Product Liability Cases of Interest from 2011 and 2012 (Part 3)
SUMMARY JUDGMENT BASED ON SPOLIATION OF EVIDENCE
AND INNOCENT RETAILER STATUTE
Bashir v. Home Depot
2011 WL 3625707 (D.N.J.) (08/16/11)
Sellers and renters of equipment manufactured by other entities are not always able to extricate themselves from suits under the “innocent retailer” section of New Jersey’s Product Liability Act (PLA). Plaintiff Bashir was injured by a stump grinder he rented from Home Depot. Home Depot was the retail lessor of that product, which was designed and manufactured by Husqvarna. The manufacturer includes an operating manual with the stump grinder and expects that users of the machine will read the operation and safety portions of the operating manual prior to use. In addition, Husqvarna includes notices on the stump grinder itself instructing users to read the operating manual before using the machine.
Home Depot allows rental customers to waive their right to receive the operating manual. A Home Depot employee tests each machine before renting it to a customer, and provides training. The employee acknowledged that customers should still read the operator's manual, despite receiving training from him on how to use a particular machine. Plaintiff rented a stump grinder from Home Depot and then brought it home. Plaintiff hired a day-laborer to assist him. Plaintiff was injured when the stump grinder's blade came into contact with his leg while a day-laborer operated the machine in Plaintiff's backyard.
In an Amended Complaint, Plaintiff alleged that the stump grinder was defectively designed and that Husqvarna failed to include proper safety warnings with the machine. Plaintiff also claimed that, although Husqvarna included warnings with the stump grinder that advised users to read the operating manual, Home Depot allowed its renters to waive reading the operating manual, and attempted to substitute reading the operating manual by providing its own training. Defendants filed the following motions: (1) a motion for summary judgment by Home Depot based on N.J.S.A. § 2A:58C–9(b); and (2) a motion for summary judgment by both Defendants based on Plaintiff's spoliation of evidence. Plaintiff opposed both motions, and both motions for summary judgment were denied.
Under the Product Liability Act, a product lessor will be relieved from liability for injuries caused by a defective product it leases to the public, provided that it files “an affidavit certifying the correct identity of the manufacturer of the product which allegedly caused the injury.” N.J.S.A. § 2A:58C–9(a). Upon filing the affidavit, the product seller is then “relieved of all strict liability claims.” N.J.S.A. § 2A:58C–9(b). Home Depot argues that since it provided Plaintiff with sworn statements identifying Husqvarna, a named defendant in this case, as the designer and manufacturer of the stump grinder, it met its obligation under the statute and should be granted summary judgment.
However, the PLA provides that a product seller can be held liable, even if it identifies the product manufacturer, under several delineated circumstances, including when the seller exercises some significant control over the design, manufacture, packaging or labeling of the product relative to the alleged defect which caused the injury. N.J.S.A. § 2A:58C–9(d)(1). The burden is on the party seeking to take advantage of the immunity in subsection (b) to prove that the factors in subsection (d) do not apply by presenting evidence to that effect or by pointing to a lack of evidence in the record supporting opposite conclusions.
In this case, Plaintiff offered evidence that Home Depot exercised significant control over the safety warnings involving the stump grinder. In particular, Home Depot permitted renters to waive reading the operating manual containing the safety warnings and provided them with its own training on how to use the product. In addition, Plaintiff presented evidence in the form of expert testimony showing that Home Depot did not take adequate measures to warn those renters of the dangers involved in using the stump grinder. Therefore, Home Depot's motion for summary judgment was denied.
Both Defendants moved for summary judgment based on spoliation of the evidence, arguing that Plaintiff (1) failed to secure the identity of the day-laborers who operated the stump grinder and witnessed the accident and (2) returned the stump grinder without notifying Home Depot about the accident. The District Court cited various cases showing that a “duty to preserve evidence ... arises where there is: (1) pending or probable litigation involving the defendants; (2) knowledge by the plaintiff of the existence or likelihood of litigation; (3) foreseeability of harm to the defendants, or in other words, discarding the evidence would be prejudicial to defendants; and (4) evidence relevant to the litigation.” Hirsch v. General Motors Corp., 266 N.J.Super. 222, 250, 628 A.2d 1108 (Law Div.1993). However, “[t]he scope of the duty to preserve evidence is not boundless. A ‘potential spoliator need do only what is reasonable under the circumstances.’ ” Callahan v. Stanley Works, 306 N.J.Super. 488, 496, 703 A.2d 1014 (Law Div.1997) (quoting Hirsch, 266 N.J.Super. at 251, 628 A.2d 1108).
