Morales v. E.D. Etnyre & Co.

• Decision Date: 29 June 2005
• Docket Number: No. CIV.04-0558 JB.,CIV.04-0558 JB.
• Citation: Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1278 (D. N.M. 2005)
• Parties: Robert MORALES, Angela K. Morales, Brandon R. Morales, Mary Ann Morales, and Tate W. Morales, Plaintiffs, v. E.D. ETNYRE & CO., Defendant.
• Court: U.S. District Court — District of New Mexico

382 F.Supp.2d 1278

Robert MORALES, Angela K. Morales, Brandon R. Morales, Mary Ann Morales, and Tate W. Morales, Plaintiffs, v. E.D. ETNYRE & CO., Defendant.

No. CIV.04-0558 JB.

United States District Court, D. New Mexico.

June 29, 2005.

Jerrald J. Roehl, The Roehl Law Firm, P.C., Albuquerque, NM, for Plaintiffs.

Terry R. Guebert, Marcus E. Garcia, Guebert, Bruckner & Bootes, P.C., Albuquerque, NM, for Defendant E.D. Etnyre & Co.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant E.D. Etnyre & Co.'s First Motion and Memorandum Brief For Judgment as a Matter of Law on Strict Product Liability Claims, filed June 21, 2005 (Doc. 145). The primary issue is whether the Plaintiffs have made an adequate showing of alternative designs to proceed to the jury. Because the Court concludes that the Plaintiffs have introduced sufficient evidence on all but one of their alternatives, the Court will deny the motion in part and grant the motion in part.

PROCEDURAL BACKGROUND

The Plaintiffs have set forth a claim in strict liability, alleging that Etnyre defectively designed its asphalt distributor machine — the Black Topper; that the product was unreasonably dangerous for its intended purposes; and that the defect caused the Plaintiffs harm. See Pretrial Order at 3, filed June 10, 2005 (Doc. 123). In their opening statement at trial, the Plaintiffs used a chart of probable evidence, pointed to four design defects, and offered five solutions.

Design defect No. 3 was "Pressure relief system designed wrong." The Plaintiffs' solution was to "Put window in pipe to look down." Defect No. 4 was "No way to easily look through pressure relief vent pipe to see if clogged." The Plaintiffs' solution was "Design system so pipe discharges" and "Design system so pipe discharges."

Etnyre immediately contended that it had not heard some of these defects and alternatives, so the Court asked the Plaintiffs' counsel to establish that he had given notice to Etnyre of this alternative design. The next morning, the Plaintiffs presented the Court with a list of the defects and alternative designs, with supporting authority. As to No. 3, the Plaintiffs grouped it with No. 4.

To support their contention of notice, the Plaintiffs pointed to their expert's report, where he had said:

a. Failure of E.O. Etnyre & Co. to:

i. Properly design the Road Oil resurfacing truck:

4: To avoid:

a. Incomplete pressure relief system cleaning leading to failure of the relief system

b. Inadequate sized or plugged pressure relief system capable of handling steam eruption pressure.

See Report of Robert Puschinsky at 2 (dated July 8, 2004). The Plaintiffs then pointed to pages 113:22-25; 114:1-15, 23-25; 115:1-15 of Puschinsky's deposition.

Q: And what was the relief system in place in this particular item?

A: The hatch. That hatch is not an appropriate relief system, because it's capable — it puts oil where you can't tolerate it.

Q: Okay.

A: So it's not an acceptable relief system.

Q: And then the vent — okay. So what your are saying is, it was adequate to relieve the pressure, but it was inappropriate because you don't believe the hatch should relieve the pressure?

A: I believe that a relief system that — as this one is designed is not qualified as a meaningful relief system. No, I do not think it'sa — it relieves the pressure, but it doesn't perform the safety relief function. This is supposed to be a pressure safety valve. That's exactly the terminology used in the codes, and this pressure safety valve means it has to do it safely.

* * * * * *

Q: The accident was caused by Etnyre's failure to properly design the road surfacing truck to avoid incomplete tank cleaning leading to failure of tank venting system to relieve steam eruption pressure. Anything new in that from what we've already covered?

A: Well, yeah.

Q: What?

A: That's — that the vent system possible being plugged.

Q: Well, isn't that — isn't that 5(b), adequate tank venting system?

A: No. 5(b) is the sizing in the first place.

Q. So (b) is sizing?

A. (Witness nods head.)

Q. And (a) is what?

A. It's not designed such that it would be always clean, always open. It doesn't have a test feature to it so you can know that it's open.

