United States District Court, M.D. Pennsylvania
September 26, 2005.
JANE E. FISHER, Executor of the Estate of Bradley Fisher, Deceased, Plaintiff,
CLARK AIKEN MATIK, INC., MARQUIP, INC., WILL-PEMCO, INC., Successor in Interest to Clark Aiken Matik, Inc., a/k/a PEMCO, INC., Defendants.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
This matter is before the Court on the Motion for Summary
Judgment of Defendant Marquip, Inc., claiming that the machinery
in question in this products liability litigation cannot be
regarded as "unreasonably dangerous" under the risk-utility
analysis mandated by Pennsylvania law.*fn1 See Azzarello
v. Black Bros. Co., 391 A.2d 1020, 1026 (Pa. 1978). Finding that
the pertinent risk-utility factors weigh in favor of Plaintiff,
the summary judgment motion will be denied.
In a products liability action brought under Section 402A of
the Restatement (Second) of Torts, such as this action, it is the
product itself, and not the manufacturer's conduct, that is at issue.*fn2 In this case, the product of concern is a
complicated piece of machinery used by the International Paper
Company at its plant located in Hazleton, Pennsylvania.
Specifically, involved in this accident was a paper "splicer"
designed and manufactured by Defendant Marquip, Inc., and
incorporated into a "sheeter" machine designed and manufactured
by co-Defendant Will-Pemco, Inc., successor-in-interest to Clark
Aiken Matik, Inc.
The sheeter line operated at the International Paper plant
starts with very large rolls of heavy paper as raw material. The
paper rolls are unspooled, and the sheeter line ultimately cuts
the heavy paper to the desired length and stacks the cut paper.
There are two pairs of roll stands that unspool the paper rolls,
and each pair of roll stands is capable of feeding one roll of
paper at a time to the sheeter line. A Marquip splicer is located
above each pair of roll stands. The purpose of the Marquip
splicer is to allow the sheeter line to run continuously by
eliminating the need to stop the sheeter to allow for
re-threading the paper each time a roll of raw material paper has
The splicer includes an element referred to as the "dancer
roller," which is intended to move along the splicer in
accordance with the size of the roll of paper being processed.
Movement of the dancer roller is enabled by a sensor called a
"potentiometer." The potentiometer is connected to the dancer system by a chain
located in the "dancer track area." The chain interacts with the
potentiometer. The dancer system itself is connected to air
cylinders by cables. The air cylinders provide the force that
moves the dancer roller.
The Marquip splicer is an integral component of the sheeter
machine. It enables the equipment to run 24 hours a day, 7 days a
week. The sheeter itself is a unique machine, specifically
designed and manufactured for use by International Paper at its
On June 14, 1999, Bradley Fisher, a maintenance mechanic who
had worked for International Paper for about 10 years, sustained
fatal injuries in an accident involving the sheeter/splicer. The
accident occurred while Fisher, with the assistance of Emil
Kitlan, was attempting to dislodge a broken potentiometer chain.
Kitlan, in response to an inquiry from International Paper
employee Ray Adams, indicated that it was unnecessary to shut
down the machinery.*fn3
Fisher climbed onto a paper roll stand, the top of which was
approximately 3 feet above the ground, to dislodge and remove the
chain. Kitlan climbed onto a catwalk above Fisher and the Marquip
splicer. In order to dislodge the chain, Mr. Fisher removed a
guard that covered a sprocket. Mr. Fisher was feeding the chain
to Mr. Kitlan, who was standing above him. Prior to completely
removing the chain, Mr. Fisher told Mr. Kitlan to stop pulling on
the chain. An instant later, Mr. Kitlan "heard something let go," and out of the corner
of his eye saw the dancer roller spring forward towards Mr.
Fisher. The dancer roller pinned Mr. Fisher's head against one of
the stationary rolls, crushing his skull and causing fatal
Plaintiff claims that the sheeter/splicer was defective because
of the absence of adequate warnings about the potential for
sudden movement of the dancer roller if the machinery is not
placed in a "zero energy state." Plaintiff also contends that the
product was defective because entry into the machinery did not
trigger an automatic shut down process. Defendants argue that
recovery under § 402A is foreclosed as a matter of law because
the utility of the machinery outweighs the risk of serious bodily
Section 402A of the Restatement (Second) of Torts, adopted by
the Pennsylvania Supreme Court, see Webb v. Zern,
220 A.2d 853, 854 (Pa. 1996), provides:
(1) One who sells any product in a defective
condition unreasonable dangerous to the user or
consumer or to his property is subject to liability
for physical harm thereby caused to the ultimate user
or consumer, or to his property, if
(a) the seller is engaged in the business of selling
such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the condition
in which it is sold.
