Opinion
Cause No. IP01-1857-C-T/K.
August 20, 2004
ENTRY ON DEFENDANT GRACO'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
I. Introduction
Plaintiff, Justin Hall, is a painter by trade. In May of 2000, he bought an electric airless paint sprayer from a Porter Paint store, owned and operated by Defendant PPG Architectural Finishes, Inc. ("PPG"). The paint sprayer was a piece of equipment with essentially two key connecting parts, the sprayer pump and the spray gun. Both were manufactured by Defendant Graco, Inc. ("Graco"). On July 27, 2000, while attempting to clear a clogged spray tip on the spray gun, Hall received an injection injury to his finger, hand and arm as a result of the unintentional discharge of the spray gun. Hall sued Graco, PPG and the specific store where he purchased the paint sprayer in the Superior Court for Hamilton County, Indiana. He alleges negligence on the part of PPG and the paint store and a claim under Indiana's Product Liability statute against Graco. The case was removed to this court based upon diversity jurisdiction. Graco has now filed a motion seeking summary judgment in its favor.
II. Summary Judgment Standard
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party has the initial burden of showing that the record shows no genuine issue of material fact, but if the nonmoving party bears the ultimate burden of proof on an issue, then that party can avoid summary judgment only by setting forth "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324. The evidence is construed in the light most favorable to the nonmoving party and all reasonable inferences are drawn in that party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Only factual disputes that have a bearing on the outcome of the lawsuit, in light of the substantive law, will preclude summary judgment. JPM, Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). A mere scintilla of evidence in support of the nonmovant's position is insufficient; the question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. 251-52.
III. Factual Background
The Plaintiff purchased the paint sprayer at issue for the purpose of exterior residential applications. Prior to purchasing the paint sprayer, Hall understood that the paint or fluid in an airless paint sprayer is under considerable pressure and, as such, improper use of the sprayer could result in a painful and potentially life threatening injection injury. He understood he needed to follow the instructions provided with the equipment, including the instructions for the spray gun. And, within the first week of his use of the machine, Hall did review the instruction manual for the paint sprayer.
Among numerous warnings and task-specific directions, the instruction manual for the "Contractor FTx airless spray gun" provided the following warnings and instructions particularly relevant to what Hall was attempting to do when he was injured:
WARNING
INJECTION HARZARD
Spray from the gun, leaks or ruptured components can inject fluid into your body and cause extremely serious injury, including the need for amputation.
* * *
• Do not point the gun at anyone or at any part of the body.
• Do not put your hand or fingers over the spray tip.
* * *
• Always have the tip guard and the trigger guard on the gun when spraying.
* * *
• Be sure the trigger safety operates before spraying.
• Lock the trigger safety when you stop spraying.
• Follow the Pressure Relief Procedure on page 5 if the spray tip clogs and before cleaning, checking, or servicing the equipment.
Warnings, p. 3.
WARNING
INJECTION HAZARD
The system pressure must be manually relieved to prevent the system from starting or spraying accidentally. Fluid under high pressure can be injected through the skin and cause serious injury. To reduce the risk of an injury from an injection, splashing fluid, or moving parts, follow the Pressure Relief Procedure whenever you:
• Are instructed to relieve pressure,
• Stop spraying,
• Check or service any of the system equipment,
• Or install or clean the spray tip.
Installation/Operation, p. 5.
Pressure Relief Procedure
1. Engage the gun safety latch.
2. Turn the ON/OFF switch to OFF.
3. Unplug the power supply cord.
4. Disengage the gun safety latch. Hold a metal part of the gun firmly to a grounded metal pail. Trigger the gun to relieve pressure.
5. Engage the gun safety latch.
6. Open the system pressure drain valve. Leave the pressure drain valve open until you are ready to spray again.
If you suspect that the spray tip or hose is completely clogged, or the pressure has not been fully relieved after following the steps above, VERY SLOWLY loosen the tip guard retaining nut or hose end coupling to relieve pressure gradually, then loosen completely. Now clear the tip or hose obstruction.
