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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 been exhausted.

  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 Hazleton plant.

  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 injuries.

  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 harm.


  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 although
(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 the seller.
  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 Cir. 1998).
  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 liability insurance.
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. ...

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