Dixon v. Home Depot U S A Inc et al

Filing 129

RULING re 75 MOTION in Limine to exclude Plaintiff's experts, Darry Robert Holt and Stephen Gass filed by Home Depot U S A Inc, Ryobi Technologies Inc, One World Technologies Inc, and Techtronic Industries North America Inc, 76 MOTION for Summary Judgment filed by Home Depot U S A Inc, Ryobi Technologies Inc, One World Technologies Inc, and Techtronic Industries North America Inc, and 99 Sixth MOTION in Limine (Exclude Testimony of Stephen Gass) filed by Home Depot U S A Inc, Ryobi Technologies Inc, One World Technologies Inc, and Techtronic Industries North America Inc. Signed by Judge Robert G James on 5/13/15. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
DANIEL L. DIXON

CIVIL ACTION NO. 13-2776

VERSUS

JUDGE ROBERT G. JAMES

HOME DEPOT U.S.A, ET AL.

MAG. JUDGE KAREN L. HAYES
RULING

This is a products liability case bought by Plaintiff Daniel Dixon (“Dixon”) pursuant to the
Louisiana Products Liability Act (the “LPLA”) against the Home Depot U.S.A., Inc. (“Home
Depot”), Ryobi Technologies, Inc. (“Ryobi”), One World Technologies, Inc. (“One World”), and
Techtronic Industries Co., Ltd. (“Techtronic”) (hereafter collectively referred to as “Defendants”).
Pending before the Court are Defendants’ Motion in Limine to Exclude Experts Darry Robert
Holt (“Holt”) and Dr. Stephen Gass (“Dr. Gass.”) [Doc. No. 75], Defendants’ Motion in Limine to
exclude Dr. Gass’s prior trial testimony [Doc. No. 99], and Defendants’ Motion for Summary
Judgment [Doc. No. 76].
For the following reasons, Defendants’ Motion in Limine to exclude Holt and Dr. Gass is
GRANTED IN PART and DENIED IN PART. The Motion in Limine to exclude Dr. Gass’s prior
trial testimony is GRANTED. The Motion for Summary Judgment is GRANTED IN PART and
DENIED IN PART.
I.

FACTS AND PROCEDURAL HISTORY
On January 7, 2011, Dixon was injured while operating a table saw, model BTS 12S (“the

saw” or the “BTS 12S”), manufactured by Ryobi. Dixon purchased the saw from the Home Depot
in Monroe, Louisiana, in September 2009 for approximately $150.00.

It is not entirely clear whether a “kickback” caused Dixon’s injuries. A “kickback” occurs
when the rear quadrant of the spinning saw blade catches the workpiece and either violently throws
it back towards the front of the saw or lifts the workpiece vertically. During a kickback, the
operator’s hand often follows its current trajectory and is pulled into the saw blade. The Consumer
Protection Safety Comission (“CPSC”), the governmental entity charged with overseeing table saw
safety, estimates that table saws caused approximately 30,000 injuries in 2008.1 [Doc. No. 81, Exh.
2, ¶ 21]. The CPSC attributed 40.5% of those injuries to kickbacks. Id.
When asked whether a kickback had caused his accident, Dixon testified in his deposition
that “[I]t happened so quick, I don’t know if it was a kickback or not.” [Doc. No. 76, Exh. C,
Deposition of Daniel Dixon (“Dixon Depo.”), p. 27]. However, two of Dixon’s experts, Holt and
Kelly Mehler (“Mehler”), opine that Dixon’s accident was most likely the result of a kickback. These
experts also opine that the kickback was most likely caused by the saw’s defective design.
Defendants have moved to exclude Holt’s opinions, but do not challenge Mehler’s opinions.
The BTS 12S was equipped with a spreader-mounted blade guard, intended to prevent
kickbacks, that consisted of three pieces: a spreader (a piece of metal sitting behind the blade, often
referred to as a “splitter”); a hood guard attached to the spreader; and anti-kickback pawls, which
are also attached to the spreader.
Holt opines that the saw was defectively designed primarily because the saw’s spreader

