HETTINGER v. SPEEDLINE TECHNOLOGIES, INC. et al
OPINION. Signed by Judge Renee Marie Bumb on 10/22/2014. (TH, )
NOT FOR PUBLICATION
[Docket No. 22]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 13-cv-1010 (RMB/AMD)
SPEEDLINE TECHNOLOGY, INC., et
Andrew Rossetti, Esquire
Rossetti & Devoto, P.C.
20 Brace Road, Suite 115
Cherry Hill, NJ 08034
Attorneys for Plaintiff
Meaghann Porth, Esquire
Campbell Campbell Edwards & Conroy, P.C.
1205 Westlakes Drive, Suite 330
Berwyn, PC 19312
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon a motion by
Defendant, Speedline Technology, Inc.’s (“Defendant”), for
summary judgment under Federal Rule of Civil Procedure 56(a) and
to partially exclude the testimony of Plaintiff’s expert.
[Docket No. 22].
For the reasons set forth below, Defendant’s
motion shall be denied.
Factual Background 1
A) The Wave Solder Machine
The instant action stems from a serious workplace accident
wherein the Plaintiff, Mary Hettinger, suffered the loss of her
entire left thumb and the tip of her right thumb.
worked at her employer, K-Tron Electronics (“K-Tron”), for over
twenty years as an assembler building circuit boards.
Defendant’s Rule 56.1 Statement of Facts (“DSOF”) and
Plaintiff’s Response (“PRSOF”) at ¶ 7.
To complete this task,
Plaintiff used the Econopak Plus Wave Solder Machine (“wave
solder machine”), which was designed and manufactured by the
Plaintiff’s Supplemental Statement of
Facts (“PSSOF”) and Defendant’s Response (“DR”) at ¶ 1. 2
the machine is done being used, it must go through a shutdown
procedure which consists of, in relevant part: 1) opening the
doors of the machine; 2) going to the front of the machine and
inputting the roll-out commands into the machine’s computer; 3)
the solder pot then rolls out until it hits a limit switch and
stops; 4) than the operator covers the solder pot with a thermal
Where there are significant factual disputes between the
parties, the facts should be construed in favor of the nonmoving party. See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir.
2004), cert. denied, 543 U.S. 956 (2004).
2 Speedline sold K-Tron the machine in 2000 along with a
thermal canvas blanket, an instruction manual and an
installation manual. DSOF & PRSOF at ¶ 5.
blanket 3 and brings it back into the machine.
PSSOF & DR ¶ 2.
Once the solder pot has fully extended out of the machine, the
space between the end of the pot and the wall at K-Tron is
approximately 13.5 inches.
DSOF & PRSOF at ¶ 2.
The movement of the solder pot out of the machine is
motorized, and a part of the machine called the “roll-out shaft”
rotates while the pot is moving out of the machine.
PRSOF at ¶ 3 PSSOF & DR ¶ 4.
Employees like Plaintiff also
called the roll-out shaft a “spindle.” PSSOF & DR at ¶ 5.
Speedline argues that the shaft at the time of the accident was
“smooth, unthreaded and cylindrical,” Plaintiff contends that
the shaft had areas of rust and a hexagonal head on the end, as
demonstrated by photographs supplied by Plaintiff.
PRSOF ¶¶ 3-
During the design of the machine, Speedline did not test
the roll-out shaft to determine whether it presented an
entanglement hazard, and the instruction manual for the machine
contains no instructions on how to apply the thermal blanket to
the solder pot. PSSOF & DR ¶¶ 8-9.
It is undisputed that there
were no instructions in the machine’s manuals on when to replace
thermal blankets, the average life span of such blankets or
warnings about the roll-out shaft.
Id. ¶¶ 12-14.
The parties use the terms blanket and canvas
For over ten years, Plaintiff shut down the wave solder
machine every night without incident.
