website Posting From “hack” (describing how to “de-childproof” BIC lighters with needle-nose pliers) and an undated BIC Website Posting from “JyNx” (describing how to pry out the “annoying” “little red safety button” from BIC lighters using a pocketknife), Ex. U to Nelson Dec. (the “BIC Website Postings”). Plaintiffs advocate a failsafe lighter design which renders the lighter inoperable when the safety feature “fails” (is removed or broken). See 1/4/01 Nelson Rpt. at 8; Nelson Dec. ¶ 22; Plaintiffs’ Memorandum in Opposition to BIC’s Motion for Summary Judgment (“Pl.Opp’n.”) at 14. Defendant knows of no lighter on the market which is rendered inoperable when the safety feature is removed. See Adams Rpt. at 4. Further, defendant claims that none of the failsafe mechanisms it has tested are technologically feasible. See id. Defendant claims that every BIC lighter is produced with a peelable white label warning that reads either “Keep Away From Children” or “Keep Out of Reach of Children.” Adams Rpt. at 8. But see Rivera Dep. at 55-56 (remembering a white sticker that read “Flammable” or “Inflammable”). Apparently, the subject lighter’s label warning had been peeled off when the police retrieved it on the day of the accident. See 01/02/98 Police Photograph; Labrum Rpt. at 2 (observing that subject lighter was missing its warning label). II. DEFENDANT’S DAUBERT MOTION TO EXCLUDE EXPERT TESTIMONY Defendants move to exclude the testimony of plaintiffs’ expert, John Nelson. A. Legal Standard for Admissibility: Rule 702, Daubert When deciding a motion for summary judgment, a federal district court may consider only admissible evidence. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir.1993); Borgognone v. Trump Plaza, No. 98 Civ. 6139, 2000 WL 341135, at *2 (E.D.N.Y. Mar.9, 2000)(“0n a summary judgment motion, a district court properly considers only evidence that would be admissible at trial.”)(quotation marks and citation omitted). Pursuant to Rule 104(a), the court must evaluate evidence for admissibility before it considers that evidence in ruling on a summary judgment motion. Fed.R.Evid. 104(a) (evaluation of preliminary questions); see also Borgognone, 2000 WL 341135, at *2; Donnelly v. Ford Motor Co., 80 F.Supp.2d 45, 47-48 (S.D.N.Y.1999). If a proffer of expert testimony is excluded as inadmissible pursuant to Rule 702, the court must make the summary judgment determination on a record that does not include that evidence. See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997); Donnelly, 80 F.Supp.2d at 47. The standard for admissibility of evidence pursuant to Rule 702 is the same at the summary judgment stage as it is at trial. See General Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)(“On a motion for summary judgment, disputed issues of fact are resolved against the moving party ... but the question of admissibility of expert testimony is not such an issue of fact.”). Federal Rule of Evidence 702 provides If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Fed.R.Evid. 702. The Supreme Court has defined the role of the district court as that of a gatekeeper charged with the task of deciding whether an expert’s scientific testimony satisfies Rule 702’s general requirements of reliability and relevance. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Originally intended to screen out “junk science,” Daubert has been extended to apply to both technical and other specialized expert evidence as well. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)(teehnical or other specialized knowledge); Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir.2000). In December 2000, Rule 702 was amended to incorporate Daubert’s formulation of the gatekeeping task: the district court must make certain that “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702. The proponent of the evidence must establish admissibility under Rule 104(a) by a preponderance of the proof. See Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). The trial judge’s gatekeeping task under Rule 702 and Daubert is twofold: she must determine whether the evidence “both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786; United States v. Marji, 158 F.3d 60, 62 (2d Cir.1998). To assist with the first task of assessing the reliability of expert testimony, Daubert provides the district court with four non-exclusive criteria to apply to the expert’s reasoning or methodology: (1) whether the expert’s concept is capable of being, and has been, tested; (2) whether it has been subjected to peer review; (3) what the known rate of error is; and (4) whether the technique and theory is generally accepted by the scientific community to which it belongs. See Donnelly, 80 F.Supp.2d at 47 (citing Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786). Although the focus of the overall inquiry must be on principles and methodology and not on conclusions, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Joiner, 522 U.S. at 146, 118 S.Ct. 512. Expert engineering testimony may rest on scientific foundations or on the personal knowledge or experience of the engineer. See Cacciola v. Selco Balers, Inc., 127 F.Supp.2d 175 (E.D.N.Y.2001)(citing Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167). In the latter case, a judge may inquire as to how often an engineering expert’s experience-based methodology has produced erroneous results, or whether such a method is generally accepted in the scientific community. Id. (citing Kumho