Adams v. Mestek Machinery, Inc

Filing 36

OPINION & ORDER Denying Defendant's Motion for Reconsideration (Dkt. 32 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT ADAMS,
Plaintiff,

Case No. 16-cv-11764
HON. MARK A. GOLDSMITH

vs.
MESTEK MACHINERY, INC.,
Defendant.
_______________________________/

OPINION & ORDER
DENYING DEFENDANT’S MOTION FOR RECONSIDERATION (Dkt. 32)
Before the Court is Defendant Mestek Machinery, Inc.’s (“Mestek”) motion for
reconsideration (Dkt. 32), which asks the Court to reconsider its November 9, 2017 decision
denying Mestek’s motion for summary judgment (Dkt. 19). See Adams v. Mestek Mach., Inc.,
No. 16-11764, 2017 WL 5192248 (E.D. Mich. Nov. 9, 2017). After reviewing Mestek’s motion,
the Court finds no basis for reconsideration.
I. ANALYSIS
Local Rule 7.1(h)(3) sets forth the grounds for granting a motion for reconsideration:
Generally, and without restricting the court’s discretion, the court
will not grant motions for rehearing or reconsideration that merely
present the same issues ruled upon by the court, either expressly or
by reasonable implication. The movant must not only demonstrate
a palpable defect by which the court and the parties and other
persons entitled to be heard on the motion have been misled but also
show that correcting the defect will result in a different disposition
of the case.
E.D. Mich. LR 7.1(h)(3). A “palpable defect” is one “which is obvious, clear, unmistakable,
manifest, or plain.” Mich. Dep’t of Treasury v. Michalec, 181 F. Supp. 2d 731, 734 (E.D. Mich.
2002).
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In the Court’s Opinion and Order denying Mestek’s motion for summary judgment, it held
that while Plaintiff Robert Adams misused Mestek’s Slear machine when he entered the machine
from the wrong door, the machine’s design made this misuse reasonably foreseeable. As a result,
the Court held that Mestek was not entitled to summary judgment on this basis. In its motion for
reconsideration, Mestek does not challenge the Court’s conclusion regarding Adams’s entry into
the machine. Instead, it contends that the Court erred by failing to rule on the issue of whether
Adams’s failure to adhere to the lock out, tag out procedure prior to entering the machine
constituted foreseeable misuse.
By way of background, the Slear machine was allegedly sold with a safety manual that
recommended a lock out, tag out practice, under which the individual who enters the machine
locks off the power to the machine, places a tag on the lock indicating that he has locked the
machine, and takes the key with him into the machine. This process is meant to ensure that no one
will activate the machine while someone is in direct contact with the machine. Mestek argues that
the Court’s failure to address and hold that Adams’s failure to abide by the lock out, tag out
procedure was not a foreseeable misuse amounted to palpable error.
As Mestek acknowledges, the Court did not ignore the lock out, tag out issue in its opinion.
In footnote one of the opinion, the Court stated as follows:
In its motion, Mestek alludes to Adams’s failure to use a “lock out,
tag out” device to power off the machine prior to cleaning. Mestek
briefly notes that its safety manual advises customers to make sure
the power is locked off prior to servicing the machine. However,
because neither party has briefed whether the failure to use the “lock
out, tag out” device actually constituted misuse, or whether this
misuse was foreseeable, and because Adams disputes that AutoSteel
was ever provided with the safety manual, the Court only considers
whether use of the blue door constituted foreseeable misuse.
Adams, 2017 WL 5192248, at *2 n. 1.

