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Mercurio v. Louisville Ladder, Inc.

United States District Court, M.D. Pennsylvania

June 1, 2018

DENNIS MERCURIO and COLLEEN MERCURIO Plaintiffs,
v.
LOUISVILLE LADDER, INC. Defendant.

          MEMORANDUM OPINION

          ROBERT D. MARIANI UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is 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.

         II. 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.

         On 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.

         On the 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.[1] 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 stood:

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?
A. Correct.
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.]
A. Un-huh.
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?
A. Yeah.
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[2], 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).

         Fournier 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.

         From 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.

         Foumier's 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 ...

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