Installation/Operation, p. 5.
HOW TO CLEAN THE SPRAY TIP AND CLEAR A SPRAY TIP OBSTRUCTION.
WARNING
To reduce the risk of fluid injection or splashing the eyes or on the skin, do not hold a hand, body or rag in front of the spray tip when cleaning or checking a clogged tip. Point the gun toward the ground or into a waste container when checking to see if the spray tip is cleared.
* * *
Cleaning During The Day
1. Follow Pressure Relief Procedure on page 5.
2. Clean the front of the tip frequently during the day to help reduce buildup. Also clean the tip and tip guard at the end of each workday. Use a solvent-soaked brush to clean the spray tip.
* * *
Clearing An Obstruction
If the spray tip clogs while spraying, immediately stop spraying, then:
* * *
1. Lock the gun trigger safety. Rotate the RAC IV tip handle 180° See figure 4.
2. Unlock the gun trigger safety. Trigger the gun into a pail or onto the ground to remove the clog.
3. Lock the gun trigger safety. Rotate the tip handle to the spraying position.
4. If the tip is still clogged, lock the gun trigger safety, shut off the sprayer and disconnect the power source, and open the pressure drain valve to relieve pressure. Clean the spray tip as shown in Manual 308-644, supplied with a RAC IV.
Installation/Operation, p. 7.
The evening before the accident, Hall had quit painting for the day and decided to leave the sprayer at the job site for the night. Although as a part of his usual cleanup activities at the end of the day he usually flushed out the sprayer system, he did not do so on this evening because he was tired. The following day he returned to the job site and began priming the sprayer for use. When he pulled the trigger on the spray gun that morning, nothing happened. At this point, Hall's recollection becomes unclear.
Although Hall recalls taking a number of steps to assist in determining if the spray tip on the gun was clogged and then some further steps to clear it, he is entirely unsure in what order he took the steps and whether or not the machine was powered up or whether the pressure drain/prime valve was open or closed at various critical points. It is undisputed that unless pressure is drained from the system in some fashion, simply cutting power to the unit does not eliminate the ability of the spray gun from operating when the trigger is activated. When the spray gun is activated the fluid that passes out the tip creates a high speed stream powerful enough to pierce a person's skin.
After Hall determined that the gun was not working properly, he attempted to clear the clog by utilizing what Graco calls its "Reverse-A-Clean Dripless Guard." The Reverse-A-Clean Guard has a small handle which can be turned to place the Guard in a spray position or clean position. Hall recalls that his attempt to clear the clog with the Reverse-A-Clean Guard switch did not work. He also recalls utilizing a pair of pliers in an attempt to move the spray tip to the clean position. In any event, Hall concluded that he was going to have to manually clean the tip in order to clear the clog so that the sprayer would work appropriately.
The Plaintiff used a hard brush in an attempt to remove the clog from the spray gun tip. In so doing he placed his fingertip on the brush to apply pressure directly over the tip. The spray gun is activated by a trigger mechanism which pushes actuator pins against an end cap to pull back a needle from its seat to release pressurized fluids. The design of the spray gun incorporates a trigger safety lock mechanism which, when engaged, prevents the trigger from causing the actuator pins to move. At the time Hall was attempting to clean and unclog the spray tip of the gun, he insists that the safety had been activated. Hall had checked the trigger safety on a number of occasions by aiming the gun away from himself and squeezing the trigger to see if the trigger safety actually held the trigger back from being engaged. However, while attempting to clean the tip, Hall claims he inadvertently touched the trigger and, despite the safety being engaged, the gun fired causing an injection injury which led to the amputation of a large portion of his index finger.
