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COLEGROVE v. CAMERON MACHINE CO.

October 23, 2001

CHARLES COLEGROVE, PLAINTIFF
v.
CAMERON MACHINE CO.; MIDLAND ROSS CORP., CAMERON-WALDRON DIVISION; CAMERON CONVERTING, INC.; ALLEN-BRADLEY COMPANY, INC.; ALLEN-BRADLEY COMPANY, LLC; ALLIED SIGNAL, INC.; SOMERSET INDUSTRIES; AND KATHABAR, INC., DEFENDANTS.



The opinion of the court was delivered by: D. Brooks Smith, Chief United States District Judge

      OPINION AND ORDER
Before me is defendant Allen-Bradley's Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial. Dkt. no. 92. Plaintiff Charles Colegrove brought a strict liability action against Allen-Bradley Company, Inc. and Allen-Bradley Company, LLC (collectively "A-B") for injuries he sustained while working on a paper winding machine at the Westvaco Paper Company, and the jury found in his favor. A-B is entitled to neither judgment as a matter of law nor a new trial in this matter, and I therefore deny their motion.

I.

On April 16, 1997, plaintiff Charles Colegrove was injured while working at the Westvaco Paper Company's plant in Tyrone, Pennsylvania. Colegrove was rethreading paper on a large paper winding machine when he accidently stepped on an electric foot switch that activated the machine, causing his hand and forearm to be pulled into the machine and crushed. Defendant Allen-Bradley ("A-B") manufactured the foot switch in question, a Number 805-A4, Series D, specifically for use around heavy machines operated in plants or factories. Westvaco had apparently purchased the foot switch some time in 1979, either from A-B or one of A-B's distributors. Although A-B produced some foot switches with safety cover guards over the switch to prevent accidental activation, the switch Westvaco purchased and installed lacked a safety guard.

Following his injury, Colegrove commenced a strict liability action against A-B.*fn1 At trial, Colegrove pursued two design defect theories under Restatement (Second) of Torts § 402A: first, that the A-B foot switch was defective because it lacked the safety cover guard that would have prevented accidental contact, and second, that the A-B foot switch was defective because of A-B's failure to provide any warnings of the danger of using the unguarded model around heavy machinery in a plant or factory. The jury concluded that Colegrove's injuries resulted from A-B's failure to warn Westvaco of the dangers associated with the unguarded foot switch and awarded Colegrove $350,000 for pain, suffering, past medical expenses and lost wages.

Pursuant to Federal Rule of Civil Procedure 50(b), A-B has now moved for judgment as a matter of law or for a new trial, raising several issues with respect to each request. Most of A-B's arguments are meritless and provide no basis for granting their motion. Nevertheless, I address each of those arguments briefly below. I consider at length A-B's argument that, as a manufacturer of a mere component part, it could have no legal duty to warn Westvaco of the dangers associated with using an unguarded foot switch on the paper winding machine. As I did before trial, I conclude that A-B's duty to warn is not limited in this case. Because I have determined that A-B is entitled neither to judgment as a matter of law nor to a new trial, I will deny their motion.

II.

Any motion for judgment as a matter of law should be granted if "there is no legally sufficient evidentiary basis for a reasonable jury" to find in favor of one party on any issue. Fed.R.Civ.Proc. 51(a). "A motion for judgment as a matter of law should be granted only if viewing all the evidence in the light most favorable to the party opposing the motion, no jury could decide in that party's favor." Alexander v. Univ. of Pittsburgh Med. Ctr. Sys., 185 F.3d 141, 145 (3d Cir. 1999); see also Woodwind Estates v. Gretkowski, 205 F.3d 118 (3d Cir. 2000); Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978) ("The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party."). Every legitimate inference from the evidence must be drawn in the light most favorable to the nonmoving party. See Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir. 1998).
A-B raises several arguments in support of its request for judgment as a matter of law. First, A-B claims that Colegrove failed to prove at trial that A-B's alleged failure to warn of the danger from using its unguarded foot switch was a cause of Colegrove's accident. Second, A-B argues that it had no legal duty to warn Westvaco of any danger associated with the use of its unguarded foot switch on Westvaco's paper winding machine. Third, A-B argues that Westvaco's conduct here was a superseding cause of Colegrove's injuries. Finally, A-B claims that Colegrove failed to introduce any evidence at trial that an A-B foot switch was on the Westvaco machine at the time of Colegrove's injury.

