Opinion
CIVIL ACTION NO. 03-1725, SECTION "T"(1).
January 21, 2005
Before the Court is a Motion for Summary Judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure filed on behalf of the Defendant, Vector Technologies, Ltd. This cause came for hearing on December 29, 2004, without oral argument. The Court, having considered the arguments of the parties, the Court record, the law and applicable jurisprudence is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
Plaintiff was employed by Certified Coatings of California as a laborer performing grit collection on the Crescent City Connection bridge. The grit was used to blast old paint off the bridge, and at night the grit was collected by workers using high powered vacuums so that it could be reused the next day. In order to perform this task, Certified Coatings purchased three Vector VecLoader Model Titan 721 industrial vacuums (VecLoader 721).
On April 17, 2002, Plaintiff was injured when his arm was allegedly sucked into the end of the hose of one of the Vector vacuums. After Plaintiff immediately called for help, it allegedly took co-workers approximately 12-15 minutes to extricate his arm. Plaintiff was not able to remove his arm until one of his co-workers used a shovel or sledgehammer to crack the hose and release the pressure. As a result of the incident, Plaintiff has endured five surgeries on his arm resulting in deformities and claims to suffer from permanent pain, weakness and disability in the arm. Plaintiff then filed the instant action under the Louisiana Products Liability Act (LPLA), with jurisdiction by diversity of citizenship of the parties.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of the Defendant in Support of its Motion for Summary Judgment:
Defendant Vector Technologies, Ltd. (Vector) argues that it is entitled to summary judgment because the plaintiff cannot meet his burden of proof under the LPLA. Vector argues that there is no evidence that the VecLoader 721 was "unreasonably dangerous," as defined by La.R.S. 9:2800.54. Under the LPLA, a product is "unreasonably dangerous" if it is (1) defective in design, (2) defective in construction, (3) defective for lack of an adequate warning, or (4) defective for a lack of conformity to an express warranty. La.R.S. 9:2800.54 (2005). Vector argues further that there was no allegation that the VecLoader 721 involved deviated from the manufacturer's specifications or performance standards as described in La.R.S. 9:2800.55, nor was there an allegation that it failed to conform to an express warranty as described in La.R.S. 9:2800.58. Vector's main contentions are that the plaintiff has not met his burden of proving that the VecLoader 721 was defective in design under La.R.S. 9:2800.56 or defective for failing to provide adequate warnings under 9:2800.57.
First, Vector argues that the plaintiff has not met his burden for claiming that the VecLoader 721 was defective in design under La.R.S. 9:2800.56. Particularly, Vector asserts that the plaintiff has not demonstrated that the risks associated with the design of the VecLoader 721 outweighed both the costs of incorporating the alternative design and the decreased utility of the VecLoader that would result from the alternative design. According to the LPLA,
A product is unreasonably dangerous in design if, at the time it left the manufacturer's control:
(1) there existed an alternative design that was capable of preventing the claimant's damage; and
(2) the likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.
La.R.S. 9:2800.56 (2005). Vector claims that this, along with the Fifth Circuit's ruling in Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 183 (5th Cir. 1990), requires a plaintiff to produce a detailed cost/benefit analysis that weighs the gravity of the harm and its likelihood against the costs and effects on the utility of the product as a result of the alternative design. In Lavespere, the Fifth Circuit upheld a grant of summary judgment against a plaintiff who failed to provide an analysis of the frequency and cost of the accident against the loss of utility that would result from the proposed alternate design. Id.
