Jones v. Reichert Jung, Inc.
| Decision Date | 26 July 2002 |
| Docket Number | No. CIV.H-01-2815.,CIV.H-01-2815. |
| Citation | 211 F.Supp.2d 661 |
| Parties | Louvinia JONES Plaintiff v. REICHERT JUNG, INC. Defendant |
| Court | U.S. District Court — District of Maryland |
Roger N. Powell, Pikesville, MD, for Plaintiff.
Daniel R. Lanier, Miles and Stockbridge PC, Baltimore, MD, for Defendant.
In this civil action, plaintiff Louvinia Jones ("Jones") has sued defendant Reichert Jung, Inc. ("Jung") seeking damages for personal injuries. Jones lives in Baltimore City, and Jung is a corporation with its principal office in Buffalo, New York. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Maryland law is therefore controlling in this case.
For many years, plaintiff was employed at Johns Hopkins Hospital ("the Hospital") in Baltimore, Maryland. In part, her duties included the use and operation of the Frigocut 2800 cryostat, a microtome machine designed to slice frozen tissues so that slides may be made. Defendant Jung was the manufacturer of the Frigocut 2800. Plaintiff alleges that as a result of her operation of the machine, she suffered bilateral cubital tunnel syndrome and bilateral carpal tunnel syndrome requiring surgical repair.
The complaint is in three counts. Count I asserts a claim of breach of the warranty of merchantability. It is alleged that the machine at issue was not merchantable and that defendant's breach of the warranty of merchantability with regard to the sale of the machine which contained design and manufacturing defects was the proximate cause of the injuries sustained by plaintiff. Count II seeks a recovery for breach of the warranty of fitness. It is alleged that the machine was not fit for the purpose for which it was manufactured because of design and manufacturing defects. Count III asserts a claim of negligence in the design and/or manufacture of the machine. It is alleged that defendant, with knowledge of the negligent design and/or manufacture of the machine, failed to warn plaintiff and others of the dangers of injury from use of the machine. Compensatory damages in the amount of $13,600,000 are sought by plaintiff.
Pursuant to Scheduling Orders entered by the Court, the parties have engaged in and completed discovery. Now pending is defendant's motion to preclude plaintiff's experts and for summary judgment. In support of that motion, defendant has submitted numerous exhibits, including affidavits and excerpts from a deposition taken during discovery. Plaintiff in turn has filed an opposition to defendant's pending motion and has also submitted a number of exhibits. Recently, after defendant had replied to plaintiff's opposition, a hearing on defendant's motion was held in open court.
Following due consideration of the memoranda, exhibits and arguments of counsel, this Court has concluded that defendant's motion to preclude experts must be granted and that defendant's motion for summary judgment must also be granted. In the absence of admissible expert testimony indicating that the Frigocut 2800 cryostat machine was defectively designed or defectively manufactured, plaintiff is not entitled to proceed to trial in this case. Accordingly, summary judgment in favor of defendant will be entered.
Plaintiff Jones was employed as a technician in the pathology lab at the Hospital from March 1995 through January 2001. As a part of her job, Jones operated a microtome, namely the Frigocut 2800 cryostat machine manufactured by defendant. This machine is used to slice frozen tissue samples, after which slides are made from the samples for pathologists to study. In using the machine, plaintiff would sit in front of it, operating a hand crank while looking down into the machine to make the cuts.
In time, plaintiff while operating the machine began experiencing pain, numbness and tingling in her right arm, wrist and hand. She was diagnosed by her treating physician as having bilateral cubital tunnel syndrome and carpal tunnel syndrome. As a result, surgical procedures were undertaken to correct the problem. According to plaintiff, her medical problems were caused by her operation of the machine, which she alleges was designed and/or manufactured defectively.
