Davidson v. Besser Co.

• Decision Date: 15 October 1999
• Docket Number: No. 4:96 CV 449 DDN.,4:96 CV 449 DDN.
• Citation: 70 F.Supp.2d 1020
• Parties: Charles S. DAVIDSON, Plaintiff, v. BESSER COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

70 F.Supp.2d 1020

Charles S. DAVIDSON, Plaintiff, v. BESSER COMPANY, Defendant.

No. 4:96 CV 449 DDN.

United States District Court, E.D. Missouri, Eastern Division.

October 15, 1999.

COPYRIGHT MATERIAL OMITTED

Gary E. Snodgrass, Kimberly Cates Wiseman, Rabbitt and Pitzer, St. Louis, MO, J. Mark Kell, Kell and Flach, St. Charles, MO, for Charles S. Davidson, plaintiff.

T. Michael Ward, Senior Associate, James E. Whaley, Brown and James, P.C., St. Louis, MO, for Besser Company, defendant.

MEMORANDUM AND ORDER

NOCE, United States Magistrate Judge.

This action is before the Court upon the motion of defendant Besser Company for summary judgment (Doc. No. 63). The parties have consented to the exercise of jurisdiction by the undersigned United States Magistrate Judge. 28 U.S.C. § 636(c).

Plaintiff Charles S. Davidson brought this action against defendant Besser Company, alleging strict product liability and negligence. Plaintiff alleges that on August 21, 1991, he was employed as a production supervisor for F.F. Kirchner, Inc., a company which manufactures concrete building blocks. On that day, plaintiff and a co-worker attempted to repair Kirchner's large concrete block-making machine, a Super Vibrapac Model V3-12-667, which had been manufactured by defendant. While plaintiff was working on the machine, his co-worker activated the machine. The machine caught plaintiff's hand and injured him. Plaintiff alleges that the block-making machine, when defendant sold it, was defective and unreasonably dangerous because it did not have: (i) an interlock perimeter guard to prevent it from starting up during repair; (ii) audible warning horns that would sound prior to the machine starting; and (iii) proper warning labels. See Complaint ¶¶ 13, 17, 25, 29, 33.

"Summary judgment is appropriate when there is no dispute of material fact and the moving party is entitled to judgment as a matter of law." Jaurequi v. John Deere Company, 971 F.Supp. 416, 419 (E.D.Mo.1997), aff'd, Jaurequi v. Carter Mfg. Co., 173 F.3d 1076 (8th Cir.1999); see also Fed.R.Civ.Pro. 56(c). When presented with a motion for summary judgment, "the Court must determine whether there `are any genuine factual issues that properly can be resolved only by the finder of fact because they may reasonably be resolved in favor of either party.'" Jaurequi, 971 F.Supp. at 419 (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The Court must also view the facts in the light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences drawn from the facts. Id.

The Court has subject matter jurisdiction over this action, based upon the parties' diversity of citizenship and the amount in controversy. 28 U.S.C. § 1332. In such a case, the Court must apply the appropriate state's substantive law, as would be selected by the Missouri state courts. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Birnstill v. Home Savings of America, 907 F.2d 795, 797 (8th Cir.1990). Missouri courts follow the principal contacts-most significant relationship rule of § 145 of the Restatement (Second) of Conflicts of Law. Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo.1969) (en banc); Roy v. Landers, 467 S.W.2d 924, 925 (Mo.1971) (applying the principal contacts rule to a malicious prosecution tort claim); Dunaway v. Fellous, 842 S.W.2d 166, 168 (Mo. Ct.App.1992); see also Moses v. Union Pacific Rr., 64 F.3d 413, 418 (8th Cir. 1995). In applying the Missouri choice of law rule, this Court must consider the following specific Restatement factors:

(a) the place where the injury occurred;

(b) the place where the conduct causing the injury occurred;

(c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and

(d) the place where the relationship, if any, between the parties is centered.

Dunaway, 842 S.W.2d at 168. After considering these factors, the Court determines that Missouri has the paramount interest in the litigation. Plaintiff is a Missouri citizen, defendant sold its block-making machine to plaintiff's employer in Missouri, the machine was used in Missouri, and plaintiff's injury occurred in Missouri. Thus, Missouri courts would apply the substantive law of Missouri in this case. Galvin v. McGilley Mem. Chapels, 746 S.W.2d 588, 590-91 (Mo.Ct.App.1987).