Tire, 526 U.S. at 151, 119 S.Ct. 1167). B. In Limine Daubert Hearing Courts often hold pretrial eviden-tiary hearings pursuant to Rule 104(a) to determine whether expert scientific (or other specialized) testimony is reliable under Daubert, regardless of whether the parties have requested such a hearing. Here, the parties have not requested a Daubert hearing. Whether to hold a hearing rests within the discretion of this Court. See Michael H. Graham, 2 Handbook of Federal Evidence § 702.5 (5th ed. 2002)(“In light of the Supreme Court’s emphasis on the broad discretion granted to trial courts in assessing the relevance and reliability of expert testimony, and in the absence of any authority mandating such a hearing, we conclude that trial courts are not compelled to conduct pretrial hearings in order to discharge the gatekeeping function.”); Margaret Berger, “Supreme Court’s Trilogy on Admissibility of Expert Testimony,” Reference Manual on Scientific Evidence 29 (Fed. Judicial Center 2000)(stating that district courts have discretion). The party proferring testimony is not entitled to a Rule 104(a) hearing. See Oddi v. Ford Motor Co., 234 F.3d 136, 154-55 (3d Cir.2000) (affirming summary judgment granted after excluding expert testimony without holding in limine Daubert hearing), cert. denied, 532 U.S. 921, 121 S.Ct. 1357, 149 L.Ed.2d 287 (2001); United States v. Alatorre, 222 F.3d 1098, 1104-05 (9th Cir.2000)(distinguishing United States v. Velarde, 214 F.3d 1204, 1209-11 (10th Cir.2000), where the district court failed to conduct any reliability determination before excluding evidence); United States v. Nichols, 169 F.3d 1255, 1262-63 (10th Cir.1999); Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir.1998). The Second Circuit has held that, in general, Rule 104(a) pretrial evidentiary hearings are “highly desirable” because they allow parties to present expert evidence and conduct cross-examination of the proposed expert. Borawick v. Shay, 68 F.3d 597, 608 (2d Cir.1995)(nonetheless affirming exclusion of expert testimony despite district court’s failure to hold pretrial hearing). Moreover, failure to hold an in limine hearing, especially in the context of summary judgment, may be an abuse of discretion when the ruling on admissibility turns on factual issues. See, e.g., Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir.1999); see also In re TMI Litig., 199 F.3d 158, 159 (3d Cir.2000)(stating that in limine hearing is important where exclusion will result in summary judgment, and that magistrate judge abused discretion by excluding evidence without holding in limine hearing); Ref. Manual on Sci. Evid. at 29 (“The facts of the case and the consequences of losing the in limine motion will determine the extent of the opportunity the proponent of the expert must be given to present its case.”). Not all circuits agree. See Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 248-49 (6th Cir.2001)(holding that district court not required to hold hearing before excluding evidence pursuant to Daubert)(affirming summary judgment); see also Oddi, 234 F.3d at 151-54 (distinguishing Padillas where the record was so scant that the district court could not have evaluated how the expert arrived at his opinions). Nothing in Daubert, or any other Supreme Court or Second Circuit case, mandates that the district court hold a Daubert hearing before ruling on the admissibility of expert testimony, even where such ruling is dispositive of a summary judgment motion. The crux of the parties’ dispute over Nelson’s testimony is whether, as a matter of law, an engineer’s testimony in a design defect case requires the testing of a prototype or existing product to be reliable. See Padillas, 186 F.3d at 417 (hearing necessary where court is concerned with the “factual dimensions” of the proposed expert’s evidence). Finally, the fact that the evidentiary record is well-developed in this case makes a Daubert hearing that much less necessary. See Oddi, 234 F.3d at 154 (rejecting plaintiffs argument that in limine Daubert hearing was required when court had reviewed well-developed record which included two depositions, a declaration and an expert report); see also Nelson, 243 F.3d at 249 (Daubert hearing not required, especially where record was extensive and Daubert issue was fully briefed by the parties). C. Nelson’s Proffered Expert Opinion John Nelson, the plaintiffs’ expert, proffers an expert opinion on two different alleged defects: (1) whether BIC’s failure to use failsafe technology in conjunction with the J-15 lighter is unreasonably dangerous and whether there exists a feasible design alternative to the J-15 lighter’s child safety feature that would make the product safer, and (2) whether the J-15 lighter’s bright color and small size constitutes a defect and whether manufacturing lighters in a dull, matte color is itself a feasible design alternative that would make lighters less attractive to children and therefore safer. Nelson submits a declaration which contains twenty-three (23) exhibits that he relied upon in reaching his expert opinion. See Nelson Dec. Nelson summarized his conclusions: [I]t is my opinion, to a reasonable degree of engineering and scientific certainty, that the BIC J-15 mini-lighter that was involved here was defectively designed, and was unreasonably hazardous for its intended use, because (a) it was not designed and manufactured with reasonable fail-safe technology, which was feasible, and that