Goodrich v. Cequent Performance Products, Inc et al

Filing 105

District Judge Timothy S. Hillman: FINDING AND ORDER entered granting in part and denying in part 85 Motion for Summary Judgment and granting in part and denying in part 88 Motion to Strike. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
BRIAN GOODRICH, PATRICIA
)
GOODRICH, INDIVIDUALLY AND AS )
MOTHER AND NEXT FRIEND OF
)
S.M.G. AND S.L.G.,
)
Plaintiffs,
)
CIVIL ACTION
)
NO. 15-cv-40030-TSH
v.
)
)
CEQUENT PERFORMANCE
)
PRODUCTS, INC., TRIMAS
)
CORPORATION, CIMLINE, INC.,
)
PLYMOUTH INDUSTRIES, INC.,
)
And GARLOCK EQUIPMENT CO.,
)
INC.,
)
Defendants. )
____________________________________)

FINDING AND ORDER ON DEFENDANTS JOINT
MOTION FOR SUMMARY JUDGMENT (Docket No. 85)
AND PLAINTIFF’S MOTION TO EXCLUDE
EXPERT WITNESS TESTIMONY (Docket No. 88)
January 16, 2018
HILLMAN, D.J.
Introduction
Cimline Inc. and Garlock Equipment Co., Inc. design, manufacture, and sell the MAGMA
110 Asphalt Melter. In April 2013, Plaintiff was changing the oil on his MAGMA 110 Asphalt
Melter when it collapsed on him causing serious injuries. The Plaintiff has filed suit against the
Defendants seeking monetary damages. The First Amended Complaint (“Complaint”) alleges
negligence (Count I), and breach of the express and implied warranties of merchantability (Count
II) against Garlock Equipment Company (“Garlock”). It further alleges negligence (Count XI),
and breach of the express and implied warranties of merchantability (Count XII) against Cimline,
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Inc. (“Cimline”). 1 Plaintiff does not oppose the motion for summary judgment as to Defendant
Plymouth Industries (“Plymouth”) and therefore Plymouth’s motion is granted. Additionally,
Plaintiff does not oppose dismissal of any express warranty claims.
Facts
Defendant Garlock Equipment Co. (”Garlock”) purchased Defendant Cimline, Inc.,
(“Cimline”) (collectively referred to as “Defendants”) in 1992 to manufacture and sell asphalt
melters. One of the products Defendants designed, manufactured and sold is the MAGMA 110
Asphalt Melter/Applicator (“Melter”). The Melter is used to seal cracks in asphalt and other hard
pavement-type surfaces.
The Melter is attached to a trailer which is equipped with a jack assembly system. The
jack assembly system has two parts; a steel pivot-tube mounted plate and a detachable jack. The
pivot-tube mounted plate is permanently welded to the trailer unlike the detachable jack, which is
used to hold the trailer elevated above ground. The detachable jack is secured to the pivot-tube by
a pivot pin fastened to the freestanding jack with a chain.
Defendants sell the Melter with a Bulldog jack, which is manufactured by Cequent
Performance Products (“Cequent”). 2 Cequent publishes and distributes the following warnings
with their Bulldog jacks inter alia

1. Never allow installation or use of this product by anyone without providing them with
these instructions; and
2. Secure the load, vehicle and trailer from rolling (by blacking wheels)…; and
3. If this product has a pivot tube mount, make certain the pivot pin is fully inserted
through both; and
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The Complaint includes three counts of loss of consortium against Garlock and Cimline on
behalf of Plaintiff’s wife and two children. These claims are not addressed in the Motion for
Summary Judgment and therefore are not discussed in this Order and Memorandum.
2
Cequent Performance Products and Trimas Corporation were also named as defendants in this
matter. The counts against them were terminated on July 22, 2016.
2

