Opinion
Civil Action No. 03-0874 SECTION "N" (2).
June 15, 2004
ORDER AND REASONS
Before the Court are Black and Decker (US) Inc.'s Motion for Summary Judgment (Rec. Doc. No. 16), which was filed on January 26, 2004, and Black and Decker (US) Inc.'s Second Motion for Summary Judgment (Rec. Doc. No. 30), which was filed on March 30, 2004. As stated herein, the first motion for summary judgment (Rec. Doc. No. 16) is DENIED. The second motion for summary judgment (Rec. Doc. No. 30) is GRANTED.
The Court heard oral argument on the motions on March 3, 2004, and May 26, 2004, respectively.
Background
On April 2, 2002, Plaintiff, Kenneth White, suffered a serious eye injury while nailing trim onto the side of a window frame with a model D51238 pneumatic nailer (hereinafter "nail gun") designed, manufactured, and sold by defendant Black Decker (US) Inc., d/b/a DeWalt Industrial Tool Company (hereinafter "Defendant" or "Black Decker"). According to Plaintiff, the nail gun discharged one intended nail into the trim, and then immediately fired a second, unintended nail. The second nail, ricocheting off of a surface, was injected into Plaintiff's left eye.The nail gun used by Plaintiff was sold with both a bump or contact actuation trigger and a sequential actuation trigger. The nail gun comes pre-assembled with the bump action trigger already installed. The sequential trigger is not attached to the nail gun at the time of sale. Instead, it is contained in a small plastic bag that is physically strapped to the handle of the gun and is labeled "Sequential Trigger." Instructions for replacing the bump action trigger with the sequential action trigger are included in the plastic bag and in the instruction manual supplied with the nail gun.
See Instruction Manual at 2, Exhibit C to Black Decker (US) Inc.'s Memorandum in Support of Motion for Summary Judgment, dated January 26, 2004 (Rec. Doc. No. 16) (hereinafter "Defendant's January 26, 2004 Memorandum").
Id. at 2.
According to the instruction manual, the bump action trigger is "intended for rapid nailing on flat, stationary surfaces." It can be used in two ways: (1) place activation: the user depresses the contact tip of the tool against the work surface and then pulls the trigger; or (2) bump activation: the user pulls the trigger first and then repeatedly pushes the contact tip against the work surface to drive multiple nails in succession. The sequential trigger, on the other hand, is "intended for intermittent nailing where very careful and accurate placement is desired." It can be activated in only one way: the user must first depress the contact tip against the work surface and then pull the trigger to fire a nail. To fire another nail, the same sequence must be repeated again.
Id. at 3.
Id. Plaintiff's co-worker, Steve Turow, explained the two methods of using the bump or contact trigger in the following way: "You press the tip down and then pull the trigger or you pull the trigger and then bump the tip." See Transcript of October 22, 2003 Deposition of Stephen Robert Turow (hereinafter "Turow Testimony") at p. 67, Exhibit D to Plaintiff's Limited Opposition to Defendant Black Decker (US) Inc.'s Second Motion for Summary Judgment (Rec. Doc. No. 34), dated April 16, 2004 (hereinafter "Plaintiff's Limited Opposition").
See Instruction Manual at 3.
Id.
Regarding unintentional "double fires" of nails, which is what Plaintiff alleges occurred here, the instruction manual warns:
• When "place" actuating the tool with the "bump action" trigger, be careful of unintentional double fires resulting from the tool recoil. Unwanted fasteners may be driven if the contact trip is allowed to accidentally re-contact the work surface.
TO AVOID DOUBLE FIRES:
• Do not engage the tool against the work surface with a strong force.
• Allow the tool to recoil fully after each actuation.