The Defendants argued that Plaintiff had a duty to ensure that the witnesses to the accident could be found and to preserve the post-accident condition of the stump grinder. They claimed that Plaintiff's instruction to his mother-in-law, after the ambulance arrived on the scene, to take the day-laborers home and return the stump grinder to Home Depot, demonstrates that he feared discovery of some evidence showing culpable conduct on his part. According to the Defendants, the only reason that Plaintiff had to be concerned about the discovery of such evidence is if he contemplated an action or claim and intended to hide the facts. The Defendants claimed that Plaintiff must have known that destroying crucial evidence about the witnesses and the stump grinder would prejudice the Defendants and that he intended to bring a claim for his injury against some entity.
The Court declined to conclude that Plaintiff's instructions to his mother-in-law concerning the stump grinder and the day-laborers show that he intended to hide crucial evidence related to the accident. The Court noted that Defendants presented no evidence showing that Plaintiff knew of the existence or likelihood of litigation at that time. “In fact, Plaintiff testified that he did not consider litigation or consult an attorney until several months after the accident.” This second motion for summary judgment was also denied.
DISTRIBUTOR HAS DUTY WHEN SERVICING AN UNSAFE MACHINE
Torres-Pena v. Siegmeister Sales & Service Inc.
2011 WL 2496283 (N.J.Super.A.D.) (06/24/11)
Plaintiff was a recent immigrant from Mexico who had a sixth grade education. He was severely injured at his job in a supermarket when his hand was mangled in a meat grinder from which the employer had removed protective devices. Summary judgment had been granted in favor of defendant Siegmeister Sales & Service, Inc. (“Siegmeister”), the distributor of the meat grinder and the party responsible for certain maintenance duties on the machine . Plaintiff appealed and the Appellate Division reversed the trial court’s grant of summary judgment based on its legal conclusion that Siegmeister did not have a duty of care to plaintiff to warn his employer of the absence of guards on the meat grinding machine.
In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), the Court held that the legal determination of whether a defendant had a duty of care to a plaintiff is “fact specific” and requires “principled” examination of factors including “the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.” Id. at 439. The Appellate Division’s analysis of those factors, and relevant precedents, led it to a different conclusion from that reached by the trial court. The Appellate Division held that the summary judgment record supports imposition of a duty of care upon Siegmeister in the performance of its service tasks as they relate to use and operation of an unsafe machine. Whether Siegmeister failed to conform to that duty, and whether its failure was a proximate cause of the accident and plaintiff's injuries, are disputed issues of fact for a jury to decide.
“The opportunity and ability to exercise care were present, and the public interest in avoiding such injuries is strong. The proposed solution—warning the owner, reporting continuing deficiency of the machine to the manufacturer, and refusing to service dangerous machinery—has prospects of being an effective tool in preventing accidents in the work place and is not unduly burdensome to the service provider. In fact, the manufacturer has itself devised that solution for the problem of irresponsible employers risking the health and safety of employees to enhance productivity.”
Biro Manufacturing Co., the manufacturer of the machine, had been dismissed from the case after some discovery was conducted. Plaintiff filed an amended complaint against Siegmeister for strict liability and negligence, and his employer, Tropical Sun, Inc. which “willfully and knowingly disengaged and/or removed a safety device” (a Laidlow intentional tort claim against one’s employer which is not barred by the workers' compensation statute). Biro had taken several steps to address the longstanding problem of purchasers removing protective devices from its grinders to increase productivity. “Bowl guards” were affixed with steel fasteners and then welded permanently to the tray in which meat is placed for grinding. A magnetically-activated interlock system prevented use of the machine when the tray and attached guards were removed for cleaning or otherwise. The only way to separate the guards from the tray was to saw them off.