Vector asserts that the VecLoader 721 is a high pressure vacuum designed to produce vacuums with negative pressures of up to 27 inches of mercury. Prior models could only achieve negative pressures of 16 inches. As a result, the VecLoader 721 could recover much heavier substances much more efficiently. Vector argues that the plaintiff's proposed alternative design, which would incorporate a type of emergency cut-off or "dead-man "switch or a pressure release valve as seen in older machines, as well as handles on the outside of the mouth of the hose, would significantly decrease the exact utility of the VecLoader 721 which makes it desirable. Vector further contends that the VecLoader 721 has two prominently placed warnings, one on the control panel and one above the vacuum intake, that warn users to keep hands, clothing, etc. away from the hose to avoid personal injury due to the powerful suction. Vector also notes that on page four of its manual there is a warning to refrain from placing "hands, face, clothing or any body part into or over any suction inlet when operating" as the powerful suction will cause "severe personal injury or death."
Vector next asserts that the VecLoader 721 was, in fact, equipped with an emergency cutoff switch which must be connected in order to operate the machine. Vector contends that, in this instance, the cut-off switch was mounted inside the containment adjacent to where the men were working and that a flexible cord was extended into the container such that if it were pulled, the switch would be disconnected. Vector contends that had this switch been manned by an employee, it would be an acceptable substitute for a true" dead-man" switch, which would deactivate the machine if released by the person at the end of the hose.
Also, Vector asserts that the proposed automatic pressure release valve would limit the utility of the VecLoader 721. Vector argues that the purpose of the VecLoader 721 is to move much heavier objects than previous vacuums and that by working at the higher pressures, the VecLoader 721 can clear itself of clogs. Vector contends that if the VecLoader 721 were to cut off at high pressures, it would negate the utility of having the hose in the first place. Vector contends that if this were the design, the VecLoader 721 would continually shut down, possibly as frequently as every five minutes, severely impeding the performance of the VecLoader 721.
Lastly, Vector asserts that it cannot be held liable for defective design for a lack of handles on the vacuum hose's nozzle because Vector distributed a Common Parts Catalog with its Owner's Manual that displayed several models of nozzles that have handles. Vector contends that the catalog also contains various hose reducers that would enable a user to fit a smaller nozzle on a large hose. Vector asserts that Certified Coatings knew of the existence of the various nozzles with handles and failed to purchase them.
Second, Vector argues that the plaintiff cannot survive summary judgement on his defective warning under La.R.S. 9:2800.57 because Certified Coatings is a sophisticated user of industrial vacuums. The LPLA states that
A manufacturer is not required to provide an adequate warning about his product when:
(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product's characteristics; or
(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.
La.R.S. 9:2800.57 (B) (2004). Vector argues that Certified Coatings was a sophisticated user of industrial vacuums, and consequently, Vector had no duty to provide warnings of the dangers in the VecLoader 721 to the plaintiff, an employee of Certified Coatings. Davis v. Avondale Industries, 975 F.2d 169, 172-73 (5th Cir. 1992). Vector contends that Certified Coatings had performed several hundred painting jobs since 1990 and had owned 27 inch industrial vacuums since 1995, although those previously purchased were not manufactured by Vector. Vector notes that Certified Coatings' president, John Wright, acknowledged that end users of the hoses were trained on how to handle the hose and how to safely move it without getting anything, including a body part, sucked into the end of it. Finally, Vector asserts that Certified Coatings knew of the dangers of using a high pressured industrial vacuum because one of its other employees sustained an injury using a similar vacuum in 1998. In that instance, the employee slipped and the vacuum attached itself to his leg, and then his genitals, causing a "suction abrasion." Therefore, Vector concludes that Certified Coatings should have known of the potential dangers of using the VecLoader 721, and accordingly was a "sophisticated user" of industrial vacuums such that its employee could not have a claim for inadequate warning under the LPLA.