Id. at 2. Plaintiff explains that inadvertent discharges of a second, unwanted nail typically occur in one of two ways. One, the operator holds the trigger depressed and unintentionally contacts the spring-loaded trip at the muzzle against himself or someone else. Two, the gun recoils, and the spring-loaded trip bounces up and then back down onto the work surface before the operator's finger can be removed from the trigger. See Plaintiff's Statement of Material Facts as to Which There is No Genuine Issue to be Tried (Rec. Doc. No. 34), dated April 16, 2004 (hereinafter "Plaintiff's April 16, 2004 Statement of Facts"), at p. 2, #18.
Thus, the instruction manual acknowledges the risk of double fires associated with the bump action, and suggests use of the sequential trigger, among other things, to avoid that problem. Plaintiff, however, was not the owner of the nail gun used at the time of his accident, had not purchased the nailer, and was not provided with the instruction manual, or the optional sequential trigger, for it.
The gun was purchased and owned by Steve Turow, Plaintiff's co-worker.
The instruction manual also warns that users of the nail gun, as well as other persons in the general area, should wear safety glasses, and states that approved safety glasses are imprinted with the characters "Z87." Although Plaintiff did not have access to the instruction manual prior to using the nail gun on the day of the accident, a warning instructing the nail gun operator to always wear "Z87.1 eye protection" appeared on the nail gun itself. There was also a fold-out piece of paper in the nail gun case providing a warning that apparently resembles the warning found in the instruction manual. Safety glasses were included with the nail gun.
See Instruction Manual at 1.
See Photographs of Nail Gun Warning, Exhibit C to Defendant's January 26, 2004 Memorandum.
See Defendant's January 26, 2004 Memorandum at 5; Transcript of October 21, 2003 Deposition of Plaintiff (hereinafter "Plaintiff's Testimony") at p. 28, Exhibit B to Defendant's January 26, 2004 Memorandum.
Plaintiff, an experienced carpenter of several years, had worked with nail guns for approximately 15 years. His father, also a carpenter, had taught him how to use a nail gun and instructed him not to point the gun toward his face or anyone else. Plaintiff also testified that he has read instruction manuals supplied with other nail guns, was well aware of the need to wear safety glasses while using a nail gun, and usually did wear safety glasses. In this instance, Plaintiff read the warnings on the nail gun and on the pull-out piece of paper instructing the user to wear protective glasses. Indeed, Plaintiff was given the safety glasses that came with the nail gun to use and, in fact, did wear them for a while on the day of the accident. He later removed glasses, however, because they had "fogged up" and obscured his vision. Thus, his eyes had no protection at the time of the unintended double firing of the nail gun.
See Plaintiff's Testimony at pp. 12-13.
Id.
Id. at pp. 14-16.
Id. at pp. 26-27.
Id. at p. 15.
Id.
Law and Analysis
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith 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(c). The materiality of facts is determined by the substantive law's identification of which facts are critical and which facts are irrelevant. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, a fact is material if it "might affect the outcome of the suit under the governing law." Id.If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986); see also Lavespere v. Liberty Mut. Ins. Co., 910 F.2d 167, 178 (5th Cir. 1990). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2553; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Auguster v. Vermillion Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001).
When considering a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002). Factual controversies are to be resolved in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." See id. (emphasis in original) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)).
Nor is the nonmovant's burden of demonstrating a genuine issue satisfied merely by creating "some metaphysical doubt as to the material facts," "by conclusory allegations," by "unsubstantiated assertions," or "by only a scintilla of evidence." Little, 37 F.3d at 1075. Rather, a factual dispute precludes a grant of summary judgment only if the evidence would permit a reasonable trier of fact to find for the nonmoving party. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002). In other words, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (internal quotation omitted).
