Garcia v. Mine Safety Appliances Company

• Court: District Court, D. Arizona
• Decided: April 6, 2023
• Docket: 2:19-cv-05789
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Adalberto Murillo Garcia, et al., No. CV-19-05789-PHX-SMB

10 Plaintiffs, ORDER

11 v.

12 Mine Safety Appliances Company, et al.,

13 Defendants. 14 15 Pending before the Court is Defendant Mine Safety Appliances Company, LLC’s 16 (“MSA”) Motion for Summary Judgment. (Doc. 74.) Plaintiff Adalberto Murillo Garcia 17 filed a Response (Doc. 83), and MSA filed a Reply (Doc. 89). Also before the Court is 18 MSA’s Motion to Exclude the Testimony of Plaintiff’s expert witness, Mark Cannon. 19 (Doc. 76.) Plaintiff filed a Response (Doc. 85), and MSA filed a Reply (Doc. 88). The 20 Court heard oral argument on April 6, 2023. After reviewing the parties’ arguments and 21 the relevant law, the Court will grant MSA’s Motion in part for the following reasons. 22 I. BACKGROUND 23 This case originated from Plaintiff’s work-related fall down a manhole. In June 24 2018, Plaintiff worked as a laborer when he sustained his injuries. (Docs. 75 at 1; 83 at 2.) 25 While working in an “enclosed underground vault,” Plaintiff attempted to create a scaffold 26 by placing a wooden board between two sections of a ladder he was standing on. (Doc. 75 27 at 1.) Plaintiff was wearing a safety harness designed and manufactured by MSA—the 28 Workman Rescuer SRL-R (“Rescuer”). (Id. at 2.) The Rescuer uses a cable-based internal 1 locking mechanism to stop a worker’s fall. (Id.; Doc. 83 at 3.) Plaintiff’s co-worker handed 2 Plaintiff the wooden board as he began to lose his footing on the ladder. (Doc. 84 at 8.) 3 Plaintiff fell down the manhole, but the Rescuer did not lock up to arrest his fall. (Id.) 4 Plaintiff raises the following claims in his First Amended Complaint: (1) strict 5 product liability; (2) negligence; (3) res ipsa loquitur; (4) breach of express warranties; and 6 (5) loss of consortium. (Doc. 1-3 at 15, 20–29.) MSA now moves for summary judgment 7 on all claims and to preclude Plaintiff from recovering punitive damages. (See Doc. 74 at 8 9.) In his Response, Plaintiff concedes his claims for relief under negligence (failure to 9 warn), res ipsa loquitor, and breach of express warranties. (Doc. 83 at 17.) Plaintiff also 10 no longer seeks punitive damages. (Id. at 18.) The Court will therefore address only 11 Plaintiff’s claims for strict product liability and negligence, recognizing that Plaintiff’s loss 12 of consortium claim is tied to the viability of his other claims. 13 II. LEGAL STANDARD 14 Summary judgment is appropriate when “there is no genuine dispute as to any 15 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 16 56(a). A material fact is any factual issue that might affect the outcome of the case under 17 the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 18 A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could 19 return a verdict for the non-moving party. Id. “A party asserting that a fact cannot be or 20 is genuinely disputed must support the assertion by . . . citing to particular parts of materials 21 in the record” or by “showing that materials cited do not establish the absence or presence 22 of a genuine dispute, or that an adverse party cannot produce admissible evidence to 23 support the fact.” Fed. R. Civ. P. 56(c)(1)(A)–(B). The court need only consider the cited 24 materials, but it may also consider any other materials in the record. Id. at 56(c)(3). 25 Summary judgment may also be entered “against a party who fails to make a showing 26 sufficient to establish the existence of an element essential to that party’s case, and on 27 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 28 317, 322 (1986). 1 Initially, the movant bears the burden of demonstrating to the Court the basis for the 2 motion and “identifying those portions of [the record] which it believes demonstrate the 3 absence of a genuine issue of material fact.” Id. at 323. If the movant fails to carry its 4 initial burden, the non-movant need not produce anything. Nissan Fire & Marine Ins. Co., 5 Ltd. v. Fritz Cos. Inc., 210 F.3d 1099, 1102–03 (9th Cir. 2000). If the movant meets its 6 initial responsibility, the burden then shifts to the non-movant to establish the existence of 7 a genuine issue of material fact. Id. at 1103. The non-movant need not establish a material 8 issue of fact conclusively in its favor, but it “must do more than simply show that there is 9 some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith 10 Radio Corp., 475 U.S. 574, 586 (1986). The non-movant’s bare assertions, standing alone, 11 are insufficient to create a material issue of fact and defeat a motion for summary judgment. 