4. Operator and bystanders should never position any part of their body under any
portion of this product or the load being supported
(the “Bulldog Warning”).
Cimline publishes and distributes an owner’s manual with the Melter (the “Safety
Manual”). The Safety Manual does not include the Bulldog Warning, or any warning relating to
the jack-assembly or hazards of placing a body underneath the Melter while elevated by the jack.
There are no warnings on the Melter or the Bulldog jack instructing the user to pin the jack before
use in order to be safely operated. Additionally there are no instructions stating that the Bulldog
jack is the only jack that should be used with the Melter. Richard Stoffels, Defendants safety
engineer, 3 testified that as long as a pin is used, any jack with the appropriate rated capacity that
fits into the pivot-tube mounting is acceptable. 4 As safety engineer, Stoffels is responsible for the
design and safety of the Melter. Since Garlock purchased Cimline, no hazard safety analysis on
the jack assembly system of the Melter has been conducted.

Furthermore, there is no

documentation showing that a hazard safety analysis was ever conducted on the Melter before
Garlock purchased Cimline.
The Melter can last up to ten years but the oil needs to be changed approximately every
250 hours. The only way to change the oil is to lift the Melter using the detachable jack, and crawl
underneath the machine.
Brian Goodrich (“Plaintiff”) purchased a Melter in May 2006. Prior to the incident that
gave rise to this claim, he owned a seal-coating company and worked in the seal-coating industry.
After storing the Melter for the winter of 2012-13, on April 22, 2013, Plaintiff brought it from

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Stoffels testified that he is not a licensed engineer but a few credits shy of a bachelor’s degree
in engineering.
4
The rated capacity refers the weight the jack is able to sustain, in the present case, 5,000
pounds.
3

storage to his garage for maintenance. He used a Bobcat machine to transfer the Melter, which
already had a jack, presumably a replacement jack (the “Replacement Jack”) affixed in the pivot
tube mount. Plaintiff supported the Melter with the unpinned Replacement Jack, which had a bent
footplate. Plaintiff then proceeded to crawl underneath the Melter to change the oil as required.
While attempting to remove the oil pan drain plug, the trailer disconnected from the jack and fell
on top of the Plaintiff. Plaintiff suffered permanent injuries including but not limited to permanent
disfigurement of his face and skull, permanent blindness in one eye, total and permanent loss of
vocational ability, loss of sexual function and loss of even remedial cognitive function.
Standard
A court shall grant summary judgment if the moving party shows, based on the record,
“that there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56. The factual dispute must be both “genuine” and “material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986). An issue is “genuine” when the
evidence allows for a reasonable fact finder to resolve the point in favor of the nonmoving party
and is “material” when it might affect the outcome of the suit under the applicable law. Morris v.
Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994).
The moving party is responsible for “identifying those portions [of the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). It can meet its burden either by “offering evidence to disprove an
element of the plaintiff's case or by demonstrating an ‘absence of evidence to support the nonmoving party's case.’” Rakes v. United States, 352 F. Supp. 2d 47, 52 (D. Mass. 2005) aff'd, 442
F.3d 7 (1st Cir. 2006) (quoting Celotex, 477 U.S. at 325). Throughout its review of motion for
summary judgment, the court shall view the facts in the light most favorable to the nonmoving
party. Scanlon v. Dep't of Army, 277 F.3d 598, 600 (1st Cir. 2002).
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Discussion
Defective Product’s Manufacturer Identified
The parties dispute what the injury-causing product is in the present case. “The threshold
requirement at any products liability action is the identification of the injury-causing product and
its manufacturer.” Santiago v. Sherwin-Williams Co., 782 F. Supp. 186, 188 (D. Mass. 1992)
(citing Patent v. Abbot Labs, 386 Mass. 540, 571, 437 N.E.2d 171 (1982)). Defendants argue that
since the Replacement Jack is the defective product, and since the manufacturer of the
Replacement Jack has not been identified, any claim based on the Replacement Jack’s design must
be dismissed.
The Plaintiff articulates that the Melter (with the detachable jack assembly) is the defective
and dangerous product and that, but for the detachable jack design, Plaintiff would not have
suffered his injuries. It is undisputed that Defendants designed, sold, and manufactured the Melter
therefore Defendants have failed to establish that the manufacturer of the defective product is
unidentified and that they are entitled to summary judgment.
Sophisticated User Doctrine
The sophisticated user doctrine has been adopted “as a defense to both negligent failure to
warn and failure to warn under breach of warranty” actions. Carrel v. National Cord & Braid
Corp., 447 Mass. 431, 441 (2006). The relevant inquiry is the injured party’s level of
sophistication. Hoffman v. Houghton Chemical Corp., 434 Mass, 524, 630 (2001). While this
doctrine may be applicable in this case, it is an issue that should be determined by the fact finder.
Genereux . American Beryllia Corp., 577 F.2d 350, 366 (1st Cir. 2009). In fact, as the Defendants
point out, the Supreme Judicial Court of Massachusetts explained
The sophisticated user defense is an application of the established principle that a
manufacturer may avoid liability for failing to warn someone of a risk or hazard
which he appreciated to the same extent as a warning would have provided. It
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applies where a warning will have little deterrent effect, and it allows a fact-finder
to determine that no such duty [to warn] was owed.
Carrel, 447 Mass. at 441, 852 N.E.2d 100. (emphasis added). Defendants have failed to
establish that they are entitled to summary judgment, as a matter of law based on the
sophisticated user doctrine.
Proximate Cause
Cause in fact and proximate causation are required to establish a claim for breach of
implied warranty of merchantability and negligence. 5 See Staelens v. Dobert, 318 F.3d 77, 79 (1st
Cir. 2003); See Luvanski v. Coleco Industries, Inc., 929 F.2d 42, 48 (1st Cir. 1991). To show
proximate cause, the plaintiff must show that the harm suffered was one that was reasonably
foreseeable as a result of the defendants conduct. See Restatement (Second) of Torts § 435(2).
However,
[w]hen a user unreasonably proceeds to use a product which he knows to be
defective and dangerous, he violate[s] that duty [to act reasonably] and
relinquishes the protection of the law…the user’s negligence does not prevent
recovery except when he unreasonably uses a product that he knows to be
defective and dangerous.
Correia v. Firestone Tire and Rubber Co., 388 Mass. 342, 355-356, 446 N.E.2d 1033 (1983).
Contrary to Defendants assertion that Plaintiff sustained his injuries as a result of
his unreasonable decision to use the Replacement Jack with a bent footplate and without
the pin to secure, I find that there is a genuine dispute of material fact as to whether or not
using the Replacement Jack was unreasonable. There is a factual dispute as to whether or
not the use of a jack with a bent footplate was unreasonable. Additionally there is a dispute
as to whether or not Plaintiff was aware that the Replacement Jack was unpinned and