To prevail in an action asserted under the Louisiana Products Liability Act (LPLA), La.R.S. 9:2800.51, et seq., a plaintiff must establish (1) that the product manufactured by the defendant possesses a characteristic that makes it unreasonably dangerous; (2) that the characteristic existed when the product left the control of the manufacturer or resulted from a reasonably anticipated alteration or modification of the product; (3) that the characteristic proximately caused the plaintiff's damages; and (4) that the damage arose from a reasonably anticipated use of the product. Wicker v. Ford Motor Co., 67 F. Supp.2d 623, 626 (E.D. La.) (citing La.R.S. 9:2800.54)), aff'd, 192 F.3d 127 (5th Cir. 1999). Liability may be imposed upon the manufacturer when a product is found to be unreasonably dangerous in construction or composition, in design, because of an inadequate warning, or for nonconformity to an express warranty. La.R.S. 9:2800.54; Bush v. J.C. Penney Co., Inc., 2002 WL 1160083, *1 (E.D. La. 2002).
The basis of Defendant's first motion for summary judgment is its contention that Plaintiff cannot satisfy the threshold requirement of demonstrating that his injury arose from a "reasonably anticipated use" of the nail gun. In its second motion for summary judgment, Defendant protests Plaintiff's assertion that the nail gun is unreasonably dangerous in design. Whether a plaintiff's damages arose from a reasonably anticipated use of the challenged product and whether that product is unreasonably dangerous are questions of fact. Scordill v. Louisville Ladder Group, LLC, 2003 WL 22427981, *7 (E.D. La.) (reasonably anticipated use); Hines v. Remington Arms. Co., Inc., 648 So.2d 331, 335 (La. 1994) (unreasonably dangerous). The claimant bears the burden of proof on both elements. La.R.S. 9:2800.54. I. Motion for Summary Judgment #1 — "Reasonably Anticipated Use"
Defendant's second motion for summary judgment also objects to Plaintiff's "inadequate warning" claim. Plaintiff has clarified, however, that he is not pursuing a claim based on the inadequate warning theory of liability. See Plaintiff's Supplemental Memorandum in Support of Its Limited Opposition to Defendant Black Decker (US) Inc.'s Second Motion for Summary Judgment (Rec. Doc. No. 40), filed April 28, 2004 (hereinafter "Plaintiff's Supplemental Memorandum"), at 1.
Defendant argues Plaintiff's use of its nail gun without safety glasses was not a "reasonably anticipated use," because it was contrary to warnings that Plaintiff admits reading. It further maintains that "Black Decker could reasonably expect that an experienced carpenter who is aware of the risk of eye injury that the ordinary use of a pneumatic nailer presents would wear the safety glasses that Black Decker provided with the nailer and that are specifically designed to protect user's eyes."
See Black Decker (US), Inc.'s Motion for Summary Judgment (Rec. Doc. No. 16), filed January 26, 2004, at 2.
The manufacturer's reasonable anticipation of plaintiff's use of the challenged product is a prerequisite to recovery under the LPLA. See Kampen v. American Isuzu Motors, Inc., 157 F.3d 306, 309 (5th Cir. 1998) (en banc). Absent a reasonably anticipated use, the Court need not consider whether the product was unreasonably dangerous in design, as Plaintiff contends the nail gun in question was.
In arguing that Plaintiff cannot satisfy this requirement, Defendant emphasizes Plaintiff's own knowledge, experience, training, and standard practices. For the following reasons, however, the Court disagrees that Plaintiff's personal experience, awareness of the risk of eye injury from using nail guns, and regular practice of wearing safety glasses preclude a jury finding that Plaintiff's use of the nail gun without glasses was reasonably anticipated by Defendant.
This is not to say, however, that such evidence would not be relevant in determining a plaintiff's comparative fault.
The term "reasonably anticipated use" is statutorily defined by the LPLA as "a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances." La.R.S. 9:2800.53(7) (emphasis added). The Fifth Circuit, en banc, has recognized that this definition is objective, not subjective, and refers to uses reasonably expected of an "ordinary consumer." See Kampen, 157 F.3d at 309; Lockart v. Kobe Steel Ltd. Constr. Mach. Div., 989 F.2d 864, 867 (5th Cir. 1993).