A.

A-B first argues that Colegrove failed to prove at trial that the lack of a warning was a cause of his injuries, and without such proof, A-B cannot be liable to Colegrove. To recover under § 402A, Colegrove must establish that the alleged defect was the proximate cause of his injuries. See Pavlik v. Lane Limited/Tobacco Exporters International, 135 F.3d 876, 881 (3d Cir. 1998). As the Third Circuit put it in Pavlik, "To reach a jury on a failure to warn theory of liability, the evidence must be such as to support a reasonable inference, rather than a guess, that the existence of an adequate warning might have prevented the injury." Id. (citing Conti v. Ford Motor Co., 743 F.2d 195, 197 (3d Cir. 1984)). However, Colegrove is aided in making his case by a rebuttable presumption that a warning, if given, would have been heeded. Id. at 883 (predicting that the Pennsylvania Supreme Court will adopt this rule); see also Coward v. Owens-Corning Fiberglass Corp., 729 A.2d 614, 621 (Pa.Super. 1999) (holding that "a plaintiff should be afforded the use of the presumption that he or she would have followed an adequate warning"). To rebut this heeding presumption, A-B would need to introduce evidence that a warning would not have been heeded if it had been given; if A-B successfully rebutted the heeding presumption, then Colegrove would have to come forward with evidence that a warning would in fact have prevented his injuries. See Pavlik, 135 F.3d at 883-84.

