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September 29, 2005.


The opinion of the court was delivered by: JOY CONTI, District Judge


Pending before the court is the motion for summary judgment (Doc. No. 51) filed by defendant Maytag Corporation ("defendant" or "Maytag") on the grounds that plaintiff Vincent Marino ("plaintiff") cannot meet his burden of proof to support the essential elements of his strict liability claim at trial and that plaintiff's proffer of evidence ("Proffer") (Doc. No. 42) establishes that defendant's motor shield was not unreasonably dangerous. For the purposes of this motion, the facts, as outlined in the Proffer, with certain exceptions, are treated as true.

The court will grant defendant's motion because plaintiff cannot meet his burden of proof to support his strict liability claim. Background

  The facts, as set forth in the Proffer, shall be accepted as true for the purposes of deciding this motion, except for the matters set forth in paragraphs 7, 17, and 19.*fn1 On September 6, 2001, plaintiff, a plumber, installed a Maytag dishwasher, model MDB6650 ("the dishwasher"). Proffer, ¶ 1. The installation required plaintiff to attach a discharge hose to a nozzle located inside of the dishwasher. Id. at ¶ 2. This activity is one that defendant anticipated would be performed by an installer. Id. at ¶ 3.

  Upon completing the installation of the hose and adjusting wiring located near the hose, plaintiff withdrew his hand from the interior of the dishwasher. The area within the dishwashing unit is restricted and the installer is forced to work in awkward positions in order to work within the unit. Id. at ¶ 16. In addition, visibility inside of the dishwasher is limited. Id. at ¶ 16. While removing his hand, plaintiff suffered a deep laceration of his hand near the base of the thumb and nerve damage resulted. Id. at ¶ 4. The laceration occurred as plaintiff's hand passed along the edge of the dishwashing unit's motor shield. Id. at ¶ 5. The motor shield is a thin piece of metal located between the dishwasher motor and the pump hosing. Id. at ¶ 6. The motor shield is made of galvanized steel. Id. at ¶ 10. Maytag made no warnings available to installers regarding the motor shield. Id. at ¶ 17. Plaintiff was not aware of any such hazard and would have avoided injury had such a warning been made. Id. at ¶ 18-19.

  Standard of Review

  Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). Where the defendant is the moving party, the initial burden is on the defendant to show that the plaintiff has failed to establish at least one essential elements to his case. Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). The non-moving party cannot merely rest upon the allegations in his complaint, but must set forth specific facts that would allow a reasonable jury to find in the non-moving party's favor. FED.R.CIV.P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249. The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (citing 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARYKAY KANE, FEDERALPRACTICE& PROCEDURE § 2721, at 40 (2d ed. 1983)); Pollack v. City of Newark, 147 F.Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1956), cert. denied, 355 U.S. 964 (1956) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence") (emphasis added).


  Defendant makes three arguments in support of its motion for summary judgment. First, defendant argues that it is entitled to summary judgment because plaintiff's evidence does not include the opinion of a design or warnings expert. Second, defendant argues that plaintiff's failure to proffer any evidence of the existence of a burr on the motor shield requires this court to enter summary judgment for defendant. Third, defendant argues that summary judgment should be granted because defendant has established, as a matter of law, that the motor shield is not unreasonably dangerous under the standard established by the Pennsylvania Supreme Court in Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978). Plaintiff argues that summary judgment is not appropriate in this case and that he has adduced enough evidence for the case to be presented to a jury. The court does not need to address the arguments separately because plaintiff failed to offer evidence to raise a triable issue of fact.

  Plaintiff filed this case in the Court of Common Pleas of Allegheny County on November 26, 2002. Pursuant to 28 U.S.C. § 1332(a), the case was removed to this court on December 4, 2002. As this court's jurisdiction is based on the diversity of the parties, Pennsylvania products liability law controls.

  Plaintiff is alleging a design defect theory of liability. The Pennsylvania Supreme Court has held that, in design defect cases, "the jury may find a defect where the product left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use." Azzarello, 391 A.2d at 1027.

  In opposing a motion for summary judgment in a design defect case, rather than rest on the allegations in the complaint, plaintiff is required to produce some evidence that would allow a jury to find that defendant's product was not safe for its intended use. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 414-15 (3d Cir. 1999) ("[T]he burden on [plaintiff] in opposing [defendant's] motion was to come forward with evidence from which the jury could find that the machine lacked an element necessary to make it safe or possessed an element that made it unsafe for its intended purpose.").

  In his opposition to defendant's summary judgment motion, plaintiff filed the Proffer to attempt to show that defendant's dishwasher was not safe for its intended use or possessed an element that made it unsafe for its intended use. A review of the Proffer, excluding the provisions not accepted as true due to the lack of evidentiary support for them, shows that plaintiff has not met his burden. The Proffer is little more than a recitation of the allegations lodged in the plaintiff's complaint. There is no evidentiary support in the Proffer to indicate that the dishwasher and its motor shield were unsafe for their intended uses or that either lacked an element that made them unsafe.

  Under Pennsylvania law, in a products liability action, the plaintiff is required to prove that: (1) a product was defective; (2) that the defect existed at the time the product left the manufacturer's control; and (3) that the defect was a substantial factor in causing the plaintiff's injury. Sherk v. Daisy-Heddon, 450 A.2d 615 (1982). Plaintiff did not adduce evidence to satisfy any of those elements. It appears to this court that plaintiff intended to rely heavily upon the testimony of his expert, Norman W. Johanson ("Johnanson"), to satisfy his burden at summary judgment. This court, however, in a memorandum order dated April 16, 2004 (Doc. No. 29), granted in part defendant's motion to strike plaintiff's expert testimony. The court held that Johnanson could testify generally about appliance warnings and, if a proper foundation is established at trial, the characteristics of sheared metal. Memorandum Opinion of April ...

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