United States District Court, M.D. Pennsylvania
D. MARIANI UNITED STATES DISTRICT JUDGE
a products liability action arising from Plaintiff Dennis
Mercurio's fall from a stepladder designed and
manufactured by Defendant Louisville Ladder, Inc. Mr.
Mercurio fell from the ladder while he was attempting to fix
a light during the course of his employment. Plaintiffs claim
that Mr. Mercurio's injuries are due to the ladder's
manufacturing, design, and warning defects. Plaintiffs Mr.
Mercurio and his wife, Colleen Mercurio, brought five claims
in state court: (1) strict liability, (2) negligence, (3)
express warranty, (4) implied warranty, and (5) loss of
consortium. Doc. 18-1. On March 8, 2016, Defendant removed
the action to this Court on diversity grounds. Doc. 1.
Subsequently, Defendant filed a motion for summary judgment
in conjunction with a motion in limine to preclude Plaintiff
expert Stephen Foumier. Docs. 17, 20. For reasons set forth
below, the motion in limine will be denied without prejudice
subject to a Daubert hearing, and the motion for
summary judgment will be granted in part and denied in part.
Statement of Undisputed Facts
Defendant has submitted a Statement of Material Facts as to
which it submits there is no genuine issue or dispute for
trial. Doc. 18. Plaintiffs submitted responses to the
Statement of Material Facts. Doc. 27. The following facts are
not reasonably in dispute except as noted.
April 29, 2014, during his employment with Price Brothers
Electrical Contractors, Mr. Mercurio fell off an 8 foot
fiberglass stepladder while attempting to fix a light. Doc.
18 ¶ 3. The ladder was manufactured by Defendant and
purchased by Mr. Mercurio's employer, Price Brothers,
prior to the accident. Id. ¶ 7. The ladder is
an A-frame ladder with a step attached every 12 inches along
the rails. Id. ¶ 9. The non-climbing side has
horizontal braces that connect between the side rails.
Id. The ladder also has a mid-rail with
"spreader braces on each side that allow the ladder to
fold." Id. The ladder was intentionally
designed with some flexibility (i.e. "racking") to
ensure that all four feet of the ladder may be set up
"on surfaces that are not completely flat or
level." Id. ¶ 10.
day of the incident, Mr. Mercurio attempted to replace a
light above the rear entrance to the Jackson Township
Maintenance Building. Id. ¶ 17. Mr. Mercurio is
familiar with the ladder at issue and has read its warnings
and instructions, having used it on prior occasions.
Id. ¶¶ 19-20. Mr. Mercurio set up the rear
of the ladder against the building, and climbed on the front
to unscrew the light on the building. Id. ¶ 28.
He climbed back down the steps to take a light out of his
truck to determine the drilling needed for the new light.
Id. ¶ 29. He climbed the ladder a second time
and placed the new light on the building, but descended again
to retrieve a screw that he dropped. Id.
¶¶ 31-32. Mr. Mercurio then ascended the ladder for
the third time, and as he was attempting to get the
screwdriver from his pocket, he felt the ladder twist to the
left under him, and tumbled down the steps with the ladder.
Id. ¶¶ 33, 36. A key disputed issue in
this case is whether Mr. Mercurio was on the third or fourth
step of the ladder at the time of his fall. See,
e.g., ¶¶ 28, 31. Defendant's statement of
facts claims that Mr. Mercurio testified at deposition that
he was on the third step of the ladder when he fell. However,
a review of the deposition transcript reveals that Mr.
Mercurio did not recall with certainty which step on which he
Q. And I think I understand what you were telling me. But
when you climbed the ladder, you climbed it so that the top
cap of the ladder was at about middle of your chest?
Q. Can you tell me how many steps you would have to climb to
make that? Was it the fifth step or the fourth step from the
bottom or - can you tell us?
A. I would say probably the fourth step.
Q. Okay. And we're going to count from the bottom, okay?
[references a picture of the ladder.]
Q. So one, two, three, fourth step, right where the spreaders
- right below where the spreaders attach?
A. One down, I would believe.
Q. One down?
Q. So you think it's actually the third step?
A. Probably so, yeah. Actually if I had a shorter ladder, I
would have been using that one.
Doc. 27-1 at 64-65. Thus, the record is unclear as to whether
Mr. Mercurio was on the third or fourth step of the ladder-a
significant issue of fact, since the only expert in this
case, Mr. Stephen Fournier, found that during
testing conducted on an exemplar ladder, "the ladder did
not move when [the lab technician] reached the 3rd step...
[but] the ladder did move when he reached the fourth
step." Doc. 27-2 at 7 (emphasis added).
opined that the ladder suffered a design defect because it
demonstrated an ability to move into "an unstable
three-point of contact position" while a user is on the
ladder, causing it to move unexpectedly. Id. at
12-13. This "ability to move unintentionally during the
mounting of the stepladder made it defective, unfit for
ordinary use, and unreasonably dangerous in a manner that was
a cause of Mr. Mercurio's fall and injuries."
Id. Fournier proposed an alternative design for the
ladder by adding "stiffener connections to the spreader
assembly" of the ladder, which would reduce "the
potential for the stepladder to move into unstable and
dangerous three-point positions." Id. at 13. In
reaching these conclusions, Fournier conducted two types of
ANSI [American National Standards Institute] design
verification tests: a racking (i.e. flexibility) test and a
torsional stability test. Id. at 5. Both tests on
the subject ladder complied with ANSI standards. Fournier
also performed a test he designed, called a "simulated
use test, " where he "attempted to duplicate, as
closely as possible, a staged work activity where the ladder
user activities could be viewed simultaneously with the
position of the ladder feet." Id. The test was
essentially comprised of Fournier's lab technician
climbing onto an exemplar ladder five times in a simulated
environment, and videotaping the ladder's movements.
Id. at 6. During testing of the subject ladder, the
ladder moved into three point contact in all five tests.
Id. The technician then climbed on the ladder five
more times with Fournier's proposed design modification.
Id. The ladder moved into three-point contact in two
of the five tests. Id. At deposition, Fournier
testified that his "dynamic in-use" testing method
did not have a written protocol, though he gave the technical
verbal instructions. Doc. 18-10 at 16.
observing the videotapes, Fournier concluded that "the
amount of racking permitted by the modified ladder was 82% of
that sustained by the unmodified exemplar ladder." Doc.
27-2 at 6. He further opined that had Defendant
"performed certain simulated use tests, such as the
testing [he] performed, [Defendant] would have known that the
Ladder can achieve unsafe conditions and that these unsafe
conditions can cause ladder users to fall and be injured,
" though his only basis for this conclusion appears to
be that he "had not been provided any evidence that
[Defendant] conducts any testing above and beyond those
called out in the ANSI standards." Id. at 11.
Fournier opined that mere compliance with ANSI standards is
insufficient, because they represent "minimum
standards" and "do not accurately reflect the
forces and loading conditions imposed on a ladder under the
conditions that Mr. Mercurio was imposing to the stepladder
at the time of his fall." Id. at 10.
report does not contain any opinions on the manufacturing or
warning label defects in the ladder. In his deposition,
Fournier admitted that he did not find manufacturing defect
in the ladder in his report:
Q. Was the subject ladder inspected by someone at your
direction to rule out a manufacturing ...