B. Arguments of the Plaintiff in Opposition to Motion for Summary Judgment:
First, the plaintiff counters Vector's argument that the VecLoader 721 was not defective in design. The plaintiff suggests that there was, in fact, a viable alternative design that would have incorporated a vacuum relief valve at the time the VecLoader 721 left Vector's control, and that Vector, in fact, produced such industrial vacuums. The plaintiff asserts that Vector produced other models of smaller industrial vacuums, namely the Vector Model 522, which was used previously by Certified Coatings on prior jobs, that incorporated a vacuum relief valve that opens to allow air flow into the vacuum when the pressure reaches sixteen (16) inches of mercury. Unlike the 16 inch vacuum manufactured by Vector, however, the VecLoader 721 does not have the vacuum relief valve. In his testimony, Stephen Shoenberger, the president of Vector, acknowledged that the 16 inch vacuums incorporated this feature so that the air-cooled blower on that model vacuum would not overheat as a result of working at the high pressure. He later testified that the VecLoader 721 did not have such a valve because "you can't damage the machine."
Plaintiff presents the testimony of Charles Prewitt as an expert to refute Vector's claims that the inclusion of the vacuum relief valve, such as that incorporated into the Vector Model 522 vacuum, would hinder the efficiency of the VecLoader 721. In his deposition, Mr. Prewitt testified that not only would such a relief valve be feasible, but that he, in fact, had previously designed a vacuum with such a valve. Mr. Prewitt noted that Vector's own 16 inch Model 522 vacuum worked fine with such a feature. Mr. Prewitt further noted that, if frequent shut-downs were a concern, such a valve could be tied to a timing mechanism such that it only opened after the pressure in the vacuum reached a certain maximum level or remained at a certain level for a specified amount of time. Mr. Prewitt claims that such a feature would decrease any loss of utility of the vacuum because one would rarely try to clear a clogged hose for more than a couple of minutes.
Plaintiff contends that Mr. Prewitt's testimony is sufficient to create a genuine issue of material fact to make summary judgment improper. Plaintiff asserts that such a design would be economically feasible, since a vacuum relief valve is already present in 16 inch vacuums, would not significantly decrease the utility of the VecLoader 721, and would have prevented the extended suction on the plaintiff's arm that led to his injuries. Plaintiff argues that Vector does not even consider the safety of the VecLoader 721 but rather concentrates only on whether or not the machine could be damaged by working at high pressures. He argues that the likelihood of harm is great due to worker's close contact with the ends of the hoses, and that the gravity of harm is severe, evidenced by the plaintiff's own injuries. Nevertheless, Plaintiff refutes Vector's assertion that there be a detailed risk/benefit analysis and claims that his burden is only to "show that his alternative design would have been less likely to cause the damages." White v. Black Decker, Inc., 2004 WL 1373271, at *7 (E.D. La. 2004) (citing Bernard v. Ferrellgas, Inc., 689 So.2d 554, 560 (La.App. 3 Cir. 1997)).
In response to Defendant's assertion that there was an emergency cut-off switch that was extended into the working area, Plaintiff contends that the design was inadequate. Plaintiff noted the deposition of Mr. Shoenberger who attests that all Vector vacuums come with an emergency shutdown button with 100 feet of cord. He then admits, however, that there is no literature to substantiate that claim and that the VecLoader 721's manual does not mention such a switch. Regardless, Plaintiff noted that the VecL9oader 721 is designed to work with as much as 1200 feet of hose attached and that in this case workers were at least 300 feet from the vacuum unit. Plaintiff submits that the alleged 100 feet of emergency cord is inadequate.
Second, the plaintiff disputes Vectors "sophisticated user" defense because, if one even exists, it does not apply here. Plaintiff notes that the Fifth Circuit has recognized that it is unclear whether the LPLA perpetuates a "sophisticated user" defense at all. Swope v. Columbian Chem. Co., 281 F.3d 185, 206 n. 78 (5th Cir. 2002) (citing Black v. Gorman-Rupp, 655 So.2d 717, 722 (La.App. 4 Cir. 1995) ("The LPLA does not explicitly address this 'sophisticated user' concept, but instead speaks of 'the ordinary user or handler of the product.'")). Nevertheless, Plaintiff claims that Vector's allegations that Certified Coatings had previously used a similar machine on two occasions and that a worker in Hawaii had been injured when his leg and genitals were sucked into the hose are not sufficient to make Certified Coatings a "sophisticated user."
