Masello v. Stanley Works, Inc.
| Decision Date | 22 November 2011 |
| Docket Number | Civil No. 08–cv–136–JL. |
| Citation | 2011 DNH 195,825 F.Supp.2d 308,81 Fed.R.Serv.3d 174,86 Fed. R. Evid. Serv. 1619 |
| Parties | Joseph N. MASELLO v. The STANLEY WORKS, INC. and ZAG Industries, Ltd. |
| Court | U.S. District Court — District of New Hampshire |
OPINION TEXT STARTS HERE
Daniel W. Buckley, Gerry D'Ambrosio, Peter A. Brown, D'Ambrosio Law Office, Boston, MA, for Joseph N. Masello.
Christopher A. Duggan, Gerard A. Butler, Jr., Pauline A. Jauquet, Smith Duggan Buell & Rufo LLP, Lincoln, MA, Karyn P. Forbes, Shaheen & Gordon, Concord, NH, for The Stanley Works, Inc. and ZAG Industries, Ltd.
The parties to this wrongful death action arising from the collapse of a plastic stepstool have filed a series of motions in limine challenging the admissibility of certain evidence at the upcoming jury trial. The stepstool, manufactured by defendant ZAG Industries, Ltd., collapsed as the decedent, Joseph M. Masello, was standing on it while restocking products during his overnight shift at a Christmas Tree Shops retail store. Masello fell backward and struck his head against the floor, causing him to fall into a coma. He died two weeks later.
Masello's son has brought this action in his capacity as the administrator of the estates of both his father and his mother, Masello's wife, who was alive at the time of Masello's death but has since died herself.1 The complaint asserts state-law claims of negligent design and failure to warn, strict products liability, and breach of warranty against ZAG and the distributor of the stool, The Stanley Works, Inc. This court has diversity jurisdiction over this action between the plaintiff—who, acting on behalf of decedents who were New Hampshire citizens when they died, is treated as a New Hampshire citizen for purposes of diversity, see 28 U.S.C. § 1332(c)(2)—and the defendants, Israeli and Connecticut corporations. See id. § 1332(a)(3).
In Masello's accident, the left front leg of the stool cracked into several pieces, causing it to collapse. The defendants' principal theory of defense is that this occurred not because the stool was defectively designed, but because part of its left front leg was already missing at the time Masello climbed onto the stool—a factual proposition for which there is no direct evidence either way, because the allegedly missing piece was not among the other parts of the stool recovered from the scene of the accident. Nevertheless, the plaintiff's motions in limine seek to prevent the defendants from adducing any evidence in support of this theory (including a report of an investigation by the Occupational Safety and Health Administration finding that Christmas Tree Shops had violated federal workplace safety law by providing its employees with a broken stepstool) or, indeed, even arguing the theory at trial. The plaintiff also seeks to prevent the defendants from relying on evidence of tests it conducted, which tends to show that the stepstool was safe for its intended use, and evidence of Masello's pre-existing health conditions, and his on-the-job performance and off-the-job drinking, which tends to call into question the plaintiff's claimed damages. As fully explained infra, these motions are denied. While the plaintiff would undoubtedly prefer to try the case without the jury's hearing or seeing anything that undermines his claims, that preference neither supports the exclusion of admissible evidence nor justifies the filing of a dozen pre-trial motions in limine toward that end.2
The defendants, for their part, have filed two motions in limine. The plaintiff assents to one of those, which seeks to prevent evidence that defendant ZAG contacted one of the plaintiff's expert witnesses before the plaintiff had retained him. The other motion filed by the defendants, which seeks to exclude evidence of ZAG's “internal brochure” about the stepstool, is denied because, at a minimum, the brochure is relevant to their superseding and intervening cause defense.
I. Background
The body of the Handy 2–Step stool consists of a single piece of molded polypropylene plastic. As its name suggests, the Handy 2–Step has two steps, connected by four legs. Each of the legs ends in an outward pointing “toe” with a rubber tip on the bottom. The underside of each of the steps consists of a number of supporting ribs running in a perpendicular direction from the center to the front or back side of the step. The bottom edge of each of the intersections between a rib and the front side of the step is rounded so that the rib meets the step at a radius of 5 millimeters. There are also two ribs, running parallel to the bottom step, that connect it to the inside of each of the front legs. The bottom edges of these ribs are not rounded.