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Mestek begins its motion for reconsideration by disputing Adams’s contention that
AutoSteel, Adams’s employer, was never provided the safety manual outlining the lock out, tag
out procedure. However, even assuming Mestek is correct that there is no genuine dispute that
AutoSteel received the manual, the Court’s decision not to address whether Adams’s failure to
lock out, tag out constituted foreseeable misuse stemmed from Mestek’s failure to meaningfully
brief the issue.
In its motion for summary judgment, Mestek focused primarily on Adams’s failure to enter
the Slear through the door that contained an interlock device, with only passing references to the
lock out, tag out procedure set forth in the safety manual. In its motion, Mestek relied on Cobbs
v. Schwing America Inc., No. 04-72136, 2006 WL 334271 (E.D. Mich. Feb. 13, 2006) and Fjolla
v. Nacco Materials Handling Group., Inc., No. 281493, 2008 WL 5158892, at *1 (Mich. Ct. App.
Dec. 9, 2008), in an attempt to analogize Adams’s failure to enter the machine through the correct
door to other instances where courts had found misuse to be unforeseeable. Mestek argued “[l]ike
the defendant in Fjolla, Defendant Mestek could not reasonably foresee that AutoSteel would
permit its employees, including Mr. Adams, to enter the machine through the blue panel (which
were bolted on) [sic], rather than using the yellow door, which was equipped with an interlock
device.” Def. Mot. at 15; see also id. (“Like the plaintiffs in Cobb and Fjolla, Plaintiff alleges that
Defendant Mestek negligently designed the Slear II . . . Yet, Defendant Mestek’s design included
a safety feature [the interlock device] that would have prevented Plaintiff’s injury if the produce
[sic] was used properly.”). In contrast, Mestek did not cite any cases for the proposition that a
failure to use a lock out, tag out procedure constituted unforeseeable misuse. The issue was only
briefly addressed in both Mestek’s opening brief, see id. at 5-6, 14, and its reply.

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Now, in its motion for reconsideration, Mestek relies on two cases that touch on whether
failure to abide by a lock out tag out procedure constitutes misuse, neither of which was cited in
the summary judgment briefing. “It is well-settled that parties cannot use a motion for
reconsideration to raise new legal arguments that could have been raised before a judgment was
issued.” Bank of Ann Arbor v. Everest Nat. Ins. Co., 563 F. App’x 473, 476 (6th Cir. 2014)
(internal citation and quotations omitted); see also Gering v. Fraunhofer USA, Inc., No. 05-73458,
2008 WL 623972, at *1 (E.D. Mich. Mar. 6, 2008) (“[T]here is no new argument in Gesellschaft’s
Motion for Reconsideration, and the only thing different is that there are a few new cases cited.
Accordingly, the Court concludes that Gesellschaft has not demonstrated that there is a palpable
defect by which the Court has been misled such that relief pursuant to E.D. Mich. L.R. 7.1(g) is
warranted.”).
The alleged failure to abide by the lock out, tag out procedure raises several issues as it
relates to misuse, none of which was briefed at the summary judgment stage. For instance, in its
opening brief, Mestek argued that, in addition to entering the machine through the wrong door,
Adams’s injury was caused by “AutoSteel’s failure to implement a lock out, tag out procedure.”
Def. Mot. at 14. Mestek did not elaborate on whether an employer’s failure to implement a safety
procedure could serve as grounds for barring an employee’s product liability action against the
manufacturer. Yet there is authority holding that a manufacturer cannot, as a general matter,
immunize itself from liability from claims by employees involving hazardous products by giving
warnings to employers. See Mann v. Lincoln Elec. Co., No. 06-17288, 2010 WL 4117417, at *8
(N.D. Ohio Oct. 15, 2010) (manufacturer not necessarily relieved of duty to warn employee-user
by warning employer). Indeed, in its motion for reconsideration, Mestek again asserts that
AutoSteel’s failure to implement this policy constitutes misuse on Adams’s part, without

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explaining why he should be penalized by the loss of a claim for serious injury for his employer’s
mistake. See Def. Mot for Recon. at 10.
Even if this failure by AutoSteel to implement the lock out, tag out policy could be imputed
to Adams, Mestek did not brief how the failure to lock out and tag out prior to entering the machine
constituted misuse within the meaning of Mich. Comp. Laws § 600.2945(e), and if so, whether
such misuse was reasonably foreseeable. While it now briefs these issues with supporting case
law in its motion for reconsideration, the law is clear that a motion for reconsideration is not the
proper vehicle to assert new arguments. See Bank of Ann Arbor, 563 F. App’x at 476.
Because Mestek did not meaningfully brief the lock out, tag out issue at the summary
judgment stage, it is not permitted to reexamine and supplement this issue on a motion for
reconsideration. As a result, Mestek’s motion is denied.
II. CONCLUSION
Because Mestek has failed to identify a palpable defect by which this Court has been
misled, the Court denies its motion for reconsideration (Dkt. 32).
SO ORDERED.
Dated: May 11, 2018
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on May 11, 2018.
s/Karri Sandusky
Case Manager

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