Marino v. Agro Trend Mfg.

• Court: Superior Court of Maine
• Decided: August 25, 2014
• Docket: YORcv-13-99
• Status: Unpublished

Opinion

£ N1 ERED AUG 2 7 Ztl14

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-13-99

fAr- 'fVK~ 0~-Jf;-14- MONICA B. MARINO,

Plaintiff

v. ORDER ON PENDING MOTIONS

AGRO TREND MFG., et al.,

Defendants

1bree motions have been briefed and argued.

I. MOTION TO EXCLUDE DUPLICATE EXPERTS

The first is the plaintiffs motion to exclude expert witness. The defendant has

designated Roger Schildroth of Agro Trend and Jon Ver Halen, who has his own

consulting business, as expert witnesses. Their designations indicate that they will

provide nearly identical facts and opinions concerning the safety of the snowblower in

question.

The plaintiff has moved to require the defendant to choose one witness and

preclude it from offering the second as the duplicate testimony would violate the

requirement in the standard scheduling order of June 24, 2013 that, II • • • each party may

designate no more than one expert per issue." I will permit both witnesses to testify as

Mr. Schildroth needs to explain what the defendant did and it is appropriate for an

outside witness to also defend Agro' s actions. However, at the time of any trial,

restrictions will be imposed to avoid unnecessary duplication. The motion is denied. II. DUTY TOWARN

The second motion is the defendant Agro Trend, Mfg.'s motion for partial

summary judgment on the failure to warn claims found in portions of Counts I and VII

of the complaint. Both Count I, based on strict liability and Count Vll, based on

negligence, contain a claim that Agro, in addition to the existence of any design defects,

did not provide adequate warnings. For the multiple reasons stated in Marois v. Paper

Converting Machine Co., 539 A.2d 621, 624 (Me. 1988) the motion will be denied. This

case does not involve deliberate misuse of a product. See Hatch v. Maine Tank Co., Inc.,

666 A.2d 90, 94-5 (Me. 1995), which cited Marois. Lastly, Burns v. Architectural Doors

and Windows, 2011 ME 61, 19 A.3d 823 is distinguishable as it involved an appeal from a

jury verdict, significant problems with the pleadings existed, it was a case where the

plaintiff " ... had been aware for years of the specific danger posed by the product at

issue", <][24, and because of severe causation issues, <][25. Burns also referred to Marois.

It did not change the key principles stated in Marois but only found them not to be

applicable based on the facts in Burns. The motion is denied.

III. SCOPE OF THOMAS TESTIMONY

The final motion is the defendant Agro Trend, Mfg.'s request to limit the expert

opinions of Steven R. Thomas, a liability expert for the plaintiff. Mr. Thomas has

constructed a guard for the snowblower, conducted some additional tests and

formulated some new opinions since he submitted ~s expert witness designation.

Agro has moved to preclude him from rendering any opinions or stating any

conclusions based on his January 27, 2014 inspection of the snowblower or which are

beyond the extent of his September 23, 2013 disclosure.

I agree with the defendant that Mr. Thomas has belatedly expanded the scope of

his opinions and potential testimony. Since a trial is still a substantial time away a

2 different remedy, other than limiting the testimony of Mr. Thomas, is appropriate. Mr.

Thomas shall supplement his expert witness designation. The defendant's experts

may supplement their designations as well to respond to the expanded opinions of Mr.

Thomas. Agro will be permitted to re-inspect and re-test the snowblower. The

motion is denied.

The entries are:

Plaintiff's motion to exclude expert witness is denied.

Defendant Agro Trend, Mfg.'s motion for partial summary judgment is denied.

Defendant Agro Trend, Mfg.'s motion to limit expert opinions of Steven R. Thomas is denied.

Dated: August 25,2014

Paul A. Fritzsche Justice, Superior Court

3 CV-13-099

ATTORNEYS FOR PLAINTIFF: WILLIAM ROBITZEK JOHN SEDGEWICK BERMAN & SIMMONS PA POBOX961 LEWISTON ME 04243-0961

ATTORNEY FOR DEFENDANT AGRO TREND MFG: BRIANVOKE CAMPBELL CAMPBELL EDWARDS & CONROY PC ONE CONSTITUTION CENTER BOSTON MA 02129