would have prevented it from operating even if the latch were removed and (b) BIC disregarded the repeated advice of those companies which it had engaged which had stated that color and size of disposable lighters [made the lighters] particularly attractive to children because of these characteristics. Nelson Dec. ¶ 22. As a threshold matter under Rule 702, the Court must now examine (1) Nelson’s qualifications to testify about alternate designs incorporating fail-safe technology; and (2) his qualifications to testify about children’s color preferences. See Fed.R.Evid. 702 (requiring a witness to be “qualified as an expert by knowledge, skill, experience, training or education”). Next, the Court must apply the first prong of the Daubert inquiry by evaluating Nelson’s methodology or reasoning leading to his conclusions regarding the alleged defects in the J-15 lighter, causation of Josue’s injury, alternative designs incorporating failsafe technology and an alternative design based on child color preference. See Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (“The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”). As a third and final step in determining whether expert testimony is admissible, courts apply the second prong of Daubert which tests any reliable testimony for fitness, or relevance, to the question(s) at hand. D. Nelson’s Qualifications As explained below, Nelson is qualified to testify about failsafe technology in disposable butane lighters, but is not qualified to testify about child color preference or lighter designs based on color. Nelson is an engineer who has spent thirty-two (32) years designing, manufacturing and testing gas fuel products, including those which use butane. See Nelson Dec. ¶ 5. Butane is the type of fuel used in the lighter in this case. See id. Nelson worked as an engineer for Bernzomatic, a manufacturer of fuel gas and related products, for twenty-three years, during which time he ‘Vas responsible for the design of more than thirty-five (35) gas fueled and related products, and designed and/or specified details for more than two hundred (200) related components.” Id. ¶ 6. In addition, Nelson was “personally responsible” for testing many fuel gas products, including “every one of the products” he himself designed for the company. Id. ¶ 7. He was also responsible for overseeing testing programs for “an entire line of butane fueled products, which included lighters.” Id. ¶ 8. Nelson provides an impressive list of fuel gas and butane products that he has designed, tested and/or analyzed over the past three decades, including a propane torch employing fracture groove means technology. See Partial Schedule of Fuel Gas and Butane Products Designed, Tested, And/Or Analyzed by John Nelson, Ex. B to Nelson Dec; see also Nelson Dec. ¶ 11; infra Part II.E.l (describing Nelson’s proposed design involving fracture groove means technology). Nelson has also personally secured patents on three products utilizing piezoelectric spark ignition for fuel gas camp lanterns. Id. ¶ 41; infra Part II.E.2 (detailing Nelson’s proposed design for a piezoelectric lighter with circuit breaker). BIC contends that Nelson is not a qualified expert because he has never worked or consulted for a lighter manufacturer, has not taken courses dealing specifically with lighters, and has not previously testified in a lighter case. See Defendant’s Memorandum of Law in Support of its Motion to Exclude Plaintiffs Expert and for Summary Judgment (“Def.Mem.”) at 13. The Court finds no support for this contention. Nelson’s extensive background in engineering fuel gas and butane products is sufficient to qualify him as an expert on incorporating childproof or child-resistant failsafe technology into disposable lighters. An expert’s training need not narrowly match the point of dispute in the case. See, e.g., Lappe v. American Honda Motor Co., 857 F.Supp. 222, 226 (N.D.N.Y.1994)(“Liberality and flexibility in evaluating qualifications should be the rule; the proposed expert should not be required to satisfy an overly narrow test of his own qualifications.”), aff'd, 101 F.3d 682, 1996 WL 170209 (2d Cir.1996); McCullock, 61 F.3d at 1043 (holding that “quibble” over expert’s lack of academic qualifications, where expert had “extensive practical experience,” went to weight, not admissibility, of expert testimony). On the other hand, plaintiffs have not shown that Nelson is qualified as an expert in any field of study related to child color preferences. Nelson’s qualifications regarding childproof and child-resistant technology on lighters does not mean that he is qualified to testify about children’s color preferences. The social science of child psychology and color preference differs from the physics of a child’s ability to exert enough force to defeat a child-resistant or childproof safety feature. Because I conclude that Nelson is not qualified to testify about child color preferences, I need not discuss in detail the reliability of his testimony on this subject. E. Reliability of Nelson’s Opinion on Failsafe Designs for Lighters 1. Nelson’s Opinion on Alternative Failsafe Designs Drawing from ten lighter designs for which BIC obtained patents as well as his own practical experience, Nelson offers two proposed design alternatives to the J~ 15 lighter’s safety latch. He entitles the first the “Fracture Groove Means Design Concept” (hereinafter “Fracture Concept”). Nelson Dec. ¶¶ 35-37. This proposed design is