Royce Young v. Pollock Engineering Group, Inc. Pollock Research and Design, Inc. Computech, a Sole Proprietorship and Lewis L. Deland, an Individual

428 F.3d 786, 2005 U.S. App. LEXIS 24515, 2005 WL 3046256

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 15, 2005
• Docket: 04-3428
• Status: Published

Opinions

BENTON, Circuit Judge.

Royce Dale Young was injured while working as a “die man” at Alexandria Extrusion Company (AEC). A die man loads dies into a die changer, here manufactured by Pollock Engineering Group, Inc. A co-employee operates the die changer from a control panel, which was provided by Com-putech about three years after the installation of the die changer. Once activated, the die changer inserts dies into an extrusion press.

On the night of the injury, Young was loading dies into the die changer while Robbie Joe Betterman operated the control panel. Not intending any harm, Bet-terman activated the die changer, severely injuring Young’s left hand. AEC later installed a “barrier guard” or barrier fence around the die changer.¹

Invoking diversity jurisdiction, Young sued Pollock for negligence and strict liability in defectively designing the die changer. Young also sued for failure to warn of the dangers associated with the product. The district court granted summary judgment to Pollock, Computech, and Lewis L. Deland on all counts. On appeal, Young attacks the judgment only as to Pollock. This court affirms the summary judgment on the failure-to-warn claim, but reverses as to the defective-design claims.

I.

This court reviews de novo a grant of summary judgment, applying the same standard as the district court. See Essco Geometric v. Harvard Indus., 46 F.3d 718, 729 (8th Cir.1995). Summary judgment is affirmed where there is no genuine issue of material fact, and judgment is appropriate as a matter of law. See id., citing Fed.R.Civ.P. 56(c). This court construes the facts in favor of the non-moving party. See RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A plaintiff asserting defective design under Minnesota law must establish that the defendant’s product “was in a defective condition unreasonably dangerous for its intended use.” See Bilotta v. Kelley Co., 346 N.W.2d 616, 623 n. 3 (Minn.1984) (en banc), citing Lee v. Crookston Coca-Cola Bottling Co., 290 Minn. 321, 188 N.W.2d 426, 432 (Minn.1971). To determine whether there is enough evidence to submit the claim to a jury, the court must balance “the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.” See Bilotta, 346 N.W.2d at 621, quoting Holm v. Sponco, 324 N.W.2d 207, 212 (Minn.1982) (en banc). See generally Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1009 (8th Cir.1998) (summarizing Minnesota law).

An important factor in this balancing test is the availability of a feasible, safer alternative design. See Kallio v. Ford Motor Co., 407 N.W.2d 92, 96 (Minn.1987) (en banc). Only in rare cases do defective-design claims succeed without showing a safer design. See id. at 97 n. 8. “Conceivably, rare cases may exist where the product may be judged unreasonably dangerous because it should be removed from the market rather than be redesigned.” Id. In Minnesota, “successful plaintiffs, almost without fail, introduce evidence of an alternative safer design.” Id. at 95 n. 6 (citing cases).

Young relies on the affidavits of two expert witnesses, both mechanical engineers. Tarald O. Kvalseth, Ph.D., states that a number of feasible, safer designs could have prevented Young’s injuries. As an example, Pollock could have installed a barrier guard like the one installed after Young’s injuries. Dr. Kvalseth states that the barrier guard could be an effective safety device when used with an “interlock switch” that disables the die changer while the gate to the barrier guard is open. J. Kenneth Blundell, Ph.D., agrees that an alternative design could have prevented Young’s injuries. Like Dr. Kvalseth, he proposes a barrier guard with an interlock switch.

Although acknowledging the experts’ opinions, the district court granted summary judgment on the defective-design claims. The district court holds:

[Young] does not contest that his proposed safety enhancements are external work area modifications available for purchase “off the shelf,” rather than mechanisms incorporated into the design of the die changer or “permanently attached to” the product. Huber v. Niagara Mach. & Tool Works, 430 N.W.2d 465, 466 (Minn.1988) (en banc). This fact readily distinguishes the instant case from that relied on by [Young], in which the court found a manufacturer could be liable for defective design based upon exclusion of an integral safety component from some of its models. Bilot-ta, 346 N.W.2d at 622, 624-25. Young does not suggest or reference an alternative die changer design that includes a safety device, and cites no authority for his proposition that the failure to recommend external safeguards made by different manufacturers can constitute a defect in design. Accordingly, his claim is appropriately one of failure to warn and it will be addressed as such. Sum- , mary judgment for Pollock is thus warranted on the issue of defective design.

