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Elgert v. Siemens Industry, Inc.

United States District Court, E.D. Pennsylvania

August 21, 2019

SEAN ELGERT, Plaintiff,
v.
SIEMENS INDUSTRY, INC., et al., Defendants.

          OPINION

          Slomsky, J.

         I. INTRODUCTION

         Plaintiff Sean Elgert ("Plaintiff or "Elgert") initiated this strict products liability suit after he was severely injured while repairing a conveyor machine at a UPS facility. He sued the manufacturers, producers and distributors of the machine, Defendants Siemens Industry, Inc., Siemens Postal, Parcel & Airport Logistics, LLC, and Dematic Corp. ("Defendants" or "Siemens Dematic") in the Court of Common Pleas of Philadelphia County. He alleged two claims: (1) strict liability under § 402A of the Restatement (Second) of Torts, pursuant to Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), and (2) negligence. The case was removed to this Court based on diversity of citizenship jurisdiction.

         On August 1, 2018, Defendants filed a Motion to Preclude Plaintiffs Expert Thomas Cocchiola From Offering Any Warning, Safety Communication and Alternative Design Opinions at Trial. (Doc. No. 29.) Plaintiff opposed the Motion (Doc. No. 31), and Defendants replied (Doc. No. 33). On March 20, 2019, the Court entered an Opinion and Order denying Defendants' Motion to Preclude Plaintiffs Expert Thomas Cocchiola From Offering Any Warning, Safety Communication and Alternative Design Opinions at Trial, pursuant to Daubert v. Merrell Dow Pharmaceuticals. Inc.. 509 U.S. 579 (1993). (Doc. Nos. 47, 48.)

         Before the Court is Defendants' Motion to Reconsider the Court's Order Denying the Motion To Preclude Plaintiffs Expert Thomas Cocchiola From Offering Any Warning, Safety Communication and Design Defect Opinions at Trial (Doc. No. 51), Plaintiffs Response in Opposition (Doc. No. 58), and Defendants' Reply (Doc. No. 60). For reasons stated below, the Motion to Reconsider will be denied.

         II. BACKGROUND

         Plaintiff was a mechanic at the United Parcel Service ("UPS") facility in Horsham, Pennsylvania. (Doc. No. 29-2.) On July 7, 2015, he was servicing a LOA-24 conveyor machine, which is a device that has three extendable and retractable sections called booms. (Id. at 3.) When the booms are fully extended, they form a conveyor belt that moves down an inclined ramp to transport pre-sorted packages. For operation and maintenance purposes, the machine can be controlled by the expansion and retraction of the boom sections. (Id.)

         On the day of the incident that gave rise to this lawsuit, Elgert "locked out" the machine before he began replacing its parts, which means he disengaged all of the electrical energy sources so that the booms would not extend. (Doc. No. 31-1 at 2.) After replacing a part on the left side of the machine, he proceeded to change the corresponding part on the right side. (Id.) He put his left hand on the left side of the machine to maintain stability. (Id.) The machine unexpectedly extended by the force of gravity, despite the fact that it was electronically "locked out." In this regard, even when a machine is "locked out," parts of it are still holding what is known as stored energy due to its position relative to other objects. Four fingers on Elgert's left hand were crushed by the booms, and later amputated. (Id. at 2-3.)

         On March 23, 2017, he sued Defendants alleging strict products liability and negligence claims due to the LOA-24's defective design. (Doc. No. 1 at 13-24.) Plaintiff proceeded on a risk-utility theory of strict liability under the Pennsylvania Supreme Court's decision in Tincher v. Omega Flex. Inc.. 104 A.3d 328 (Pa. 2014). Specifically, Elgert claimed that Siemens Dematic was responsible for the defective design of the LOA-24 in accordance with the factors relevant to the risk-utility analysis set forth in Tincher. The factors are: (1) the usefulness and desirability of the product - its utility to the user and the public as a whole; (2) the safety aspects of the product - the likelihood that it will cause injury, and the probable seriousness of the injury; (3) the availability of a substitute product which would meet the same need and not be as unsafe; (4) the manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; (5) the user's ability to avoid danger by the exercise of care in the use of the product; (6) the user's anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions; and (7) the feasibility, on part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. Tincher, 104 A.3d at 398.