based on “at least 2 of the” patents, although Nelson does not specify which patents he is referencing. Id. ¶ 35. Nelson does not define “fracture groove means” but offers that they are “readily used in the design of products and are incorporated almost exclusively for safety reasons.” Id. ¶ 37. Apparently, “fracture groove means” refers to a built-in weakness in the plastic or other material. Nelson’s Fracture Concept entails using fracture groove means to make a “simple modification” to the J-15’s existing locking latch (child safety feature), which would make the locking latch break in two if anyone tried to remove it. Id. Even broken in two, the locking latch would be “functionally intact” because parts of it would be left within the body of the lighter, “continuing to prevent depression of the valve actuator.” Id. Nelson declares that his design is failsafe, but later contradicts himself by stating that this design will render “a child’s ability to operate the lighter [ ] extremely difficult because it would likely require ... a level of skill and dexterity not normally found in young children,” thus indicating that the lighter is not failsafe. Id. ¶ 37. The J-7 BIC model lighter used a version of the fracture groove technology advocated by Nelson but it was not failsafe because many adults were able to remove the entire piece of plastic constituting the safety feature. See Adams Dep. at 74. Nelson has not tested his design to show that it can be built, has provided no drawing of the design, and has not addressed BIC’s test results showing that adults were often able to remove the entire safety feature with certain tools— thus nullifying the failsafe feature of the Fracture Concept. Nelson refers to the second proposed design as “Use of a Piezoelectric Switch and Conductive Locking Latch.” Id. ¶ 38. This design incorporates “failsafe technology into the design of the J-15 mini-lighter through the use of a piezoelectric switch.” Id. Nelson states that this design is based on several BIC patents: 5,445,518; 5,092,-764; and 5,584,682, as well as Nelson’s “review and consideration of generally accepted engineering [principles].” Id. Nelson describes a piezoelectric lighter as one that looks like a spark wheel hghter, but while the latter generates sparks from flint to ignite fuel, the piezoelectric hghter uses a crystal “to generate voltage to produce spark[s].” Id. BIC has developed lighters utilizing piezoelectricity. See Adams Dep. at 71. Nelson proposes modifying BIC’s patented design by incorporating a locking latch to act as a circuit breaker to cut off the piezoelectricity, as well as to obstruct the gas flow. See Nelson Dec. ¶ 88. Nelson hypothesizes that if the latch were removed, it would open the electrical circuit and the hghter would no longer be able to produce a spark to light the butane. See id. Once again, he has not provided a design, prototpye, or test results of his proposed design. 2. Reliability of Nelson’s Opinion on Alternative Failsafe Designs I turn now to an evaluation of Nelson’s proffered opinion in hght of the Daubert factors. Daubert is to be applied flexibly. See Kumho Tire, 526 U.S. at 149, 119 S.Ct. 1167 (Daubert factors not to be considered “a definitive checklist or test”). “A review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule.” Travelers Property Cas. Co. v. General Elec. Co., 150 F.Supp.2d 360, 363 (D.Conn.2001). Certainly, the district court’s role as a gatekeeper in screening out unreliable testimony is “tempered by the liberal thrust of the Federal Rules of Evidence and the presumption of admissibility.” Borawick, 68 F.3d at 610; Bunt v. Altec Indus., Inc., 962 F.Supp. 313, 317 (N.D.N.Y.1997)(citing Borawick); Liriano v. Hobart Corp., 949 F.Supp. 171, 176 (S.D.N.Y.1996)(same). Daubert is not intended to replace the adversary system. See Fed.R.Evid. 702 Committee Note. Further, the Second Circuit espouses a particularly broad standard for the admissibility of expert testimony. See, e.g., Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.1996)(holding that testimony is to be admitted unless purely conjectural or based on totally unfounded assumptions). As discussed below, Nelson’s testimony fails to meet the test for reliability outlined in Daubert, and for the most part, does not satisfy the other factors that have grown out of Dau-bert and its progeny. a. Testing In analyzing the reliability of an expert’s testimony, the “key question” is “whether it can be (and has been) tested.” Daubert, 509 U.S. at 593, 113 S.Ct. 2786 (alteration in original). Solid qualifications are not enough. See Watkins v. Telsmith, Inc., 121 F.3d 984, 991-92 (5th Cir.1997)(excluding testimony of qualified expert who failed to conduct tests); Clark v. Takata, 192 F.3d 750, 758 (7th Cir.1999) (excluding testimony of highly qualified expert who failed to conduct tests); Cummins v. Lyle Indus., 93 F.3d 362 (7th Cir.1996)(“Guesswork, even educated hunches by qualified experts, is not enough. The evidence must be genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.”). While conjecture by a qualified expert is worthy of careful attention, the courtroom is “not the place for scientific guesswork, even of the inspired sort.” Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.1996). The axiom that “[l]aw lags science [but] does not lead it,” id. at 319, applies equally to proposed engineering innovations in a design defect case. “Alternative designs by definition include elements of science, technology and methodology.” Milanowicz v. Raymond Corp., 148 F.Supp.2d 525, 532 (D.N.J.2001)(quotation omitted). While testing is not an “absolute prerequisite” for an expert’s theory of causation or alternative design to be admissible in a design defect case, it is usually critical to show that an expert “adhere[d] to the same standards of intellectual rigor that are demanded in their professional work.” Cummins, 93 F.3d at 369. Adherence to engineering standards of intellectual rigor almost always requires testing of a hypothesis if the expert cannot point to an existing design in the marketplace. See, e.g., Brooks, 234 F.3d at 92 (rejecting proposed alternative design of kill switch); Oddi, 234 F.3d at 156-57 (excluding proffered alternative designs of biomechanical engineer where engineer had not tested either design for a safer bumper on a truck); Watkins, 121 F.3d 984 at 988 (rejecting proposed alternative design because alleged expert made no design drawings and conducted no tests of proposed alternatives); Cummins, 93 F.3d at 366 (excluding proposed alternative design of industrial trim press because expert had never tested his designs nor read any studies of such tests); Pestel v. Vermeer Mfg. Co., 64 F.3d at 384 (8th Cir.1995) (rejecting expert’s proposed alternative design because not tested); Freitas v. Michelin Tire Corp., No. 94 Civ. 1812, 2000 WL 424187, at *2 (D.Conn. Mar. 2, 2000)(admitting engineer’s expert opinion on alternative design in burst tire case where engineer had conducted numerous burst tests on tires, and reviewed burst tests performed by other experts); Jarvis v. Ford Motor Co., No. 92 Civ. 2900, 1999 WL 461813, at *4 (S.D.N.Y. July 6, 1999)(admitting expert’s testimony in design defect case where expert’s theory of causation had been “sufficiently verified through repeated tests on a model that accurately reflects the relevant electrical components on the 1991 Ford Aerostar.”); Stanczyk v. Black & Decker, Inc., 836 F.Supp. 565 (N.D.Ill.1993) (rejecting expert’s proposed alternative design of a guard for allegedly defective saw because no testable design of concept). But see Colombo v. CMI Corp., 26 F.Supp.2d 574 (W.D.N.Y.1998) (admitting testimony of engineering expert because expert need not develop and test a prototype nor provide drawings of alternative design); Surace v. Caterpillar, Inc., No. 94 Civ. 1422, 1995 WL 303895, at *2 (E.D.Pa. May 16, 1995)(admitting testimony of engineering expert after concluding that engineer need not have tested his theory regarding defective warnings). The presence of this factor in a design defect case also ensures that the focus of the jury’s deliberation is on whether the manufacturer could have designed a safer product, not on whether an expert’s proposed but untested hypothesis might bear fruit. The Second Circuit’s most recent discussion of testing in a design defect case took place in Brooks, which involved a teenager whose hand was amputated by an uncovered motor on a motor boat. Brooks, 234 F.3d at 90. The boy’s father sued the manufacturer of the boat, alleging design defect. See id. At issue in Brooks was the admissibility of plaintiffs expert, Mr. Warren, who proffered the opinion that either of his proposed alternative designs, a propeller guard or a kill switch, would have averted the accident. See id. at 91. The district court, noting that Mr. Warren had not conducted “any actual testing to determine whether the use of a lanyard-activated kill switch would have disengaged the engine under the circumstances,” excluded his testimony as unreliable. Id. (citing 47 F.Supp.2d 380, 388 (W.D.N.Y.1999)(adopting magistrate’s recommendation)). Here, as in Brooks, the expert has not developed or tested prototypes of lighters embodying his alternative designs, nor identified any product in the marketplace utilizing those designs. Plaintiffs contend that Nelson was not required to test his hypothesis, protesting that [f]rom a practical standpoint, it is simply inconceivable to expect that [sic] a design expert, in the context of a child’s personal injury litigation, to develop a working prototype of every design alternative to the product which he would propose. Nelson Dec. ¶ 33. Nelson rejected the suggestion of Mr. Meltzer, plaintiffs’ counsel, that he develop a prototype of his alternative design. See Nelson Dep. at 183. Nelson’s response to Meltzer was that developing the alternative design “would take considerable time, and [that] there may be a better approach.” Id. Nelson asserts in his declaration that “[a] working prototype of a disposable butane lighter that incorporates the additional safety features, would, in [his] opinion, cost tens of thousands of dollars to produce in defensible form.” Nelson Dec. ¶ 33. A similar argument was rejected in the context of the reliability of an alternative design for a defective saw blade: Plaintiff argues that the net effect of this scrutiny of his expert evidence is to put the claim beyond his financial ability to pursue. He would have to pay his expert witness $20,000 to $40,000 to come up with a design. This is true, but it is the very nature of Rule 702 and Daubert that requires these expenditures. Proof of any kind is often expensive to gather. Stanczyk, 836 F.Supp. at 568 (offering words of encouragement in that “[s]cienti-fie reliability and validity in our times is seldom cheap, but at least when once established it can be used again and again at little marginal