On the night of the accident, Masello was standing on a Handy 2–Step provided by his employer, Christmas Tree Shops, hanging beach bags for sale in its store in Salem, New Hampshire. The left front leg of the stool cracked into several pieces, causing it to collapse. Masello fell backward, striking his head on the ground. He was non-responsive, so paramedics were called immediately, just after 3 a.m. The paramedics placed Masello on a back board and took him to the hospital, leaving the store around 3:40 a.m.
One of Masello's fellow employees subsequently retrieved the stool and three broken pieces of the left front leg, but was unable to locate the toe. So, as mentioned at the outset, the parties disagree over whether the toe broke off in the accident and could not be found afterwards or whether the toe had already broken off before Masello stepped on the stool that night. This disagreement is significant because the defendants' theory is that the stool collapsed due to the absence of the toe, which allowed the leg to slide out from under the stool when Masello stood on it, while the plaintiff's theory is that the stool collapsed due to the absence of a rounded edge on the bottom of the ribs connecting the first step to each of the front legs.
As a result of striking his head in the fall, Masello suffered a skull fracture and an acute subdural hematoma, which caused him to fall into a coma. Despite a craniotomy to attempt to relieve the pressure on his brain, Masello never regained consciousness. He died approximately two weeks later.
In April 2008, Masello's wife, acting as the administratrix of his estate, commenced this action, including her own claim for loss of consortium. ZAG and Stanley raised in their answers, among other defenses, comparative negligence and superseding and intervening cause. They have not, however, sought to apportion liability to Christmas Tree Shops. See N.H.Rev.Stat. Ann. § 507:7–e, I; DeBenedetto v. CLD Consulting Eng'rs, Inc., 153 N.H. 793, 803, 903 A.2d 969 (2006).
II. AnalysisA. The “speculative argument” about the stool's missing piece 3
As noted at the outset, the plaintiff seeks to prevent the defendants, “whether by counsel or through introduction of any exhibit or examination of any lay or expert witness, to assert that the step stool involved in this incident was missing a piece prior to Mr. Masello's use.” The plaintiff argues that “there is no factual basis supporting [this] speculative position and therefore, it should not be referred to or raised to the jury during trial.” But the premise of this argument is wrong. The defendants' position that the “toe” from the stool's left front leg was missing before Masello began using it is supported by a variety of circumstantial evidence.
First, the post-accident examination of the stool revealed that both of its rear legs were cracked and missing pieces. Second, as documented in the OSHA report and confirmed in the store manager's deposition, five of the dozen or so remaining stools used by employees there “were also found defective and taken out of service” immediately after the accident and that “most of the defects were broken toes.” Third, the Christmas Tree Shops “area loss prevention manager,” who visited the store within a day or two of the accident, testified that one of Masello's fellow employees had collected the pieces of the broken stepstool after the accident and delivered them to the store manager's office. The loss prevention manager testified that he “confirm[ed]” with the employee who had collected the broken stool “that he got all the pieces.” When the loss prevention manager attempted to reassemble the stool from the broken pieces, however, he realized that the toe was not among them, and that its absence was obvious. Store personnel then searched the area of the accident for the missing piece, but were unable to find it. 4
Of course, this is not conclusive evidence that the piece was missing before Masello stepped on the stool, and the plaintiff points to a number of other facts supporting the contrary inference. First, there is testimony by the store's night manager that, before the shift started, she inspected all the stepstools that were used, looking for cracks and broken pieces, but did not find any. Second, there is testimony by one of Masello's co-workers that she had never previously noticed any problems with the stool he was using that night. Third, just after the paramedics took Masello from the store, an outside cleaning crew arrived to scrub the floor, and the floor would have also been regularly swept and walked over after the store opened for business that day. Thus, the plaintiff argues, any number of people could have removed the “toe” piece from the floor before store employees were able to find it.
But this evidence simply supports a plausible alternative to the defendants' theory that the piece was already missing. It does not render that theory “speculative.” Nor does it prevent the defendants from introducing whatever admissible evidence they have to support their theory.5 Weighing that evidence—which is unquestionably relevant, see Fed.R.Evid. 401—and deciding what theory is ultimately more...
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