Fisher v. Walsh Parts & Service Co., Inc.

• Decision Date: 24 June 2003
• Docket Number: No. CIV.A.01-CV-6604.,CIV.A.01-CV-6604.
• Citation: 277 F.Supp.2d 496
• Parties: Michelle FISHER and Matthew Fisher, v. WALSH PARTS & SERVICE COMPANY, INC., American Gage and Machine Co., Walsh Press Company Inc., Katy Industries, Inc., Walsh Press & Die Company and WP Liquidating Corp.
• Court: U.S. District Court — Eastern District of Pennsylvania

277 F.Supp.2d 496

Michelle FISHER and Matthew Fisher, v. WALSH PARTS & SERVICE COMPANY, INC., American Gage and Machine Co., Walsh Press Company Inc., Katy Industries, Inc., Walsh Press & Die Company and WP Liquidating Corp.

No. CIV.A.01-CV-6604.

United States District Court, E.D. Pennsylvania.

June 24, 2003.

COPYRIGHT MATERIAL OMITTED

Michael Fanning, Peter M. Patton, Sandra W. Morris, Galfand Berger, LLP, Philadelphia, PA, for Plaintiffs.

Eric M. Hurwitz, Stradley Ronon Stevens & Young LLP, Richard W. Foltz, Jr., Pepper Hamilton LLP, Bradley D. Remick, Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Defendants.

MEMORANDUM AND ORDER

SMITH, United States Magistrate Judge.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, Michelle Fisher and her husband Matthew Fisher, brought the instant action against Walsh Parts & Service Company, Inc., American Gage and Machine Co., Walsh Press Company, Inc., Katie Industries, Inc., Walsh Press & Die Company and WP Liquidating Corp. ("Defendants"), seeking damages for injuries she sustained while using Defendant's product, a Walsh mechanical power press, model No. 38MC, serial No. 12153¹ Plaintiffs bring this product liability case, alleging that defendants are legally liable for damages under the Restatement (Second) of Torts § 402A and/or as a result of negligence, as well as for a loss of consortium. Defendants have filed a Motion for Summary Judgment. For the reasons which follow, said motion will be denied.

The action arises from injuries Plaintiff Michelle Fisher sustained while she was employed by International Peripheral Systems ("IPS"), which manufactures mail cancelling machines. Plaintiff began working at IPS in February 1999 and in September 1999, during the course of her employment, was assigned to use the Walsh press. She used the press the first day without incident, but the next day she used the press, September 20, 1999, she sustained injuries resulting in the loss of her middle and ring fingers from the top two knuckles up.

IPS used the press to punch holes or stamp out small metal parts. There were two buttons that had to be pressed simultaneously to cause the press to come down and form the desired piece out of brass that was placed under the die of the press. (Heyda 9/17/02 dep. at 28) (M. Fisher 6/19/02 dep. at 27). After the piece was formed, plaintiff reached in by hand to remove it. The operator would also have to place the next piece of metal to be stamped. (M. Fisher 6/19/02 dep. at 27). As the press was being operated in single stroke or non-repeat mode, rather than continuous mode, it was not supposed to cycle again until the two buttons were once again pressed. (Heyda 9/17/02 dep. at 28). However, while plaintiff was using the press on September 20, 1999, she reached in to get the piece and the press "repeated" causing serious injury to her hand.

Mr. Heyda, Defendants' corporate designee, testified that the latch bracket assembly, part of the non-repeat safety system, was secured to the press by two hexagon bolts with split lock washers to secure the bolts. He also testified that a safety wire went through holes in the two bolts and was twisted together. (Id. at 87-88). This wire was not listed on the original parts list. (Id. at 106). Mr. Heyda testified that if the bolts became loose, the press would go into continuous mode and there would be a catastrophic failure. (Id. at 93).

