United States District Court, W.D. Pennsylvania
September 29, 2005.
VINCENT MARINO, Plaintiff,
MAYTAG CORPORATION, Defendant.
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
The court will grant defendant's motion because plaintiff
cannot meet his burden of proof to support his strict liability
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")
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 16, 2004 ("Mem. Op.") at 2. The court
also held, however, that Johnanson was not qualified as an expert
on the design of the dishwasher and could not testify about the
specifics of the dishwasher and the cause of plaintiff's injury.
Without Johanson's stricken testimony, plaintiff has no
evidence to demonstrate that the dishwasher was defective, or
that the alleged defect was a substantial cause of plaintiff's
Defendant argues that the fact that plaintiff has no design
expert to testify should, by itself, be enough, under applicable
law, for this court to enter summary judgment on its behalf. The
court rejects that argument. Pennsylvania law contains no per se
rule that the absence of an expert entitled a defendant to
summary judgment in a design defect case. See Padillas,
186 F.3d at 416 (holding that, based on the facts in the particular
case, the court could not exclude the possibility that
"plaintiff's non-expert evidence will be sufficient to submit his
claim of defect to the jury"). See also Wilburn v. Maritans
GP Inc., 139 F.3d 350, 360 (3d Cir. 1998) (holding that expert
testimony was not necessary in a case where "persons of common
understanding could comprehend the primary facts offered" to
demonstrate the cause of plaintiff's injuries.); Barris v. Bob's
Drag Chutes & Safety Equip., Inc., 685 F.2d 94, 101 (3d Cir.
1982) (citing Pennsylvania decisions and holding in dictum that a
defective condition in a product can be established by the presentation of non-expert, circumstantial evidence); Jones v.
Toyota Motor Sales, USA, Inc., 282 F.Supp.2d 274, 276 (E.D. Pa.
2003) (holding that expert testimony is necessary for plaintiff's
case only when laypersons would lack the necessary knowledge and
experience to render a just decision).
While a plaintiff need not necessarily have expert testimony to
prove his claim in a products liability design defect case, he
must have some evidence that supports the claim that the product
was defective and was a substantial cause of plaintiff's injury.
Plaintiff points to Padillas for support in his position that,
absent expert testimony, he still can prove the necessary
elements to support his claim. Plaintiff, however fails to
recognize that he has not produced non-expert evidence sufficient
to permit a jury to make a just decision.
In Padillas, the court noted that, absent the expert
testimony at issue, the plaintiff still offered the following
additional evidence: a report co-authored by defendant's
engineering manager responsible for the design of the product at
issue, a memorandum to defendant's employee referring to the
product's safety problems, a similar machine designed by
defendant's sister company which contained a safety device, and
following the accident, safety measures were taken. Padillas,
186 F. 3d at 415. In this case, plaintiff offers insufficient
evidence to support his claim that the design of the dishwasher
Plaintiff attached a mechanical drawing of the dishwasher to
his Proffer. That drawing alone, however, would certainly not be
sufficient to prove a design defect unless an expert would be
able to explain the design to jurors. Jurors, as laypersons,
would not have the knowledge or expertise independently to
understand the drawing. In addition, the court previously ruled
that Johanson, being unfamiliar with dishwasher design, could not
testify about the drawing. Here, plaintiff has only his testimony about the injury, but he did not
observe the interior of the dishwasher or see the motor shield.
He did not obtain the actual dishwasher or motor shield in
question in this case to show to the jury, nor does he have
photographs of the dishwasher or motor shield that could be shown
to a jury to support his claim. Even if he had produced the
dishwasher and photographs, plaintiff may still not have been
able to survive summary judgment. See Oddi v. Ford Motor Co.,
234 F.3d 136, 159 (3d Cir. 2000) (holding that even with the
actual automobile alleged to have caused the action, but without
expert testimony, plaintiff could not survive summary judgment).
The court recognizes that "[e]xpert testimony is not necessary
. . . if all the primary facts can be accurately and
intelligently described to the jury, and if they, as persons of
common understanding, are as capable of comprehending the primary
facts and of drawing correct conclusions from them as are
witnesses possessed of special or peculiar training of the
subject under investigation." Oddi, 234 F.3d at 159 (quoting
Padillas, 186 F.3d at 415-16). On this record, the court
concludes that a juror could not look at the mechanical drawing
without expert testimony to explain it, listen to the testimony
of the plaintiff and his expert testify regarding safety warnings
generally,*fn2 and reasonably conclude that not only was the
dishwasher's design defective, but also that the dishwasher was a
substantial factor in causing plaintiff's injury. See Oddi,
234 F.3d at 159. The jury would have to speculate about the cause
of the injury. How could they determine as a matter of fact that
the injury was caused by the design of the motor shield and not
by something else? Jurors in this situation "`would lack the
necessary knowledge and experience to render a just and proper decision.'" Jones,
282 F.Supp.2d at 276 (quoting Raysely v. Zanders, 22 Pa. D. &
C. 4th 566, 567 (Lehigh Co. 1993)).
AND NOW, this 29th day of September 2005, upon consideration
the parties' arguments and supporting documents, IT IS ORDERED
that defendant's motion for summary judgment (Doc. No. 51) is
IT IS ORDERED AND ADJUDGED that judgment is entered in favor
of defendant, Maytag Corporation, and against plaintiff, Vincent
The clerk shall mark this case closed.
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