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.
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 ...