In Swope, the Fifth Circuit ruled that the use by the plaintiff company of a similar generator manufactured by a different company did not result or turn that company into a sophisticated user of the defendant's generator. Id. at 208-09. The Court concluded that a genuine issue of material fact existed because prior experience with other makes and models did not make one a sophisticated user.Id. at 209. Similarly in the case at bar, Plaintiff argues that Certified Coatings' use of other vacuums made by different manufacturers and operating at various pressures does not make it a "sophisticated user." Moreover, plaintiff argues that Vector has done nothing to show that Mr. Lozano or anyone working at the time was a sophisticated user of the product.
Furthermore, the plaintiff argues that Vector has not established that the VecLoader 721 provided adequate warnings if Certified Coatings and Mr. Lozano are not "sophisticated users." The factors to consider in determining whether a warning is adequate include: (1) the severity of the danger, (2) the likelihood of successful communication of the warning to foreseeable consumers, (3) the intensity and form of the warning, and (4) the cost of improving the strength or mode of the warning. Bloxom v. Bloxom, 512 So.2d 839, 845 (La. 1987). Similarly, the Fifth Circuit has ruled that to be adequate, a warning must (1) be properly worded to signify the intensity of the inherent danger in the product; (2) be properly placed on the product so that the consumer cannot avoid seeing it, and (3) convey to the consumer that injury or damage can result from a normal or intended use of the product. Hooker v. Super Products Corp., 751 So.2d 889, 905 (5th Cir. 1999) (citing Clark v. Jesuit High School of New Orleans, 572 So.2d 830 (La.App. 4 Cir. 1990), writ denied, 576 So.2d 48 (La. 1991)).
Plaintiff submits that the issue of whether the warning is adequate is an issue for the trier of fact. Here, Plaintiff argues that the warnings were placed on the base of the cyclone of the vacuum, hundreds of feet away from the end of the hose where injury is likely to occur. Plaintiff also argues that Vector did not provide adequate warnings of the danger and severity of injury as a result of having body parts sucked into a hose, did not provide instruction on the safe use of the hose nor instructions on how to shut down the machine in an emergency, did not provide notice of the lack of an automatic release valve as was incorporated in previous models, and did not provide any instructions in Spanish (as Plaintiff does not speak English). Consequently, Plaintiff contends that there is a genuine issue of material fact such that summary judgment is not proper.
III. LAW AND ANALYSIS:
A. Law on Rule 56 Summary Judgment:
The Federal Rules of Civil Procedure provide that a court should grant a motion for summary judgment only "if 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©). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56©), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts, and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. The Court's Analysis:
The plaintiff has presented the expert testimony of Charles Prewitt, P.E., of alternative designs for high pressure vacuums such as the VecLoader 721. Mr. Prewitt analyzed the feasibility of features such as a pressure relief valve and the effects that such a feature would have on the efficiency of the VecLoader 721. Plaintiff has also presented testimony which acknowledges that similar pressure relief valves are featured in other Vector model vacuums and have little or no effects on their productivity. As a result, the plaintiff has presented enough evidence that there is a genuine issue of material fact as to whether the VecLoader 721 was defective in design under the LPLA. Similarly, the plaintiff has made sufficient allegations to show that there is a genuine issue of material fact as to whether Certified Coatings and, in turn, Mr. Lozano were "sophisticated users" of the VecLoader 721, such that the plaintiff would be precluded from making a claim for inadequate warning under the LPLA. Therefore, it is inappropriate for these issues to be determined on a Motion for Summary Judgment and instead should be determined by the trier of fact at a trial on the merits.
IV. CONCLUSION:
For the foregoing reasons, the Court is of the opinion that summary judgment in favor of the Defendant is not appropriate at this time. The record taken as a whole could lead a rational trier of fact to find for the Plaintiff; therefore, there is a genuine issue of material fact for trial.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of the Defendant, Vector Technologies, Ltd., be and the same is hereby DENIED.