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From Products Liability Law Daily, October 31, 2013

Meat grinder operator’s warning defect claim, but not design defect claim, may proceed to trial

By John W. Scanlan, J.D.

An operator of a commercial meat grinder could maintain against its manufacturer a claim that the grinder was defective due to warning defects, but the operator was unable to prove his design defect claim because the testimony of his expert on this issue was inadmissible, the U.S. District Court for the District of Columbia ruled (Romero v. ITW Food Equipment Group, LLC, October 30, 2013, Rothstein, B.). The court also found that whether the operator had assumed the risk of his injury was a question for a jury to decide.

Background. Waldimir Romero began working for Moby Dick’s House of Kabob in late 2008 or early 2009. He operated a Hobart Model 4046 heavy-duty commerical meat grinder. The meat grinder was manufactured by ITW Food Equipment and left its control in 1967. Pieces of cut meat are placed on the feed pan and pushed under a guard over an opening into a feed cylinder, into which the meat drops until it reaches a “worm,” an oversized screw that pushes meat toward the rotating knife. While operating the meat grinder in August 2009, Romero’s foot slipped off a step on which he had been standing, and his right arm fell into the grinder’s feed cylinder. His hand was severely injured when it was pulled into the worm and had to be amputated.

According to Romero, he was not given an instruction manual and had not seen any warning labels on the machine. He said that had never been trained in the use of the grinder, but learned how to use it by observing a co-worker, who removed the feed tray to which the guard was attached when grinding chicken because the chicken grease made it difficult to use the feed tray. The co-worker also set a bowl onto a plunger in order to defeat the interlock system, which is designed to make the grinder inoperable when the feed tray is removed. Romero followed his co-worker’s example and removed the guard and defeated the interlock system when he was operating the grinder. He testified that he had not understood the purpose of the guard. There was no label on the machine at the time of the accident.

Romero filed claims of strict liability, negligence, and breach of warranty in a District of Columbia superior court, which were removed to federal court by ITW. Romero alleged that the grinder was defective in design because the guard was too easily removable, the interlock was too easily defeated, and the feed cylinder’s diameter was too large. Romero also asserted that the grinder was not shipped with warning lables, but even if it had been, the labels were inadequate.

Both parties cross-moved for partial summary judgment on the issue of assumption of the risk. ITW moved to exclude the testimony of Steven Kane, Romero’s expert, and also moved for summary judgment on the defective design and warning claims.

Assumption of the risk. Summary judgment was denied on the issue of whether the worker had voluntarily assumed the risk of his injury because the parties reasonably disputed whether he had actual knowledge of the defects he alleged. Although the manufacturer asserted that the worker knew that the guard was removable because he removed it and that the interlock was bypassable because he bypassed it, a reasonable jury could find that he did not know the purpose of the guard was to prevent injury and the interlock was intended to prevent operation of the machine when the guard was not present. While the manufacturer stated that the worker had testified that he knew it would be very dangerous to reach into the cylinder, a reasonable jury could find that he was unaware that his hand could fit through the cylinder and reach the worm.

Furthermore, summary judgment was denied on the manufacturer’s motion regarding the worker’s alleged contributory negligence, which would have barred recovery on the negligence claim. While negligence claims are often distinct from strict liability claims, in this case the allegedly negligent act was the sale of a defective product, meaning that this claim merged into the strict liability claim, as did the breach of warranty claim.

Expert testimony/alternative design. Although the worker’s expert, a licensed engineer who had worked with machine safety and warning systems, was qualified to testify as an expert, his opinions that the grinder was defective because the guard was too easily removable, the interlock was too easily defeated, and the feed cylinder’s diameter was too large were excluded as unreliable. The engineer opined that the grinder should have used a safety feed throat that, at 2.5”, would be narrower than the feed cylinder actually used, and stated that his proposed design would not detract from the utility of the design. He relied upon a study to support this claim, but the study did not conclude that a feed throat of this size would be suitable for all purposes, but simply compared it to even narrower designs, which the study found would reduce capacity. The engineer conducted no analysis of how his design would affect the capacity of the grinder, and could not state the rate at which his design would process meat. Furthermore, he could not show that designs with narrower feed cylinders actually had been produced. The expert was unable to address the risk-utility analysis involved in an alternative design and, therefore, his opinion was speculative.

The expert opined that the guard was defectively designed because it could be removed without the use of tools, but admtted that it must be removable with simple tools in order for the device to be cleaned to comply with sanitation standards because it was attached to the feed pan. Although he stated that the interlock was defectively designed because it could be easily bypassed by depressing a plate, he did not suggest any alternative design in his report and did not conduct any risk-utility analyses on designs he mentioned in his testimony. Therefore, he had no basis for his opinion.

Expert testimony/warnings. The testimony by the worker’s engineering expert that warning labels that may have been attached to the grinder were defective were admissible. The manufacturer argued that the expert had not developed an alternative warning label, but in the District of Columbia an expert may testify that a warning label is defective if in his opinion, it did not meet the standard of care, and the engineer’s qualifications and experience provided a sufficient foundation for his opinion that the content of the label did not meet that standard. The court noted that the District of Columbia Court of Appeals had not yet considered a claim of defect based on the durability of the warning labels—the expert asserted that they were defective, in part, because they were attached using an adhesive rather than engraved upon metal plates that were attached with screws—but that the opinion went to an alleged failure by the manufacturer to take adequate steps to endure the warning went to the ultimate user. Therefore, this opinion was relevant.

Design defect. Summary judgment was granted to the manufacturer on the design defect claim because the worker was unable to meet his burden of producing evidence regarding the existence of a design defect, as the testimony of his expert on this issue was excluded.

Warning defect. Summary judgment was denied to the manufacturer on the defective warnings claim because the testimony of the worker’s expert raised issues of material fact. The expert’s admissible testimony was that the labels were defective because they were lacking in size and content and were attached insecurely in an inconspicuous location. A reasonable jury might find that it was not obvious that an operator’s hand would pass through the feed cylinder and contact the worm. Furthermore, the worker claimed that the labels were insecurely attached at the time of sale, and courts in the District of Columbia recognize a failure to take adequate steps to ensure a warning is communicated to the ultimate user as a warning defect. Whether the worker, who was from El Salvador, would have understood a warning label written in English was a question for a jury to decide; furthermore, the worker could argue that if the manufacturer had provided an adequate warning, his co-workers and supervisors could have communicated it to him. While the manufacturer argued that the worker presented no evidence that it was reasonably foreseeable that a user would remove the guard and bypass the interlock, the worker asserted that the label warned against taking those actions.

The case number is 11-1799 (BJR).

Attorneys: David Michael Kopstein (Kopstein & Associates, LLC) for Waldimir Adalberto Cruz Romero. C. Dennis Southard IV (Thompson & Hine LLP) for Hobart Corp., Illinois Tool Works, Inc., and ITW Food Equipment Group LLC.

Companies: Hobart Corp.; Illinois Tool Works, Inc.; ITW Food Equipment Group LLC.

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