Had the Louisiana Legislature intended the standard for "reasonably anticipated use" to vary with the background, knowledge, experience, and typical practices of a particular plaintiff, it could have drafted the definition for that term in a similar fashion as La.R.S. 9:2800.57. That section of the statute, addressing when a manufacturer is obligated to provide an adequate warning about its product, refers to the "ordinary user and handler of the product with the ordinary knowledge common to the community as to the product's characteristic," as well as a "user or handler of a product [who] 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." See La.R.S. 9:2800.57. The drafters of the statute, however, chose to import only the "ordinary person" standard.
The Court notes that the now vacated panel opinion in Kampen discussed a reference in Lockart, 989 F.2d at 868, to the expertise or sophistication of the user in that case for purposes of the "reasonably anticipated use" inquiry. See Kampen v. American Isuzu Motors, Inc., 119 F.3d 1193, 1201 (5th Cir. 1997), vacated, 157 F.3d 306 (5th Cir. 1998) (en banc). In addition to concluding the Lockart reference was dictum because the Court also recognized the statute focused on the "ordinary person," the Kampen panel noted that the product in question in Lockart — bulldozing equipment — was designed to be used by an experienced operator. Id. Thus, the "ordinary user" of that product was an experienced user. On the other hand, the "ordinary user" of the product under attack in Kampen — a car jack — was anyone who drives a car.
Assuming arguendo that the experience and knowledge of a particular plaintiff can be considered for purposes of the "reasonably anticipated use" inquiry when the ordinary user of a particular product is an experienced user, there has been no suggestion here that nail guns like the one at issue are designed for use only by carpenters and other workers who operate them every day, and may receive some training — formal or informal — in proper usage. Rather, the Court understands that such guns are sold at home improvement and hardware stores to both experienced operators and individuals seeking them for "do-it-yourself" projects. Given the varying levels of familiarity had by these users with the operation and risks of nail guns, the Court does not find this matter to be one where it even arguably might be appropriate to decide whether the plaintiff's use was "reasonably anticipated" by considering that person's own heightened training, experience, and risk awareness, or the enhanced qualifications of the "typical" experienced user.
Turning to the warnings provided with the nail gun regarding the need for safety glasses, the Fifth Circuit in Lockart recognized that a manufacturer's warning against a particular use does not by definition make that use one that the manufacturer reasonably anticipates. See Lockart 989 F.2d at 866-67. On the other hand, as both parties have acknowledged, use of a product in contravention of an otherwise adequate warning also does not necessarily bar a successful products liability claim. As explained in the en banc Kampen decision, such a warning "is relevant to assessing what uses of its products a manufacturer reasonably anticipates," but will not defeat a claim if the plaintiff puts forth evidence showing that the manufacturer "should have known that its otherwise adequate warnings were being disregarded by product users in [a] particular way." Kampen, 157 F.3d at 314, 317 nn. 6-7.
Here, Plaintiff has put forth evidence based on which a jury could conclude that, notwithstanding its warnings, Defendant should have known that its nail guns are sometimes used without eye protection. Specifically, Plaintiff points to market research completed by Defendant in 1999 suggesting that approximately 50% of end users do not wear safety glasses, as well as testimony from a corporate representative that Black Decker knew, before manufacturing the nail gun in question, that "people sometimes do not want to use safety glasses." Plaintiff's expert, H. Boulter Kelsey, Jr., P.E., further maintains that, based on his experience, "[i]n spite of the virtually universal warning with respect to eye protection placed on nailers, circle saws and other power tools used in construction, it is common to see workers on construction sites using such tools without eye protection, or without adequate eye protection." He explains that he has "observed this in [his] visits to job sites over the last 35 years, particularly in residential construction."
