Phillips v. Morbark, Inc.

• Decision Date: 05 January 2007
• Docket Number: C.A. No. 9:05-2446-PMD.
• Citation: 481 F.Supp.2d 461
• Court: U.S. District Court — District of South Carolina
• Parties: Michael J. PHILLIPS and Vickie Phillips, Plaintiffs, v. MORBARK, INC., Defendant.

481 F.Supp.2d 461

Michael J. PHILLIPS and Vickie Phillips, Plaintiffs, v. MORBARK, INC., Defendant.

C.A. No. 9:05-2446-PMD.

United States District Court, D. South Carolina, Beaufort Division.

January 5, 2007.

Gregory P. Sloan, Phillip Earl Reeves, Richard S. Stewart, Gallivan White and Boyd PA, Greenville, SC, for Plaintiffs.

Curtis L. Ott, Turner Padget Graham and Laney, Columbia, SC, Kevin G. Dougherty, Warner Norcross and Judd, Grand Rapids, MI, for Defendant.

ORDER

DUFFY, District Judge.

This matter is before the court upon Defendant Morbark, Inc.'s ("Defendant" or "Morbark") Motion for Partial Summary Judgment on Plaintiffs' defective remote control claims. For the reasons set forth herein, the court denies Defendant's motion.

BACKGROUND

On March 15, 2003, Plaintiff Michael J. Phillips ("Plaintiff') was injured while using the Morbark Model 4600 Wood Hog, which is a wood grinding machine. The Morbark Model 4600 Wood Hog had a remote control, and the remote control had seven toggle switches that controlled various functions of the wood grinder. The remote had a power switch, which controlled power to the remote control device itself, and an "engine stop" switch, but it did not have an emergency stop switch. Furthermore, the remote's "engine stop" switch had a two or three second time delay such that the switch had to be held down for two or three seconds before it would begin to activate. All of the switches on the remote control were exactly alike in shape, size, and color.

On March 15, after he finished grinding wood, but while the engine and conveyors were still running, Plaintiff attempted to clear away some debris that had built up around the sides of the area where the belly conveyor transfers ground debris to the stacking conveyor. As he did this, a portion of the debris caved in on his right hand, forcing it down into the nip point between the belly conveyor and the belt scraper. After his hand became caught, Plaintiff attempted to shut off the machine using the remote control he was wearing around his neck. Plaintiff asserts that he had difficulty shutting the engine off because the "engine stop" switch on the remote control was not differentiated from the other switches by shape or color and because of the delay between activating the switch and engine shut down.

Plaintiff suffered severe injuries to his right hand as a result of this accident, and on July 22, 2005, he brought suit against Morbark in the Court of Common Pleas, Hampton County. Plaintiffs Complaint listed the following causes of action: negligence, strict liability, breach of express warranty of merchantability, breach of implied warranties, negligent misrepresentation, and violation of the South Carolina Unfair Trade Practices Act. Morbark removed the action to this court on August 23, 2005, asserting jurisdiction pursuant to 28 U.S.C. § 1332.

On November 21, 2006, Morbark filed a Motion for Partial Summary Judgment on Plaintiffs defective remote control claims. In Defendant's Memorandum in Support of its motion, Defendant notes that Plaintiff claims the Morbark Model 4600 Wood Hog is defective because (1) the area where Plaintiff injured his hand was not guarded, (2) the remote control did not have a red, mushroom-shaped emergency stop button, and (3) there was no emergency stop button located on the Wood Hog within the reach of the conveyor area. Morbark moves for summary judgment with respect to the second and third alleged defects on the grounds that Plaintiff cannot prove the alleged defects caused his injuries. Defendant states, "Plaintiffs experts have admitted that [Plaintiff] still would have suffered his injury even if the remote control and emergency stop had been designed as they say it should have been." (Defendant's Mem. in Support at 1.) Plaintiff filed a Memorandum in Opposition to Defendant's Motion, to which Defendant filed a Reply.

