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GRACE v. MAUSER-WERKE GMBH

November 28, 1988

FREDERICK J. GRACE
v.
MAUSER-WERKE GMBH and MAUSER PACKAGING LTD.



The opinion of the court was delivered by: WEINER

 CHARLES R. WEINER, UNITED STATES DISTRICT JUDGE.

 INTRODUCTION

 Plaintiff, Frederick J. Grace, brought this action against Mauser-Werke Gmbh and Mauser Packaging Ltd. for personal injuries sustained during the course of his employment. A jury trial, commencing January 19, 1988, resulted in a verdict in favor of the defendants on plaintiff's case of strict products liability under the substantive law of New Jersey. Presently before the court is the plaintiff's motion for judgment notwithstanding the verdict or new trial. For the reasons which follow, the motion will be denied.

 FACTS

 Plaintiff Grace was an employee of Russell Stanley Plastics in Camden, New Jersey, a manufacturer of plastic drums and barrels utilizing, under license, the technology of Mauser-Werke. At the time of his accident, Grace was at work assisting in the refitting of a blow molding press. The press, designed and manufactured by Mauser-Werke, was capable of molding different sized barrels through use of a changeable core. Plaintiff was injured when the core he was helping remove dropped out of the machine and slashed his arm.

 At trial plaintiff described the method historically used to change the mold core and the different method used when he was injured. In the past, after the core and its assembly were detached from the press, a forklift with a pallet would be placed under the core. A hydraulic jack would then be used to exert downward force on the core which would invariably be adhered to the machine by left over plastic. Plaintiff testified he had done about 12 core changes using this method (N.T. 1.41). When plaintiff was injured, however, instead of the forklift and jack, plaintiff was told by his supervisor William Rivera to stand under the core and guide it with his hands while Rivera and another worker used a come-along device to force the core out.

 Just prior to plaintiff's accident, representatives of Mauser had been to the plant and modified the core assembly (N.T. 1.13). Plaintiff testified that he and Rivera had observed the Mauser people removing the core by hand and they departed from their standard procedure to emulate the Mauser procedure. Plaintiff assumed that the new equipment required the new procedure (N.T. 1.17). However, he was never told by the Mauser people to use the come-along (N.T. 1.47), nor had he observed them so using a come-along (N.T. 1.50). Plaintiff testified if there were warnings against the use of the come-along, he would have followed them (N.T. 1.26).

 Dr. Jesse Cunitz was qualified by the plaintiff as an expert in human factors psychology, a subspecialty of the field of psychology concerned with how people interact with objects, including machinery (N.T. 2.3). Dr. Cunitz testified that a warning on the Mauser press would have, if present, served two functions: first to inform the workers of the hazard posed by the core and second to instruct the workers how to avoid the risk associated with the core change (N.T. 2.24). The witness was of the opinion it was the manufacturer's responsibility to place the warning on the machine as it had the knowledge, capability and resources to develop the procedures to identify the danger present and to transmit that information (N.T. 2.26). Dr. Cunitz opined that plaintiff's injuries were caused by the failure to place a warning of the hazard and the steps necessary to avoid the harm (N.T. 2.28).

 Also qualified as an expert by the plaintiff was Alfred Ellis Baccini, a safety design engineer. Mr. Baccini was of the opinion that the difficulty in removing the core from the machine was caused by a space called a pinhole extension which allowed molten plastic to overflow (N.T. 2.45). Baccini testified that Mauser must have been aware that the core would thereby stick, as the pinhole extension was designed into the machine to enhance its operation (N.T. 2.46). Baccini opined that both the forklift method and the come-along methods of forcing down the core were improper improvisations used to overcome a design defect in the machine (N.T. 2.50). He stated plaintiff's accident was a foreseeable result of Mauser's failure to design a method to properly remove the core.

 Defendants' case in chief began with Charles Morelli, plant manager at Russell Stanley. He testified that after the modifications to the machine he was never told by the Mauser people not to use the forklift method (N.T. 3.12). Neither was he told the core had to be disassembled by hand. He testified the forklift was available for the workers to use on the day of the accident (N.T. 3.16-17). On cross-examination, it was elicited that Mauser never conducted any training sessions to instruct the Russell Stanley employees on the proper method of servicing the core (N.T. 3.22). The manuals published by Mauser set out the steps for removing the core, but not what tools, if any, to use for the job (N.T. 3.24).

 Next to testify was Dietmar Przytulla, a consulting engineer with Mauser. He testified that the forklift method of taking down the core holder was the method used by Mauser in Germany in the early 1970's (N.T. 3.42). At that time the witness had come to the Russell Stanley plant to instruct William Rivera in the procedure for removing the core. He never told Rivera to substitute a come-along; he had never seen anyone use a come-along, here or in Germany (N.T. 3.42).

 On cross-examination, Przytulla confirmed that the machine was specifically designed to allow plastic to back up into its flow channel, (N.T. 3.65), that the design of the core made it difficult to remove, (N.T. 3.66), and that someone's hands had to be near the core during the procedure to remove threading bolts (N.T. 3.66).

 Also testifying for the defense was Dr. Thomas A. Hunter, an engineer with a background in safety design. After describing the forklift/jack method of removing the core, Dr. Hunter opined that it was an acceptable positive mechanical means of doing the job (N.T. 3.12). He also testified that there is no substantial difference in the manner in which core holders were placed in machines in 1973, the time the machine was placed in service, and 1986, the time of the accident. Significantly, Dr. Hunter also offered an opinion identical to that offered by Dr. Cunitz on the need for warnings. He opined that warnings would be appropriate for the hazards of heat and of the core falling out (N.T. 3.14). He stated, however, that heat was an obvious risk, as one can feel heat radiating, and the risk of falling pieces was also obvious, as all of us have knowledge of gravity. He was of the opinion that point of use warnings would be "absolutely useless," as information was passed from man to man in hands-on training (N.T. 3.15). He considered Rivera's decision to deviate from the forklift/jack method to be the cause of the plaintiff's injuries (N.T. 3.16).

 PLAINTIFF'S J.N.O.V. ARGUMENTS

 Plaintiff makes three alternate arguments why the verdict was against the weight of the evidence and, therefore, that J.N.O.V. should be entered. First, plaintiff contends that the evidence was uncontroverted that the core apparatus posed a danger and that a warning was necessary to render the product reasonably safe for its intended purpose. Plaintiff bases this argument on the testimony of Dr. Hunter which corroborated the testimony of Dr. Cunitz.

 To grant a motion for judgment notwithstanding the verdict, the court must find, as a matter of law, that the prevailing party failed to adduce sufficient facts to justify the verdict. Link v. Mercedes Benz of North America, Inc., 618 F. Supp. 679, 693 (E.D. Pa. 1985), aff'd in part 788 F.2d 918 (3d Cir. 1986). Where, as here, the moving party also had the burden of persuasion at trial, the standard for granting J.N.O.V. is even more stringent:

 
The judge [must] . . . test the body of evidence not for its insufficiency to support a finding, but rather for its overwhelming effect. He must be able to say not only that there is sufficient evidence to support the finding, even though other evidence could support as well a contrary finding, but ...

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