(2) The rule stated in Subsection (1) applies
(a) the seller has exercised all possible care in the
preparation and sale of his product, and (b) the user or consumer has not bought the product
from or entered into any contractual relation with
Liability depends upon the existence of a defect that renders
the product "unreasonably dangerous." The question of whether a
product is "unreasonably dangerous" is for the court to decide.
Azzarello, 391 A.2d at 1026. As explained by our Court of
Appeals, "in the Azzarello context, the case would not become
one for the jury if the district court were able to hold as a
matter of law that the risk-utility balance so favored the
manufacturer that the [machinery in question] could not be deemed
unreasonably dangerous." Surace v. Caterpillar, Inc.,
111 F.3d 1039
, 1048 (3d Cir. 1997). In making this determination, the
court is to weigh "the utility of the product against the
seriousness and likelihood of the injury and the availability of
precautions that, though not full proof, might prevent the
injury." Id. at 1049. Stated otherwise, "[t]he Court must . . .
balance the product's social utility against its unavoidable
risks to determine whether the condition of the product could be
labeled `unreasonably dangerous' and the risk of loss placed on
the manufacturer." Childers v. Joseph, 842 F.2d 689, 697 (3d
The following factors inform the risk-utility analysis:
(1) The usefulness and desirability of the product
its utility to the user and to the public as a whole;
(2) The safety aspects of the product the
likelihood that it will cause injury, and the
probable seriousness of the injury; (3) The
availability of a substitute product which would meet
the same need and not be as unsafe; (4) The
manufacturer's ability to eliminate the unsafe
character of the product without impairing its
usefulness or making it too expensive to maintain its
utility; (5) The user's ability to avoid danger by
the exercise of care in the use of the product; (6)
The user's anticipated awareness of the dangers
inherent in the product and their avoidability,
because of general public knowledge of the obvious
condition of the product, or of the existence of suitable warnings or
instructions; and (7) The feasibility, on the part of
the manufacturer, of spreading the loss of [sic]
setting the price of the product or carrying
Surace, 111 F.3d at 1046.
The defendant bears the burden of proof on the risk-utility
determination. Monahan v. Toro Co., 856 F. Supp. 955, 958 (E.D.
Pa. 1994). The evidence on this threshold issue must be viewed in
the light most favorable to the plaintiff. See Barker v. Deere
& Co., 60 F.3d 158, 166 (3d Cir. 1995).
Where a product is alleged to be defective because of the
absence of adequate warnings or instructions, "the social policy
decision is relatively simple." Fraust v. Swift & Co.,
610 F. Supp. 711, 713 (W.D. Pa. 1985). "In the case of an inadequate
warning, . . . imposing the requirements of a proper warning will
seldom detract from the utility of the product. At the same time,
the cost of adding a warning, or of making an inadequate warning
adequate, will at least in most cases be outweighed by the risk
of harm if there is no warning." Id. (citation omitted).
In this case, a weighing of the risk-utility factors identified
in Surace warrants the conclusion that the alleged defective
condition of the machinery renders it "unreasonably dangerous."
Accordingly, the questions of whether the product was in a
defective condition when it left Defendants' possession and
whether such defective condition was the proximate cause of the
fatal injuries must be presented to the jury. As to the first factor articulated in Surace the utility of
the machinery the uniqueness of the product itself does not
suggest that it is of particular value to the public as a whole.
The product is intended to allow 24/7 production. That feature
has obvious value, but incorporating safety features that would
interrupt production would not so destroy the product's benefit
as to predominate in favor of the manufacturer.
As to the second factor, probability of injury from use of the
product, it is apparent that there is a risk of harm in
undertaking ordinary maintenance of the splicer. For example, the
potentiometer chain, as a mechanical device, is likely to fail at
some point through ordinary wear and tear and will have to be
replaced, putting the mechanic in an area of danger. It is also
apparent that other maintenance work on the dancer roller system
would be required from time to time. Given the size of the
machine and the amount of force generated by its components, any
injury occurred during maintenance is very likely to be severe.
Thus, this factor predominates in favor of Plaintiff.
