Hochen v. Bobst Group, Inc., 00-1841.

• Decision Date: 16 May 2002
• Docket Number: No. 00-1841.,00-1841.
• Citation: 290 F.3d 446
• Parties: Ismar HOCHEN, As Administrator of The Estate of Ismael Hochen; Richard Dufault; Christine Dufault, Individually and as Mother and Next Friend of Richard Dufault, Jr.; Leah Dufault, Plaintiffs, Appellants, v. BOBST GROUP, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

290 F.3d 446

Ismar HOCHEN, As Administrator of The Estate of Ismael Hochen; Richard Dufault; Christine Dufault, Individually and as Mother and Next Friend of Richard Dufault, Jr.; Leah Dufault, Plaintiffs, Appellants, v. BOBST GROUP, INC., Defendant, Appellee.

No. 00-1841.

United States Court of Appeals, First Circuit.

Heard February 8, 2002.

Decided May 16, 2002.

COPYRIGHT MATERIAL OMITTED

Janet H. Pumphrey for appellants. John J. St. Andre, St. Andre Law Offices, Michael K. Gillis, Gillis & Bikofsky, PC, Matthew P. McCue, and Mirick, O'Connell, DeMallie & Lougee, LLP, on brief for Massachusetts Academy of Trial Attorneys, amicus curiae.

Kevin G. Kenneally, with whom John A. Donovan, Jr. and Donovan Hatem LLP, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

STAHL, Senior Circuit Judge.

Plaintiffs-appellants Ismael Hochen ("Hochen") and Richard Dufault ("Dufault") were injured on August 2, 1994, as a result of an explosion in a printing press at their place of employment, Avery Dennison Corporation ("Avery").¹ Hochen and Dufault subsequently brought suit against defendant-appellee, the Bobst Group, Inc. ("Bobst"),² claiming liability for negligence, failure to warn, and breach of warranty, in connection with Bobst's activities related to the printing press in 1971 and 1972 and in 1994. In separate rulings, the district court granted Bobst's motions for (1) partial summary judgment on all claims arising out of its activities in 1971 and 1972; (2) partial summary judgment on the breach of warranty and failure to warn claims arising out of Bobst's activities in 1994; and (3) judgment as a matter of law on the remaining negligence claims. Appellants now ask us to review the first and third rulings as well as the district court's decision to exclude testimony by their expert witness. We affirm.

I. BACKGROUND

In 1971 and 1972, Bobst designed and constructed the press in question, Press 8 (the "press"), following Avery's custom specifications and requirements, and installed it at Avery's facilities in Framingham, Massachusetts. The press, which printed labels for a variety of products, weighed 38 tons, was approximately 85 feet in length, and was affixed to the plant's floor, ceiling, walls and various utility systems. It operated in the following way: A spool of paper—the "web"—after entering through an "infeed," was pulled through a number of print stations, and rewound after passing through an "outfeed." The outfeed pulled the web through and the infeed followed. In the process, the paper was inked and then moved through a gas powered dryer before reaching the outfeed. Highly flammable solvents were used to keep the printing ink liquid.

In 1994 Avery undertook a project to upgrade the press. Although Avery decided to conduct the upgrade with in-house employees, it requested that Bobst send field technicians to the plant for several days to work on the installation of two used pieces of equipment, an S-1480 Registron control system (the "S-1480") and an R-820 infeed electronic system (the "R-820 infeed"). The S-1480 was an electronic registration device that helped identify the relative position to each other of successive colors being printed on a label and adjusted the print cylinders to ensure their proper alignment. The R-820 infeed electronic system was a part of the infeed that, along with a companion R-820 outfeed system, controlled the tension of the paper web as it passed through the press. For the press to operate correctly, the same tension of the web had to be maintained throughout the entire printing process. Tachometers on the press measured web speed and sent voltage signals that allowed different parts of the press to operate in a synchronized fashion. Bobst technicians installed one tachometer as part of a component of the S-1480 called an auto-sequencer. The parties disagree as to whether Bobst had a duty to synchronize the voltage signal of this tachometer with the voltage signals of other devices on the press—and specifically with the voltage signal from a tachometer in the outfeed unit—and as to whether the auto-sequencer was intended to be operational at all at the time of the installation.