12 Liberty Lobby, 477 U.S. at 247–48. “If the evidence is merely colorable, or is not 13 significantly probative, summary judgment may be granted.” Id. at 249–50 (citations 14 omitted). However, in the summary judgment context, the Court believes the non- 15 movant’s evidence, id. at 255, and construes all disputed facts in the light most favorable 16 to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). If 17 “the evidence yields conflicting inferences [regarding material facts], summary judgment 18 is improper, and the action must proceed to trial.” O’Connor v. Boeing N. Am., Inc., 311 19 F.3d 1139, 1150 (9th Cir. 2002). 20 III. DISCUSSION 21 When sitting in diversity jurisdiction, federal courts apply federal procedural law 22 and state substantive law. Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 427 (1996). 23 Arizona law therefore applies to Plaintiff’s claims. See id. 24 A. Motion to Exclude 25 The Court will first address whether to exclude Mark Cannon’s opinions because 26 they may inform the Court’s summary judgment analysis. MSA argues Cannon’s 27 engineering expert opinions are unreliable and should be excluded because they were based 28 on a misidentification of the Rescuer’s locking system. (Doc. 76 at 9–10.) MSA 1 specifically points out that Cannon’s theory of “skipping” as a design defect is inconsistent 2 with how the Rescuer actually operates. (Id. at 11.) MSA also argues Cannon’s opinions 3 are inadmissible under Federal Rule of Evidence 702 because “he conducted no testing of 4 his own” and relied on “the incorrect design to form the basis of his causation opinion.” 5 (Id. at 13.) MSA describes Cannon’s opinion as speculative and inadmissible because he 6 admitted that Plaintiff’s fall height could not be determined “within any degree of certainty, 7 and fall height is essential to his calculation of fall speed.” (Id. at 15–16.) 8 Plaintiff acknowledges that Cannon’s initial report described a locking device that 9 differed from the Rescuer in how the pawls rotate to engage the locking mechanism. (See 10 Doc. 85 at 6.) But Plaintiff contends that Cannon’s description of the Rescuer was based 11 on MSA’s principal engineer’s description. (Id. at 6–7.) Cannon also compiled a rebuttal 12 report, in which he opined that his previous reliance on MSA’s engineer’s description and 13 the actual design of the Rescuer’s internal components “is similar” and thus did not change 14 any of his opinions. (Doc. 84-1 at 60–61.) Plaintiff also points to Cannon’s deposition 15 testimony, in which he testified that while the original mechanism he identified in his 16 original report differed from mechanism in the Rescuer, his opinions and analysis remained 17 the same. (Id. at 70–71.) 18 Rule 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, 19 training, or education may testify in the form of an opinion or otherwise if: 20 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact 21 in issue; 22 (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and 23 (d) the expert has reliably applied the principles and methods to the facts 24 of the case. 25 “The Court acts as a gatekeeper to ensure the proffered testimony is both relevant and 26 reliable.” Clayton v. Heil Co. Inc., No. CV-19-04724-PHX-GMS, 2022 WL 17404792, at 27 *2 (D. Ariz. Dec. 2, 2022) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 28 (1993)). The Court “should not exclude opinions merely because they are impeachable.” 1 Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013); see 2 also Fed. R. Evid. 702, cmt. 2000 amendment (“[P]roponents . . . only have to demonstrate 3 by a preponderance of evidence that their opinions are reliable.”). 4 The core of MSA’s first argument is that Cannon lacks specialized knowledge, and 5 his opinion should be excluded, because his report described a different machine and 6 locking mechanism than the Rescuer. The Court finds that Cannon’s rebuttal report and 7 deposition testimony are sufficient to cure his mistaken reference to a slightly different 8 locking design. Cannon ultimately opined that the differences between the type of design 9 in his initial and rebuttal reports (which addressed the Rescuer) did not change ultimate 10 opinion. MSA did not dispute Cannon’s opinions within the context of that rebuttal report. 