Davis v. FMC Corp., Food Processing Machinery Div.
| Decision Date | 19 August 1985 |
| Docket Number | 84-1915,Nos. 84-1816,s. 84-1816 |
| Citation | 771 F.2d 224 |
| Parties | Prod.Liab.Rep.(CCH)P 10,654 Marilyn DAVIS, Plaintiff-Appellee, v. FMC CORPORATION, FOOD PROCESSING MACHINERY DIVISION, Defendant-Third-Party Plaintiff-Appellant, v. JOAN OF ARC COMPANY, a corporation, Third-Party Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James E. McCabe, McCabe, McCabe & Rader, Williamsport, Ind., Robert J. Banks, Sebat, Swanson, Banks, Lessen & Garman, Danville, Ill., for plaintiff-appellee.
John B. Jenkins, Gunn & Hickman, Danville, Ill., for defendant-third-party plaintiff-appellant.
Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and PECK, Senior Circuit Judge. *
Plaintiff Marilyn Davis filed a diversity action against FMC Corporation, Food Processing Machinery Division ("FMC") for injuries she sustained from a machine FMC had manufactured and sold to her employer, Joan of Arc Company ("Joan of Arc"). FMC appeals from a $326,620 verdict against it. We affirm.
Sixteen-year-old Marilyn Davis was operating a corn-cutting machine at Joan of Arc's Hoopeston, Illinois, canning facility on August 16, 1976, when her right hand came into contact with a chain and sprocket assembly resulting in the partial loss of four fingers. As a result of the accident, Ms. Davis, who was right-handed, has extremely diminished pinch capability (relating to activities involving the "tripod of pinch" between the thumb, index and long fingers) and markedly diminished grasping capability (relating to the ability to hold onto large objects). In practical terms this permanent disability means, first of all, that Davis' typing ability has been dramatically decreased. Prior to the amputation, the plaintiff, after two years of instruction, could type sixty-eight words per minute error-free. Since then she has been able to type only between thirty and thirty-five words per minute error-free. She can no longer take dictation, because it is painful for her to hold a pen or pencil. The evidence established that she has at various times and by various employers been denied employment, prevented from being promoted in employment, and threatened with termination, because of her severely limited dexterity. She can no longer play the piano or sew. In addition, plaintiff has great difficulty handling money, picking up large objects such as pots and pans, using knives, using a pair of scissors, buttoning her clothes, closing snaps, opening cans, putting on jewelry and tying shoelaces. Besides the great deal of pain plaintiff suffered immediately after the accident, she has continued to experience "phantom pain" where her amputated fingers previously existed.
Joan of Arc had ordered the machine the plaintiff was operating in December of 1968, and it was shipped the following May. It was a "standard" corncutter, designed for use in a bin-feed system of operation. This machine has a high rail behind which the operator stands; a low rail is opposite. The corncutter is designed to handle 120 to 150 ears of corn per minute. The operator must place the corn onto the chain conveyor, turning the ears of corn so that they enter the machine small end first. Keeping pace with the corncutter requires very quick work. The conveyor carries the corn into the machine, past the chain and sprocket assembly to the knives that strip the ear of the kernels of corn.
Belt-feed operations require an "opposite standard" corncutter, the primary difference between the two being that the placement of the high and low rails is reversed. As a result, the operator of a standard corncutter stands on the opposite side of the machine from where the operator of an opposite standard corncutter would stand, but the two operators' duties are the same. The high and low rails are removable and can be reversed in position on the machine, thus converting a standard machine into an opposite standard. The only consequence of doing so is that a five-inch guard device that FMC claims it included on its machines, part no. JS847, would not fit after the rails had been reversed. The corresponding guard device for opposite standard corncutters is part no. JS846. Part no. JS846 is identical to part no. JS847, except it is designed to fit the high-rail low-rail configuration of opposite standard machines. The guards would fit the respective machines only when they were left in their original configuration for use in bin-feed or belt-feed operations. The guards, however, were detachable, being affixed to the machine by two quarter-inch bolts, and head cap screws with washers. FMC sold its guards separately, but prior to the plaintiff's accident in August 1976 had sold only 157 standard corncutter guards. FMC also sold separately another safety device, a microswitch and brake motor that would stop the machine immediately if the operator got too close to the hazard area, but only forty-nine had been sold prior to the plaintiff's accident.
