United States District Court, W.D. Virginia, Lynchburg Division
Corey M. Stowers, Plaintiff,
529900 Ontario Limited, ET AL., Defendants.
K. Moon Judge
529900 Ontario Limited operating as Yoke-Niagara's
(“Defendant”), moves to strike Plaintiff Corey
Stowers' (“Plaintiff”) rebuttal expert report
and for summary judgment. (Dkts. 38, 39). Plaintiff, an
employee of Georgia-Pacific Corporation (a Third-Party
Defendant), claims a “hasp” manufactured by
Defendant failed to prevent a machine he was working on from
starting up and injuring him. Plaintiff filed suit in
Campbell County Circuit Court alleging breach of the implied
warranty of merchantability, negligent design, and failure to
warn. (Dkts. 1, 17). Alleging diversity of citizenship
jurisdiction, Defendant removed the case to this Court.
claims Plaintiff's rebuttal expert report, written by Dr.
Michael Huerta (“Huerta Report”), should be
excluded because it raises a new theory of defect. (Dkt. 39
at ECF 5). Defendant also moves for summary judgment,
contending that Plaintiff's theory of liability fails as
a matter of law, and that federal conflict preemption
eliminates Defendant's duty to account for reasonably
foreseeable misuses. (Dkt 41 at ECF 10). Because the Huerta
Report rebuts Defendant's expert report, I will deny
Defendant's motion to strike. I will also deny
Defendant's motion for summary judgment because federal
law does not preempt Defendants duty to reasonably foresee
misuses of its product and the defense of misuse is a jury
following facts are not in dispute. Plaintiff was a
maintenance worker at Georgia Pacific Corporation's
Gladys, Virginia plant. (Dkt. 43-2 at ECF 4). On the day of
the incident, two groups were performing maintenance in two
separate “Areas” of the plant. (Dkt. 41 at ECF
7). In “Area 3, ” a small group of employees,
including Plaintiff, were working on Conveyor 4220.
Id. Plaintiff's group was specifically tasked
with reinstalling a “drive chain” on the
conveyor. Id. In “Area 2” another small
group of employees was also performing maintenance.
Id. The maintenance conducted by both groups
required multiple circuit breakers to be “locked out,
” or disabled with a hasp. (Dkt. 43-2 at ECF 4; Dkt.
43-1 at ECF 3).
circuit breaker for “Conveyor 4220” needed to be
locked out by both groups. (Dkt. 43-1 at ECF 3; Dkt. 43-2 at
ECF 4). First, the group in Area 2 placed a hasp on the right
lockout hole of the Conveyor 4220 circuit breaker. (Dkt. 43-1
at ECF 3; Dkt. 43-2 at ECF 4). Then, Plaintiff's group in
Area 3 placed a hasp through the left lockout hole of the
same circuit breaker. (Dkt. 43-1 at ECF 3; Dkt. 43-2 at ECF
4). A picture taken after the incident by Georgia Pacific
Corporation shows that the hasp was locked into place.
Several additional locks, including identification cards of
the Plaintiff and his fellow workers, were also affixed to
the hasp. (Dkt. 43-2 at ECF 27-28).
the group in Area 2 completed their maintenance, one of its
members returned to the breaker room to switch on several
breakers. (Dkt. 41-1 at ECF 23-25). He first removed the hasp
on the right hole of the breaker, and inexplicably switched
the breaker from the “off” to the
“on” position, notwithstanding the hasp from the
Area 3 group that was still attached to the left lockout
hole. Id. This energized the partially installed
drive chain that Plaintiff was working on, causing it to
strike Plaintiff in the head and arm repeatedly. Id.
deposition, Mr. Jeffrey Mays, Georgia Pacific
Corporation's Health and Safety Manager, testified that
it was “common practice” to use only one of the
lockout holes on the circuit breaker when using a hasp. (Dkt.
41-1 at ECF 23). The type of hasp in question had been used
in the plant for six months prior to the accident.
(Id. at ECF 28-29).Georgia Pacific Corporation
assumed that the hasp would prevent the equipment from being
energized when placed through only one lockout hole.
The Expert Reports
to Federal Rule of Civil Procedure 26(a)(2), Plaintiff
provided Defendant with a written report from two experts,
Dr. Dennis L. McGarry and Dr. Nicholas Biery,
(“McGarry-Biery Report”). The McGarry-Biery
Report posited two main conclusions: (1) “There was no
apparent mechanical failure (fracture) of the hasp”;
and (2) “[t]he inherent flexible nature of the plastic
from which the hasp was manufactured appears to have allowed
the switch to be engaged, even with the safety lock in
place.” (Dkt. 39-3 at ECF 1-2).
months after the McGarry-Biery Report, and after additional
discovery had been conducted, Defendant provided Plaintiff
with its own expert report from Mr. Gary Mullis
(“Mullis Report”). Among other things, the Mullis
Report concluded that Georgia Pacific failed to comply with
Occupational Safety and Health Administration
(“OSHA”) regulations regarding the use of hasps
and that the cause of the accident was the misapplication of
the device-placing the hasp through only one hole when it was
designed to be placed through both. In other words, it was
not a defect in its design, material, or manufacturing.
responded to the Mullis Report by filing the Huerta Report.
The Huerta Report concluded that the “breaker can
easily be energized when [Defendant's] hasp is installed
in [only one] lock out hole.” (Dkt. 39-4 at ECF 14).
Further, the Huerta Report concluded that had the diameter of
the hasp been thicker, then the breaker could not have been
activated when the hasp was looped through only one hole on
the breaker. Id. The Huerta Report also concluded
that putting a properly designed hasp through only one lock
out hole is an “effective method” of preventing
activation of the breaker. Id.
Motion to Strike
moved to strike the Huerta Report under Rule 37(c)(1),
claiming that its contents do not “echo
[Plaintiff's initial expert report's] theory nor
rebut any of the opinions and conclusions of [Defendant's
response report].” (Dkt. 39 at ECF 5). Defendant
challenges “merely that the [Huerta Report] does not
conform to the Federal Rule.” (Dkt. 39 at ECF 6 n.9). I
find that the rebuttal report does contradict the conclusions
found in Defendant's response report, and therefore I
will deny Defendant's motion to strike.
disclosures “must be accompanied by a written report,
” containing “a complete statement of all
opinions the witness will express and the basis and reasons
for them.” Fed.R.Civ.P. 26(a)(2)(B). Rule 26 further
provides that such disclosures, in the absence of a
stipulation or a court order, must be made “if the
evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by
another party under Rule 26(a)(2)(B) . . . .” Fed. R.
26(a)(2)(D)(ii) (emphasis added). If a party fails to comply
with Rule 26(a), “the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was ...