1

This figure is consistent with the CPCS’s estimates from other years. See [Doc. No. 81,
Exh. 2, ¶ 22].
2

mechanism is too flexible and wobbly,2 because it does not include a rise-and-fall riving knife3 or
a tuning fork,4 and because the saw does not have “Sawstop” flesh detection technology. Sawstop
flesh detection technology causes a blade to stop and retract in milliseconds if it comes into contact
with human skin.
Holt states that the riving knife is superior to the splitter on the subject saw because it is
much sturdier and leaves less of a gap between the workpiece and the blade, which he opines
significantly reduces the chance of a kickback. [Doc. No. 80, Exh. 2, Holt Declaration, p. 5, ¶ 24].
Moreover, Holt is of the opinion that Dixon’s hand approached the blade from the front, and, as
such, states that a tuning fork likely would have prevented the injury. Id. at ¶ 13. Mehler presents
similar opinions.
Flesh detection technology was on the market, but had not yet been integrated into table saws
similar to the BTS 12S in 2009. The technology was developed by Dr. Gass, an expert Defendants
move to exclude in two separate motions in limine. See [Doc. Nos. 75 & 99]. Although Dixon
designated Dr. Gass as an expert, he has refused to testify.
On December 19, 2014, Defendants filed a motion in limine to exclude Dr. Gass’s and Holt’s
opinions and testimonies. [Doc. No. 75]. On January 23, 2015, Dixon filed an opposition
memorandum. [Doc. No. 80]. Defendants filed a reply. [Doc. No. 88].
Also on December 19, 2014, Defendants filed the instant Motion for Summary Judgment.

2

Holt opines that the flexibility of the spreader mechanism increases the likelihood of a
kickback, instead of preventing it.
3

A riving knife is a crescent-shaped piece of metal that sits directly behind the blade.

4

A tuning fork is a metal guard that sits above the blade and is designed as a frontal
barrier, preventing the operator’s hand from contacting the blade on a direct approach.
3

[Doc. No. 76]. On January 23, 2015, Dixon filed an opposition memorandum[Doc. No. 80], to
which Defendants replied. [Doc. No. 88].
On February 2, 2015, Defendants filed a second motion in limine regarding Dr. Gass, moving
the Court to exclude Dr. Gass’s declaration and prior trial testimony from other cases. [Doc. No. 99].
Dixon filed a memorandum in opposition [Doc. No. 110]; both parties filed supplemental
memoranda. [Doc. Nos. 121 & 122].
II.

LAW AND ANALYSIS
A.

Motions in Limine

Under Federal Rule of Evidence 702, an expert opinion on scientific, technical, or specialized
knowledge can be admitted only if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is the product of
reliable principles and methods; and (d) the expert has reliably applied the principles
and methods to the facts of the case.
FED. R. EVID. 702. When faced with expert scientific testimony, the court must determine at the
outset if the proponent of the evidence has proven its admissibility by a preponderance of the
evidence. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 n. 10 (citing FED. R. EVID.
104(a) and Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)). Under Rule 702, a district court
has considerable discretion in deciding whether to admit or exclude expert testimony. See Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (“[W]e conclude that the trial judge must have
considerable leeway in deciding in a particular case how to go about determining whether particular
expert testimony is reliable.”); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-9 (1997) (reviewing
district court’s determination under abuse of discretion standard).
4

Reliability and relevance, under Rule 702, are the hallmarks of admissible testimony from
an expert witness. Daubert, 509 U.S. at 589; In re MBS Mgmt. Servs., Inc., 690 F.3d 352, 357 (5th
Cir. 2012) (“[T]he trial judge serves as a gatekeeper to ensure the reliability and relevance of expert
testimony.”). In making its reliability determination, the court must assess whether the “reasoning
or methodology underlying the testimony is scientifically valid.” Curtis v. M&S Petroleum, Inc., 174
F.3d 661, 668 (5th Cir. 1999). Regarding relevance, the court “must determine whether that
reasoning or methodology can be properly applied to the facts in issue.” Id. (Citing Daubert, 509
U.S. at 592-93). “The district court’s responsibility is ‘to make certain that an expert, whether basing
testimony upon professional studies or personal experience, employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an expert in the relevant field.’” Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002) (quoting Kumho, 526 U.S. at 152)). However,
the focus of reliability “must be solely on principles and methodology, not on the conclusions they
generate.” Daubert, 509 U.S. at 595.
1.

