MARKHAM v. BTM Corp.
| Decision Date | 30 March 2011 |
| Docket Number | No. 08-4032-SAC,08-4032-SAC |
| Parties | RICKY W. MARKHAM, Plaintiff, V. BTM CORPORATION, Defendant. |
| Court | U.S. District Court — District of Kansas |
OPINION TEXT STARTS HERE
The case comes before the court on following motions: the defendant BTM Corporation's ("BTM's") motion for partial summary judgment (Dk. 78), motion for summary judgment (Dk. 82), motion to exclude testimony of Mark Passamaneck (Dk. 91), motion to exclude testimony of Dr. Sabapathy (Dk. 92), and motion to strike (Dk. 98); and the plaintiff Ricky W. Markham's ("Markham's") motion in limine (Dk. 90). The number of motions, the length of the briefs, and the dense presentations of facts and arguments are not consistent with the relatively simple and uncontested set of facts making up this product liability case. The court's delay in disposing of these motions is largely due to the prolixity, the redundancies, and the sweeping breadth in the parties' presentations.
Ricky Markham worked as a maintenance mechanic at Amarr Garage Door Company in Lawrence, Kansas, and was injured while assisting another maintenance mechanic in making adjustments to the punch depth of a Tog-L-Loc industrial press manufactured by BTM. The other maintenance employee, who Markham was assisting, accidently hit the "emergency stop" button on the machine while Markham's right arm was inside the machine. The industrial press was manufactured to return to the upward "home" position when the "emergency stop" button was depressed. Markham's arm was trapped and injured when the press returned to the home position. At the time of the accident, the plaintiff and the other maintenance mechanic were making these adjustments without powering down the Tog-L-Loc but with the machine in its manual operation mode.
BTM'S MOTION FOR PARTIAL SUMMARY JUDGMENT (Dk. 78)
By this motion, the defendant seeks summary judgment on the plaintiff's claim for damages resulting from a cardiac condition and hypertension. BTM contends the plaintiff has no expert witness testimony to support that these particular damages were caused or contributed to by his injury from this allegedly defective machine. The pretrial order includes the following as one of the plaintiff's questions of fact: "(3) Whether plaintiff's cardiac condition was caused or contributed to by a defect in the BTM Press." (Dk. 73, p. 15).
The record does not include any response from the plaintiff to this pending motion. The deadline for filing a response expired some time ago. D. Kan. Rule 6.1(d)(2). D. Kan. Rule 7.4. Rule 56(e)(2) also provides that if the non-movant does not respond, then "summary judgment should, if appropriate, be entered against that party." Based on its review of the defendant's motion and the plaintiff's failure to respond, the court grants the defendant's motion for partial summary judgment as uncontested and appropriate.
BTM'S MOTION FOR SUMMARY JUDGMENT (Dk. 82).
Summary Judgment Standards
Rule 56 authorizes judgment without trial "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). Substantive law governs the elements of a given claim or defense and reveals what issues are to be determined and what facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is one which would affect the outcome of the claim or defense under the governing law. Id. If the movant would not have the burden of proof at trial on the particular claim or defense, then the motion must point to the absence of a genuine issue of material fact. Instead of disproving a claim or defense, the movant needs only show "a lack of evidence" on an essential element. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). To counter a "properly made" motion, the non-movant must "set out specific facts showing a genuine issue for trial" by way of admissible evidence in compliance with Rule 56(e)(1). The non-movant must show more than some "metaphysical doubt" based on "evidence" and not "speculation, conjecture or surmise." Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bones v. Honeywell Intern., 366 F.3d 869, 875 (10th Cir. 2004). "[T]he dispute about a material fact is 'genuine,' . . ., if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the nonmoving party's evidence "is to be believed, and all justifiable inferences are to be drawn in [that party's] favor." Anderson, 477 U.S. at 255. Facts and reasonable inferences therefrom are to be viewed in the light most favorable to the nonmoving party. MacKenzie v. City & County of Denver, 414 F.3d 1266, 1273 (10th Cir.2005). At this stage, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . " Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587. See Pinkerton v. Colorado Dept. of Transp., 563 F.3d 1052, 1058 (10th Cir.2009).
