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Stowers v. 529900 Ontario Ltd.

United States District Court, W.D. Virginia, Lynchburg Division

March 28, 2018

Corey M. Stowers, Plaintiff,
v.
529900 Ontario Limited, ET AL., Defendants.

          MEMORANDUM OPINION

          Norman K. Moon Judge

         Defendant, 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”[1] 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.

         Defendant 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 question.

         I. Factual Background

         a. The Incident

         The 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).

         The 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).

         After 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.

         In his 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. Id.

         b. The Expert Reports

         Pursuant 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).

         Several 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.

         Plaintiff 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.

         II. Motion to Strike

         Defendant 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.

         a. Legal Standard

         Expert 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. Civ.

         P. 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 ...


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