The opinion of the court was delivered by: Judge Flowers Conti
The Defendant's Motion to strike portions of the Plaintiff expert's opinion (Doc. 15) will be denied, but its alternative request to file a third-party complaint ( see id. ) will be granted to the extent described below.*fn1
The Plaintiff Steven E. Hawkins has filed this diversity action against the Waynesburg College ("Waynesburg" or "the School"), alleging negligence. See generally Am. Compl. (Doc. 7). Mr. Hawkins was a student at Waynesburg, and in February 2005 he participated in the construction of stage sets and props in preparation for his Introduction to Theatre class. The Plaintiff was injured when his shirt sleeve was pulled into a compound meter saw provided by the School ("the Saw"), damaging his left upper appendage to the extent that amputation and partial reattachment was required. See generally id. at ¶¶ 6-9. Mr. Hawkins alleges negligence based on, among other things, the School's failure to train and supervise him in using the Saw and to provide adequate warnings regarding the potential dangers of misuse. See generally id. at ¶ 10.
One of the Plaintiff's experts has issued a report opining that the warning label placed on the Saw by its manufacturer was ineffective:
The black label was affixed to the dark gray surface of the [S]aw arm and was located on the back surface [thereof], facing away from the operator. . . . Even though the need to warn of danger was recognized by the manufacturer, the warning label was posted on the [S]aw with little contrast between [it] and the [S]aw arm and in a location where it was unlikely to be seen . . . . For the label to be effective, it should have been posted on the [S]aw using a color and location . . . mak[ing] it readily visible to the user.
See Expert Rpt. of Richard A. Bragg, Ph.D., P.E. (attached as Ex. A to Doc. 15) at 6-7.
Defense counsel claims this opinion constitutes a "backdoor attempt" to allege strict liability against Waynesburg, an entity that neither manufactured nor distributed the allegedly defective product. See Def.'s Mot. at ¶ 3.
In response, Plaintiff's counsel makes clear that Mr. Hawkins neither has, nor does he intend to, assert strict liability based on the failure to adequately warn. See Pl.'s Opp'n Br. (Doc. 16) at 6. Rather, counsel argues the expert opinion is necessary for two of his client's negligence-related theories: (1) that the Defendant is liable under the Restatement (Second) of Torts Section 392, regarding the negligent supply of chattel for a business purpose;*fn2 and (2) the Plaintiff was not guilty of comparative negligence and/or assumption of the risk by failing to observe the warning label. See Pl.'s Opp'n Br. at 6-8; see also id. at 7 (noting Plaintiff was questioned during deposition about his purported failure to heed warning label).
As for the Section 392 claim, neither the Plaintiff's briefing nor the court's independent research has uncovered case law holding that the duty to protect persons from unsafe chattel extends to remediating allegedly insufficient warnings placed on inherently dangerous products by their manufacturers. If anything, the law would appear to view such a claim with skepticism. See, e.g. , Muscat v. Khalil, 388 N.W.2d 267, 271, 273 (Mich. App. 1986) (rejecting claim under Section 392 and related argument that purchaser of ladder "from some entity in the chain of distribution . . . should be held responsible for the manufacturer's failure to [provide] warning labels"; "[t]here [wa]s no reason to assume that [the] defendants should have been any more aware of the absence of instructions on the ladder than plaintiff" and, "even if they were consciously aware of the lack of instructions," "as mere purchasers" they were not charged with knowledge "that the absence of such instructions constituted a defect"); Ziglar v. E. I. Du Pont De Nemours & Co., 280 S.E.2d 510, 513-14 (N.C. App. 1981) (rejecting claim under analogous Section 388 because plaintiff did not present evidence showing defendant "knew or should have known that the manufacturer's written warnings on the product's label were inadequate to warn others").*fn3
Nevertheless, the Defendant has failed to demonstrate the non-viability of the Plaintiff's Section 392 theory as a matter of law and, therefore, its Motion to strike is unavailing.*fn4
Even stronger grounds for allowing the expert opinion is found in the Plaintiff's efforts to refute the School's defenses of comparative negligence and assumption of the risk. Counsel represents that the Defendant raised the warning label issue during Mr. Hawkins' deposition, and the Plaintiff has every right to refute the defenses by demonstrating the label reasonably went unobserved. See discussion supra ; see also, e.g. , Moschkau v. Sears, Roebuck & Co., 282 F.2d 878, 879-81 (7th Cir. 1960) (affirming entry of judgment notwithstanding verdict in favor of defendant because plaintiff heeded part, but not all, of manufacturer's warning label, making him sole cause of accident).
For all of these reasons, the Defendant's request to strike those portions of the Plaintiff expert's opinion regarding the warning labels is without merit. The same cannot be said of its request for leave ...