A-B argues that it has rebutted the heeding presumption in two ways. First, it claims that Engineer George Snyder stated in his expert report that Westvaco was in violation of OSHA regulations regarding the unguarded foot switch. See dkt. no. 92 at 3; dkt. no. 98, at 2-3. According to A-B, this alleged OSHA violation rebutted the presumption that Westvaco would have heeded a warning about the foot switch if it had been given. Second, A-B argues that Colegrove himself was fully aware of the dangers posed by the foot switch and would not have modified his behavior had a warning been given. See dkt. no. 92 at 4-6; dkt. no. 98 at 4-5. In support of this argument, A-B cites several cases recognizing that the heeding presumption may be rebutted by evidence that a plaintiff was fully aware of the risk of bodily injury. See Pavlik, 135 F.3d at 881; Overpeck v. Chicago Pneumatic Tool Co., 823 F.2d 751, 755 (3d Cir. 1985); Powell v. J.T. Posey Co., 766 F.2d 131, 134 (3d Cir. 1985); Conti, 743 F.2d at 198. Having argued that the heeding presumption was rebutted and the burden of proof was shifted back to Colegrove, A-B then argues that Colegrove failed to introduce any additional evidence establishing that A-B's failure to warn was a substantial factor in his injury. See dkt. no. 92, at 4; dkt. no. 98, at 3-4. Specifically, A-B claims that the expert testimony stating that the failure to warn caused Colegrove's injuries was not sufficient to show causation because the expert's opinion was mere speculation. A-B thus contends that Colegrove has failed to establish causation and that A-B is entitled to judgment as a matter of law.
Neither of A-B's attempts to rebut the heeding presumption are successful. As for the failure to warn Westvaco, the only apparent evidence A-B cites is Westvaco's supposed violation of an OSHA regulation. This evidence is ineffective as a rebuttal to the heeding presumption because nothing demonstrates that Westvaco knew of the regulation and chose to ignore it. OSHA regulations and Westvaco's alleged violation of them were not admissible at trial because industry standards like OSHA regulations are not relevant to a § 402A action. See Lewis v. Coffing Hoist Division, 528 A.2d 590 (Pa. 1987); Sheehan v. Cincinnati Shaper Co., 555 A.2d 1352, 1355 (Pa.Super. 1989). As A-B admits, the only mention of OSHA regulations is in Engineer George Snyder's expert report.*fn2 See dkt. no. 92, at 3 n. 2. In that report, Snyder suggests that Westvaco was in violation of an OSHA regulation prohibiting unguarded foot switches around mechanical power presses. See Defendant's Exhibit 1-K, dkt. no. 93, ex. 4, at 3 (citing 29 C.F.R. § 1910.217(b)(7)(x) (2001)). Nothing in Snyder's report, however, indicates that Westvaco knew of this regulation and failed to heed its requirements.
A-B simply concludes from the fact that Westvaco may have been in violation of this OSHA regulation that Westvaco would not have heeded a warning about the unguarded foot switch even if A-B had given one. But this conclusion does not follow. To rebut the presumption that Westvaco would have heeded a warning, A-B would need to show that Westvaco was informed of the danger of the unguarded foot switch and chose to disregard that information. Obviously, an applicable OSHA regulation would be one way Westvaco could be informed of the danger, but only if Westvaco actually knew of that OSHA regulation. A-B goes to some length to argue that Westvaco could violate the OSHA regulation without knowing of that regulation. See dkt. no. 92, at 3; dkt. no. 98, at 2-3. That may very well be true, but a mere violation of an OSHA regulation — without evidence that Westvaco knowingly violated the regulation — does not rebut the presumption that Westvaco would have heeded a warning if it had been given. So even if there were adequate evidence of record to show that Westvaco had violated this OSHA regulation, that is insufficient to rebut the heeding presumption without further evidence that Westvaco was aware of or knowingly in violation of the regulation. A-B does not point to any such evidence; in fact, it repeatedly states that it does not need such evidence. But such evidence is exactly what its rebuttal requires, and without it, the argument fails.
A-B's other attempt to rebut the heeding presumption — its argument that Colegrove knew of the danger associated with the foot switch — fails not only because it depends upon citations A-B takes out of context but also because it ignores the nature of Colegrove's strict liability theory. First, A-B claims that the heeding presumption may be rebutted by showing that a plaintiff was aware of the danger in question, a proposition for which it cites Pavlik, Overpeck, Powell, and Conti. See dkt. no. 92, at 4. Several of these cases do state that "one way the defendant can rebut [the heeding] presumption is by demonstrating that the plaintiff was previously fully aware of the risk of bodily injury posed by the product." Pavlik, 135 F.3d at 881; see also Overpeck, 823 F.2d at 755; Powell, 766 F.2d at 134. But A-B lifts this proposition out of the specific facts of those cases; in each of those cases, the only effective warning would have been one given to the plaintiff. See Pavlik, 135 F.2d at 882-84 (warning the plaintiff, who inhaled butane); Overpeck, 823 F.2d at 755 (warning the plaintiff, who was injured by a pneumatic tire changer); Powell, 766 F.2d at 133-34 (warning the plaintiff, a nurse who was injured when her patient untied a safety vest's straps). In such cases, where the relevant warning would have been one given to the plaintiff, it follows that the heeding presumption could be rebutted by showing that the plaintiff knew of the danger.