Experts for both Hall and Graco agree that there is a locknut which is a part of the spray gun and is used to adjust the relationship between the needle and its seat. If that locknut is intentionally tightened too far it can place the needle so far out of adjustment that the trigger safety does not function properly. In such a situation, activating the trigger mechanism, even with the safety in the on position, could cause the gun to discharge. Hall has testified that he never had an occasion to tighten or loosen this adjustment nut. He also claims that because he was the only person who used the paint sprayer, he is confident that no one else who worked with him tampered with the adjustment nut in any way. Experts for both sides agree that a needle that is properly adjusted cannot tighten to an out of adjustment configuration through ordinary use of the gun. The needle adjustment locknut would need to be intentionally tightened to near the furthest extreme of its range in order for it to have an effect on the function of the trigger safety.
In the fall of 2000, the paint sprayer was provided to an engineering expert retained by counsel for Hall for purposes of testing to determine if the spray gun could discharge while its trigger safety was engaged. According to the expert, the spray gun did fire under the same conditions as Hall described as existing at the time of his accident. In short, the sprayer gun fired when the trigger safety was engaged and the sprayer was disconnected from any power source.
IV. Discussion
All parties agree that Indiana substantive law applies in this matter. In Indiana all actions brought by a consumer or user against a manufacturer or seller for physical harm caused by a product, regardless of legal theory, are governed by Title 34, Article 20 of the Indiana Code. Ind. Code § 34-20-1-1. Article 20 provides that a product is defective if at the time of sale it is in a condition not contemplated by reasonable persons expected to use the product and that will be unreasonably dangerous to the user though used in a reasonable manner. Ind. Code § 34-20-4-1. The product can also be defective under the law if it is sold without proper warnings of any dangers about the product or with incomplete instructions on the proper use of the product. Ind. Code § 34-20-4-2. If an injury results as a result of handling or preparation for use that is not reasonably expected, the manufacturer is not liable. Ind. Code § 34-20-4-3.
Hall's complaint alleges that the paint sprayer was unreasonably dangerous as a result of a manufacturing defect, a design defect, inadequate warnings and instruction as well as negligent testing and marketing. There is no evidence of record to support the allegations of a manufacturing defect or negligent testing and marketing, and Plaintiff makes no argument in his briefing which would support the continued pursuit of such claims. Graco argues that there are five crucial reasons why the remaining claims of design defect and inadequate warnings should be laid to rest as well:
Graco's factory manager, Timothy White, provided an affidavit which states that a trigger guard would have been on the paint sprayer's gun at the time it left the manufacturing facility under regular manufacturing procedures. Hall has testified that he received the trigger guard at the time he purchased the paint sprayer, but it was not attached to the equipment. Rather it was provided in a separate package by the Porter Paint store. Since Plaintiff admits that the guard came with the sprayer and he chose not to install it, the court is not willing to treat the fact that it came separate as evidence of a manufacturing defect.
1. Plaintiff's misuse of the gun;
2. Alteration of the gun;
3. The reasonably safe design of the gun;
4. The misuse and alteration of the gun were unforeseeable; and,
5. There has been no feasible safer design proffered.
Under Indiana's product liability statutes there is a rebuttable presumption that a product is not defective if it was manufactured in conformance with the state of the art for safety associated with such a product at the time it entered the stream of commerce or complied with applicable codes. Ind. Code § 34-20-5-1. In addition, it is a defense to a product liability claim that a cause of the harm is a misuse of the product which is not reasonably expected by the seller at the time the product was sold or if the harm is caused by a physical modification or alteration of the product which is not reasonably expected by the manufacturer. Ind. Code §§ 34-20-6-4, 34-20-6-5. Whether or not the misuse or product alteration could be reasonably expected by the defendant is typically a question of fact for the jury. Morgen v. Ford Motor Co., 797 N.E.2d 1146, 1149 (Ind. 2003); Foley v. Case Corp., 884 F. Supp. 313, 316 (S.D. Ind. 1994). While reasonably unexpected product alteration is a complete defense, Foley, 884 F. Supp at 316, misuse by the party claiming damages has been an element of comparative fault, since comparative fault was added to Indiana's product liability statutory scheme in 1999. Ind. Code § 34-20-8-1; Chapman v. Maytag Corp., 297 F.3d 682, 689 (7th Cir. 2002); Barnard v. Saturn Corp., 790 N.E.2d 1023, 1030 (Ind.App. 2003).