11 The Court thus finds that Cannon has sufficient specialized knowledge to avoid exclusion 12 of his opinion. 13 MSA’s second argument focuses on whether Cannon’s opinion as to causation 14 should be admissible based on Cannon not performing his own independent testing of the 15 Rescuer. (Doc. 76 at 12–13.) MSA primarily argues that “[t]here is no evidence of a skip 16 occurring at all during this incident.” (Id. at 13.) Cannon relies on the joint testing (see 17 Doc. 75 at 4 ¶ 15) to explain that a skip can occur at a pull speed that should cause the 18 device to catch, the probability of a skip increases as the amount of extended cable 19 increases, and a skip can result in a free fall. (See Doc. 85-1 at 34–57.) Cannon’s reports 20 contain detailed explanations of Plaintiff’s potential fall height, the Rescuer’s ability to 21 lock relative to pull speed, and how skipping could have occurred. (See, e.g., Docs. 84-1 22 at 51–54, 60–67.) MSA presents arguments to contradict Cannon’s conclusions, but not 23 the principles of physics Cannon presents to support those conclusions. Even in the 24 absence of Cannon’s “own testing” the Court finds Cannon’s opinion sufficiently reliable, 25 and therefore should not be excluded. See Fed. R. Evid. 702, cmt. 2000 amendment. 26 MSA’s third argument addresses a substantive dispute of fact to be addressed later 27 in this Order. See infra Sec. III(B)(2). Cannon’s rebuttal report laid out the basis for his 28 fall height calculation. (See 75-1 at 146.) Cannon discussed Plaintiff’s deposition 1 testimony, where he claimed he was twelve feet from the bottom of the manhole. (Id.) 2 Unsure of whether Plaintiff’s description was from his feet to the ground or from his eye- 3 height to the ground, Cannon calculated the speed of Plaintiff’s free fall based on the lower 4 of the two options (estimated distance from Plaintiff’s feet to the ground). (Id.) When 5 considering the opinion from MSA’s expert about the distance in which the Rescuer would 6 lock, and the fall height associated with Plaintiff’s testimony, Cannon opined that “it is 7 highly unlikely that [Plaintiff] did not fall fast enough to trigger the locking pawls as 8 intended.” (Id.) Recognizing that the parties offer different fall clearance distances, see 9 infra Sec. III(B)(2), the Court finds that Cannon’s opinion is “based on sufficient facts or 10 data.” Fed. R. Evid. 702. 11 Therefore, the Court will deny MSA’s Motion to Exclude (Doc. 76) and analyze 12 MSA’s Motion for Summary Judgment with the benefit of Cannon’s opinions. See Ellison, 13 357 F.3d at 1075. 14 B. Design Defect Claims 15 Plaintiff brings design defect claims under strict liability and negligence theories. 16 To establish a prima facie case for strict products liability under Arizona law, plaintiffs 17 must show “the product is defective and unreasonably dangerous; the defective condition 18 existed at the time it left defendant’s control; and the defective condition is the proximate 19 cause of the plaintiff’s injuries.” St. Clair v. Nellcor Puritan Bennett LLC, No. CV-10- 20 1275-PHX-LOA, 2011 WL 5331674, at *4 (D. Ariz. Nov. 7, 2011) (citing Dietz v. Waller, 21 685 P.2d 744, 747 (Ariz. 1984)). Strict products liability claims do “not rest on traditional 22 concepts of fault,” meaning plaintiffs need not “prove the defendant was negligent.” Id. 23 In contrast, to establish negligent design, “the plaintiff ‘must prove that the designer or 24 manufacturer acted unreasonably at the time of . . . design of the product.’” Canning v. 25 Medtronic Inc., No. CV-19-04565-PHX-SPL, 2022 WL 1123061, at *4 (D. Ariz. Apr. 14, 26 2022) (quoting Gomulka v. Yavapai Mach. & Auto Parts, Inc., 745 P.2d 986, 988–89 (Ariz. 27 Ct. App. 1987)). A design defect “arises when the manufacturer has failed to use 28 reasonable care to design its products so as to make it safe for intended uses.” Mather v. 1 Caterpillar Tractor Corp., 533 P.2d 717, 719 (Ariz. Ct. App. 1975). 2 MSA argues summary judgment is appropriate because Plaintiff cannot establish 3 that the Rescuer was defectively designed, or that any defect caused Plaintiff’s injuries. 