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Cruz Romero v. Itw Food Equipment Group, LLC

United States District Court, District Circuit

October 30, 2013




Plaintiff Waldimir Romero suffered severe injuries when his right hand became caught in the meat grinder he was operating in the course of his employment. He brought this strict product liability action against the manufacturer of the meat grinder, Defendant ITW Food Equipment Group, LLC, asserting design and warning defect claims. Now before the Court are (1) cross-motions for partial summary judgment on the defense of assumption of the risk, (2) Defendant's motion to exclude the testimony of Plaintiff's expert, Steven Kane, and (3) Defendant's motion for summary judgment on the merits. The motions are GRANTED in part and DENIED in part with the following result: Plaintiff's expert testimony is admissible only as to the warning defect claim and that claim alone may proceed to trial. The Court's reasons are set forth below.


The Hobart Model 4046, pictured below, is a heavy-duty commercial meat grinder used by grocers and other high-volume meat processing businesses. Model 4046 Specifications Sheet, Dkt. No. 24-2, at 1. When the Model 4046 is used as designed, pieces of cut meat are placed on the feed pan and slid under the guard over the opening to the feed cylinder, wherein the meat drops until it encounters the "worm, " an oversize screw that turns at 215 revolutions per minute. Id. The meat is pushed by the worm towards a rotating knife, which shears off pieces of meat and forces them through a plate, producing ground meat. The Model 4046 can process up to 60 pounds of beef per minute. Id.

The Model 4046 is equipped with a safety system to prevent operation without the guard in place. The feed pan, to which the guard is permanently attached, sits atop an interlock plunger that must be depressed in order for the motor to run. Model 4046 Instruction Manual, Dkt. No. 24-5, at 5. If the feed pan is removed, then the plunger is released and the machine is inoperable; if the feed pan is in place, then the plunger is depressed, the machine operates normally, and the guard prevents the operator's hand from making contact with the worm. Id.

Defendant's business records indicate that after November 1962, one warning label was to affixed "above Push Buttons and one in same location on opposite side of Housing" on each Model 4046. Materials List, Dkt. No. 24-3, at 335. The text of the label is printed below:

Affidavit of William Schlieper, Dkt. No. 24-3, ¶¶ 3-4. Although the Model 4046 here at issue left Defendant's control in 1967, Deposition of William Schlieper, Dkt. No. 23-6, at 80, the parties dispute whether it was in fact shipped with the warning label above, Plaintiff's Counter-Statement of Material Facts, Dkt. No. 27-3, at 3 ¶ 14. No warning label was on the machine at the time of the accident in 2009. Id.

Plaintiff, who is originally from El Salvador, began working for Moby Dick's House of Kabob in Washington, D.C. in late 2008 or early 2009. Deposition of Waldimir Romero ("Romero Depo"), Dkt. No. 23-5, at 8-9. Plaintiff used a Model 4046 to grind chicken and onions. Id. at 24-25. At his deposition, Plaintiff testified that he was not trained in the use of the Model 4046, was not given an instruction manual, and never saw any warnings on the machine or posted to the wall. Id. at 32-34. Instead, Plaintiff learned how to operate the Model 4046 by observing a co-worker. Id. at 33. Plaintiff observed the co-worker would remove the feed tray - to which the guard was attached - when grinding chicken because, Plaintiff surmised, the grease from the chicken made use of the feed tray difficult and time-consuming. Id. at 46-47, 53-55. Plaintiff therefore followed suit. Id. at 55. In order to defeat the interlock system, Plaintiff would set a bowl of chicken atop the plunger; he would then grab pieces of the chicken and throw them into the exposed feed cylinder. Id. at 56-58. Plaintiff testified that although he appreciated the danger of placing his hand inside the cylinder, id. at 58-59, he did not understand the purpose of the guard: "I didn't know that it was specifically to protect anything. I thought it was to maybe put something on top." Id. at 51.

On August 13, 2009, Plaintiff was standing on a step and using the unguarded Model 4046 to grind chicken. Id. at 62. Plaintiff testified that at some point his right leg suddenly bent forward, his right foot slipped off the step, and he fell forward towards the machine. Id. at 63-64. His right arm, which was slippery from the fat and grease of the chicken, went into the feed cylinder and his hand was pulled into the worm. Id. at 64. Plaintiff suffered severe injuries to his right hand, which required amputation. Id. at 83-84.

In September 2011 Plaintiff brought this action in the Superior Court of the District of Columbia; soon thereafter Defendant removed the case to federal court. Notice of Removal, Dkt. No. 1. Plaintiff asserts strict product liability, negligence, and breach of warranty claims arising from alleged design and warning defects in the Model 4046. Complaint, Dkt. No. 1, at ¶¶ 14-40. Plaintiff claims the Model 4046 is defective in design because the guard is too easily removable, the interlock is too easily defeated, and the diameter of the feed cylinder is too large; Plaintiff also disputes whether the particular Model 4046 at issue was shipped with warning labels but argues that even if it were, the labels were inconspicuously located, insecurely attached, and lacking in size and content. Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl's Opp. to MSJ"), Dkt. No. 27-2, at 14, 29-30. Plaintiff relies principally upon an opinion prepared by his engineering expert, Steven Kane, in order to support his claims. See Opinion of Steven Kane ("Kane Op."), Dkt. No. 28-4.