See Transcript of January 27, 2004 Deposition of Russ Kwasigroh at p. 41 (hereinafter "Kwasigroh Testimony"), Exhibit E to Plaintiff Kenneth B. White's Opposition to Defendant Black Decker (US) Inc.'s Motion for Summary Judgment (Rec. Doc. No. 18), filed February 11, 2004 (hereinafter "Plaintiff's February 11, 2004 Opposition"), and Exhibit A to Black Decker (U.S.) Inc.'s Reply to Plaintiff's Opposition to Motion for Summary Judgment (Rec. Doc. No. 22), filed February 19, 2004 (hereinafter "Defendant's February 19, 2004 Reply"). Some of these persons, however, apparently do wear prescription eyeglasses, which provide some measure of eye protection. See Kwasigroh Testimony at 41-42; Defendant's February 19, 2004 Reply at 3.
See Transcript of January 27, 2004 Corporate Deposition of Black Decker (U.S.) Inc., by and through Daniel Montague (hereinafter "Montague Testimony") at p. 105, Exhibit F to Plaintiff's February 11, 2004 Opposition.
See Affidavit of H. Boulter Kelsey, Jr., Exhibit A to Plaintiff's Statement of Material Facts as to Which There Exists Genuine Issues to Be Tried (Rec. Doc. No. 18), filed February 11, 2004 (hereinafter "Plaintiff's February 11, 2004 Statement of Facts").
Id.
In response, Defendant contends that this evidence fails to demonstrate that it knew or should have known that its nail guns were being used without safety glasses, in contravention of its warnings, for purposes of this particular case. It first emphasizes that Plaintiff, an experienced carpenter who is well aware of the risks of eye injury associated with use of nail guns, is a regular user of safety glasses. Thus, argues Defendant, it is immaterial that "some subset of users" could be expected to disregard Defendant's warnings and not wear safety glasses.
See Defendant's February 19, 2004 Reply at 2.
Second, Defendant explains that it learned from this research "that the reasons some users did not wear the traditional safety glasses fell into two broad categories: (1) [those glasses] were big, bulky and not comfortable and (2) users . . . 'felt like they didn't look good in them.'" Based on this information, Defendant re-designed its glasses to have a comfortable fit and a "sporty look," which included a reflective coating on the lenses purportedly liked by interior trim carpenters such a Plaintiff. According to Defendant, the glasses provided with the nail gun used by Plaintiff were the new design and were not like the traditional, bulky safety glasses that were the focus of the market research referenced by Mr. Kwasigroh. In light of these changes, Defendant thus contends that it reasonably anticipated that "most users would wear the [newly-designed] safety glasses." Indeed, it emphasizes that some of its test kits were returned without the new safety glasses in them.
Id. (citing Kwasigroh Testimony at p. 42) (emphasis added).
See Kwasigroh Testimony at pp. 41-46.
See Defendant's February 19, 2004 Reply at 4.
See Montague Testimony at pp. 96-97.
Although Defendant's arguments regarding the evidence cited by Plaintiff have some appeal, the Court does not find that they preclude the existence of a genuine issue of material fact with regard to whether Plaintiff's use of Defendant's nail gun without safety glasses was a "reasonably anticipated use." As previously explained, the focus of this inquiry is on the "ordinary person," not on only experienced, professional users of nail guns. As for the changes made to the design and fit of Defendant's safety glasses, these changes likely did cause regular usage of the glasses — by inexperienced and experienced nail gun users — to increase. It is not clear, however, that these changes satisfied every user's objections to wearing safety glasses. In addition, the deposition testimony in question leaves open the possibility that some users of nail guns do not wear safety glasses for reasons other than their "look," fit, and comfort. For example, nail gun users may not wear safety glasses if visibility is inhibited because the glasses have "fogged up," or if the glasses simply have been forgotten or misplaced.
Hence, the Court concludes that a jury could find that Defendant reasonably anticipated that an ordinary person, under the same or similar circumstances as Plaintiff, would disregard the warnings provided on the nail gun and operate it without safety glasses. Accordingly, summary judgment is denied on this motion.
II. Motion for Summary Judgment #2 — "Unreasonably Dangerous Design"
The LPLA provides that a product is unreasonably dangerous in design if, at the time the product left the manufacturer's control: (1) there existed an alternative design for the product 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, on the utility of the product. La.R.S. 9:2800.56. 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. Id.
