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From Products Liability Law Daily, September 10, 2018

Walgreens employee fails to provide evidence of design defect in storage unit injury case

By Wendy Biddle, J.D.

Summary judgment was granted by a federal district court in Chicago to a shelving unit manufacturer in an action by an assistant manager at a Walgreens store stemming from injuries she sustained following her fall from a shelving unit that she had climbed. The employee failed to provide any evidence of a design defect in the shelving unit, nor did she provide evidence that a warning label would have prevented the accident when she was already trained by Walgreens to not climb the storage shelves (Winkler v. Madix, Inc., September 7, 2018, Kendall, V.).

The storage room in the store where the plaintiff worked used storage shelving units manufactured by Madix, Inc. The shelves of these storage units rested on beams and stayed in place as long as no one pulled up on any of the shelves. Although there was no warning label on the units letting users know that the shelving units were not intended for climbing, Walgreens trained all of its employees, including managers, that they should never climb on the shelves and that to do so violated Occupational Safety and Health Administration (OSHA) regulations. In spite of the store’s warning, the employee climbed a storage unit and, to reach of box, grabbed the top shelf to pull herself up. Her actions resulted in the top shelf being lifted and dislodged, causing her to fall to the ground.

The employee filed suit against Madix, alleging strict product liability under Illinois law for a design defect in the storage unit because the shelves should have been secured to the frame of the storage units and for a failure to warn because there were no warning labels on the units—either warning employees not to climb the units or warning that the top shelves were not secured to the frame. The employee’s husband also sued for loss of consortium. Madix moved to bar the testimony of the employee’s expert, and for summary judgment on the employee’s claims. The manufacturer argued that the evidence did not show the existence of a design defect—in the product’s construction or for lacking warning labels—that proximately caused her injuries.

Expert testimony. The court granted the motion to bar the expert witness because it found that his conclusions were not reliable because there was too great an analytical gap between the data and his opinion that the storage units were unreasonably dangerous. The court first found that the expert's current and prior employment record, along with his dual degrees in mechanical and aeronautical engineering and his professional experience with safety measures that included analysis of certain equipment, such as ladders and aerial work platforms, qualified him to provide an opinion on the design and manufacture of the storage units. However, the court found the reliability of his opinions questionable because his conclusions were not supported by data, sampling, testing, or research. Furthermore, his testimony, which did not test any alternative design, was deemed unhelpful to the trier of fact.

Design Defect. A strict liability claim under Illinois law requires a plaintiff to establish that the alleged injury was caused by an unreasonably dangerous condition of the product that existed at the time the product left the manufacturer’s control. The employee asserted that the storage units were unreasonably dangerous based on a design defect of the storage units and for failure to warn of the danger or to instruct on the proper use of the products. To prove a design defect, plaintiffs may use either the consumer expectations test or the risk-utility test. The court first analyzed the employee’s argument based on the consumer-expectation test. The employee contended that the shelving unit was defective because the top shelf was not designed to be fixed to the frame, and when not weighed down by items, the top shelf could fall when a force was applied. The court, however, found that the argument lacked merit because the purpose of the storage unit was to store items, and the expectation from consumers would be that the unit would hold items placed on it. The employee offered no evidence that the unit failed to store items or that its unaffixed top shelf prevented the unit from meeting an ordinary consumer’s expectations. Instead the court found that the employee had used the storage unit in a manner for which it was not intended. The court then evaluated whether that use by the employee was reasonably foreseeable. The employee, though, failed to provide any evidence that climbing on the shelving unit was reasonably foreseeable. She merely argued that other employees had climbed on the unit. The court said that this argument did not demonstrate how that would be reasonably foreseeable to Madix.

The court next determined that the employee failed to satisfy the risk-utility test—evaluating the utility of the design and weighing it against the risk of the harm created. Madix argued that the climbing injury was not foreseeable. The maker said that in the past thirty years that the shelving units had been in existence, it was not aware of any such injuries. Further, Madix argued that the shelving unit met relevant regulatory standards, and if someone were to climb on the unit, the risk of failing would be open and obvious. Madix also argued that the employee did not offer any evidence of an alternative design. The employee responded by disputing the testimony of a Madix representative that there had been no other climbing injuries in the past thirty years. However, challenging Madix’s argument on the magnitude of harm alone did not create a triable issue on any of the risk-utility factors, the court stated. The court found that the plaintiff failed to meet her burden of presenting evidence that the danger of the design of the storage unit outweighed its utility. Therefore, the court concluded that no reasonable jury could find for the employee under the risk-utility test and granted Madix’s motion for summary judgment on the design defect claim.

Failure to warn. The employee argued that Madix had a duty to include warning labels or signs indicating the potential for the top shelf to become upended and the dangers of climbing on the unit. She contended that if there had been a warning label, it would have been read and heeded by her supervisor. The employee, however, failed to offer evidence to support this contention. The court found the argument to be speculative and lacking in merit because the plaintiff's supervisor and Walgreens already were aware of the dangers and trained employees not to climb on the shelves. The court, therefore, ruled that Madix was entitled to summary judgment on the claim because the employee failed to show that the maker had a duty to warn.

Loss of consortium. Because the loss of consortium claim was necessarily tied to the strict liability claim which had failed, the court granted Madix’s motion for summary judgment on the loss of consortium claim.

The case is No. 1:16-cv-00341.

Attorneys: James J. Desanto (DeSanto Morgan & Taylor Law Group) for Gia Winkler and Jason Winkler. Michael Joseph Cucco (Cassiday Schade, LLP) for Madix, Inc.

Companies: Madix, Inc.

MainStory: TopStory DesignManufacturingNews ExpertEvidenceNews WarningsNews IndustrialCommercialEquipNews IllinoisNews

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