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Varner v. MHS, Ltd.

United States District Court, M.D. Pennsylvania

March 6, 2014

MHS, LTD. d/b/a Wear-Flex Slings, Defendant

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[Copyrighted Material Omitted]

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For Robert S. Varner, Plaintiff: James R. Carroll, Carroll & Carroll, Athens, PA.

For MHS, Ltd., doing business as Wear-Flex Slings, Defendant: Daniel E. Cummins, Foley Cognetti & Cowley, Scranton, PA.


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MALACHY E. MANNION, United States District Judge.


Pending before the court in this products liability action is the motion for summary judgment, (Doc. 20), of defendant MHS, Ltd. on plaintiff's claims for strict liability, negligence, and breach of warranty.[1] For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.


This is a products liability action arising from an incident in which plaintiff Robert Varner was injured at work. Plaintiff was employed as a welder by G.E. Railcar on May 3, 2011. (Doc. 2, ¶ 3, Doc. 21-4, at 11). Plaintiff's job duties included removing valves and related machinery from railcars and replacing them with new equipment. (Doc. 21-4, at 13). This sometimes required lifting heavy plates and attached equipment from the cars using a crane operated by plaintiff via remote control. (Id. at 13-16). On May 3, 2011, the day he was injured, plaintiff was using a nylon strap (" strap" or " sling" ) manufactured by defendant. Plaintiff, standing on top of the railcar, connected the crane to the valves and related equipment with the nylon strap, and used it to lift the equipment out of the railcar. (Id. at 33-41). His coworker Kyle Frisbie was working with plaintiff at the time. (Id. at 31). Plaintiff estimated the total weight of the plate and equipment he was lifting from the car was 350-400 pounds. (Id. at 42). Mr. Frisbie estimated the weight of the equipment to be less, in the range of 200-250 pounds. (Doc. 37-1, at 19).

Plaintiff testified that he inspected the nylon strap prior to using it to attach the equipment to the crane, and was fully satisfied that it was fit for use. (Doc. 21-4, at 34-35). Mr. Frisbie also testified that he initially inspected the strap before giving it to plaintiff, and found it to be fit for use.

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(Doc. 37-1, at 28-29). Both workers testified that it was each worker's responsibility to inspect the straps, that they receive on-the-job training instructing them to inspect the straps for signs of wear or stress, and that a strap deemed unfit for use because of tearing, fraying, weld splatter, or other sign of stress is immediately discarded. (Docs. 21-4, at 34; 37-1, at 11-12, 28). They use the straps on a daily basis in performing their work. (Doc. 21-4, at 92).

As the plate and other equipment were being lifted out of the car, plaintiff realized that a pipe, which was welded to the bottom of the plate being lifted, had an " offset" at its bottom, instead of extending straight down into the railcar. (Doc. 21-4, at 38). Plaintiff began to move the crane, via remote control, to the north to allow for room to get the offset portion of the pipe out of the railcar. (Id. at 38-41). When the pipe was almost completely out of the car, plaintiff testified to hearing a " snap," moving his head, and the plate coming down off of the crane and falling onto his arm. (Id. at 39-40). Plaintiff testified that earlier in the process, there had been resistance in getting the equipment out of the tank, possibly due to rust, so that he stopped using the crane and strap to hoist the material, lowered the equipment back onto the car, and used a chisel to free the equipment before again attempting to lift it out. (Id. at 41-42). Mr. Frisbie, however, testified that no chisel was used at any time throughout the procedure. (Doc. 37-1, at 51-52).

Plaintiff stated that he did not pull on the equipment or on the strap at any point during the removal procedure. (Id. at 41). Mr. Frisbie additionally testified that plaintiff was not tugging or lifting on the plate at all, or making any manual contact with the equipment whatsoever. (Id. at 35-36). He also testified that plaintiff followed proper safety procedures while using the strap and that plaintiff was not standing in the " wrong spot" at the time of the accident. (Id. at 35, 41). Plaintiff and Mr. Frisbie also testified that the strap did not come into contact with any sharp edges at any time. (Id. at 53; Doc. 21-4, at 57). Mr. Frisbie testified that there was nothing out of the ordinary about the workday until plaintiff was injured. (Doc. 37-1, at 38).

