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July 15, 1997


JUNE L. GREEN, United States District Court Judge

The opinion of the court was delivered by: GREEN

This matter is before the Court on Defendant Ingersoll-Rand Co.'s Renewed Motion for Judgment as a Matter of Law or, in the Alternative, Motion for a New Trial, and Plaintiff Cosandra Rogers' opposition thereto. For the reasons stated below, the Court denies Defendant's motion.


 This case is a products liability personal injury action. It came about following an incident on April 17, 1992, which injured Plaintiff Cosandra Rogers. Ms. Rogers is a resident of the District of Columbia. Ingersoll-Rand ("IR") is a New Jersey corporation. Ms. Rogers' employer, District Paving, was not a party to this action.

 At trial, Ms. Rogers sought both compensatory and punitive damages from IR claiming that she was seriously and permanently injured by the company's Model MT-6520 milling machine. Ms. Rogers asserted 1) that the milling machine was defectively designed because it was unreasonably dangerous at the time it was sold, possessing known dangers which required IR to provide safety devices to prevent foreseeable injury to those people who worked in close proximity to the machine; 2) that IR acted negligently in its design, manufacture, or sale of the milling machine; and 3) that the dangerous condition of the milling machine breached an implied warranty of merchantability by IR that it would design, make, and sell only milling machines that were safe and free of defects, and fit for their intended purpose. After the close of evidence, the Court held that Ms. Rogers had not proven claims or defenses available solely to her implied warranty cause of action, and that it therefore merged with her strict liability claim. The jury therefore was not given the breach of implied warranty of merchantability claim.

 IR denied that its machine was defectively designed, and denied liability to Ms. Rogers under any claim or theory. IR stipulated to the fact that the milling machine was potentially dangerous, but the company denied that the machine is unreasonably dangerous or defective due to a lack of mirrors, track guards, a kill switch, or a different mounting for its back-up alarm. IR said it was aware of these various devices, but made a determination that none would be effective in addressing the danger that would have prevented Ms. Rogers' accident.

 IR further stated affirmative defenses that 1) District Paving's negligent failure to maintain or properly operate the milling machine was a superseding cause and the proximate cause of Ms. Rogers' accident; 2) Ms. Rogers was herself contributorily negligent; and 3) that the failure of District Paving's milling machine operator, Terrell Wilson, to see Ms. Rogers was the proximate cause of this accident. At the close of the case, IR moved for a directed verdict as to liability and punitive damages. The Court denied the motion, reserving the right to visit the issue of punitive damages should the jury award them.

 Following a two-week trial and two-and-a-half days of deliberation, the jury returned a verdict for Ms. Rogers on both her negligence and her strict liability claims, and awarded compensatory damages in the amount of $ 10,200,000.00 and punitive damages of $ 6,500,000.00. The jurors answered 13 separate questions on a special verdict form, consistently finding IR liable for Ms. Rogers' injuries and damages. IR renewed its motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), and moved for a new trial under Fed.R.Civ.P. Rule 59.

 The evidence offered at trial was that on April 17, 1992, Ms. Rogers was working for District Paving as a flagger, the member of a road paving crew who directs traffic around repaving sites. Her duties required her to stand with her back to the rest of her crew members and the machines they were using, in order to flag oncoming vehicles around the machinery and the people working with it.

 District Paving purchased an IR Model MT-6520 milling machine in April 1991. The milling machine is designed to grind up asphalt by means of a series of metal teeth running under the main chassis. The MT-6520 does not have wheels, but moves on four tank-like "tracks" with metal grousers, or treads. It was one of these rear tracks which caused Ms. Rogers's injuries.

 Around noon on April 17, 1992, the road crew on which Ms. Rogers was working decided to make one last pass over a particular portion of roadbed before breaking for lunch. The milling machine operator, Terrell Wilson, stopped to avoid passing over some manhole covers, which could severely damage the "teeth" of the asphalt grinding mechanism in the undercarriage of the machine. In his deposition testimony -- which was read into the record at trial due to his unavailability -- Mr. Wilson said that he looked backward and saw Ms. Rogers to the rear and side of the machine, and that he then put the machine into reverse. From the right-hand side of the operator's platform, the side away from where Cosandra Rogers stood, Mr. Wilson could not see Ms. Rogers because she was in one of the milling machine's blind spots. Shortly after Mr. Wilson began backing up the machine, other workers started running toward him waving their arms and shouting. Ms. Rogers had been partially pulled under the machine track and severely injured.

 Ms. Rogers was taken to the Washington Hospital Center's MedStar Unit with extensive injuries to her left leg, hip, and abdomen. Her left leg was amputated above the knee, drains were put in her abdomen to help remove fluids, and metal rods were set in her pelvis in an attempt to stabilize the bones -- which had been pushed apart by the force of the impact of the milling machine. She suffered -- and is still afflicted by -- a prolapsed uterus and bladder problems. IR stipulated to the fact that Ms. Rogers' injuries were due to contact with the milling machine's track, and similarly stipulated that her injuries required surgeries that caused Ms. Rogers' to incur significant medical expenses, the amount of which IR did not contest at trial.