The Bobst technicians worked at Avery from approximately June 26, 1994 to July 3, 1994. The parties strongly contest how Bobst's services during this period should be characterized. Appellants argue that Bobst was hired to install, start up, and debug the S-1480 and R-820 infeed because they were the "experts" on these devices. Bobst counters that its field technicians were hired only to fill in a labor shortage arising out of vacations taken by Avery's own employees and that Avery intended to complete the work with its own electricians and tradesmen. In any case, the record indicates that Avery discharged Bobst's technicians shortly before the 4th of July weekend, at a time when the press was not operational, telling them that they would be called back if needed.

On August 2, 1994, an explosion in the press injured Hochen and Dufault. Appellants brought suit against Bobst, alleging that Bobst was liable for negligence, failure to warn, and breach of warranty in connection with its activities involving the design and installation of the press in 1971 and 1972 and involving the upgrade in 1994. With regard to the 1994 upgrade, appellants' theory was essentially that Bobst failed to correct voltage problems with the press's tachometers, leading to problems with web tension. Avery employees testified that, on the day of the explosion, the web had so much slack that it was dipping into one of the ink pans before shooting into the dryers and appellants argued that the flammable solvents in the ink caused the explosion in the dryer. However, the record evidence indicates that there were other problems with the press on the day of the explosion, including the fact that fan blades in the exhaust fan above the print unit where the explosion occurred had been installed backwards by Avery employees, preventing solvents from being exhausted out of the dryer.

On December 5, 1997, the district court granted Bobst's motion for partial summary judgment on all claims arising out of any deficiency or neglect by Bobst in the design, construction, or installation of the press in 1971 and 1972, holding that these claims were barred by Massachusetts's six-year statute of repose, Mass. Gen. L. ch. 260 § 2B, concerning improvements to real estate. Hochen v. Bobst Group, Inc., No. 96-11214-DPW, R. Doc. 56 (D.Mass. Dec. 5, 1997). The parties thereafter consented to proceed before a magistrate judge for trial and entry of judgment pursuant to 28 U.S.C. § 636(c). On May 10, 2000, the magistrate judge further entered summary judgment in favor of Bobst on the breach of warranty and failure to warn claims related to Bobst's activities in 1994. Hochen v. Bobst Group, Inc., No. 96-11214-RBC, R. Doc. 234 (D.Mass. May 10, 2000).

The negligence claims relating to the 1994 upgrade — the only claims to survive the two summary judgment motions — went to trial before a jury in May 2000. On May 19, 2000, in a bench ruling, the magistrate judge excluded the testimony of appellants' expert witness, Daniel Harwood, on these claims and granted Bobst's motion for judgment as a matter of law on the issue of negligence, thereby disposing of the case. Hochen v. Bobst Group, Inc., No. 96-11214-RBC, R. Doc. 264 (D.Mass. May 19, 2000).

Here, appellants ask us to review three of the district court's rulings: (1) the order granting summary judgment to Bobst on claims held to be barred by the statute of repose; (2) the ruling excluding testimony by appellants' expert witness; and (3) the ruling granting Bobst's motion for judgment as a matter of law on the negligence claims. Appellants do not appeal the summary judgment ruling in favor of Bobst on the breach of warranty and failure to warn claims related to Bobst's activities in 1994. We affirm the exclusion of the expert witness testimony and the grant of judgment as a matter of law on the 1994 negligence claims. We also affirm the district court's 1997 grant of summary judgment in favor of Bobst on the claims arising out of Bobst's activities in 1971 and 1972, but on grounds other than the statute of repose.

II. CLAIMS ARISING OUT OF 1971-1972 ACTIVITIES

On appeal, Bobst contends that the statute of repose question is moot.³ Bobst argues that, even if we were to find that the statute of repose does not bar appellants' claims arising out of the design, manufacture, and installation of the press in 1971 and 1972, the claims must fail because appellants never designated any relevant expert opinion testimony. Such designation is required under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Without the qualified expert opinion testimony, Bobst argues, appellants could not submit their claims to the jury, even if we were to remand the case for retrial as to their 1971 and 1972 claims.

After a review of the record, we agree with Bobst that appellants failed to designate any expert testimony on any purported design defects, manufacturing defects, or breaches of warranties in the original design, manufacture or construction of the printing press or its components. A fair reading of the reports filed by Harwood is that they speak only to alleged negligence, failure to warn, or breach of warranty claims stemming from Bobst's role in the upgrade of the press in 1994.⁴ Despite their protestations to the contrary, neither in their briefs nor in oral argument have appellants pointed us to any sections of the filed expert reports that could be characterized as raising an issue related to the 1971-1972 design, construction, and installation of the press.

Although, under Massachusetts law, expert testimony may not be required in cases where the jury can find a design or manufacturing defect based on the testimony of the injured...