Biro had provided financial incentives to distributors since 1995 to report removal of guards and to assist owners in correcting the deficiency. It had also instructed distributors not to service machines from which guards had been removed. If the owner of a machine did not cooperate in rectifying the safety risk, Biro filed a report with the federal Occupational Safety and Health Administration (OSHA). Biro provided in its distributor agreements, including the one entered into with Siegmeister, that distributors must assure that all warning labels are in place and that purchase orders must instruct purchasers not to remove, bypass or alter any safety guards, interlocks, devices or warnings. Additionally, the distributor agreement between Siegmeister and Biro also required the distributor to insure that all safety guards, interlocks, devices and warnings, were on the Biro product and functional.
PLAINTIFF’S EXPERT SURVIVES DAUBERT CHALLENGE; PLAINTIFF’S COMPARTIVE NEGLIGENCE IS INADMISSIBLE
McGarrigle v. Mercury Marine
838 F.Supp.2d 282 (D.N.J. 2011)
A boat operator who fell overboard brought a consumer products liability action against the manufacturer of the boat's outboard engine, seeking recovery for injuries caused by the engine's propellers when the boat went over the operator as he tried to climb back aboard the boat. The parties moved for summary judgment on the issue of admissibility of testimony by the operator's liability expert. The District Court, inter alia, held that the liability expert's testimony was reliable, connected to disputed factual issues, and thus was admissible. With respect to the plaintiff’s cross motion, the Court held that the evidence of the boat operator's comparative negligence was inadmissible, but evidence of the boat operator's conduct surrounding the accident was admissible on the issue of proximate cause. Finally, the boat owner's failure to read the owner's manual before allowing operation of the boat was inadmissible on issues of comparative fault or proximate cause.
The facts revealed that plaintiff was operating his father's boat, a twelve foot aluminum fishing boat equipped with a 15 horsepower Mercury Marine outboard engine, when he was pitched overboard. As plaintiff fell into the water, his grasp on the tiller caused the boat to spin in a clockwise motion. The boat circled plaintiff several times, coming closer to plaintiff with each rotation. Plaintiff did not try to swim towards the shore. Plaintiff tried to grab hold of the circling boat and climb on board, but the boat went over him and the propeller from the engine struck his face and neck causing severe injuries.
The Mercury Marine outboard engine should have been operated with a “lanyard” stop switch. The purpose of the lanyard is to provide a safety device to stop the engine in the event of the operator being thrown overboard. One end of the lanyard is inserted into the “run/off” switch while the other end is fastened to the operator. If the operator moves far enough away from the engine, or is thrown overboard, the lanyard will turn the engine off in order to prevent injury from a runaway boat. Plaintiff admits that had a lanyard been used, the accident would not have happened. However, w hen plaintiff's father purchased the engine, he did not receive a lanyard stop switch. He did, however, receive an owner's manual which described the nature, function, and purpose of the lanyard and the dangers of failing to use it. Neither the father nor his son read the owner's manual. Defendant's expert admits that it is well known that there are people who will operate the boat who have not read the owner's manual. The father stated that had he read the manual, he would have obtained a lanyard.
A. Expert Admissibility
Defendant argued that plaintiffs' liability expert should be precluded from testifying because he and his opinions could not survive the Daubert/Kumho Tire analysis. Federal Rule of Evidence 702 governs the admissibility of expert testimony. The three requirements outlined in Rule 702 are referred to as qualification, reliability and fit. As to qualification, Defendant argued that Dr. Fisher was not an expert regarding small fishing boats and 15 horsepower engines. Defendant maintaied that Dr. Fisher's expertise was in the area of design and construction of ships and large maritime structures and the contracts and financing of such activities. Plaintiffs responded that defendant's definition of qualifications was so narrow that only former employees of outboard engine manufacturers would qualify. Plaintiffs stated that Dr. Fisher had extensive experience in the area of boating safety; that he had been a professor of naval architecture, had written and edited books on small crafts, and given seminars on relevant topics. Noting that the Third Circuit instructs that the qualification requirement should be interpreted liberally, the Court found that Dr. Fisher was qualified to testify as an expert in the case.
After a detailed analysis, the Court also found that Dr. Fisher's opinion was sufficiently reliable under Rule 702. A trial court has considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. Factors the court should consider in determining whether an expert's opinion is reliable include: (1) whether the expert's method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the method's operation; (5) whether the method is generally accepted; (6) the relationship of the expert's method to those that have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses.