State of the Art
Graco never specifically argues that its design was the state of the art with regard to the product's safety and specifically admits that it is not claiming that it complies with all applicable codes. So, it is a bit difficult to understand exactly what it attempts to accomplish with that portion of its brief wherein it makes the conclusory arguments that the design was "classic" and proper and the instructions were reasonable and adequate. Such an argument gains it no presumption that the product was not defective, nor is it sufficient to trump Plaintiff's contention that the product had a design flaw in that the trigger safety could be defeated by the over-tightening of the needle adjustment nut and this potential was not described in any warning.
Graco did submit a lengthy affidavit from its designated expert witness, James Motter, in forty-eight numbered paragraphs. Paragraph nine contains a statement to the effect that the sprayer's pump and gun were "in conformity with the generally recognized state of the art applicable to high-pressure spray guns and airless sprayers at the time they were designed, manufactured, packaged and labeled." Graco sets paragraph nine of the affidavit out as an uncontested fact in paragraph ninety-four of its designation of uncontested facts, so the court will infer that Graco believes it is entitled to the presumption. However, the paragraph Graco claims as an undisputed fact is neither undisputed nor truly a statement of fact. It is a contested legal conclusion.
Plaintiff has submitted the affidavit of his expert witness, Dr. Richard Stamper, which suggests that a relatively simple change in dimensions and tolerances or a minor modification to the safety pin would negate the sensitivity of the function of the trigger safety to the adjustment of the needle valve locknut. Graco's expert's affidavit provides no basis for the assertion that its safety design was state of the art other than a statement that it is a basic design used by many manufacturer's and that in all such designs the trigger safety can be similarly defeated. Further, Graco's expert says he is not familiar with any other injury occurring as a result of an over-tightened needle adjustment nut. The common custom and practice of an industry is not the "state of the art". Montgomery Ward Co. v. Gregg, 554 N.E.2d 1145, 1155 (Ind.App. 1990). State of the art suggests that it must meet the current level of sophistication of a technology. Id. Nothing in the alternatives presented by Hall's expert suggest that they are or were outside the realm of technological sophistication available when the sprayer was manufactured. The fact that Mr. Motter knows of no other similarly caused injuries is of no moment, especially with no particular foundation regarding the depth of his expertise in previous paint sprayer accidents.
Graco challenges Hall's expert in nearly every way it can. It suggests that he is unqualified because he has no experience with paint spraying equipment and little to no experience with product warnings. It claims his alternative designs are mere theoretical concepts, untested and subject to error. In addition, Graco maintains that no alternative warnings or instructions also demonstrate the value of his testimony as purely theoretical. Finally, Graco argues that the opinions are late in coming and consequently in violation of the expert witness disclosure rules and case management order.
However, Dr. Stamper has the type of specialized expertise and experience, both theoretical as a professor and researcher and practical as a practicing design engineer with General Electric, that the courts have found to meet the requirements of Fed R. Evid. 702. See, e.g., Walker v. Soo Line R. Co., 208 F.3d 581 (7th Cir. 2000). His expertise is of the sort that could be helpful to a jury in analyzing the propriety or reliability of the design of a safety mechanism such as a trigger safety on a sprayer gun. Further, though Graco would have Dr. Stamper take his proposed design changes and introduce them into the finished manufactured product, what is required of an expert is that his methods of testing, analysis and proposal of alternatives be consistent with the same intellectual rigor that characterizes the practice of an expert in his field. Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). There is nothing of record that would suggest that Dr. Stamper is less than a competent engineer with experience in design or that he employed a methodology unrecognized by those in his field in reaching his opinions and conclusions with regard to the design of the trigger safety. And, hands on testing of alternative designs is not essential to providing an expert opinion on design alternatives. Dhillon v. Crown Controls Corp., 269 F.3d 865, 870 (7th Cir. 2001).