         In support of his position, Plaintiff retained Thomas Cocchiola, P.E., C.S.P[1] to render an expert opinion. (Doc. No. 31-1 at 3.) Cocchiola is a well-qualified engineer. He has earned a Bachelor's degree in mechanical engineering from Villanova University, where he was a member of Pi Tau Sigma, an honorary mechanical engineering fraternity.[2] (Doc. No. 31-7 at 2-3.) He also holds a Master's degree in Business Administration. (Id.) Additionally, he is a licensed professional engineer in New Jersey, New York and Pennsylvania. (Id.) He is a board-certified professional, and a member of the American Society of Mechanical Engineers, the National Society of Professional Engineers, the National Academy of Forensic Engineers, and the American Society of Safety Engineers. (Id.) Cocchiola served as an adjunct professor at the New Jersey Institute of Technology until 1999. (Id.) Since 1976, he has worked as a consulting engineer. (Id.)

         Cocchiola prepared a written report based on inspections of the Siemens Dematic LOA-24 conveyor involved in the accident, documents produced in discovery regarding the accident, authoritative safety standards and references, and his education, professional training and experience. (Doc. No. 31-2 at 4.)

         His opinion had two main conclusions. (Id.) They are: (1) the LOA-24 was defectively designed, and (2) there were feasible alternative designs that could have successfully eliminated the stored energy risk that caused Elgert's injury. (Id. at 3-28.) He concluded that Defendants should have equipped the machine with energy isolation devices to prevent the release of stored mechanical energy during maintenance and repair of the LOA-24 in accordance with American National Standard Institute ("ANSI") regulations. (Id. at 16-19.) In particular, Defendants should have provided an energy isolating device to prevent the telescoping boom sections from extending due to the force of gravity. (Id.) Additionally, he found that the machine's manual did not include a recommendation for type or location of energy isolating devices to be used to anchor the booms, despite Defendants' awareness of the hazard. (Id.)

         In relevant part, he opined:

The Siemens Dematic LOA-24 was defectively designed because it lacked energy isolation devices for safely securing conveyor boom sections during maintenance and repairs. Energy isolation devices were necessary for securing boom sections during maintenance in accordance with safety standards (ANSI/ASSE Z244.1) and recommendations.
The LOA-24 specifically lacked properly identified integral energy isolation devices (e.g., latch pins, vertically and horizontally stop bars, cross member latches) or non-integral energy isolation devices (e.g., safety blocks, props, clamps, and come-alongs) that would enable workers to prevent boom section movement due to the force of gravity.
Siemens Dematic should have provided energy isolation devices to restrain stored potential energy due to gravity consistent with ANSI/ASSE Z244.1.
The failure of Siemens Dematic to equip the LOA-24 with energy isolation devices unnecessarily exposed workers to a risk of injury and is inconsistent with acceptable engineering practice.
The Siemens Dematic LOA-24 was defectively designed because the lockout section in the service manual did not address hazards due to gravity and did not include information and recommendations for energy isolation devices.
The Siemens Dematic lockout section should have specifically addressed hazards due to gravity and included specific energy isolation device recommendations in accordance with ANSI/ASSE Z244.1.
Siemens Dematic failed to provide information and energy isolation device recommendations needed for the development of safe lockout procedures. The LOA-24 service manual should have included the type of instructions and recommendations for "approved" energy isolation devices that were included in Bulletin #56.
The failure of Siemens Dematic to specifically address gravity-related hazards and to provide energy isolation device recommendations unnecessarily exposed UPS mechanics to a risk of injury and is inconsistent with acceptable engineering practice.
The Siemens Dematic LOA-24 was defective because it lacked adequate safety warnings in the service manual and on the conveyor. Siemens Dematic should have displayed a mechanical lockout warning addressing gravity (e.g., CEMA warning) in the lockout and base repair sections. Siemens Dematic should also have displayed a lockout warning addressing gravity hazards (e.g., CEMA warning) along with the electrical lockout warning next to the LOA-24 electrical disconnect switch.
The failure of Siemens Dematic to display safety warnings that specifically address the need to restrain gravity related hazards unnecessarily exposed UPS mechanics to a risk of injury and is inconsistent with acceptable engineering practice.

(Doc. No. 31 -2 at 22-23.) Cocchiola submitted that a pin system could have been used to prevent boom section movement. ("Id.) In his deposition, he stated that the pin should be L-shaped, six inches long, and three-quarter inches in diameter to adequately sustain the weight of the booms. (See Doc. No. 31-3) He said that holes in two spots on corresponding sides of the conveyor could accommodate the pins. (Id. at 6.)

         On August 1, 2018, Defendant filed a Motion to Preclude Cocchiola's testimony, arguing that it is inadmissible pursuant to the standard set forth in Daubert v. ...


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