 Ms. Rogers spent three months in the Intensive Care Unit of the Washington Hospital Center, and the next two months at the National Rehabilitation Hospital undergoing intensive physical therapy. More than a year after her initial injury, she had a second pelvic surgery, to stabilize her pelvic girdle and left sacroiliac joint, in the hope that it would relieve the pain which kept her from being able to stand for long periods or walk for short ones. The surgery, her orthopedic surgery expert testified, relieved about 50% of her pain but did not give her the mobility she had hoped for.

 During her hospitalization and rehabilitation, Ms. Rogers' four children were sent to live with various relatives. She lost her apartment. When she was released, Ms. Rogers stayed for a time in one of her sister's homes, and later lived with other relatives on a temporary basis. She now lives with a female friend who acts as home care companion, in a ground-floor apartment that is wheelchair-accessible but not fully equipped for a disabled person. She is unable to walk, can stand only for brief periods due to ongoing pain in her hip and back, and will not be able to return to her job as a flagger.



 Jurisdiction over this case was founded on diversity of citizenship pursuant to 28 U.S.C. § 1332. As a result, the substantive law of the District of Columbia governs this dispute. (See Schleier v. Kaiser Found. Health Plan of the Mid-Atlantic States, Inc., 277 U.S. App. D.C. 415, 876 F.2d 174, 180 (D.C.Cir. 1989).

 Standard: Judgment As A Matter Of Law

 Because judgment as a matter of law intrudes upon the rightful province of the jury, it is highly disfavored. This Circuit has emphasized that "the jury's verdict must stand unless the evidence, together with all inferences that can reasonably be drawn therefrom is so one-sided that reasonable men could not disagree on the verdict." McNeal v. Hi-Lo Powered Scaffolding, Inc., 266 U.S. App. D.C. 473, 836 F.2d 637, 640-41 (D.C.Cir. 1988) (internal quotations and citation omitted); accord Richardson v. Richardson-Merrell, Inc., 273 U.S. App. D.C. 32, 857 F.2d 823, 827 (D.C.Cir. 1988), cert. denied, 493 U.S. 882, 107 L. Ed. 2d 171, 110 S. Ct. 218 (1989).

 Rule 50(a)(2) *fn1" , which governs the pre-verdict motion for judgment as a matter of law, requires the motion to "specify the judgment sought and the law and the facts on which the moving party is entitled to judgment." Rule 50(b) states that when the Court either denies or does not initially grant such a motion, the case is deemed submitted to the jury subject to the Court's later determination of the legal issues raised in the motion. The motion "may be renewed" later, under Rule 50(b). "The precise claim made in the motion for judgment n.o.v. must have been made in the motion for directed verdict." Whelan v. Abell, 310 U.S. App. D.C. 396, 48 F.3d 1247, 1251 (D.C.Cir. 1995)(quoting U.S. Indus., Inc. v. Blake Constr. Co., 217 U.S. App. D.C. 33, 671 F.2d 539, 548 (D.C.Cir. 1982)); accord Fed.R.Civ.P. 50 Advisory Committee's Note to 1991 Amendment (remarking that new language explicitly requiring specificity in Rule 50 motions works to "alter[] the result" in cases where a court, by allowing less specificity, effectively circumvented the requirement that the later motion be based on grounds raised in the earlier motion). Id.

 Renewed Motion for Judgment as a Matter of Law

 Defendant Ingersoll-Rand has renewed its motion for judgment as a matter of law or, in the alternative for a new trial on several bases, some of which were specified precisely in its motion for a directed verdict while others were not. With the holding from Whelan in mind, the Court addresses those claims properly before it on the renewed Rule 50 motion: IR's liability and the propriety of punitive damages.

 1) Strict Liability

 The D.C. Court of Appeals has adopted the principles of strict products liability set forth in section 402A of the Restatement (Second) of Torts. See Warner Fruehauf Trailer Co., Inc. v. Boston, 654 A.2d 1272 (D.C.App. 1995), and Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 720 & n. 6 (D.C.App. 1985)(citing Berman v. Watergate West, Inc., 391 A.2d 1351, 1356-7 (D.C.App. 1978) and Cottom v. McGuire Funeral Serv. Inc., 262 A.2d 807, 808 (D.C. 1970)). Section 402A imposes liability upon "one who sells any product in a defective condition unreasonably dangerous to the user or consumer," provided that (1) "the seller is engaged in the business of selling such a product," and (2) the product "is expected to and does reach the user or consumer without substantial change in the condition in which it is sold." Payne, 486 A.2d 712, 719-20. In order to recover, an injured plaintiff must demonstrate not only that the product is defective, but also that the defect proximately caused plaintiff's injury in that "but for the defect, the injury would not have occurred." Payne, 486 A.2d at 725.