Holt
a)

Qualifications

Defendants move to exclude Holt’s testimony and opinions in their entirety on grounds that
he is an “expert for hire” whose opinions have “been generated solely for the purpose of litigation.”
[Doc. No. 75, p. 10]. In response, Dixon highlights that Holt is a mechanical engineer with over
thirty-five years of experience in evaluating the safety of the design of thousands of products
(including table saws).
Holt is a qualified expert. He has run tests on saws equipped with riving knives and tuning
forks, has tested and examined numerous types of table saws, and is familiar with Ryobi’s entire
5

line. Holt has extensive experience investigating best practices in product design, including the
design of table saws. Defendants’ Motion in Limine is DENIED to the extent it seeks to exclude
Holt altogether from testifying or offering his opinions regarding the BTS 12S.
b)

Alleged Irrelevant Testimony

Alternatively, Defendants seek to exclude the bulk of Holt’s report on grounds that all but
two of his conclusions are irrelevant to this case. Defendants, however, summarily proclaim what
is relevant, and, from that conclusion, argue that all of Holt’s other opinions are therefore irrelevant.
This portion of Defendants’ Motion is DENIED AS VAGUE, subject to Defendants’ right to raise
specific objections at trial.
c)

Testimony that a Defective Guard Assembly Caused Dixon’s
Injuries

Defendants move the Court to exclude Holt’s testimony that the BTS 12S’s guarding
assembly increases the risk of kickback and is therefore defective. Defendants contend that Holt’s
conclusions in this regard are dependent on a kickback having occurred in the first place and argue
that Holt has provided no reliable evidence that a kickback occurred.
Holt’s testimony regarding the saw’s guarding assembly is admissible. Holt opines that the
saw is unreasonably dangerous because Defendants failed to engage in good design practices when
designing the guarding assembly, that the guarding assembly is too flimsy/flexible, that a riving
knife likely would have prevented a kickback, and that a tuning fork would have prevented Dixon’s
hand from making contact with the blade, even if there was no kickback. Holt’s years of
demonstrated engineering experience with table saws and his inspection of the BTS 12S’s guarding
assembly qualify him to offer opinions in this regard. Moreover, Defendants do not challenge the
qualifications and opinions’ of Dixon’s expert, Mehler, who opined that a kickback occurred in this
6

case. Accordingly, Defendant’s motion is DENIED to the extent it seeks to bar Holt from offering
his opinion that the BTS 12S’s guarding assembly was defectively designed.
d)

Testimony Regarding Flesh Detection Technology

Defendants also move the Court to exclude Holt’s opinions regarding the feasibility5 of
incorporating flesh detection technology as an alternative design under the LPLA and the
effectiveness of that technology. Dixon highlights Holt’s 30 years of mechanical engineering
experience, much of it related to inspecting table saws, the fact that he has run tests on several saws
incorporating the technology, and various reports–prepared by persons and entities other than
Holt–regarding the potential cost of integrating flesh detection technology on similar table saws.
Holt’s opinions regarding the feasibility of incorporating flesh detection technology are
inadmissible because they are unsupported by any personal knowledge or any relevant testing and
analysis. Holt offers no opinions based on his own testing that flesh detection technology could
have been incorporated into a BTS 12S, or a saw like it, and his opinions regarding the economic
feasibility of integrating the technology are not his own. While Holt would likely be qualified to
offer opinions on the effectiveness of the technology, such opinions are moot considering the
Court’s ruling on Defendants’ Motion for Summary Judgment below. Accordingly, Defendants’
motion is GRANTED to the extent it seeks to preclude Holt from testifying regarding flesh
detection technology.

5

The existence of a feasible alternative design is a requirement under the LPLA. See
Thompson v. Nissan North America, Inc., 429 F. Supp. 2d 759, 769-76 (E.D. La. 2006) (citing
LA. REV. STAT. ANN. § 9:2800.56).
7

2.