In 1973, Joan of Arc relocated the corncutter machine that injured the plaintiff to its Hoopeston plant, which operated on a belt-feed system. Consequently, the rails were reversed to convert the machine from a standard machine into an opposite standard machine. The five-inch guard device for standard machines was not on the machine when it arrived in Hoopeston, nor did the instruction and parts manual shipped with the machine show the guard as part of the equipment included with the machine. The plant manager at the Hoopeston plant, an employee for thirty-five years, could not recall ever having seen such a guard on either the standard or opposite standard corncutters.
Plaintiff called two expert witnesses to testify about the design of the machine. Both experts agreed that the corncutter was unreasonably dangerous without the five-inch guard device because it left the chain and sprocket assembly inadequately guarded. They suggested a number of devices that were feasible and within the state of the art in 1969 that would have adequately protected the assembly, including a microswitch and brake mechanism. Such a device, which FMC sold separately as an option, would have prevented the type of injury that the plaintiff received. Even if the five-inch guard that FMC claimed it had installed on the machine were in place, they agreed that the machine was still unreasonably dangerous because the guard was too short and was detachable. They believed that removal of the guard was foreseeable unless the guard were made a permanent part of the machine.
One of the experts, Dr. Allen T. McDonald, Professor of Mechanical Engineering at Purdue University, testified that offering as an option a safety device that could prevent a serious injury, when the manufacturer has the ability to put the device on the machine before it is shipped, is not an acceptable engineering practice. FMC had designed and made available to Joan of Arc as an option in March 1969 a microswitch and brake motor assembly similar to the one proposed by the plaintiff's experts that FMC considered to be safer than the five-inch guard. Joan of Arc declined to purchase the safety option.
Both experts agreed that the machine contained inadequate warnings of its inherent danger. FMC had attached a five-inch by three-inch self-adhering decal that quickly washed off the machine, which was hosed down each evening during the canning season with high-pressure hoses. FMC knew that the machines were washed down. FMC not only encouraged its customers to keep its corncutters clean but recommended that they be steamed down at the end of every canning season, a practice that would quickly destroy a self-adhering decal.
FMC called Dr. Carl Larson, of the University of Illinois, as its expert witness. Dr. Larson testified that the corncutter machine was not unreasonably dangerous because the chain and sprocket assembly was guarded by location within the machine, it was unnecessary for the operator's hands to come in contact with the chain conveyor, and the five-inch guard provided adequate protection. He admitted, however, that the guard could have been welded to the machine or made an original part of the housing. He also admitted that as early as 1944 making a guard a permanent part of the machine, or interlocking the guard to prevent the machine from being operated should the guard be removed, was good engineering practice. He agreed that an interlock on the five-inch guard would have afforded the machine's operator more protection than the five-inch guard alone. Dr. Larson conceded that a microswitch and brake motor might have prevented the accident, and that the corncutter would have been safer with this option than without it. He acknowledged that FMC probably realized that its corncutter machines would be used by migrant workers and minors.
FMC formed a Product Reliability and Safety Committee in 1968 to ensue that FMC's machines were safe. FMC recognized at the time that it had a duty to advise its customers if an unsafe condition existed on one of their machines. In 1974 FMC's Machinery Division Policy Guide on Product Safety summarized the company's long-standing policy that "[a] major objective of the machinery group is to design and manufacture products * * * which provide a high degree of safety for users, operators, and the general public for the products' intended use during its useful life." Prior to the shipment of the corncutter to Joan of Arc in 1969, FMC had received reports of people being injured on its corncutters. In April 1973 the Product Reliability and Safety Committee, prompted by the risk of a products liability lawsuit, recommended that should an FMC employee observe one of FMC's customers operating FMC-manufactured equipment without a guard, that employee should notify the sales department. The sales representative responsible for the account then should send a written warning by certified mail, return receipt...
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