It is hardly a general rule, however, that any plaintiff's awareness of a danger always rebuts the heeding presumption. Where the theory of a case is that the plaintiff's injury would have been prevented had the defendant warned a third party, evidence that the plaintiff was aware of the danger is irrelevant to the causal sequence and the heeding presumption cannot logically be rebutted by such evidence. Conti provides a useful example. In that case, the plaintiff wife was injured when she fell getting into her husband's Ford's Mustang; she lost her balance because the car lurched backwards when her husband started it without disengaging the clutch. See Conti, 743 F.2d at 196-97. Her theory in that case was that Ford should be strictly liable for its failure to warn her husband. The Third Circuit determined that Ford's failure to warn did not cause the wife's injuries because her husband was fully aware of the danger of starting the car without disengaging the clutch and no warning would have changed his conduct — in other words, the evidence indicated that the husband would not have heeded a warning if it had been given. See id. 198. Notably, the court did not consider whether the plaintiff wife was aware of the danger, because her knowledge of the danger was not a relevant part of the alleged causal sequence. In other words, where the alleged cause of an injury is a defendant's failure to warn some third party, whether the plaintiff was aware of the danger is simply not a factor. A-B misinterprets the cases it cites; the heeding presumption can be rebutted by showing that the plaintiff was aware of the danger only where the injury was allegedly caused by a failure to warn the plaintiff. If the alleged cause of an injury was the failure to warn some third party, the plaintiff's awareness of the danger does not rebut the heeding presumption.
Colegrove has clearly alleged that the cause of his injury was A-B's failure to warn a third party, Westvaco. In its reply brief, A-B even acknowledges that "at no time during the trial did Plaintiff claim that A-B failed to warn him of the dangers associated with an unguarded foot switch. Instead, Plaintiff has claimed that it was a failure to warn Westvaco, and Westvaco only, that caused his injury." Dkt. no. 98, at 5. But A-B concludes from this that their warning, if given, would not have changed Colegrove's behavior, and therefore Colegrove has failed to show that A-B's failure to warn was a cause of his injury. See id. A-B seems unable to comprehend Colegrove's strict liability theory. According to Colegrove, A-B should have warned Westvaco not to use an unguarded foot switch around its heavy machinery. See Transcript of March 13, 2001, dkt. no. 89, at 46.21-23. Had such a warning been given to Westvaco, Colegrove is entitled to presume that Westvaco would have heeded the warning and either installed a foot switch with a cover guard or not installed any foot switch at all. In either case, Colegrove's accident would not have occurred, and that is all Colegrove needs to establish causation. See Pavlik, 135 F.3d at 881; Conti, 743 F.2d at 198. Whether Colegrove would have altered his own behavior is simply beside the point.
To rebut the heeding presumption, what A-B would need is evidence showing that Westvaco, and not Colegrove, would have failed to alter its conduct had a warning been given. There is an important reason why the emphasis here is on Westvaco. As some courts have recognized, the heeding presumption is crucial in cases where the plaintiff was exposed to a defective product in the course of his employment under circumstances that provided no meaningful choice of whether to avoid that product. See Coward, 729 A.2d at 620 (citing Coffman v. Keene Corporation, 628 A.2d 710 (N.J. 1993)).*fn3 In such cases, the plaintiff employee will usually need to rely on the heeding presumption in order to get to a jury. See id. To rebut the heeding presumption in such a case where the employer made decisions about what equipment to use and how to use it, and the employee had no choice in the matter — a defendant must produce evidence that shows that the employer, not the employee, would not have heeded the warning if it had been given. In other words, a plaintiff employee's knowledge of the danger is not relevant to rebutting the presumption that his employer would have heeded a warning, if given, and that in doing so, the employer would have prevented its employee's injury. That is the situation here, so A-B's arguments about what Colegrove knew or was aware of are ineffective to rebut the presumption.
Because A-B has not successfully rebutted the heeding presumption, a jury may presume that Westvaco would have heeded a warning from A-B not to use its unguarded foot switch around heavy machinery. Because that presumption is sufficient for Colegrove to take his case to a jury, I do not need to address A-B's argument that there is no record evidence showing that Westvaco would have acted differently if a warning had been given, including A-B's argument that the opinion of Colegrove's expert was insufficient to establish causation because that opinion was mere conjecture. With the aid of the heeding presumption, Colegrove established the causation that is a necessary element of his strict liability claim. A-B is therefore not entitled to judgment as a matter of law on this point.