In October 2012, following unsuccessful efforts at mediation, the parties filed the three motions now before the Court. First, the parties cross-move for partial summary judgment on the defense of assumption of the risk. See Plaintiff's Motion for Partial Summary Judgment Regarding Affirmative Defense of Assumption of Risk, Dkt. No. 21; Defendant's Cross Motion for Summary Judgment ("Def's Cross Mot."), Dkt. No. 24. Second, Defendant moves to exclude the testimony of Steven Kane on the ground that it falls below the standard of reliability set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Defendant's Motion in Limine to Exclude the Opinions and Testimony of Steven Kane ("Def's MTE"), Dkt. No. 25. Third, Defendant moves for summary judgment on the merits, arguing that regardless whether Kane's testimony is admitted, Plaintiff's design and warning defect claims fail as a matter of law. See Defendant's Motion for Summary Judgment ("Def's MSJ"), Dkt. No. 22.


Jurisdiction in this court is founded upon diversity of citizenship: Plaintiff appears to be a domiciliary of Maryland, Defendant is a Delaware corporation with its principal place of business in Illinois, and Plaintiff seeks damages of $5 million. Notice of Removal, Dkt. No. 1, at ¶¶ 5-7; see 28 U.S.C. §§ 1441(a), 1332(a). "As a result, the substantive tort law of the District of Columbia governs this dispute." Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 553 (D.C. Cir. 1993).

Although Plaintiff put forth several theories of product liability in his complaint - strict liability, negligence, and breach of warranty - he presses only the strict liability claim in his briefs here. This makes sense. In the District of Columbia, "the doctrines of implied warranty and strict liability in tort are but two labels for the same legal right and remedy;" under either theory, "there is a liability imposed for injury caused by placing a defective product into the stream of commerce." Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 720 (D.C. 1985) (internal quotation marks omitted). Plaintiff's warranty claim therefore merges into his strict liability claim. In theory, negligence and strict liability are further apart: A negligence claim focuses upon the defendant's conduct, while a strict liability claim focuses upon the product itself. Warner Fruehauf Trailer Co. v. Boston, 654 A.2d 1272, 1277 n.13 (D.C. 1995). But where, as here, the allegedly negligent conduct is the sale of a defective product, negligence and strict liability are functionally the same. Both claims rise and fall with the alleged defect in the product itself. Cf. McNeil Pharm. v. Hawkins, 686 A.2d 567, 578 (D.C. 1996) ("[N]egligence and strict liability, in failure to warn cases, are functional equivalents"); Payne, 486 A.2d at 721-22 (same). At least for present purposes, then, Plaintiff's negligence claim also merges into his strict liability claim.

A. Assumption of the Risk

Defendant first argues Plaintiff assumed the risk of his injury by voluntarily bypassing the safety features of the Model 4046 despite knowing the danger of using the unguarded device. Specifically, Defendant claims Plaintiff "voluntarily removed the feed pan and guard assembly, intentionally defeated the interlock to run the meat chopper without a guard, and voluntarily stood on a slippery step with his right arm above the cylinder opening, " all while aware of the open and obvious danger that he might be injured if his hand came into contact with the worm. Def's Cross Mot. at 7. "In the District of Columbia, assumption of risk by the injured party, if established, is a complete bar to recovery in a strict liability action." Warner, 654 A.2d at 1274. Because the analysis is "heavily fact-based, " however, the Court will grant summary judgment only if "no real dispute exists as to the plaintiff's awareness of the relevant danger" and the moving party is entitled to judgment as a matter of law. Maalouf v. Swiss Confederation, 208 F.Supp.2d 31, 42 (D.D.C. 2002).

Defendant stumbles at the outset by incorrectly describing assumption of the risk under District of Columbia law. Defendant relies upon a formulation of the defense applicable in a negligence action, see Def's Cross. Mot. at 6-9, but the District applies a more demanding test where strict product liability is concerned. "[I]n order to establish an assumption of risk defense in a strict liability action, the defendant must show that the plaintiff knew of the specific defect in the product and was aware of the danger arising from it, but nevertheless voluntarily and unreasonably proceeded to use the product." Warner, 654 A.2d at 1275. The keystone of the defense is the plaintiff's subjective knowledge: The plaintiff must have "actual knowledge of the specific defect in question and of the danger created by the defect." Id. Thus, in Warner itself, the D.C. Court of Appeals held the plaintiff had not assumed the risk of a 1, 050-pound liftgate falling upon him even though it could be inferred that the plaintiff, a mechanic with 22 years of work experience and training in operating liftgates, "knew of the general danger associated with standing behind a liftgate." ...

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