Puschinsky's Deposition at 113:22 — 115:15, taken October 8, 2004 (hereinafter "Puschinsky Depo.")

The Plaintiffs then refined their alternatives and defects. As to No. 3, the Plaintiffs changed it to say: "Etnyre permitted entry of hot oil more than 200 degrees into system" and changed the alternative to say "provide valve with temperature sensitive control." From the deposition and argument of counsel, the Court understood that Puschinsky was proposing a temperature sensitive control on the vent overflow pipe.

When Puschinsky testified on direct examination, he seemed to confirm that the control would be on the vent. On cross, however, apparently realizing that it would not make a lot of sense to put the control on the vent system, he suggested that it should go on the City of Hobbs' overhead hose. The Plaintiffs' counsel admitted that there was inconsistency in Puschinsky's testimony.

Etnyre moved, pursuant to rule 50(a) of the Federal Rules of Civil Procedure, for a judgment as a matter of law on all claims that the Plaintiffs allege. The Court denied the motion as to four of the alternatives, but granted it as to alternative No. 3. On January 23, 2005, the jury returned a verdict for Etnyre, finding no defect in the Black Topper.

LEGAL STANDARD FOR JUDGMENT AS A MATTER OF LAW

When considering whether to enter judgment as a matter of law, a trial court should view the evidence and all reasonable inferences therefrom in the light most favorable to the party against whom the motion is made. See Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1363 (10th Cir.1994). This standard is identical to that the court must employ when ruling on motions for summary judgment under rule 56. See Pendleton v. Conoco Inc., 23 F.3d 281, 286 (10th Cir.1994). If, therefore, the evidence points but one way and is susceptible to no reasonable inferences that support the opposing party's position, the court should grant judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A mere scintilla of evidence, however, is insufficient to create a jury question." Honce v. Vigil, 1 F.3d 1085, 1088 (10th Cir.1993)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505). The court must ask whether there is evidence upon which a jury could properly find a verdict for the nonmoving party. See Hurd v. American Hoist &amp Derrick Co., 734 F.2d 495, 499 (10th Cir.1984).

In analyzing whether sufficient evidence exists on a plaintiff's claims, the trial court applies the forum state's substantive law, including the applicable standards of proof. See Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir.1997). In doing so, it can grant judgment as a matter of law on an issue-by-issue basis. See Fed.R.Civ.P. 50(a)(1); Hammond v. T.J. Litle & Co., Inc., 82 F.3d 1166, 1172 (1st Cir.1996).

SUBSTANTIVE LAW IN A DIVERSITY CASE

In Wankier v. Crown Equip. Corp., 353 F.3d 862 (10th Cir.2003), the United States Court of Appeals for the Tenth Circuit explained:

In cases arising under a federal court's diversity jurisdiction, the task of the federal court is not to reach its own judgment regarding the substance of the common law, but simply to ascertain and apply the state law. The federal court must defer to the most recent decisions of the state's highest court. Where no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do.

Wankier v. Crown Equip. Corp., 353 F.3d at 866.

NEW MEXICO LAW ON STRICT PRODUCTS LIABILITY FOR DEFECTIVELY DESIGNED PRODUCTS

As the Court stated in its Memorandum Opinion and Order regarding the testimony of Puschinsky, the United States District Court for the Tenth Circuit has indicated twice that it is unclear whether New Mexico requires an alternative design to impose liability for a design defect. See Meil v. Piper Aircraft Corp., 658 F.2d 787, 789 (10th Cir.1981)("New Mexico has not defined the elements for proof of strict liability for design defect and it is uncertain whether New Mexico would require proof that an alternative safer design was available in order to impose liability."). See also Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1439 (10th Cir.1983)("In actions arising from design defects it is unclear whether New Mexico would require proof of an available alternative design in order to impose liability.").

In 1998, the American Institute of Law ("ALI") promulgated the Restatement (Third) of Torts: Products Liability based on a review of the law in all jurisdictions. According to the Restatement (Third) of Torts: Products Liability § 2(b), a plaintiff has the burden of showing that the defendant could have used an alternative design at the time of manufacture that would have made the product safer for its intended use. With respect to defective design, Restatement (Third) of Torts: Products Liability § 2(b) (1998) provides that a product "is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, and the omission of the alternative design renders the product not reasonably safe." Comment (d) states: "The test is whether a reasonable alternative design would, at a reasonable cost, have reduced the foreseeable risks of harm posed by the product and, if so, whether the omission of the alternative design by the seller or a predecessor in the distribution chain rendered the product not reasonably safe."

New Mexico courts have cited favorably portions of the Restatement (Third) of Torts: Product Liability. It is...