cost.”). Further, Nelson offers no “testable” methodology—one cannot objectively challenge the methodology behind Nelson’s brief description of either the Fracture Concept or the Piezoelectric Design. See Fed.R.Evid. 702, Committee Note (Daubert ’s testability factor means ability to “be challenged in some objective sense”). In fact, Nelson’s “design” may not even be that. See Peitzmeier v. Hennessy Indus., 97 F.3d 293, 297 (8th Cir.1996)(“[R]ough sketches [of proposed safety devices] that have not been adapted into engineering drawings, much less prototypes” do not constitute a “design.”). Nor does Nelson offer any test results for his theory that either design would actually disable the lighter if the safety feature was removed. See Brooks, 234 F.3d at 92 (“Failure to test a theory of causation can justify a trial court’s exclusion of the expert’s testimony.”). The Court is of course mindful that “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof [is still] the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. However, cross examination of Nelson as to his methodology in this case, which consists of reviewing and revising BIC’s patents while conjecturing that his revisions present feasible and safer alternatives to the current J-15 lighter, would only be a test of his credibility, not of the reliability of his methodology— which is a matter of law to be decided by the court. b. General Acceptance There is no general acceptance in the engineering community for a methodology that omits testing of a hypothesis. See Daubert, 509 U.S. at 594, 113 S.Ct. 2786 (“General acceptance can yet have a bearing on the inquiry.”)(quotation marks omitted); see also Cacciola, 127 F.Supp.2d at 175 (evaluating the methodology of an engineering expert under Daubert in terms of its general acceptance in the community)(citing Kumho Tire, 526 U.S. at 151, 119 S.Ct. 1167). The engineering community emphasizes the importance of testing to ensure even a modicum of reliability: Testing [a] hypothesis may involve years of work during which the engineers may find themselves faced with new problems of developing new materials and new manufacturing processes to fully and effectively realize the new design ... The engineer’s experience will be not unlike that of scientists finding that they must modify their hypothesis as testing it reveals its weaknesses. Henry Petroski, “Reference Guide on Engineering Practice and Methods,” Reference Manual on Scientific Evidence 586 (Federal Judicial Center 2000) (explaining that the testing of a design of “less critical and costly products” follows a similar process to that of bridges and buildings). Implying that Nelson’s methodology would satisfy the Daubert “general acceptance” factor, plaintiffs argue that Nelson’s methodology is reliable because his opinions are “based on” BIC’s own patents. Nelson Dec. ¶ 34; PI. Mem. at 8-9 (also arguing that failsafe technology was “known to” BIC); see also Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir.2000)(admitting expert engineer’s opinion which consisted of presenting Ford’s own designs considered and rejected by Ford during development of truck). Clay, however, is distinguishable. Nelson’s opinions are not based on BIC’s patents, but on “small” and “minor” “revisions,” “modifications” and “adaptations]” to them. Nelson Dec. ¶¶ 27, 29, 35. Plaintiffs present no evidence indicating that revising patented designs by conjecture is an accepted engineering method. Indeed, the Federal Judicial Center’s Reference Guide on Engineering Practice and Methods states: [W]hat might appear to be relatively simple design changes for the better can drastically alter a system’s behavior by introducing failure modes not even possible in the original design. Seemingly simple and innocuous design changes can be among the most pernicious. Ref. Manual 602 (explaining that the 1981 Kansas City catastrophe in which 114 peo-pie were killed by a skywalk collapse was caused by a minor modification of an existing skywalk design). Thus, plaintiffs cannot show that the methodology underlying Nelson’s opinions would be generally accepted in the engineering community. c. Peer Review and Error Rate Nelson has not written or published any articles describing his theories, and there can be no known error rate where Nelson has not tested a prototype of his design, tested a product in the marketplace that embodies his design, or reviewed test results performed by others on his proposed designs. See Peitzmeier, 97 F.3d at 297 (excluding proposed design while noting that because it had not been designed or tested, it could not be subjected to peer review or evaluated for rate of error). Thus, Nelson’s testimony does not satisfy any of the four factors in Daubert: testing, peer review, error rate or general acceptance. See Grdinich v. Bradlees, 187 F.R.D. 77, 81 (S.D.N.Y.1999) (excluding testimony of expert where “it appeared] that none of the Daubert factors” indicated that the expert’s testimony would be reliable). d. Other Factors Taking their cue from Daubert’s non-exclusivity language, courts have added factors to the district court’s gatekeep-ing inquiry. See, e.g., Elcock v. Kmart Corp., 233 F.3d 734, 745-46 (3d Cir.2000)(the non-judicial uses to which the testimony has been put); In re Paoli, 35 F.3d 717, 742 (3d Cir.1994)(existence or maintenance of standards controlling the expert’s experiments and testing); Cowan v. Treetop Enter., 120 F.Supp.2d 672, 682-83 (M.D.Tenn.1999)(the