Plaintiff has proffered evidence of an alternative product, the
third factor in the risk-utility analysis. Specifically,
Plaintiff points to a design that would eliminate the need for a
potentiometer chain, thus obviating the type of maintenance work
that resulted in Mr. Fisher's death. Plaintiff has also produced
evidence of some guarding devices, such as "light curtains,"
which would shut down the machinery when a worker entered a
danger zone. Thus, this factor also weighs in favor of Plaintiff. The next matter to be weighed is the ability of the
manufacturer to eliminate the unsafe character of its product
without impairing its usefulness or making it too expensive to
maintain its utility. The evidence proffered by plaintiff with
respect to features that would either eliminate the potentiometer
chain or shut down the machinery if a zone of danger was invaded
suffices to place this factor on Plaintiff's side of the scale.
In this regard, it is important to note that Defendants have been
precluded from contesting the feasibility of the alternative
safer designs presented by Plaintiff's experts.
Defendants contend that the ability to avoid danger by
exercising care in the use of the product tips the risk-utility
analysis in their favor. In this regard, they point to evidence
of a policy at the International Paper Hazleton plant that
machinery be locked out and tagged out before maintenance work is
performed.*fn4 Defendants contend that had the machinery
been shut down and the air supply to the mechanical equipment
eliminated, the accident could not have happened.
In assessing this factor, our Court of Appeals has instructed
that the trial court consider the matter, not from the
perspective of the individual injured by the product, but from
the vantage point of an ordinary user of the machinery. Surace,
111 F.3d at 1051. As Judge Becker explained:
The proper focus . . . is an objective inquiry into
whether the class of ordinary purchasers of the
product could avoid injury through the exercise of
care in use of the product, not whether this
particular plaintiff could have avoided this
particular injury. Put differently, the user's
ability to avoid injury by the exercise of care in
the use of the product appears to be a design factor
that may justify a more or less exacting design
depending on the facts, but it is, in any case, not a
vehicle for injecting a plaintiff's (alleged) failure
to exercise due care into the case.
In this matter, Plaintiff has presented evidence suggesting an
inadequacy of warnings concerning the danger of replacing the
potentiometer chain without following machinery shut down
procedures. As noted above, the risk-utility decision will rarely
favor a manufacturer where there is evidence of inadequate
warnings or safe usage instructions. Furthermore, Plaintiff has
proffered evidence that it was only after Mr. Fisher's death
that Defendants provide requisite instructions on returning the
sheeter/splicer to a zero energy state. Even then, Defendants
issued three separate service bulletins in order to convey the
necessary information to eliminate energy from the dancer roller.
As explained by one of Plaintiff's experts:
This means there is a need for specific
lockout/tagout procedures for this activity from the
equipment designers. This was not provided prior to
the accident. The need for an elaborate lockout and
tagout procedure, and the lack of an appropriate
lockout/tagout procedure from the equipment designers
render [t]his equipment unreasonably dangerous and
Report of Dr. Hutter at 5.
Defendants contend that Mr. Fisher, by his training and
experience, should have anticipated the danger of the dancer roller springing forward to
him in the chain removal work. Plaintiff has produced evidence,
however, that Mr. Fisher did not appreciate the danger
confronting him in dislodging and removing the potentiometer
chain. In this regard, there is evidence the Mr. Kitlan, who
could be perceived as Mr. Fisher's supervisor, directed that the
machinery not be shut down while the chain was being removed.
Significantly, Defendants did not oppose Plaintiff's motion in
limine to preclude Defendants from presenting an assumption of
risk defense at trial. (Dkt. Entry 209.) Accordingly, this factor
does not weigh so heavily in favor of Defendants as to compel
judgment in their favor on the products liability claim.
The final factor the ability of the manufacturer to spread
the risk of loss by setting the price of the product or carrying
liability insurance plainly favors Plaintiff. As Plaintiff
observes, Marquip is in bankruptcy, and the risk of loss in this
case is therefore borne by its liability carrier. III. CONCLUSION
For the reasons set forth above, this Court cannot hold as a
matter of law that the risk-utility balance so favors Defendants
as to warrant removal of the § 402A claim from the jury.
Accordingly, Marquip's summary judgment motion, in which
Will-Pemco has joined, will be denied. An appropriate Order
NOW, THIS 26th DAY OF SEPTEMBER, 2005, for the reasons
set forth in the foregoing Memorandum, IT IS HEREBY ORDERED
1. The Motion for summary judgment filed on behalf of defendant
Marquip, Inc. (Dkt. Entry 101) is DENIED.
2. A telephonic scheduling conference will be conducted on
Friday, October 21, 2005 at 10:00 a.m. Attorney for plaintiff
is responsible for placing the call to 570-207-5720 and all
parties shall be ready to proceed before the undersigned is
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