The district court’s reasoning is erroneous in two respects. First, Young did not concede that his proposed modifications should not have been incorporated into the design of the die changer. In written suggestions Young argued: “Plaintiffs experts have identified other feasible safety devices that could have been used to safeguard the Die Changer, and which should have been incorporated by Pollock in its original design of the product.” (emphasis added). Young restated his position during oral argument in the district court.

Young’s position is supported by the affidavits of his expert witnesses, who advocate alternative designs of the die changer itself. In the same sentence where Dr. Kvalseth says that the proposed safety modifications are available “off the shelf,” he also states that Pollock should have incorporated them into the die-changer design. Dr. Blundell agrees in his affidavit and attached report.

Pollock counters that during his deposition, Dr. Kvalseth agreed: he was not proposing modifications to the functioning or configuration of the “die slide itself’; and, his proposed modifications were not “physically attached” to the die slide. However, Dr. Kvalseth later said in his deposition that industry standards do not permit a manufacturer to “design an extrusion press and just leave out guards.” Dr. Kvalseth’s deposition, interpreted in Young’s favor, says that the die changer itself was unreasonably dangerous.

Dr. Blundell’s deposition, interpreted in Young’s favor, is to the same effect. Dr. Blundell, after opining that the manufacturer should provide safeguards, testified that Pollock should have examined the die changer for pinch-point hazards and identified the lack of safeguards.

Pollock argues that the experts’ testimony is inadmissible because they failed to take measurements to determine the feasibility of the safety modifications they propose. Testimony may be excluded if an expert fails to explain how a proposed safety modification would protect the machine’s operators without compromising the machine’s utility. See Unrein v. Timesavers, Inc., 394 F.3d 1008, 1012 (8th Cir.2005) (holding that the district court properly excluded Dr. Kvalseth’s testimony regarding an industrial sander). However, in this case the experts did not need to conduct a detailed feasibility study of the barrier guard because AEC had installed the barrier guard and used it successfully with the die changer. Both experts explained that the barrier guard — used with a simple switch to cut the power to the die changer while the gate of the barrier guard is open — would be an effective safety device. In sum, Young presented admissible evidence supporting his allegation that the die changer itself was defective and unreasonably dangerous. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

Second, the district court erroneously concluded that Minnesota law recognizes a distinction between external work area modifications and integral safeguards, in design defect cases. For that conclusion, the district court cites Huber, which was not a defective design case. Rather, it held that the manufacturer of a component foot switch with a “permanently attached” safety device did not have the duty to warn users that the safety device should not be removed. See Huber, 430 N.W.2d at 466.

The closest Minnesota authority is Harmon Contract Glazing, Inc. v. Libby-Owens-Ford Co., 493 N.W.2d 146, 149 (Minn.Ct.App.1992), which held that the plaintiff could not recover for defective design of a shipping brace that secured glass panes during transit because the brace was not an “integral part of the product itself.” Id. Unlike the brace in Harmon, the barrier guard Young proposes would have been integrated into the product during its normal use. See Cerepak v. Revlon, Inc., 294 Minn. 268, 200 N.W.2d 33 (1972) (deodorant bottle); Holkestad v. Coca-Cola Bottling Co. of Minn., Inc., 288 Minn. 249, 180 N.W.2d 860 (1970) (en banc) (soft-drink bottle).

Other than these cases, the distinction — “external” versus “integral” or “internal” — does not appear in the Minnesota cases. In deciding whether summary judgment is appropriate as a matter of law, this court therefore follows the leading case, Bilotta, where the Minnesota Supreme Court states that allowing manufacturers to sell products without adequate safety devices would “permit an entire industry to market unreasonably dangerous ‘stripped down’ devices.” Bilotta, 346 N.W.2d at 624. The district court’s holding — that Pollock could be liable only for modifications that would have been permanently attached to the die changer— “would circumvent the general duty of the manufacturer to provide a reasonably safe design for its products.” See Id. at 624-625.