Defendant is entitled to summary judgment on all of the claims that allege the block-making machine was defective because it lacked an interlock perimeter guard and inadequate warning labels. On April 7, 1997, April 12, 1999, and May 7, 1999, the Court sustained defendant's motion in limine to exclude the opinion testimony of Boulter Kelsey, plaintiff's expert witness, who would testify at trial that the lack of an interlock device rendered the block-making machine unreasonably dangerous.¹ Whether or not the defendant's block-making machine was unreasonably dangerous, because it lacked an interlock safety device, is a conclusion that is sufficiently technical and complex to be outside the common knowledge or experience of a jury; expert testimony is necessary to establish liability in such a case. Eppler v. Ciba-Geigy Corporation, 860 F.Supp. 1391, 1395 (W.D.Mo.1994). Because the Court has prohibited Mr. Kelsey from testifying that the block-making machine was defective without the interlock safety device, plaintiff's case lacks legally sufficient evidence on those claims and defendant is entitled to summary judgment on them. See Dancy v. Hyster Company, 127 F.3d 649, 653-54 (8th Cir.1997) (expert testimony required under Arkansas law), cert. denied, 523 U.S. 1004, 118 S.Ct. 1186, 140 L.Ed.2d 316 (1998); Pestel v. Vermeer Mfg. Co., 64 F.3d 382 (8th Cir.1995) (directed verdict for manufacturer was affirmed in a products liability action where plaintiff's expert was barred from testifying for failing to meet the Daubert standard); Jaurequi, 173 F.3d at 1085.

Plaintiff's claims based upon insufficient warnings are subject to the same principles. A failure to warn claim requires admissible expert testimony that additional or other warnings might have altered the behavior of the plaintiff. Jaurequi, 173 F.3d at 1085. In the present case, plaintiff's expert acknowledged that he had no criticism of the pictorial warnings for the machine and that his criticism would be limited to the absence of an interlocking device and a start-up aural warning device. See Kelsey Depo., Exh. 5, at 31.

As a result of the Court's rulings on the admissibility of the opinions of Mr. Kelsey, plaintiff now has only one viable theory of product defect, those allegations which are based upon the absence of an aural start-up warning device. On these claims, some of the facts, which relate to the pending motions, are without genuine dispute. Defendant manufactured and sold to Kirchner the subject block-making machine prior to plaintiff's injury and the machine was manufactured without an aural warning safety device. Before plaintiff's injury on August 21, 1991, defendant sent Kirchner a written letter, dated September 28, 1990, which offered to sell to Kirchner an aural start-up warning device for the block-making machine. See Motion Exh. 2, filed May 10, 1999, Wienke Depo. Exh. 4, at 6, 27-30. The letter stated in relevant part:

This is to alert you to the availability of a new safety device for all Besser Company block making machines.

We currently have Start-up Warning Horn Kits which when installed provide for a seven second delay prior to machine start during which the warning horn will sound. Although the lockout procedure remains as the primary safety aspect for repair and maintenance situations, the warning horn could possibly help to avoid accidents when employees mistakenly or intentionally disregard OSHA Lockout Law. We urge you for the additional safety of your employees to purchase those items for Besser Company made block machines....

Motion Exh. 3. Paul Wienke, Vice-President for Manufacturing of F.F. Kirchner, Inc., testified in his deposition that Kirchner actually purchased one of these Start-up Warning Horn Kits, but he did not remember whether the purchase was before or after plaintiff's injury. Motion Exh. 2, Wienke Depo. at 30. In his deposition, Mr. Kelsey testified that, if Kirchner had installed such a device on the machine that injured plaintiff, the injury would have been avoided. See Motion Exh. 1, Kelsey Depo. at 43.

Defendant relies upon Morrison v. Kubota Tractor Corporation, 891 S.W.2d 422 (Mo.Ct.App.1994), and argues that it is entitled to summary judgment on plaintiff's remaining claims, which allege the absence of the aural start-up warning device. Defendant argues that it is not liable, because, before plaintiff was injured, defendant offered and sold such a device to plaintiff's employer for installation on the allegedly defective machine. In Morrison the family of David Morrison sued Kubota Tractor Corporation, the manufacturer of a utility tractor, after the tractor overturned while Morrison was operating it, killing him. Id. at 423. Plaintiffs alleged negligence and strict products liability, claiming that the tractor was defective and unreasonably dangerous because it was not manufactured with a roll over protection system ("ROPS"). Id. at 424. The Missouri circuit court directed a verdict in the defendant-manufacturer's favor on the negligence claim. On direct appeal, the Missouri Court of Appeals affirmed, ruling that the defendant had no liability because, when the tractor was purchased by the decedent, the manufacturer's agent advised him that a ROPS was available for purchase and installation. Id. at 428. The court held:

Because Kubota had no duty to install a ROPS in the first place and fulfilled any duty it might have had by offering one as optional equipment on the tractor purchased by Morrison, the trial court correctly directed a...