After plaintiff's injury, the press continued to cycle until Charles Ross turned it off with a key. (Ross 6/11/02 dep. at 14, M. Fisher 6/19/02 dep. at 47). Testing performed by IPS after the accident showed that the press continued to cycle without the two buttons being pressed. (Briggs 6/6/02 dep. at 57). Further inspection of the press revealed that the two hexagonal bolts on the press were loose and the bracket was backing off the frame of the press. No safety wiring was observed at the time of the inspection after the accident. (Id. at 70). The Supervisor of the IPS Machine Shop, John C. Briggs, also was not sure whether at the time of inspection there were lock washers, but believes there may have been a flat washer. (Id. at 71). Mr. Briggs testified that after the accident and the initial testing and inspection of the press he was instructed to destroy the press or make it non-operational. (Id. at 81).

According to a purchase order, the press that was used at IPS was originally sold by Defendants in 1976 to Chambers, Bering, Quinlan Company. IPS then purchased the press approximately eleven years later, in 1987, from an unknown machinery dealer. (Jiranek 6/11/02 dep. at 8). Jerome W. Heyda testified that no machine would have been permitted to leave Walsh without the hexagonal bolts being wired. (Heyda 9/17/02 dep. at 89). The press also had the following warning on two plates, one above the bolster and one below it:

DANGER DO NOT ENTER DIE SPACE UNLESS SLIDE IS BLOCKED AND FLYWHEEL IS AT REST.

IN THE EVENT OF FAULTY OPERATION, DO NOT USE PRESS UNTIL IT IS FUNCTIONING PROPERLY.

CARE SHOULD BE TAKEN THAT PRESS IS PROPERLY ADJUSTED AND MAINTAINED AT ALL TIMES.

There is no evidence as to who owned the press from 1976 to 1987. The press was however, apparently damaged when IPS purchased it. (Briggs dep. at 31). According to the testimony of IPS employees, IPS made several repairs to the press, without ordering any parts from defendants. The first repair was to the latch rod, which was weld-repaired (Jiranek 6/11/02 dep. at 24-25). The second repair involved replacing a broken shaft with one made by IPS. (Ross 6/11/02 dep. at 11). In August of 1999, John Briggs rebuilt the electropneumatic valve in the press with a repair kit that was not manufactured by defendants. (Briggs dep. at 26)². In addition, Mr. Ross testified that he may have removed the flywheel to replace springs. (Ross 6/11/02 dep. at 12).

As a result of the repairs, Defendants claim that the accident was caused by the failure of an unknown person or persons, having removed the hexagonal bolts holding the latch assembly bracket, to resecure them using lock washers and safety wire and that these substantial changes in the condition of the press relieve defendants from liability. The parties agree that the press did not contain any warning against repairing with parts not manufactured by Walsh and that Walsh did not have a service department. (Heyda dep. at 100). Defendants also move to prohibit plaintiff's expert from being permitted to testify at trial.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Williams v. Borough of West Chester, 891 F.2d 458, 463-464 (3d Cir.1989). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For there to be a "genuine" issue, a reasonable factfinder must be able to return a verdict (or render a decision) in favor of the nonmoving party. Id.

On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, Pennsylvania, 139 F.3d 386, 393 (3d Cir.1998). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

Once the movant has carried its initial burden, Rule 56(e) shifts the burden to the nonmoving party as follows:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

FED. R. CIV. P. 56(e). However, to raise a genuine issue of material fact "`the [summary judgment] opponent need not match, item for item, each piece of evidence proferred by the movant,' but simply must exceed the `mere scintilla' standard." Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, 510 U.S. 994, 114 S.Ct. 554, 126 L.Ed.2d 455 (1993). Summary judgment may be granted only if, after viewing all evidence in the light most favorable to the non-movant, no jury could decide in that party's favor. Tigg Corp., 822 F.2d at 361.

DISCUSSION

Defendants argue that the fact that IPS made repairs to the press, which they claim were substantial changes which were not foreseeable by Defendants, relieves them of any liability under both negligence and strict liability. They assert that the press was not defective when it left Walsh but was only made defective by changes made after it left its control.

Given that jurisdiction in this action is based upon diversity, we must apply Pennsylvania products liability law. Pavlik v. Lane Ltd., Tobacco Exporters Int'l., 135 F.3d 876, 881 (3d Cir.1998). The Pennsylvania Supreme Court, has adopted Section 402A of the Restatement (Second) of Torts, which imposes strict liability in products liability...