Dr. Gass
a)

Declaration and Potential Trial Testimony

Defendants move to exclude Dr. Gass’s general declaration–which was not prepared
specifically for this litigation–in which he outlines a number of opinions regarding flesh detection
technology. Defendants argue the report is not competent summary judgment evidence because it
was not signed under penalty of perjury. See FED. R. CIV. P. 56, advisory comment to FED. R. CIV.
P. 56(c) (“28 U.S.C. § 1746 allows a written unsworn declaration” to be admitted as competent
summary judgment evidence provided it was signed “under penalty of perjury.”). Defendants also
move for an order prohibiting Dr. Gass from testifying at trial.
Dr. Gass has refused to testify in this lawsuit, did not sign the declaration under penalty of
perjury, and Dixon does not argue the declaration is admissible. Dixon further states he does not
intend to call Dr. Gass at trial. Accordingly, Defendants’ motion is GRANTED to the extent it
seeks to exclude Dr. Gass’s declaration and to the extent it seeks an order prohibiting Dr. Gass from
testifying at trial.
b)

Prior In-Trial Testimony

Defendants also move in limine to exclude Dr. Gass’s trial testimony rendered in previous
cases,6 arguing this testimony is irrelevant and unreliable under Daubert because Dr. Gass has no

6

In opposition to Defendants’ Motion for Summary Judgement, Dixon cites Dr. Gass’s
testimony from the trials of Osorio v. One World Technologies, Inc., CIV. A. NO. 06-10725NMG (D. Mass. 2010) and Stollings v. One World Technologies, Inc., et. al, CIV. A. NO. 08-C4006 (N.D. Ill. 2012) to support his claim that it was both economically and technologically
feasible to incorporate flesh detection technology into table top saws in 2009. See [Doc. No. 814, Exh. 18, Stollings Trial Transcript, pg. ID #’s 1924, 1926, 1935-1946]; [Doc. No. 81-3, Exh.
7, Osorio Trial Transcript, pg. ID # 1811].

8

knowledge of the facts underlying this litigation. Defendants also highlight that Dr. Gass has
refused to testify and argue that all evidence derived from him is hearsay.
Dixon concedes that he will not call Dr. Gass as a witness at trial, but claims certain portions
of his prior trial testimony are admissible as exceptions to the hearsay rule under FED. R. EVID.
804(b) because Dr. Gass is unavailable, and Ryobi previously had an opportunity and similar
motive to develop his testimony.7
Regardless of whether Dr. Gass’s testimony would be generally admissible under FED. R.
EVID. 804(b), it still contains expert opinions and must survive Daubert scrutiny. While it would
appear that Dr. Gass would be qualified to testify with regard to flesh detection technology,8 the
Court cannot determine whether his “testimony’s underlying reasoning or methodology is
scientifically valid” and can be properly “applied to the facts at issue” in this case. Daubert, 509
U.S. at 580. Dr. Gass’s opinions in Stollings9 and Osorio were derived from uniquely tailored
reports, prepared somewhere between 2009 and 2011, and unrelated to this litigation. The Court
is not privy to those reports and cannot determine whether his calculations are sufficiently reliable
or relevant to the facts of this case.

7

The Rule provides in relevant part that former testimony, though hearsay, is nonetheless
admissible if the declarant is currently “unavailable,” the testimony was given at trial, and “the
party against whom the testimony is now offered . . . had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.”). FED. R. EVID. 804(b).
8

Dr. Gass invented the technology, founded a company based on it, and has been
qualified on the subject across the country in similar trials.
9

In Stollings, Dr. Gass offered testimony regarding what table top saws with flesh
detection technology could sell for in a major retail store. See id. at p. 1936-1946.
9

Further, even if Dr. Gass’s testimony were admissible under FED. R. EVID. 804(b) and
Daubert, that testimony would not create factual issues that flesh detection technology was
economically feasible in 2009. Because the Court finds that Holt is not qualified to testify regarding
feasibility and because Dixon has failed to offer any other competent feasibility evidence, he would
have to rely exclusively on Dr. Gass’s prior testimony. However, Dr. Gass’s testimony does not
provide sufficient economic analysis for the factfinder to adequately consider the burden of
implementing flesh detection technology into the BTS 12S.10 Therefore, Defendants’ Motion In
Limine to exclude Dr. Gass’s prior trial testimony is GRANTED.
B.

Summary Judgment
1.

Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment “should be rendered if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(c)(2). The moving party bears the initial burden of informing the court of the
basis for its motion by identifying portions of the record which highlight the absence of genuine
issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992). A fact is
“material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under
applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
about a material fact is “genuine” if the evidence is such that a reasonable fact finder could render
a verdict for the nonmoving party. Id.