Plaintiff testified that the plate came down, hit his arm, and came to rest at an angle over his arm. (Doc. 24-1, at 45). Mr. Frisbie pulled plaintiff away. Because the plate was at an angle, plaintiff's arm was not stuck or crushed beneath it and Mr. Frisbie did not need to move the plate to free plaintiff. (Id.). Plaintiff was bleeding slightly from the site where he was hit, and testified to not feeling much, but being in shock. (Id. at 48). Plaintiff had two surgeries, the first to repair tendon issues in his thumb, and the second to implant screws in his wrist. (Id. at 72-77). The second surgery was to address numbness and pain plaintiff continued to experience in his left wrist and hand. (Id. at 77). Following the second surgery, plaintiff continued to experience pain, but was starting to regain range of motion. (Id.). He attended physical therapy twice a week. (Id. at 78). Plaintiff was cleared for light duty work, but has not been told he can return to his previous duties. (Id. at 23). He submitted paperwork to the company, but they did not have light duty work for him. (Id.). He has not worked since the accident. (Id. at 18).

Steven Schroeder, President and CEO of defendant nylon strap manufacturer, testified that the instant case is the third lawsuit he can remember being filed against the company. (Doc. 22-2, at 27). He stated that of the previous lawsuits, one concerned the improper use of a strap

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which had been discarded, and one was found not to involve a strap made by defendant. No liability was found in either case. (Id. at 28). He also testified that the company retains a file of customer complaints about their straps. (Id. at 28-29). He did not remember the last time the company had received a complaint, so he was not sure if the complaint file even contained any complaints. (Id. at 29-30).

Mr. Schroeder identified the strap as having been manufactured in December of 2007. (Id. at 12). He also testified to the safety testing procedures his products go through. Straps are periodically tested by being pulled until they are destroyed. (Id. at 18). Straps must meet a " five to one" design factor, meaning that a strap must be able to hold five times more than its listed capacity before being destroyed. (Id. at 19). Straps are tested on a weekly basis, and some component parts are tested daily. (Id.). He testified that when straps are tested to destruction, their fibers break and they make a popping noise. The broken ends of the fibers " blossom out." (Id. at 20). He testified that there are no expiration dates on the slings, nor any limit to how many times they can be used. (Id. at 24). He saw pictures of the incident strap, and indicated that he thought the strap had been cut. (Id. at 31). However, on reinspecting the photos during his deposition, he was no longer sure whether there was evidence that the sling had been cut. (Id. at 34).

Mr. Schroeder also testified to the safety warnings that accompany his products. The straps have an identification tag and a warning tag sewn into them. (Id. at 13). The leather identification tag is sewn into the strap on all four of the tag's sides. (Doc. 22-2, at 18). It lists the different " lifts," or configurations in which one can use the strap to lift or support something. (Id.). There is also a warning tag, with one of its sides attached to the strap, which contains more safety information, including how to inspect the sling, when to remove it from service, and how to use it. (Id. at 19). There is also a warning pamphlet included in the package with the strap. In this case, plaintiff testified that he never read or saw such a pamphlet. (Doc. 21-4, at 18).

Defendant produced the report of Donald Pellow, P.E., who opined that the sling failed because one of its plies had been cut through entirely and another partially. (Doc. 21-2, at 5). He concluded that the sling had been cut pulling against a sharp edge without having been properly protected. He concluded that it was likely that the sling was overloaded beyond its rated capacity when plaintiff was first attempting to lift the stuck equipment, which would have exacerbated the weakness caused by the sling being cut. (Id.). Mr. Pellow stated that plaintiff had not been properly trained in rigging nylon straps, and that he violated federal regulations and safety standards by failing to prevent cutting of the strap and overloading the strap. (Id.). He opined that the warning tag attached to the strap instructs and warns users on correct usage of the slings, as do several industry handbooks and catalogs. (Id. at 5-6). He opined that the strap contained no design or manufacturing defect, but that misuse caused the strap to break. (Id. at 6).

Plaintiff's expert, Eric Heiberg, P.E., stated that the warning tag had been removed from the strap involved in plaintiff's accident. (Doc. 31-1, at 5). He believed that this was because the warning label was only affixed to the strap on one of its sides and was therefore easy to remove intentionally or unintentionally. (Id.). He opined that defendant could and ...

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