A. "Alternative Design"
The Court first disagrees with Defendant that it is entitled to summary judgment because a sequential trigger was provided as an optional feature, at no additional charge, with the nail gun in question. As clarified by Plaintiff's counsel at oral argument, the alternative design proposed by Plaintiff is one having only the sequential trigger, or, at least, one for which the sequential trigger is a standard feature and the bump action trigger is an included option. Defendant provided neither product.
B. "Preventing Claimant's Damages"
The Court likewise agrees with Plaintiff that he need not demonstrate that his proposed alternative design would completely prevent damages of the sort he suffered. Rather, he need only show that his proposed alternative design would have been significantly less likely to cause the damages. See Johnson v. Black Decker, 701 So.2d 1360, 1367 (La.App. 2 Cir. 1997), writ denied, 709 So.2d 741 (La. 1998); see also Bernard v. Ferrellgas, Inc., 689 So.2d 554, 560 (La.App. 3 Cir. 1997) ("the question is whether the alternative design would have reduced the plaintiff's injuries").
It is true that every nail fired — whether intended or not — by a nail gun might ricochet and cause injury to unprotected eyes. At the same time, equipping nail guns with only a sequential trigger, which would prevent or significantly reduce the likelihood of double fires, undoubtedly would have a some positive impact on the number of injuries suffered from the discharge of unintended second nails. Indeed, the Court again notes that the instruction manual provided by Defendant warns of a danger of double fires when using the bump action trigger, and recommends using the sequential trigger as one solution to this problem.
Although Plaintiff's counsel suggested at oral argument that the alternative design proposed by Plaintiff would include a nail gun equipped with only a sequential trigger, as well as a nail gun for which an included bump action trigger is an optional, rather than standard, feature, Plaintiff's analysis of the "prevention" element of his claim does not adequately address the latter arrangement. Specifically, if the user still can use the bump action trigger, rather than the sequential trigger, it is not clear to the Court, and Plaintiff has not demonstrated, that there would be significant reduction in potential injuries by having the bump action trigger as an included option, instead of a standard feature. This is particularly true given Plaintiff's recognition that "the vast majority of tools in the field" utilize a bump action trigger, rather than a sequential trigger, see Kelsey Testimony at p. 97, as well as the absence of any indication that users would be satisfied with the sequential trigger if they tried it. To the contrary, Plaintiff asserts that "[i]f given a choice, consumers are very unlikely to utilize the sequential trip with nail guns." See Plaintiff's April 16, 2004 Statement of Facts, p. 4, item #34. Indeed, one of Plaintiff's co-workers testified that he probably would replace a removable sequential trigger with a bump action trigger. See Turow Testimony at p. 67.
C. "Danger v. Utility"
Even if Plaintiff survives summary judgment on the first two "parts" of the "unreasonably dangerous design" test, the Court does not find that he has borne his burden on the third "part," which is demonstrating that the likelihood that the challenged design would cause the claimant's damage, and the gravity of that damage, outweigh the adverse effect adopting Plaintiff's proposed alternative design would have on the utility of the product. In reaching this conclusion, the Court first notes that there is undisputed testimony that the type of nail gun in question, a "brad" nailer, has less recoil than larger nail guns. This characteristic itself reduces the chance of double firing and, thus, the likelihood of the damages suffered by Plaintiff.
Given that Defendant already manufactures and markets a sequential trigger for its nail guns, the Court finds that adopting a gun equipped with only a sequential trigger would not present a significant burden to Defendant.
See Kelsey Testimony at pp. 98-99 (agreeing that the risk of firing an unwanted fastener is higher with larger framing nailer and stud nailer than with a finishing nailer because the finishing nailer has a much lower recoil force than the larger fasteners, and stating that larger fasteners with significantly larger recoil forces "have another variable that really isn't present in the finish nailer"); see also Plaintiff's Expert Report at 3 ("given the relatively low forces generated by the small 18 gauge brads we were unable to create a double fire as a result of recoil" when testing an exemplar tool).