10

See infra, pg. 13-14, Ruling on Defendants’ Motion for Summary Judgment.
10

If the moving party can meet the initial burden, the burden then shifts to the nonmoving
party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp.,
19 F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the Court
must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its
favor. Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence. Thus, Summary
Judgment is appropriate if a reasonable jury could not return a verdict for the nonmoving party.”
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248(1986)).
2.

Choice of Law

Because the Court is sitting in diversity, the Court applies the substantive law of
Louisiana, the forum state. See, e.g., Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th
Cir. 2010) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)).11
3.

Claims Arising Under the LPLA

To maintain a successful products liability action under the LPLA, Dixon must establish
four elements: (1) that the Defendants manufactured the saw; (2) that Dixon’s injuries were
proximately caused by a characteristic of the saw; (3) that this characteristic made the saw
unreasonably dangerous; and (4) that Dixon’s injuries arose from a reasonably anticipated use of
the saw. Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 260-61 (5th Cir. 2002) (citing LA. REV.
STAT. ANN. § 9:2800.54 (A)). It is undisputed that Defendant Ryobi manufactured the saw and that

11

The parties agree that Louisiana law governs this case.
11

Dixon’s injuries arose from a reasonably anticipated use of the saw, but Defendants argue the saw
was not unreasonably dangerous, and, even if it was, that its design did not cause Dixon’s injuries.
Under Louisiana law, a product’s defective design can render it unreasonably dangerous.
See LA. REV. STAT. ANN. § 9:2800.54(B). In order to carry his burden of showing the saw was
unreasonably dangerous and defectively designed, Dixon must show that, at the time it left the
manufacturer’s control, “there (1) existed an alternative design that was capable of preventing the
damage, and (2) the likelihood that the design would cause the damage and the gravity of that
damage outweighed the burden on the manufacturer to use a different design.” Batiste v. Brown,
(La.App. 5 Cir. 1/24/12); 86 So.3d 655, 660 (citing LA. REV. STAT. ANN. § 9:2800.56 (emphasis
added).
An alternative design “existed” if it was “at least conceived at the time the product left the
manufacturer’s control . . . .” Moyer v. Siemens Vai Servs., LLC, CIV.A.No. 11-3185, 2013 WL
3293668, at *9 (E.D. La. June 28, 2013) (quoting John Kennedy, A Primer on the Louisiana
Products Liability Act, 49 LA. L.REV. 565, 572 (1989)); see also Wilson v. Hovart Corp.,
CIV.A.No. 95–2279, 1996 WL 117502, at *2 (E.D.La. 1996) (applying same definition of
“existed” as the Moyer court); Hunt v. McNeil Consumer Healthcare, 297 F.R.D. 268, 273 (E.D.
La. 2014) (same). Even if the proposed alternative was in existence, the plaintiff must present
competent evidence showing that the risk avoided by his proposed alternative design outweighed
the burden of adopting that design, which must include a consideration of the loss of utility and the
added construction costs. See Thompson v. Nissan N. Am., Inc., 429 F. Supp. 2d 759, 776 (E.D. La.
2006) aff’d, 230 F. App’x 443 (5th Cir. 2007) (“Plaintiffs’ burden of proof requires them to show
not only that there was an alternative, safer design, but also that the risk avoided by using the
12

alternative design (magnitude of damage discounted by the likelihood of its occurrence) would have
exceeded the burden of switching to the alternative design (added construction costs and loss of
product utility.”) (internal citations and quotations omitted)).
When performing the risk/burden analysis, “courts typically require the level of detail and
expert analysis that is necessary to allow the factfinder to effectively weigh the risk against the
benefit.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 181 (5th Cir. 1990)
(abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994)). In some
cases, “the judge or the jury, by relying on background knowledge and ‘common sense,’ can ‘fill
in the gaps in the plaintiff’s case, estimating the extent of the risk avoided, the costs of
implementing the proposed design change, or the adverse effects of the design modification on the
utility of the machine.”’ Graham v. Hamilton, No. CIV.A. 3:11-609, 2012 WL 1252590, at *6
(W.D. La. Apr. 12, 2012) (citing Lavespere, 910 F.2d at 184). Where, as here, the complex nature
of the product and proposed alternative design are “beyond the realm of the typical juror’s
background and common understanding, detailed expert testimony is required as to the risk of harm
and burden of adopting the alternative design.” Graham, 2012 WL 1252590, at p. 6-7.
Dixon alleges the saw was defectively designed primarily because the saw’s spreadermounted blade guard was too flexible, increasing the risk of kickback. He proposes that two
alternative designs “existed” in 2009, both of which he argues would have prevented Dixon’s
injuries: (a) flesh detection technology; and (b) a modular blade guard with an independent riving
knife and a tuning fork.