4 (Doc. 74 at 9–10, 14.) MSA relies on the same purported lack of evidence to support its 5 arguments for both strict liability and negligence theories. (See id. at 10, 18.) Plaintiff 6 argues the evidence at least establishes issues of material fact to be determined by a jury. 7 (Doc. 83 at 9.) 8 1. The Rescuer’s Design 9 MSA argues summary judgment is appropriate because Plaintiff cannot establish a 10 design defect. Plaintiff contends the Rescuer’s design is defective because it permits 11 “skipping”—a term the parties use to describe a phenomenon where the Rescuer’s internal 12 components “bounce” rather than engage, which causes the Rescuer not to lock. (Id. at 6; 13 Doc. 83 at 5.) Plaintiff cites his deposition testimony where he testified to being “100 14 percent sure” the Rescuer never locked, and he never felt it try to lock. (Doc. 84-1 at 16.) 15 Plaintiff also cites Cannon’s expert opinion that the Rescuer’s design allows skipping, 16 which may lead to a potential failure to arrest the user’s fall “when a certain amount of 17 cable is extended during use.” (Id. at 57.) Cannon further opined that Plaintiff’s fall 18 resulted from the Rescuer’s “skipping and failing to lock as intended.” (Id.) In its Motion, 19 MSA contends it is “undisputed that the Rescuer locked-up during post-incident testing.” 20 (Doc. 74 at 11.) Yet, MSA recognizes that the Rescuer did skip once during that testing. 21 (Id.) MSA asserts Plaintiff’s evidence is insufficiently speculative and points to 22 contradictory evidence that the Rescuer will lock and arrest within thirty-three inches, 23 independent of whether a skip occurred.1 (Doc. 89 at 3.) 24 The Court concludes that Plaintiff has provided sufficient evidence of a design 25 defect to avoid summary judgment. During his deposition, Plaintiff testified that the

26 1 MSA also argues the Rescuer has no design defects because regardless of potential skipping, the Rescuer will still lock up within a certain fall distance. (See Doc. 74 at 12.) 27 Additionally, MSA asserts Plaintiff had an insufficient amount of unobstructed clearance for the Rescuer to function as designed. (Id. at 13–14.) The Court will address below 28 whether genuine issues of material fact remain as to whether Plaintiff’s fall path was obstructed, and whether Plaintiff had sufficient fall clearance. 1 Rescuer was set correctly, and being used correctly, when he fell. Plaintiff also testified 2 that he never felt the Rescuer lock while he was falling. Cannon opined that the Rescuer’s 3 design permits skipping and arrest failure, which could cause a user to free fall. MSA 4 offered an abundance of conflicting evidence to challenge Plaintiff’s testimony and 5 Cannon’s opinions. That conflicting evidence highlights the issues of material fact that 6 remain in dispute—whether Plaintiff’s evidence is sufficient to establish that the Rescuer 7 has a design defect is for the jury to decide. 8 2. Causation 9 MSA also argues summary judgment is appropriate because Plaintiff cannot 10 establish that the Rescuer was the proximate cause of Plaintiff’s injuries. (Doc. 74 at 14.) 11 MSA asserts Plaintiff misused the Rescuer by failing to follow warnings and instructions 12 and that misuse solely caused his injuries. (Id.) Arizona law provides the following 13 affirmative defense to products liability actions: The proximate cause of the incident giving rise to the action was a use or 14 consumption of the product that was for a purpose, in a manner or in an 15 activity other than that which was reasonably foreseeable or was contrary to any express and adequate instructions or warnings appearing on or attached 16 to the product or on its original container or wrapping, if the intended 17 consumer knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings. 18 A.R.S. § 12-683(3). The Rescuer’s user instructions state, “[a]lways remove obstructions 19 below the work area to ensure a clear fall path. The minimum recommended fall clearance 20 is . . . 8 ft (2.4m) plus free fall. The maximum allowable free fall is 2 ft.” (Doc. 75-1 at 21 113.) MSA asserts Plaintiff failed to follow the Rescuer’s instructions by having an 22 obstructed fall path and inadequate fall clearance. (Doc. 74 at 15–16.) 