STANDARD OF REVIEW

To grant a motion for summary judgment, the court must find that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). The judge is not to weigh the evidence but rather must determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All evidence should be viewed in the light most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir.1990). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir.1991). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The "obligation of the nonmoving party `is particularly strong when the nonmoving party bears the burden of proof.'" Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir.1995) (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th Cir.1990)). Summary judgment is not "a disfavored procedural shortcut," but an important mechanism for weeding out "claims and defenses [that] have no factual basis." Celotex, 477 U.S. at 327, 106 S.Ct. 2548.

ANALYSIS

Defendant moves for Partial Summary Judgment on the grounds that Plaintiff cannot prove the alleged defects caused Plaintiffs injuries.¹ "A products liability plaintiff must prove the product defect was the proximate cause of the injury sustained. Proximate cause requires proof of both causation in fact and legal cause, which is proved by establishing foreseeability." Bray v. Marathon Corp., 356 S.C. 111, 116-17, 588 S.E.2d 93, 95 (2003) (citations omitted); see also Livingston v. Noland Corp., 293 S.C. 521, 524, 362 S.E.2d 16, 18 (1987) (noting that in actions for strict liability and breach of implied warranty, "proof must be sufficient to show not only that the product was defective but that the defect was the direct and efficient cause of plaintiffs injury"). Even if the plaintiff would have suffered some injury if the product had not been defective, the defendant remains liable to the extent the defect increased the harm to the plaintiff. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16(a).

In a products liability case, "[c]ausation based upon a possibility rather than a probability is not sufficient for a plaintiff to recover...." Harris v. Rose's Stores, Inc., 315 S.C. 344, 346, 433 S.E.2d 905, 907 (Ct.App.1993). If the plaintiff does not rely on an expert witness to establish proximate cause, "it is sufficient for plaintiff to put forth some evidence which rises above mere speculation or conjecture..." Armstrong v. Weiland, 267 S.C. 12, 16, 225 S.E.2d 851, 853 (1976). On the other hand, if the plaintiff relies on a medical expert to establish causation, the "most probably" standard is appropriate:

[W]hen the opinions of medical experts are relied upon to establish causal connection of negligence to injury, the proper test to be applied is that the expert must, with reasonable certainty, state that in his professional opinion the injuries complained of [m]ost probably resulted from the alleged negligence of the defendant.

Id. at 16, 225 S.E.2d at 853. In this case, as Plaintiff does not rely on medical experts to establish causation, Plaintiff must submit evidence showing the defects probably caused his injury.² See Gambrell v. Burleson, 252 S.C. 98, 101-02, 165 S.E.2d 622, 623 (1969); see also Harris, 315 S.C. at 346, 433 S.E.2d at 907.

In order to assess whether a genuine issue of material fact exists with respect to causation, the court will now review the relevant evidence.

A. David Clement, Ph.D., Expert for Plaintiff

David Clement ("Clement"), one of Plaintiffs experts, issued an opinion dated April 19, 2006, and opined that the remote control should have had a red, mushroom-shaped "emergency stop" switch. (See Plaintiffs Exhibit E to Mem. in Opposition at 3.) For purposes of this motion, however, it is unnecessary to explore this portion of Clement's opinion as the court herein assumes the product was defective and instead looks to whether the defect caused Plaintiffs injury. Clement's opinion provides some insight into causation:

In my opinion, to a reasonable degree of scientific certainty, effective guarding of the incident nip point, together with safer cleaning implements, procedures, or tactics, would have avoided this accident and injury; Provision of a true emergency stop adjacent to the nip point might have avoided an injury, and would have reduced the extent of the damage involved in this accident and injury. Likewise, provision of a true emergency stop button on the remote control might have avoided an injury, and would have reduced the extent of the damage involved in this accident and injury. The equipment, including the remote control, was unacceptable from a safety standpoint.

(Plaintiffs Exhibit E to Mem. in Opposition at 4.)

Clement was deposed on July 14, 2006, and he testified as follows:

Q. So you would agree that there was probably some significant damage to`[Plaintiffs] hand and finger within a matter of seconds of being caught?

A. I think there would be, yes, sir.

Q. Okay. And you don't know whether or not, even if he had hit that stop button or emergency button as quickly as he could, as quickly as humanly possible, you don't know whether or not that damage would have been avoided?

A. That's correct.

. . .

Q. [referring to the portion of Clement's written opinion excerpted above] Let's start with the might have. I think it's down on the fourth line you talk...