Id.
In addition, as stated in La.R.S. 9:2800.56, the Court may consider an adequate warning provided with a product in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the warning to users and handlers of the product. Although the warnings on the nail gun itself, and on the fold-out paper found in the nail gun case, arguably should have specifically emphasized the risks of double fires and of possible bodily injury from ricocheting nails, the warnings did unequivocally instruct users to always wear ANSI Z87.1 eye protection. It also instructed that "the user must read and understand instruction manual" and that "failure to follow these instructions may result in serious injury." The manual likewise instructed users to always wear safety glasses and additionally warned of possible double firing. Significantly, Plaintiff, who bears the burden of proof at trial on this issue, has not put forth evidence demonstrating that the safety glasses provided by Defendant, if worn, would not have protected Plaintiff's eyes from injury.
See Photographs of Nail Gun Warning.
See Instruction Manual at 2.
Although Plaintiff's expert report suggests that the safety glasses provided with the nail gun were inadequate because of gaps between the glasses and the face of a mannequin, Plaintiff's expert does not advise how the same glasses fit Plaintiff. See Plaintiff's Expert Report at 8. Nor is it disputed that the glasses are of a wrap-around type and provide some side protection. In any event, there is no available evidence of the position of Plaintiff's face at the time of the accident or the exact angle at which the nail approached Plaintiff's eye. Plaintiff, however, has testified that the nail struck him in the center of his pupil. See Plaintiff's Testimony at p. 40. Given this testimony, there is no reason to conclude that the nail would not have hit the lens of the safety glasses if Plaintiff had been wearing them. This is significant because the safety glasses provided with the nail gun were labeled to indicate that they were manufactured in accordance with ANSI standards, which include standards regarding the lens' ability to resist penetration. See Kelsey Testimony at p. 94. Although Plaintiff's expert stated that he had not tested the impact resistance of the safety glasses, he testified that he had "no reason to dispute" that the glasses met the ANSI standards. Id. at 93-94. No evidence has been introduced that the glasses were not in compliance with the ANSI standards, moreover, or that those standards did not ensure adequate resistance to the penetration that occurred in this instance.
In sum, the Court finds that the relatively low recoil of this type of nail gun, and the warnings, together with the manufacturer's provision of safety glasses meeting ANSI standards with the nail gun, significantly reduced the likelihood of Plaintiff's damage, and the gravity of that damage. Should a user review the instruction manual prior to using the nail gun, moreover, and decide to exercise the option of utilizing the sequential trigger, the likelihood of damage from the challenged design would be further reduced.
Regarding loss of utility in adopting his proposed "sequential trigger only" alternative design, Plaintiff is correct that it is not always necessary for a plaintiff to detail and quantify the risk of the challenged design, and the impact that the alternative design will have on the product's utility, with objective and empirical evidence. Such evidence is not required, and a jury can be left to "'fill in the gaps' in the plaintiff's case," based on "'background knowledge" and "common sense,'" where the product, or the design feature at issue, is "relatively uncomplicated, and the implications of the change in design [are] such that a layman could readily grasp them." See Lavespere, 910 F.2d at 184; see also Krummel v. Bombardier Corp., 206 F.3d 548, 552, n. 4 (5th Cir. 2000) (same).
Here, however, evidence has been put forth suggesting that use of a sequential trigger, rather than the bump action trigger, reduces the speed at which consecutive nails can be driven. Specifically, Plaintiff's co-worker, Steve Turow, testified that, based on his experience, he would not buy a gun equipped with only a sequential trigger, and likely would replace a removable sequential trigger with a bump action trigger, because the time required to complete the sequence of actions required for use of a sequential trigger "would destroy" him financially.
See Turow Testimony at pp. 67-68.