13

a)

Flesh Detection Technology as an Alternative Design

Defendants argue flesh detection technology did not exist for similar table top saws in 2009
and that, even if it had, it would not have prevented Dixon’s injuries. Further, Defendants contend
the technology was not economically or technologically feasible on table top saws in 2009.
Assuming, arguendo, that flesh detection technology “existed” for purposes of the LPLA
in 2009 and that it would have prevented Dixon’s injuries, Dixon still cannot overcome summary
judgment on this claim because he has failed to present competent evidence regarding the economic
feasibility of integrating the technology. Citing Dr. Gass’s declaration and his testimony from prior
trials, as well as Holt’s opinions, Dixon argues it was economically feasible to place flesh detection
technology into table top saws in 2009. However, Dr. Gass’s declaration and prior trial testimony
are inadmissible, and Holt is not a qualified expert on the topic.12
Moreover, even if Dr. Gass’s prior trial testimony were admissible, it fails to provide
sufficient analysis for the factfinder to weigh the risk avoided by the technology against the burden
Ryobi would incur by adopting it. Dr. Gass’s testimony from Stollings and Osorio provides
insufficient analysis regarding the cost of re-design and manufacture and simply does not address
the loss of utility that integrating the technology would cause, such as the increased weight and size,
the lack of portability, and the attendant decrease in marketability. See Thompson, 29 F.Supp.2d
776-79 (summary judgment appropriate on defective design claim where plaintiffs’ experts
provided insufficient evidence of burden on car manufacturer and failed to address the adverse
effect of purported design on utility of the car); see also Graham, 2012 WL 1252590, at *6
(summary judgment granted on defective automobile gas tank design claim where plaintiff failed
12

See supra, pg. 8-10, Ruling on Defendants’ Motion in Limine.
14

to offer evidence which would allow the factfinder to weigh the potential risk avoided by the
proposed alternative design against the added construction costs and loss of utility that the
alternative would cause). Thus, Defendants’ Motion for Summary Judgment is GRANTED to the
extent it seeks to dismiss Dixon’s flesh detection alternative design claim.
b)

Modular Blade Guard and Independent Riving Knife Alternative

Because Defendants argue there is no evidence of a kickback in this case, they contend the
saw was not defectively designed and that Dixon’s other proposed alternative design–a modular
blade guard with an independent riving knife–would not have prevented Dixon’s injuries. In
response, Dixon highlights Mehler’s opinion that a kickback occurred in this case and that both
Mehler and Holt attribute the kickback to a defectively designed guarding assembly. Mehler’s
expert opinions are not challenged in this regard.
Because it is undisputed that Defendant Ryobi manufactured the saw and that Dixon’s
injuries arose from a reasonably anticipated use of the saw, Dixon can overcome summary judgment
on this alternative design argument if he generates factual issues that: (1) the saw’s alleged defective
design rendered it unreasonably dangerous, (2) the design proximately caused his injuries, (3) his
proposed alternative existed in 2009 and “was capable of preventing” the injury, and (4) that the
risk and gravity of harm presented by Defendants’ failure to incorporate this alternative outweighed
the burden of implementing that alternative. Batiste, 86 So.3d at 660 (citing LA. REV. STAT. ANN.
§ 9:2800.56(B)).
Dixon can overcome summary judgment on this alternative design claim. First, there are
factual issues as to whether the subject saw’s alleged defective guarding assembly rendered the saw
unreasonably dangerous. Mehler and Holt, both qualified to testify in this regard, opine that the
15