Stipulations of Fact from Pretrial Order
1. On February 20, 2006, the plaintiff, Ricky W. Markham, was employed at Amarr Garage Door Company ("Amarr") in Lawrence, Kansas, as a maintenance mechanic.
2. On the date in question, plaintiff was working third shift. Plaintiff received a request for back up from Charles Thompson, his co-worker.
3. Mr. Thompson was making an adjustment to the punch depth of
the BTM Tog-L-Loc industrial press at Station 2. The machine was powered by both air (pneumatic) and electricity.
4. The subject machine was manufactured by the defendant, BTM Corporation.
5. The machine was in manual mode at the time of the adjustment, which meant that the press could be moved by pressing buttons. At the time of the adjustments, the press was in its most downward position. The conveyor belt was turned "off."
6. Mr. Thompson and plaintiff stood on opposite sides of the machine while they made the adjustment.
7. Neither plaintiff nor Mr. Thompson performed any check of the machine to determine whether it was turned off, or to determine whether lockout/tagout had been performed to ensure that the machine was not powered by air or electricity at the time of the adjustments.
8. Plaintiff did not lockout the air by bleeding off the air and did not lock out the electrical power by turning it off.
9. During the adjustment process, plaintiff and Mr. Thompson made two adjustments to the machine and made a test run after each adjustment. After each test run, the press was still not punching the holes deep enough.
10. During the third adjustment, Mr. Thompson dropped a wrench. When he bent over to pick the wrench up, he accidently hit the "emergency stop" button with his right shoulder while Mr. Markham's right arm was inside the machine.
11. At this point in time, the press returned to its up, "home" position and trapped Mr. Markham's right arm between the press and the frame.
Other Uncontroverted Material Facts
12. The Occupational Safety and Health Act ("OSHA") has a regulation, 29 C.F.R. § 1910.147, that "covers the servicing and maintenance of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy could cause injury to employees." This regulation is entitled, "The Control of Hazardous Energy (Lockout/Tagout)."
13. Amarr had its own lockout/tagout policy that imposed procedures to protect employees "from potential hazards caused by unexpected equipment activation or the release of stored energy." (Dk. 83-5, Ex. D). The policy defined "covered activity" as:
Any activity performed in the work place during which the unexpected activation of equipment or the release of stored energy could cause injury. This policy includes, but is not limited to, the following types of covered activities: installation, maintenance, inspection, repair, adjustment, etc.
Id. The policy generally required that "[a]ll potentially hazardous energy sources must be isolated and locked out." Id. The policy also laid out steps for employing the required lockout procedure. Id.
14. At the time Mr. Markham and Mr. Thompson were making the adjustments and the accident occurred, they had not locked out the electrical and pneumatic power to the BTM industrial press. Mr. Thompson knew how to lockout/tagout the electrical and pneumatic power to the machine. Mr. Thompson and Mr. Markham did not discuss performing this lockout/tagout procedure prior to making the adjustments that resulted in this accident. If the press had been locked out electrically for making the adjustments, the press would have been in the "up" or home position already, and it would not have pinched the plaintiff's arm as it did in this accident.
15. The plaintiff's expert witness, Joseph Skaggs, P.E., offers as one of his opinions:
4.2 Lockout/tagout procedures were not properly followed during the adjustment of the subject Tog-L-Loc press.
Bases for opinion:
4.2.1 In order to fully de-energize the machine, the electrical disconnect switch should have been switched to the "off" position and properly locked/tagged out. Per Mr. Markham, this procedure was not performed.
4.2.2 The pneumatic tank should also have been drained of air or isolated via a line valve during a lockout/tagout procedure, to ensure the machine was fully de-energized....
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