Dr. Stamper has mentioned some experience in writing use and care instructions while working for General Electric, he has also clearly testified that he does not believe he would qualify as an expert in that area. And, to that end, the court agrees with Graco, that his testimony as to the sufficiency of the warnings or directions is of little value. However, whether or not a warning or product instruction is sufficient is a classic question for the jury and rarely an issue appropriate for summary judgment. Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind.App. 1997); Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1162 (Ind.App. 1988). Further, nothing in the law suggests that a determination of warning adequacy is dependent on expert testimony.
While Dr. Stamper lacks any experience in human factors or other area that might cloak his testimony with regard to whether or not the warnings and instructions provided with the product are effective or are "in conformity with the generally recognized state of the art applicable to the safety of the product" with the type of expertise that might allow his opinion to have some benefit for the jury in that regard, that does not mean his testimony that one of the instructions is simply wrong, could not be admissible, if the accuracy of the instruction is determined to be relevant at trial.
Finally there is Graco's contention that the Plaintiff has failed to divulge the various opinions held by his expert and, accordingly, should not be allowed to make use of those opinions. The court has examined the initial report of Dr. Stamper and that part of his deposition testimony that has been made a part of the record. Certainly, nothing proffered by the Plaintiff in response to the summary judgment motion, including the contents of the rebuttal affidavit of Dr. Stamper could be looked at as a surprise or unduly prejudicial to Graco's ability to respond. To the contrary, it appears to the court that the crux of his opinions are in his initial report with any expansion or added detail being very adequately disclosed or ferreted out through his deposition. The court finds no basis for it to rule that Hall can not utilize Dr. Stamper's testimony regarding faulty design or design alternatives and, accordingly, no basis to find that the product was "in conformity with the generally recognized state of the art applicable to the safety of the product". Ind. Code § 34-20-5-1.
Misuse
Graco argues that Hall misused the paint sprayer in numerous ways. It claims he ignored the instructions when he failed to clean the spray tip the night before the day the incident occurred. It also argues that it was misuse for Plaintiff to use the spray gun without attaching the second safety device for the trigger, the "trigger guard", which the warnings that came with the sprayer said should always be in place before the product is used. Graco goes on to argue that Hall's placement of his finger over the spray tip, despite warnings, and his apparent failure to keep the pressure relief valve open when cleaning the tip, as instructed by Graco, amount to misuse as well.
First, it should be pointed out that the failure to follow safety instructions or use a safety feature on a product can be misuse. Morgen v. Ford Motor Co., 797 N.E.2d at 1149. However, it is not misuse as a matter of law and, absent the most extreme circumstances, should be posited to the jury for determination as to whether such failure could have been reasonably expected by the manufacturer. Id. And, again, even if misuse is found to have occurred, it is then up to the jury to parcel it out with any other "fault" in rendering its verdict. Barnard v. Saturn Corp., 790 N.E.2d at 1031. It is certainly well within the bounds of reason for the fact finder in this case to determine that having a finger in front of the spray tip when cleaning it, not cleaning the tip immediately upon completion of spraying the day before or not attaching a safety device that came with the machine, but was unattached, were actions which the manufacturer could have reasonably expected to occur. Failure to follow the instructions by leaving the pressure relief valve open after relieving the pressure and while cleaning the tip sounds a bit closer to being misuse as a matter of law to the court. It does appear to be a near scientific certainty that this was, in part, a cause of the accident; however, Hall's testimony is that he can not remember whether he flipped the valve switch or not and, if he did turn the pressure relief valve back to the closed or spray position, the degree or percentage of fault to be accorded that action is left to the jury to decide, not this court. Indeed, the adequacy of the warnings may also have an effect on how the jury views the level of fault assignable to Hall.