Consistent with Mr. Turow's testimony, Defendant's expert witness, Terry D. Keith, maintains that use of a sequential trip trigger "will have a dramatic negative impact on the user's productivity." Mr. Keith's opinion is based on data he gained from a mobile home manufacturer that experienced a productivity decrease during a period in which it temporarily used sequential trigger tools. Mr. Keith additionally stated that, "based on [his] 28+ years in the business, [he knows] the overwhelming preference is for the bounce fire type tool because of desired productivity and versatility advantages." Indeed, Plaintiff's expert, Mr. Kelsey, similarly acknowledges that 95% of the tools in use have bump action triggers, rather than a sequential trip trigger.
See March 12, 2004 Expert Report of Terry D. Keith, d/b/a TDK Consulting (hereinafter "Defendant's Expert Report"), at 4, Exhibit E to Plaintiff's Limited Opposition.
Id.
Id.
See Kelsey Testimony at p. 97.
Although Plaintiff's expert, Mr. Kelsey, contrarily opines that any "productivity advantage of a contact trip [bump action] is of minimal importance," he does not provide adequate factual support or explanation for his position. In addition, Mr. Kelsey testified that he was unaware of any studies suggesting that there was not a productivity increase when using the bump action, as opposed to the sequential, trigger. Nor has he conducted any studies or tests to measure the difference in productivity between a sequential trigger and a bump action trigger.
Id.; see also Plaintiff's Expert Report at 11.
See Kelsey Testimony at pp. 73-74.
Id.
Plaintiff does cite deposition testimony provided by Defendant's expert, Mr. Keith, indicating that trim carpentry work, which is what Plaintiff was doing at the time of the accident, is "generally an application where precision nail placement is desired." Mr. Keith, however, also testified that such work is "high production work." Given only these two statements, with no other explanation or evidence, the Court does not find a basis for concluding that use of the bump action trigger is always unnecessary or inappropriate with all finish carpentry and trim work, as Plaintiff appears to attempt to suggest. In fact, the Court notes that, because of time considerations, Plaintiff's co-worker, Mr. Turow, specifically objected to the notion of having only a sequential trigger for use with trim work.
See Keith Testimony Supplement at p. 91.
Id.
See Plaintiff's Supplemental Memorandum at 9.
See Turow Testimony at p. 68.
Except as discussed in the preceding two paragraphs, Plaintiff has put forth no evidence contrary to that suggesting a nail gun equipped with only a sequential trigger would have a significant negative impact on productivity. Rather, he proposes to simply have a sequential trigger nail gun, as well as a bump action nail gun, demonstrated at a trial so that the jury can draw its own conclusions regarding any adverse effect on utility from using the sequential trigger. The Court, however, does not find "the mere chance" that the jury will find in Plaintiff's favor on this issue — based on a demonstration at trial — to be sufficient to allow that issue to be decided by a jury. To the contrary, Plaintiff must show a factual basis exists for such a determination. He has not.
The Court finds that Plaintiff has not borne his burden, under Rule 56(e), of setting forth specific facts showing that there is a genuine issue for trial in terms of whether the danger of the nail gun in question, as presently designed, outweighs the adverse impact adopting Plaintiff's alternative design would have on utility. Accordingly, Defendant's second motion for summary is granted.
Conclusion
For the reasons stated herein, the Court finds that a genuine issue of material fact exists as to whether Plaintiff's use of the nail gun manufactured by Defendant was "reasonably anticipated" by the manufacturer. Given this, Defendant's January 26, 2004 motion for summary judgment (Rec. Doc. No. 16) is DENIED. The Court also finds, however, that Plaintiff, who bears the burden of proof at trial, has not demonstrated a genuine issue exists with respect to whether Defendant's nail gun was unreasonably dangerous in design. Accordingly, Defendant's March 30, 2004 motion for summary judgment (Rec. Doc. No. 30) is GRANTED, and Plaintiff's action is DISMISSED WITH PREJUDICE.