In response to plaintiff's claim that her injuries resulted from her use of the machine, the Hospital directed an employee, James Bukowski ("Bukowski"), to conduct an ergonomic study of plaintiff's operation of the machine. Bukowski has been conducting ergonomic studies at the Hospital since 1995. He met with plaintiff in July of 2000, observed her operation of the machine, completed an Ergonomic Analysis Survey Form, and prepared a report dated July 19, 2000. Bukowski made three recommendations in his report for the improvement of plaintiff's work environment. Bukowski recommended: (1) rotating cutting duties among several employees; (2) contacting the manufacturer to determine if the handle could be lengthened and the diameter enlarged and padded; and (3) contacting the manufacturer to see if the gearing on the control wheel could be changed so that it required fewer revolutions for a given amount of cutting.
In a draft of the proposed Pretrial Order prepared by her attorney, Roger N. Powell, Esq., plaintiff has identified two liability experts whom she intends to call to testify at the trial, namely Bukowski and Edward J. Bernacki ("Bernacki").1 Bukowski is an Assistant Environment Health Officer for the Health, Safety and Environment Department at the Hospital. Bernacki is Associate Professor and Director, Occupational Medicine, Johns Hopkins University School of Medicine, and is the Executive Director of the Health, Safety and Environment Department at the Hospital.
After the close of discovery,2 counsel for defendant approached Bukowski and Bernacki and obtained affidavits from them. In his affidavit dated June 21, 2002, Bukowski states that he had never concluded that the machine, the handle or the gearing were defectively or negligently designed or manufactured in any way. He also states that he never concluded that the machine was dangerous to use in its current configuration, that he made no determination if the machine contributed to plaintiff's injuries in any way and that he was rather in his report merely making recommendations to improve the working conditions of plaintiff and others. Bukowski further asserts that at no time has he agreed to testify as an expert witness in this case on behalf of the plaintiff and that he does not hold himself out as an expert on the design and manufacture of cryostat machines like the Frigocut 2800.
In his affidavit also dated June 21, 2002, Bernacki states that he reviewed and approved the report submitted by Bukowski, but that he did not participate in the ergonomic study. According to Bernacki, he has never conducted an ergonomic study of the Frigocut 2800. He further states that he has never made a determination or assessment that the machine at issue was defectively or negligently designed or manufactured in any way, nor did he determine that the machine caused plaintiff's injuries. Bernacki also asserts that he has not agreed to be an expert witness in this case on behalf of plaintiff.
Defendant Jung has first moved to preclude plaintiff's experts. It is argued that plaintiff has failed to comply with Scheduling Orders of this Court and with Rule 26(a)(2)(B), F.R.Civ.P., in designating and identifying her liability experts and in providing necessary written reports. It is next argued by defendant that the experts now named by plaintiff are not qualified to render opinions that the machine at issue was defectively designed or manufactured, and that their opinions do not properly establish a causal link between plaintiff's use of the Frigocut 2800 and her injuries. Defendant contends that, in the absence of relevant expert testimony both as to defect and causation, this Court should grant its motion for summary judgment.
In opposing defendant's pending motion, plaintiff asserts that she should not be barred from the use of her experts on the basis of the timeliness and the form of her disclosures of their identities and the reports provided. According to plaintiff, there are on the record here disputes of material fact as to whether the machine at issue was defectively designed or defectively manufactured and defendant maintains that such disputes should be resolved by the jury.
It is well established that a defendant moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, "the burden on the moving party [at the summary judgment stage] may be discharged by `showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
One of the purposes of Rule 56 of the Federal Rules of Civil Procedure is to require a plaintiff, in advance of trial and after a motion for summary judgment has been filed and properly supported, to come forward with some minimal facts to show that the defendant may be liable under the claims alleged. See F.R.Civ.P. 56(e). If the nonmoving party "fail[s] to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof," then "the plain language of Rule 56(c) mandates the entry of summary judgment." Catrett, 477 U.S. at 323, 106 S.Ct. 2548.
While the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the party opposing the motion, Ross v. Communications Satellite Corp., 759 F.2d...
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