Product Alteration
Graco contends that the product has been substantially altered since it left its control. It claims the trigger guard was taken off, a part of the tip guard had been removed and the needle adjustment nut had been tightened to the point of misadjustment. Graco argues the latter is of particular import because the accident could never have happened if the adjustment nut had not been tightened beyond the margin of safety, to the point that it may have negated the trigger safety.
The modification or alteration of a product must be independent of the expected use of a product in order for the modification or alteration defense to apply. Smock Materials Handling Co. v. Kerr, 719 N.E.2d 396, 404 (Ind.App. 1999). In Smock the platform of a new scissors lift installed at a factory fell onto the head of a worker who was attempting to repair the lift. Id. at 400. One of the arguments made by the manufacturer in defending against the product liability claim was that a sensor had been adjusted to a lower position than where it had been originally installed and therefore there had been a substantial alteration to the product. Id. at 404. However, the manual for the lift specifically provided that the sensor could be adjusted if necessary. Id. The Court of Appeals of Indiana ruled that the trial court did not err in refusing to give an instruction to the jury on the defense of alteration of the product because the fact that the product manual provided for the sensor to be adjusted negated any possibility that the manufacturer could claim that the alteration was not reasonably expected. Id.
The same is true here. There is no merit to any argument by Graco that tightening of the needle adjustment nut to its furthest extreme was an act that was not reasonably contemplated to occur. The manual for the spray gun provides a direction calling for the adjustment of the nut. It is a direction which Dr. Stamper maintains is not only confusing, but in error. And, while Hall says he never adjusted the locknut, the gun had to have been adjusted by someone by the time it was tested by Plaintiff's expert and found to be in such a condition that the adjustment nut had been tightened to the point that the function of the trigger safety was negated. Regardless of how or who tightened it, it was within the realm of reasonable expectation that such tightening could occur. Therefore a defense of unexpected alteration premised on tightening the adjustment locknut may not be maintained.
Hall has consistently maintained that he received the spray gun without the trigger guard attached. Graco has proffered an affidavit to the effect that all such guns would have the trigger guard attached when they left the manufacturing plant. There has been no attempt to enter into the record any explanation for why the guard was not on the gun. While it would seem an appropriate effort for the Plaintiff to undertake, by eliciting testimony from the personnel at the paint store where the equipment was purchased, we can not conclude that the record is free from a question of fact even now. Graco's plant manager does not have personal knowledge of the status of this particular spray gun at the time it left the plant. And, though his testimony with regard to plant protocol may be particularly compelling and Hall's recanting of circumstances less than such, all of that is dependent on an interpretation of witness credibility. Such interpretations are for the jury.
Finally, there is the contention by Graco that the tip guard on the gun at the time of the accident was missing an orange "duckbill" and that someone had to have removed it, thereby rendering the product unexpectedly altered. The orange duckbill apparently had a warning embossed on it, urging the user to keep clear of the tip. There is no allegation that the duckbill, if in place, would have prevented the accident. While Hall testified that the orange duckbill and tip may not have been on the spray gun when it was turned over to his expert witness, he also states that he is fairly certain that it was on the tip at the time he was attempting to clean it. In any event, there is no basis for the court to determine that there was an unexpected material alteration of the product as a matter of law.
V. Conclusion
While science tells us that the credibility of the Plaintiff's testimony is critical regarding what steps were taken during the depressurization and pressurization testing process as well as whether or not the trigger safety was engaged or the needle adjustment locknut tightened and that some skepticism is warranted, there remains the uncontested fact that the spray gun can fire if the needle adjustment locknut is tightened to the far end of its range. In addition, there is no warning that this can occur. Accordingly, it would be inappropriate for this court to grant summary judgment with regard to Hall's claims of product defect based on faulty design and/or inadequate warnings and instructions.
Graco's Motion For Summary Judgment is DENIED.
A trial date will be selected during a telephone conference to be held soon.
ALL OF WHICH IS ORDERED.