guarding assembly was defectively designed and that the saw’s design increased the likelihood of
a kickback. See [Doc. No 81, Exh.11, Mehler Declaration, p. 7, ¶ 17]; [Doc. No. 80, Exh. 2, Holt
Declaration, p. 5-7]. Second, Mehler opines Dixon’s accident was caused by a kickback [Doc. No
81, Exh.11, Mehler Declaration, p. 6, ¶ 14]. Mehler is qualified to offer such an opinion, and his
qualifications are not challenged. Moreover, Holt opines that a modular guard incorporating a
tuning fork would have prevented Dixon’s injuries, even if the accident was not caused by a
kickback. Thus, factual issues exist as to whether the saw’s design proximately caused Dixon’s
injuries, regardless of whether Holt is qualified to testify regarding the existence of kickback.
Third, Defendants do not argue that these alternatives did not “exist” in 2009 (they clearly did), and
Holt and Mehler testify that the proposed alternatives were capable of preventing Dixon’s injuries.
Finally, Defendants do not contest that the risk of harm presented by failing to integrate this
alternative outweighs the minimal burden of doing so. Dixon presents competent evidence
regarding the risk and burden, indicating a stark contrast between the substantial risk presented by
a defective table saw design and the minimal burden of implementing this alternative.13
For these reasons, Defendants’ Motion for Summary Judgment is DENIED to the extent it
seeks dismissal of Dixon’s claim that a modular blade guard with an independent riving knife offers
a feasible alternative design.

13

It costs less than a dollar to manufacture a riving knife, and Holt estimates that it costs
$10.00 to manufacture a modular guard. [Doc. No. 80, Exh. 2, Holt Declaration, p. 15, ¶ 67].
16

4.

Claims for Strict Product Liability, Negligence, and Breach of Warranty

Dixon pleads discrete claims for strict product liability, negligence, breach of the implied
warranty of fitness for a particular purpose, and breach of the implied warranty of merchantability.
[Doc. No. 1, Complaint, ¶¶ 22- 34]. However, these claims are subsumed by the LPLA.
The LPLA “establishes the exclusive theories of liability for manufacturers for damage
caused by their products” and states that a “claimant may not recover from a manufacturer for
damage caused by a product on the basis of any theory of liability.” LA. REV. STAT. ANN.
§9:2800.52. While the methods for establishing recovery under the LPLA “are predicated on
principles of strict liability, negligence,” and express and implied warranties, those theories are no
longer independent theories of recovery against a manufacturer. Jefferson v. Lead Indus. Ass’n, Inc.,
106 F.3d 1245, 1251 (5th Cir. 1997). Thus, Defendants’ Motion for Summary Judgment is
GRANTED to the extent it seeks dismissal of Dixon’s discrete claims for strict product liability,
negligence, breach of the implied warranty of fitness for a particular purpose, and breach of the
implied warranty of merchantability. Dismissal of these claims does not impact Dixon’s claims
arising under the LPLA.
5.

Attorney’s Fees and Costs

This case was initially filed in Georgia and transferred to this Court. See [Doc. No. 35].
In his original Complaint, Dixon sought attorney’s fees under Georgia law. [Doc. No. 1, Complaint,
¶¶ 35-36]. Defendants argue that attorney’s fees are not available under the LPLA, and Dixon does
not oppose Defendants’ argument.
The LPLA explicitly states that it does not provide for an award of attorney’s fees. See LA.
REV. STAT. ANN. §9:2800.53(5) (“Attorneys’ fees are not recoverable under this Chapter.”).
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Defendants’ Motion for Summary Judgment is accordingly GRANTED to the extent it seeks
dismissal of Dixon’s claim for attorney’s fees.
III.

CONCLUSION
For the foregoing reasons, Defendants’ Motion in Limine [Doc. No. 75] is GRANTED IN

PART and DENIED IN PART. The motion is GRANTED to the extent its seeks to bar all
testimony and opinions of Dr. Gass and to bar Holt from offering testimony regarding flesh
detection technology. Defendants’ Motion in Limine is otherwise DENIED.
Defendants’ Motion in Limine to exclude Dr. Gass’s declaration and prior trial testimony
[Doc. No. 99] is GRANTED.
Defendants’ Motion for Summary Judgment [Doc. No. 76] is GRANTED IN PART and
DENIED IN PART. The motion is GRANTED to the extent it seeks dismissal of Dixon’s claim
that flesh detection technology offers a feasible alternative design; to the extent it seeks dismissal
of Dixon’s claims of strict products liability, negligence, breach of the implied warranty of fitness
for a particular purpose; and to the extent it seeks to dismiss Dixon’s claim for attorney’s fees. The
Motion for Summary Judgment is otherwise DENIED.
MONROE, LOUISIANA, this 13th day of May, 2015.

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