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As stated previously, Plaintiff does not oppose summary judgment on any express warranty
claims therefore, only claims of implied warranty are discussed.
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whether or not a reasonable consumer would know that using an unpinned jack was
dangerous or defective. The record shows that Defendants provided no instruction that the
pin was required when using the jack, or warning that failure to pin the jack could result in
injury.
I find the lack of warning and instructions with regards to use of the jacking system,
especially considering the warnings and instructions provided for other “obvious”
perceived dangers, provide a factual dispute in which a reasonable fact finder could infer
that the Plaintiff’s use of the unpinned jack was reasonably foreseeable.
Conclusion
For the foregoing reasons, the Defendants Joint Motion for Summary Judgment
(Docket No. 85) is denied as to Defendants Cimline and Garlock and is granted as to
Defendant Plymouth.
Pursuant to Fed. R. Civ. P. 37(c)(1), the Plaintiff’s motion to strike [88] is hereby
granted insofar as paragraphs 33-39 of the Statement of Material Facts L.R. 56.1 contained
in the Joint Motion for Summary Judgment [85].6 The Plaintiff’s request to preclude the
Defendants from offering expert testimony at trial, to strike the pleading in its entirety and
award reasonable costs is hereby denied.
SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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Had paragraphs 33-39 of the Defendants Statement of Material Facts L.R. 56.1 not been
stricken, the Court would have found that genuine issues of material facts existed and denied the
Joint Motion for Summary Judgment.
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