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From Products Liability Law Daily, August 28, 2017

Tenth Circuit reinstates injured woodworker’s design defect, failure to warn claims against Bosch

By John W. Scanlan, J.D.

A recreational woodworker who sustained an eye injury when the disc in his orbital sander fractured may pursue design defect and failure to warn claims against the manufacturer, the U.S. Court of Appeals for the Tenth Circuit held in an unpublished decision reversing and remanding a district court’s grant of summary judgment to the manufacturer. There were a number of genuine disputes of material fact, including whether he was "using" the sander when he was testing it and the scope of the warnings regarding eye protection (AlNahhas v. Robert Bosch Tool Corp., August 25, 2017, Briscoe, M.).

The woodworker purchased the Skil Orbit Sander (Model No. 7490) about five to six years before the accident. The oscillation of the assembly at its base rotates a replaceable foam and fiberglass composite disc that spins a disposable piece of sandpaper. Because he had not used the sander in months or years, he decided to test it first to see if it worked properly. He did not use protective eyewear because he had not attached sandpaper and did not apply it to any surface but turned it on while holding it. Two seconds later, the disc fractured, sending one or more fragments into his eye, causing partial loss of vision and other injuries requiring several surgeries and other medical treatments. He brought claims for negligence, gross negligence, and strict products liability based on design defect and failure to warn against Robert Bosch Tool Corp. in Oklahoma state court (along with a loss of consortium claim brought by his wife). Bosch removed the case to federal court, after which the woodworker voluntarily dismissed his gross negligence claim. After discovery was completed, the district court granted summary judgment to Bosch on the remaining claims, relying in part on the opinions expressed by experts for Bosch and the woodworker. The woodworker appealed the district court’s decision on the design defect and failure to warn claims.

Evidence. Disagreeing with the district court, the Tenth Circuit found that the experts’ opinions raised genuine disputes of material fact. Although Bosch had claimed that the woodworker admitted to having a practice of using his tools without maintaining them until the point of failure, the court’s review of the woodworker’s testimony indicated that Bosch had mischaracterized the record. Viewed in the light most favorable to the worker, the record indicated that he had performed inspections directed by the sander’s manual at least once prior to the accident. Furthermore, the record contradicted Bosch’s claim that the woodworker must have known that the disc needed to be replaced. At oral argument Bosch’s counsel conceded that there was no evidence supporting Bosch’s assertion that the woodworker had turned the sander on while pointing the disc at his face. There also was a genuine dispute as to whether the woodworker was "using" the sander when he tested it that implicated the warnings in the manual about wearing eyewear when using the sander; the woodworker argued that he was not using it because he was not sanding anything with it when he turned it on, and as the non-moving party his testimony must be viewed in the light most favorable to him.

Design defect. There were genuine issues of material fact regarding proximate cause, whether the defect existed at the time it left Bosch’s control, and whether the design was unreasonably dangerous that prevented a grant of summary judgment to Bosch. Although Bosch argued that the woodworker was injured because he failed to wear eye protection, the alleged defects in the disc that caused it to fracture were one of the direct causes of his injuries. His failure to wear protective eyewear could not be a supervening cause of his injuries, as Bosch argued, because neither the presence nor the absence of the eyewear itself injured him.

Although Bosch asserted that the woodworker’s expert had conceded that the sander was not defective when it left the manufacturer’s control, the court found that the expert had opined that the sander was "guaranteed" to fail because of design defects that would have resulted in failure even if the disc were new. The lapse of time may prevent an inference that a product was defective when sold but does not prevent a finding that it was defective when sold, and his expert’s testimony that the disc’s age did not "have a bearing on the kind of failure that took place" and that the problem was the manner in which the disc failed was sufficient to raise a dispute of material fact.

The district court’s statement that the sander was not unreasonably dangerous as a matter of law was unsupported because it could not summarily conclude that an ordinary purchaser of a random-orbit sander would expect to be at risk of injury from a fractured disc or from flying debris during a test of whether the sander could be powered on. Bosch’s argument that the woodworker should have appreciated the risks of being injured while using the sander did not establish as a matter of law that he would expect to be injured from flying debris while merely testing it. Whether it was unreasonably dangerous was a genuine issue of material fact.

Failure to warn. The district court also erred in granting summary judgment on the failure to warn claim. The Tenth Circuit first observed that in deciding this issue, the district court erroneously had relied exclusively upon out-of-state authorities instead of Oklahoma cases. There were no warnings that the disc could fracture or of the risks to the ordinary consumer posed by a fracture. Furthermore, there was nothing obvious about the risks of disc fracture; the woodworker testified that he did not know of these risks, and there was nothing in the manual or on the sander from which it could be concluded that he did, in fact, know of them. The sander’s general warnings to "always wear eye protection" were not adequate because there was a genuine dispute as to whether a reasonable owner would have known that he was required to wear eye protection even while he was not actually sanding something. Bosch had not overcome the rebuttable presumption that a plaintiff would have read and heeded an adequate warning because it had not shown that the woodworker failed to follow instructions to wear eye protection when it was clear that the warnings applied or that he failed to replace the disc as instructed.

Affirmative defenses. The Tenth Circuit refused to consider Bosch’s argument that the woodworker had voluntarily assumed a known risk because it did not describe that defense in its brief or explain how it applied in this case. Similarly, although Bosch also pleaded that the sander was not being used as reasonably anticipated, it had not discussed its burden to plead or prove the misuse defense or discuss any specifics of its application to this case. Summary judgment could not be affirmed on the basis of inadequately supported defenses.

The case is No. 16-6163.

Attorneys: Michael M. Blue (Blue Law) for Hanna Alnahhas. Sean Higgins (Wilson Elser Moskowitz Edelman & Dicker LLP) for Robert Bosch Tool Corp.

Companies: Robert Bosch Tool Corp.

MainStory: TopStory DesignManufacturingNews WarningsNews DefensesLiabilityNews ToolsHardwareNews ExpertEvidenceNews EvidentiaryNews ColoradoNews KansasNews NewMexicoNews OklahomaNews UtahNews WyomingNews

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