23 The parties present conflicting evidence as to whether the manhole was obstructed 24 and how much fall clearance Plaintiff had. MSA contends all evidence shows that 25 Plaintiff’s fall path was obstructed, and that inside the manhole were “cross brace holding 26 pipes, two ladders with ladder rungs and rails, and pipes on both sides of the fall path.” 27 (Id. at 15.) Citing its statement of facts, MSA states Plaintiff’s “fall was obstructed, and 28 he stated that during his fall, his leg hit a ‘big thing sticking up.’” (Id. at 14; Doc. 75 at 3 1 ¶ 11.) Plaintiff responds that the ladders were being used consistent with the Rescuer’s 2 user instructions, and that the pipes were adjacent to, but not under, Plaintiff when he fell. 3 (Doc. 83 at 13.) Plaintiff states he did hit something, but then fell directly to the bottom of 4 the manhole. (Id.) 5 The Court notes that MSA did not cite Plaintiff’s entire statement to support its 6 contention that “[Plaintiff’s] fall was undisputedly obstructed.” (Doc. 74 at 15.) Plaintiff’s 7 June 27, 2018 statement at the hospital states: “When I hit the bottom my left foot hit the 8 big thing sticking up and bent my foot back and slammed my knee into the pipe.” (Doc. 9 75-1 at 140) (emphasis added). Plaintiff’s statement does not support MSA’s contention. 10 The Court also notes that in the photograph MSA provides, the ladders are being used in a 11 similar fashion as the illustrative figures from the Rescuer’s user instructions. (See Docs. 12 75 at 3; Doc. 75-1 at 114.) That photograph supports Plaintiff’s description that the objects 13 in the manhole were next to Plaintiff as he fell, but not below him. 14 MSA also contends Plaintiff did not have enough fall clearance when he fell. (Doc. 15 74 at 16.) Neither party provided a certain, irrefutable distance between where Plaintiff 16 tried to install the scaffolding and the bottom of the manhole. MSA’s expert opined that 17 based on Plaintiff’s height and the length of the ladders, Plaintiff must have been between 18 four to five feet from the bottom of the manhole. (Id.) MSA cites Plaintiff’s deposition 19 testimony, where Plaintiff testified that the middle of the manhole was about seven or eight 20 feet from the floor to assert that Plaintiff’s self-serving statements represent the only 21 evidence to rebut “the undisputed evidence.” (Docs. 74 at 16–17; 75 at 2; 75-1 at 91.) 22 Plaintiff counters that the Rescuer’s user instructions contain only a recommendation, not 23 a requirement, for minimum fall distance (see Doc. 75-1 at 113), and that he testified to 24 being twelve or thirteen feet from the bottom when he began to fall. (Doc. 84-1 at 16.) 25 The evidence cited by the parties demonstrates that there is a dispute of material fact 26 regarding how much fall clearance Plaintiff had. Both MSA and Plaintiff cite 27 circumstantial evidence based on the length of the ladders, descriptions of the manhole, 28 and Plaintiff’s height to suggest the distance between Plaintiff’s feet and the ground. Each || party’s experts reached different conclusions based in part by the same deposition 2|| testimony provided by Plaintiff. The Court thus concludes that material facts remain in || dispute as to the adequacy of Plaintiffs fall clearance. 4 The Court finds that genuine issues of material fact exist as to whether: (1) the 5|| Rescuer was defectively designed; (2) Plaintiff’s fall was obstructed/unobstructed; and (3) 6|| Plaintiff had sufficient fall clearance. As such, the Court will deny MSA’s Motion for 7|| Summary Judgment as to the strict products liability, negligence’, and loss of consortium || claims. The Court will grant judgment in MSA’s favor as to Plaintiffs claims for 9|| negligence (failure to warn), res ipsa loquitor, and breach of express warranties. (See Doc. 10}} 83 at 17.) 11 IV. CONCLUSION 12 Accordingly, 13 IT IS ORDERED denying MSA’s Motion to Exclude the Testimony of Mark Cannon. (Doc. 76.) 15 IT IS ORDERED granting in part Defendant’s Motion for Summary Judgment || (Doc. 74) as to the claims of negligence (failure to warn), res ipsa loquitor, breach of 17 || express warranties, and punitive damages. The Motion is denied as to the strict products liability, negligent design, and loss of consortium claims. 19 Dated this 6th day of April, 2023. 20 _ 21 — fe 22 > fonorable Susan M, Brovich 3 United States District Judge 24 25 2 MSA argued that Plaintiff could not establish a breach of duty because there was no design defect, and Plaintiff could not establish causation given that the fall was obstructed. (Doc, 74 at 18.) 28|| similarly survive summary judgment. See Martin ». Stahell: 457 3d 58. 58 (Anz. Cl App. 2019). -10-