 In Warner Freuhauf, the District of Columbia adopted a four-step test for determining whether a seller should be strictly liable in tort for a defectively designed product:

 1) the seller [must have been] engaged in the business of selling the product that caused the harm;

 2) the product [must have been] sold in a defective condition unreasonably dangerous to the consumer or user;

 3) the product [must have been] one which the seller expected to and did reach the ... consumer or user without any substantial change from the condition in which it was sold; and

 4) the defect [must have been] a direct and proximate cause of the plaintiff's injuries. Warner Fruehauf, 654 A.2d 1272, 1276. The opinion went on to analyze what constituted an unreasonably dangerous defect through the commonly-used risk/utility balancing test, which looks to "the risks, costs and benefits of the product in question and alternative designs" and compares "the magnitude of the danger from the product [to] the costs of avoiding the danger." Id. (quoting Hull v. Eaton Corp., 263 U.S. App. D.C. 311, 825 F.2d 448, 453 (D.C.Cir. 1987.)

 "Implicit in this analysis is that a court should weigh only those risks of a product against which a manufacturer has some duty to guard a worker, including those risks that emerge from the normal use of the product or objectively foreseeable misuse of the product." Ferguson v. F.R. Winkler GMBH & Co. KG, 316 U.S. App. D.C. 421, 79 F.3d 1221 (D.C.Cir. 1996)(quoting Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 726); cf. Young v. Up-Right Scaffolds, Inc., 205 U.S. App. D.C. 264, 637 F.2d 810, 814 (D.C.Cir. 1980)(finding no threshold duty to warn if risk is not reasonably foreseeable).

 Defense: Superseding Misuse/Foreseeability

 IR claims that District Paving's misuse of the milling machine was a superseding cause of Ms. Rogers' injuries. Use of a product in a manner which a manufacturer could not reasonably foresee is misuse under Payne v. Soft Sheen Products, 486 A.2d 712 (D.C. App. 1985).

 IR categorizes District Paving's misuses as those of improper maintenance, and a failure to operate the milling machine properly. There was no direct evidence at trial that District Paving improperly maintained its three IR Model MT-6520 milling machines; only conflicting testimony about whether the backup alarm on the milling machine was working at all or intermittently on the day of Ms. Rogers' injury.

 What was established was that Mr. Wilson, the operator of the milling machine, had looked to see that Cosandra Rogers was clear of the rear of the machine before he began backing up, but that he could not see her again from the opposite side of his platform while the machine was in motion. The jury found that District Paving had misused the milling machine (either through its maintenance and/or in the actions of its driver). The jurors also found that District Paving's misuse had been a proximate cause of Ms. Rogers' injury. However, the jurors found IR liable for Ms. Rogers' injuries and damages -- as they were allowed to do under the instructions they were given.

 Claiming that District Paving's misuse absolved it of liability in Ms. Rogers' injury, IR overlooks two things: 1) that it was the province of the jurors to determine the facts -- which they did; and 2) that in order for any misuse to relieve IR of its liability, that misuse must have been unforeseeable. While it was by no means shown that District Paving improperly maintained or failed to maintain its milling machine, the Court finds that the jury could have determined that a large-scale manufacturer of road construction machinery like IR should have reasonably anticipated that its machinery, subjected to "real world" conditions, might not be perfectly attended to in a clockwork fashion. By the same token, the Court finds that the jury could have determined that IR should have reasonably anticipated that human error might be a factor when humans are operating large machines, and that the company then had some duty to protect against such foreseeable human error in as many ways as possible -- some of which the jury might have found to have been proposed by Ms. Rogers' alternative safety design features. Under Ferguson, a manufacturer has a duty to protect workers from those risks that emerge from the normal use of the product. Certainly the evidence presented at trial and the testimony of IR's Frank Martinelli and Paul Willis -- about reports from service reps regarding non-functioning backup alarms, and a call to a coroner's inquest following a deadly milling machine incident more than a year before Ms. Rogers' injury -- coupled with the testimony of Herr Joachim Kobow about his demands in 1985 for more safety features on the milling machine he was buying, show an emerging risk of which IR was aware and against which IR had a duty to guard road crew workers.

 IR's claim that the Court failed to give a jury instruction to which it was entitled is without basis. Adequacy of the warning on the milling machine was not one of Ms. Rogers' claims against the company. Nor was it argued during trial. That the milling machine bore warnings from both IR and District Paving was mentioned during testimony. But Ms. Rogers did not claim the adequacy of IR's warning was a safety design defect. The jury ...

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