The testimony of the boat operator's liability expert was reliable, as the expert's reliance on an industry standard for “marine structures” was reasonable given the absence of specific standards for recreational boats. “If there is a gap between the ASTM F 1166–07 standards as written and as applied by Dr. Fisher, any inconsistencies go to the weight of the evidence, not to its admissibility.” The expert's proposed alternative design for the engine's stop switch (Lanyard A) was used by the rest of industry and in the manufacturer's other models. Defendant also argued that there was no reliable basis for Dr. Fisher's opinion on a safer alternative design by using Lanyard A because he had not conducted certain tests or research on accident occurrence using one type of lanyard versus the other. However, an alternative design that is in use by an industry can be evidence of its reliability.
The third and final requirement is that the expert testimony “fit,” meaning a connection must exist between the expert opinion offered and the particular disputed factual issues in the case. In order for an expert's testimony to fit, the scientific knowledge must be connected to the question at issue. The issue in this case was whether the lanyard stop switch used by defendant was defectively designed and caused plaintiff's injuries. Dr. Fisher was offering an opinion that the lanyard was defectively designed because it allowed the operator to start and operate the boat without using the lanyard. His conclusions flowed from his experience and methodology of identifying another lanyard stop switch commonly used in the industry that required the key to be inserted before the engine will start. Thus, Dr. Fisher and his opinions met the requirements under Rule 702 and Daubert.
B. Plaintiff's Cross Motion
Plaintiff filed a cross motion, arguing that defendant should not be permitted to introduce evidence of plaintiff's alleged comparative negligence. Defendant sought to introduce evidence that plaintiff's decision to operate his father's small fishing boat in water too high and at a speed too great was the only reason he lost control of the boat and was ejected overboard. Defendant also sought to introduce evidence of plaintiff's behavior after being ejected as the reason for his injuries. Finally, defendant sought to introduce evidence that plaintiff's father failed to read the owner's manual, or offer it to his son to read.
The District Court cited numerous cases regarding a non-worker plaintiff’s conduct and when same can be relevant. In New Jersey consumer design defect cases, the conduct of an injured plaintiff is not relevant in determining the existence of a manufacturing defect or design defect. However, a plaintiff's conduct may be relevant to the question of proximate cause in that a jury may find that plaintiff's conduct had been the sole cause of the accident. In addition, if the consumer plaintiff knows of the danger or risk and nonetheless voluntarily proceeds in the face of the known danger or risk, a plaintiff's comparative negligence can be submitted to the jury. However, contributory negligence is not a defense to a strict-liability action when a plaintiff's negligent conduct consists of merely failing to discover or guard against the possibility of a defect in a product.
The District Court ruled that there was no evidence that plaintiff intentionally proceeded in the face of a known danger. The deposition testimony presented showed that plaintiff did not read the manual and did not know that the engine was to be operated with a lanyard. Therefore, evidence of plaintiff's comparative negligence as to a known risk was not permitted. However, evidence that plaintiff operated the boat in water too high and at a speed too great causing him to lose control and be ejected was be permitted on the issue of proximate cause. Likewise, defendant was also be permitted to introduce evidence of plaintiff's actions after he was ejected from the boat before contact with the engine's propeller. Plaintiff's conduct surrounding the accident was essential to the facts determining how the accident occurred. In order to present a prima facie case of how the accident occurred, plaintiff must detail his actions using the engine. Therefore, defendant was permitted to introduce such facts as evidence of proximate cause, but not as evidence of comparative negligence.
With regard to evidence of plaintiff's father's failure to read the owner's manual, plaintiff produced testimony by defendant's expert stating that defendant knew that operators would not read the manual before operating the engine. Under New Jersey law, in applying strict liability in torts for design defects, manufacturers cannot escape liability on grounds of misuse or abnormal use if the actual use causing the injury was objectively foreseeable. The evidence showed that the failure to read an owner's manual before operation of the engine was foreseeable by defendant and, therefore, the facts of plaintiff's father's failure to read the manual or provide it to his son to read was not to be introduced to show comparative fault or proximate cause.
Robert J. McGuirl and James C. Suozzo are attorneys at the Law Offices of Robert J. McGuirl, LLC in Park Ridge where they devote a substantial portion of their time to product liability and medical device litigation.