In footnote three of its order, the district court states that its conclusion “is bolstered by the American National Standards Institute’s assignment to the employer of the obligation to provide ‘adequate guards, awareness devices, presence-sensing devices, and/or appropriate controls to provide proper protection to operating personnel.,’ ” quoting American National Standard for Machine Tools— Horizontal Hydraulic Extrusion Presses — Safety Requirements for Construction, Care, and Use, B11.17 § 5.1 (1982) (emphasis in original court order). The district court reasoned that the manufacturer does not have to include such safety devices in the product design. This reasoning is contrary to Minnesota law. Although the employer is generally responsible for ensuring worker safety, “a manufacturer may not delegate its duty to design a reasonably safe product.” See Bilotta, 346 N.W.2d at 624; Gorath v. Rockwell Int’l, Inc., 441 N.W.2d 128, 133 (Minn.Ct.App.1989).

Further — to the extent they are relevant — the district court reads the ANSI standards too narrowly. True, under section 5 of the standards, employers are responsible to provide certain safeguards. See American National Standard B11.17 § 5.1. Equally relevant is section 3, the ANSI standard entitled “Construction and Modification.” Id. § 3. In contrast to section 5, section 3 describes the responsibility of extrusion press manufacturers. The explanatory notes to section 3 identify certain hazards associated with moving parts, including “pinch points between moving and stationary press components, such as ... the areas where die carriers ... are shifted into or out of the press.” Id. § E3.2.1. The explanatory notes to section 3 state: “For those areas requiring access for normal operation, awareness devices, presence sensing devices, interlocked guards, or two-hand controls are some of the safeguards that can be used to satisfy the requirements of Section 3.” Id. As Dr. Blundell testified, the ANSI standards make both the employer and the manufacturer responsible for safety. In sum, the ANSI standards do not bolster the district court’s conclusion that the employer alone was responsible to provide the safeguards Young’s experts proposed.

This court also rejects Pollock’s related argument that OSHA regulations relieve it of liability for designing a defective product. The regulations do establish safety requirements for employers whose employees use mechanical power presses. See 29 C.F.R. § 1910.217. However, OSHA regulations generally “pertain only to employers’ conduct,” and do not purport to define the obligations of manufacturers. See Minichello v. U.S. Indus., Inc., 756 F.2d 26, 29 (6th Cir.1985), citing McKinnon v. Skil Corp., 638 F.2d 270, 275 (1st Cir.1981).

In Minnesota, the jury ultimately decides whether the die changer was unreasonably dangerous. See 4A Minnesota Practice, CIVJIG 75.20 (4th ed.1999). This court concludes that Young has presented sufficient evidence of a defective design to survive summary judgment. See Bastow v. General Motors Corp., 844 F.2d 506, 510 (8th Cir.1988) (“[I]t is not for us to decide whether defendants’ or plaintiffs evidence is more persuasive. It is for the jury.”) ■

II.

The district court concluded that Pollock had no duty to warn Young about the potential hazards associated with the die changer because such hazards were open and obvious. The court correctly noted that Young conceded that the pinch-point hazard was obvious and that he had been trained in proper use of the die changer.

Young counters that the danger Pollock should have brought to his attention was not the pinch point, but the possibility that the die changer could be unexpectedly activated. However, Young conceded in his deposition that he did not know of any warnings Pollock could have given that would have prevented the accident. The district court correctly concluded that Young was aware of the potential hazards and that Pollock had no duty to warn him. See Dahlbeck v. DICO Co., 355 N.W.2d 157, 163 (Minn.Ct.App.1984) (“[A] manufacturer has no duty to warn when the dangers of a product are within the professional knowledge of the user.”), quoting Strong v. E.I. DuPont de Nemours Co., 667 F.2d 682, 687 (8th Cir.1981).²

III.

The judgment as to the failure-to-warn claim is affirmed. The judgment is reversed as to Young’s claims for defective design, and the case remanded.

1 . The Appellant’s Brief violates fed. R. App. P. 28(a)(7), as it does not cite the Appendix, and rarely references the record. Although this court is not required to search the record, the violations in this case do not prevent review of the arguments presented. See Lucas v. Lucas, 946 F.2d 1318, 1325 (8th Cir.1991).

2 . For the purpose of the claims for defective design discussed in Part I, the obviousness of the danger created by the product is not a complete bar to recovery, but may be considered in the balancing test and may also be relevant to whether the plaintiff exercised reasonable care in using the product. See Holm, 324 N.W.2d at 211-213, rejecting Halvorson v. American Hoist & Derrick Co., 307 Minn. 48, 240 N.W.2d 303, 305 (1976).