judge’s experience and common sense); Demaree v. Toyota Motor Corp., 37 F.Supp.2d 959, 962 (W.D.Ky.1999)(whether countervailing dangers taken into account). Nelson’s methodology fails under all of the additional factors but one: he satisfies the factor mentioned in Elcock because the basis for his theory has been put to some nonjudicial use. While this makes Nelson’s testimony more reliable than it would otherwise be, it does not outweigh the fact that the testimony fails all four Daubert factors. Because plaintiffs have not satisfied the reliability prong of the Daubert test, Nelson’s testimony on alternative designs must be excluded. III. EVIDENCE ON THE REMOVAL OF THE SAFETY LATCH 1. Lay Testimony Plaintiffs proffer Nelson’s testimony regarding observations of the subject lighter for marks, scratches, and other signs of force. See Nelson Rpt. at 6. Lay testimony is admissible where it is (1) rationally based on the perception of the witness; (2) helpful to an understanding of the witness’s testimony or the determination of a fact in issue; and (3) not based on scientific, technical or other specialized knowledge within the scope of Rule 702. See Fed.R.Evid. 701. First, Nelson himself observed the subject lighter. Second, this testimony would be helpful to the jury to determine whether the latch was forcibly removed. Third, and finally, because Nelson’s opinion that the safety latch was not forcibly removed is not based on scientific, technical or other specialized knowledge, it is admissible under Rule 701. 2. Expert Testimony Plaintiffs also proffer Nelson’s testimony on the question of when the safety latch was removed from the lighter. Nelson tested his hypothesis that the safety feature was removed immediately before the accident to rebut defendant’s theory that the safety latch had been removed long before Josué obtained it as evidenced by debris that bufit up in the latch cavity. See 5/23/01 Report by Nelson (“5/23/01 Nelson Rpt.”) at 2. Nelson performed tests which showed that one or two uses generates quite a bit of flint dust, to support his theory that “the mere presence of flint dust in the latch area cannot possibly lead to a reasonably certain conclusion that the latch was removed early on in use.” See 7/9/01 Response to Defendant’s Experts’ Reports (“Nelson’s Response”) Part F. This testimony is expert testimony because it requires technical or specialized knowledge as to the operation of disposable lighters, the recognition of flint dust and how it is generated. To be admissible, Nelson must be qualified as an expert on this issue, and the testimony must be rehable and relevant. Relevant evidence is defined as any evidence which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. First, Nelson is qualified as an expert on disposable butane lighters. See supra Part II.D (detailing Nelson’s qualifications). Second, Nelson’s testimony on the “removability” question is also reliable. While Nelson spent only ten minutes inspecting the subject lighter and used only a 10-power loupe, see Nelson Dep. at 163-64, this weakness goes to weight not admissibility. See Daubert, 509 U.S. at 596, 113 S.Ct. 2786. For the purposes of determining reliability under Daubert, a court assesses an expert’s methodology, not his conclusions. See id. at 595, 113 S.Ct. 2786. Third, Nelson’s testimony that the latch was removed immediately before the accident and that the fighter displayed no signs of forcible removal, supports the possibility that the child-resistant feature of the fighter in question was flawed or defective. Thus, Nelson’s expert testimony on when the latch was removed is admissible. IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT A. Governing Law The parties do not dispute that this action is governed by New York law. In a products liability action grounded in diversity, New York applies the law of the victim’s or plaintiffs domicile where the state in which the injury occurred has only minimal interest in the litigation. See Smith v. Bell Sports, 934 F.Supp. 70 (W.D.N.Y.1996)(interpreting New York conflicts law to apply New Jersey law in products liability action where accident victim and companion were residents of New Jersey, injury occurred in New York, product was manufactured in California, and defendant’s principal place of business was in Illinois—because New Jersey had greatest interest in having its residents compensated and New York had minimal interest in seeing a non-domiciliary compensated). Here, Massachusetts has only a minimal interest in seeing that the plaintiffs are compensated, whereas New York has an interest in any recovery by its citizens. See Compl. ¶ 1 (plaintiffs reside in, and are presumably citizens of, New York); Rivera Dep. at 19-20 (accident occurred in Massachusetts). Thus New York law applies to plaintiffs’ claims. B. Standard for Summary Judgment in Federal Court Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue of fact is “material” for these purposes if it might affect the outcome of the suit under the governing law, and an issue of fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See National Union Fire Ins. Co. v. Stroh Companies, 265 F.3d 97, 103 (2d Cir.2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In assessing the record to determine whether any genuine issue of material fact is in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Repp v. Webber, 132 F.3d 882, 889 (2d Cir.1997). “Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must ‘set forth specific facts showing that there is a genuine issue for trial.’” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (quoting Anderson, 477 U.S. at 256, 106 S.Ct. 2505). However, the non-moving party may not “rest upon ... mere allegations or denials.” St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir.2000). “Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir.1999), cert. denied, 530 U.S. 1242, 120 S.Ct. 2688, 147 L.Ed.2d 960 (2000); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (“If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.”) (quotation marks, citations, and alterations omitted). Daubert did not alter the traditional sufficiency standard for summary judgment. See In re Joint Eastern & Southern Dist. Asbestos Litig., 52 F.3d at 1131-1133 (reversing grant of summary judgment where district court conflated Daubert admissibility requirements with summary judgment “sufficiency” standard by improperly weighing plaintiffs evidence in Daubert analysis). “Unlike admissibility assessments, which involve decisions about individual evidence, sufficiency assessments entail a review of the sum total of plaintiffs evidence.” Id. at 1133. C. New York Products Liability Law 1. Negligence To make out a prima facie case for negligence in New York, a plaintiff must show (1) that the manufacturer owed plaintiff a duty to exercise reasonable care; (2) a breach of that duty by failure to usé reasonable care so that a product is rendered defective, i.e. reasonably certain to be dangerous; (3) that the defect was the proximate cause of the plaintiffs injury; and (4) loss or damage. See McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir.1997); Cacciola, 127 F.Supp.2d at 185. In New York, manufacturers of disposable fighters have a duty of care to children who may use them because such misuse is foreseeable. See Campbell v. BIC, 154 Misc.2d 976, 586 N.Y.S.2d 871, 873 (N.Y.Sup.Ct. Fulton Co.1992). 2. Strict Liability “A manufacturer who places into the stream of commerce a defective product which causes injury may be held strictly liable.” Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525, 532, 569 N.Y.S.2d 337, 571 N.E.2d 645 (1991). Strict liability in New York requires a showing that (1) a defective product (2) caused plaintiffs injury. See McCarthy, 119 F.3d at 154. 3. Types of Product Defects Under New York law and that of most jurisdictions, a plaintiff may allege that a product is defective for any one of the following three reasons: (1) design defect, (2) a failure to warn, or (3) defect as a result of a manufacturing flaw. See Sage v. Fairchild-Swearingen Corp., 70 N.Y.2d 579, 523 N.Y.S.2d 418, 517 N.E.2d 1304 (1987); see also McCarthy, 119 F.3d at 154 (stating that in New York three separate actions exist for product defect: manufacturing defect, warning defect, and design defect); Fane v. Zimmer, 927 F.2d 124, 128 (2d Cir.1991). a. Design Defect In a claim for defective design, plaintiff must make a showing that (1) the product as designed posed a substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and (3) the defective design was a substantial factor in causing plaintiffs injury. See Voss v. Black & Decker Mfrg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983); Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973); Ramirez v. Sears, Roebuck & Co., 286 A.D.2d 428, 729 N.Y.S.2d 503, 505-06 (2d Dep’t 2001); Sabater v. Lead Indus. Assoc., Inc., 183 Misc.2d 759, 704 N.Y.S.2d 800, 804 (N.Y.Sup.Ct.Bronx.Co.2000). Courts have noted that, for the purposes of analyzing a design defect claim, the theories of strict liability and negligence are virtually identical. See Searle v. Suburban Propane Div. of Quantum Chem. Corp., 263 A.D.2d 335, 700 N.Y.S.2d 588, 591 (3d Dep’t 2000) (“[I]n a design defect case, there is almost no difference between a prima facie case in negligence and one in strict liability.”) (quoting Denny v. Ford Motor Co., 87 N.Y.2d 248, 258, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995)). Ultimately, the inquiry in a design defect case “requires a fact finder to make a judgment about the manufacturer’s judgment” in choosing to design a product in a certain way. Denny, 87 N.Y.2d at 258, 639 N.Y.S.2d 250, 662 N.E.2d 730. I will therefore analyze plaintiffs’ negligence and strict liability claims for design defect under a single test: The plaintiff bears the burden of presenting evidence that (1) the product as designed posed a substantial likelihood of harm, (2) no feasible alternative existed, and (3) the defective design caused plaintiffs injury. See Voss, 59 N.Y.2d at 107-08, 463 N.Y.S.2d 398, 450 N.E.2d 204; Fane, 927 F.2d at 128. Generally, a plaintiff must also show that the defect existed at the time the product left the defendant’s control. First, a plaintiff must show that the product, as designed, poses a “substantial likelihood of harm.” Voss, 59 N.Y.2d at 108, 463 N.Y.S.2d 398, 450 N.E.2d 204. Second, plaintiffs must show that a safer, feasible design alternative existed at the time of manufacture. See Fane, 927 F.2d at 128; Ruthosky v. John Deere Co., 235 A.D.2d 620, 651 N.Y.S.2d 717, 719 (3rd Dep’t 1997) (stating that alternative designs must be “economically and technically feasible” when manufactured). These two prongs, grouped together, are often referred to as the risk-utility balancing test used to determine whether a product is defective or “unreasonably dangerous.” See Anderson v. Hedstrom Corp., 76 F.Supp.2d 422,