B.

A-B asserts that as a matter of law it had no duty to warn Westvaco of the dangers associated with using its unguarded foot switch on heavy machinery. According to A-B, Pennsylvania law clearly limits a manufacturer's duty to warn of a danger when that manufacturer supplies only a component part that is assembled into a finished product by another, and the danger is associated with the use of the finished product. See Wenrick v. Schloemann-Siemag, A.G., 564 A.2d 1244, 1247 (Pa. 1989) (plurality opinion); Jacobini v. V. & O. Press Co., 588 A.2d 476, 478 (Pa. 1991) (dicta). Prior to trial, A-B had made this same argument in support of its Motion in Limine to Exclude Plaintiff's Expert Testimony, dkt. no. 35, as well as in its opposition to one of Colegrove's motions in limine. Dkt. no. 50.*fn4 I rejected this argument each time it was raised. See Order dated March 7, 2001, dkt. no. 54; Memorandum Opinion and Order dated March 8, 2001, dkt. no. 57; see also Transcript of Proceedings, March 9, 2001, dkt. no 85, at 13. I continue to think that A-B misstates Pennsylvania law when it claims to have no duty to warn Westvaco of the danger associated with its unguarded foot switch because the foot switch was a mere component in the paper winding machine that injured Colegrove. I therefore reject this argument.*fn5
Despite having already addressed this issue, I write again for several reasons. As I stated at trial, products liability law in Pennsylvania is often impenetrable because it has developed in fits and starts, leading to "seemingly peculiar evidentiary results that emanate simply from the profound difference between a negligence regime and a strict liability regime." See Transcript of March 9, 2001, Dkt. no 85, at 16. With respect to the specific issue at hand, there is no authoritative case from the Pennsylvania Supreme Court that explains the boundaries of the supposed limitation on a component part manufacturer's duty to warn. Of the two Pennsylvania Supreme Court opinions addressing this issue, one is a mere plurality opinion and the other discusses the principle only in dicta. As with much Pennsylvania products liability law, the scope of a component part manufacturer's duty to warn has been developed primarily by the federal courts, operating in predictive mode. The Third Circuit has opined on the limitation of a component part manufacturer's duty to warn on three occasions. See Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298 (3d Cir. 1995); Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107 (3d Cir. 1992); J. Meade Williamson and F.D.I.B., Inc. v. Piper Aircraft Corp., 968 F.2d 380 (3d Cir. 1992). However, these opinions point in different directions and fail to give consistent guidance as to the exact breadth of the limitation on the duty to warn. Finally, the factual similarity between the instant case and the Wenrick case on which A-B principally relies requires my more detailed attention. There are several important distinctions between this case and Wenrick, so it is necessary to distinguish that plurality opinion from the case before me. In addressing this issue again, my objective is to make this particular aspect of Pennsylvania products liability jurisprudence — as it currently exists — less obscure. Regardless of the success of my efforts, complete clarity will be achieved only when the Pennsylvania Supreme Court ultimately settles this area of law.
To begin, there are but two cases from the Pennsylvania Supreme Court on the issue of a component part manufacturer's duty to warn. The fountainhead case is Wenrick v. Schloemann-Siemag, A.G., 564 A.2d 1244, 1247 (Pa. 1989). In that case, Wenrick was killed while he repaired an extrusion press manufactured by Schloemann-Siemag (SMS). He was crushed when the hydraulic loader under which he was standing retracted. The loader ordinarily retracted when another part of the machine triggered a particular switch; circumstantial evidence produced at trial indicated that this switch, which was located near the access stairs into a service pit below the machine, was inadvertently tripped by another worker descending the steps. Wenrick's wife sued SMS and Cutler-Hammer, the manufacturer of the electrical control system for the machine. She eventually settled with SMS but proceeded to trial on both negligence and strict liability claims against Cutler-Hammer, alleging that the switch activating the loader was defective because of "the unguarded condition of the switch and the proximate location of the switch relative to the steps." Id. at 1246. She also claimed that Cutler-Hammer ought to have warned SMS of the danger of locating the switch near the steps. A jury returned a verdict in her favor, but a plurality*fn6 of the Pennsylvania Supreme Court ultimately upheld a lower court's decision to grant Cutler-Hammer judgment n.o.v. The Supreme Court reasoned that Cutler-Hammer had no control over nor any knowledge of the placement of the switch near the maintenance steps. As such, it could not be strictly liable ...

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