[DSOF & PRSOF ¶ 10].
was Plaintiff’s practice to stand behind the back of the machine
and wait as the molten solder pot moved out of the back of the
machine toward her.
Id. ¶ 11.
Plaintiff’s supervisor, Vicki
Trimbach stated that it was dangerous to stand behind the pot as
it was moving out of the machine because of the hot solder.
B) September 29, 2011
On September 29, 2011, Plaintiff was working the night
shift at K-Tron.
PSSOF & DR ¶ 30.
As she was shutting down the
machine, Plaintiff stood behind the pot waiting it for it to
Id. ¶ 31.
She was holding the thermal blanket (which
she called the “canvas”) with both hands.
dispute exactly how the accident occurred that resulted in
According to Plaintiff, she was “holding
the canvas” and the machine “spindled out” and “caught” the
PRSOF ¶ 33 & 36.
Plaintiff testified that the when her
hands were in the canvas, the canvas got sucked into the machine
on the roll-out shaft.
Id. ¶¶ 37 & 42-43.
It is undisputed
that Plaintiff pulled “really hard” to remove her hands/thumbs
from the canvas and heard a pop.
PSSOF & DR ¶¶ 38-39.
further undisputed that after removing her hands from the
canvas, the top of Plaintiff’s right thumb was coming off and
her left thumb had severed.
Id. ¶ 39.
While Defendant does not deny the outcome of the incident,
it denies Plaintiff’s version of how it occurred.
Defendant contends that the thermal blanket did not become
wrapped around the roll-out shaft, avers that Plaintiff has no
memory of how the incident occurred and that she “does not
actually know if the blanket got caught on the sooth unthreaded
DSOF at ¶ 14 & 18.
Witnesses and Incident Reports
Shannon Marie Hall (“Hall”) is a K-Tron service mount
operator and was working on the night of the incident. PSSOF &
DR ¶ 45.
While Hall did not see the accident occur, she did see
Plaintiff shutting down the machine while standing behind the
machine near the wall.
Id. ¶ 49.
After the incident, Hall saw
Plaintiff’s hands “cupped against her body.”
Id. ¶ 46.
parties agree that Plaintiff told Hall that the blanket “got
caught on the shaft and [her] hands twisted up in the blanket.”
PSSOF & DR ¶ 53.
While Plaintiff contends that Hall actually
saw the blanket spinning on the shaft after the accident, PSSOF
¶ 54-55, Defendant contends that Hall has no recollection of
what actually occurred that night, including whether the blanket
was spinning on the shaft.
DR ¶ 54-55.
During her deposition,
Hall stated that she could picture the blanket spinning on the
shaft. PSSOF ¶ 54-55.
After the incident, K-Tron quality assurance/manufacturing
process manager, Vicki Hart Trimbach, visited Plaintiff in the
PSSOF & DR ¶ 58-59.
Trimbach testified that while
Plaintiff did not say the blanket got caught on the shaft
“because she wouldn’t have called it that,” she was “pretty sure
[Plaintiff] said the blanket got caught and she tried to pull it
[DR ¶ 60 citing Trimbach Dep. Tr. at 72-74].
addition, Plaintiff told Keith Kressley, the general manager of
K-Tron, that the blanket got caught in the machine and “it
started to twist her.”
PSSOF & DR ¶ 73-76.
Resources Manager completed an “Accident Investigation Report.”
Pl.’s Ex. D.
The report states that “[t]he ‘blanket’ got caught
in the portion of the screw shaft that sticks out which would be
used to move the pot manually.”
Following the incident, K-
Tron put a guard over the protruding portion of the roll-out
shaft and that guard has not changed the manner in which the
PSSOF & DR ¶ 66-67.
The Occupational Safety and Health Administration (“OSHA”)
reviewed the incident and interviewed Plaintiff.
Id. at ¶¶ 68-
The results of the OSHA investigation state that “the
canvas mat which the employee was holding became entangled in
the metal rotating bar at the rear of the . . . machine.”
The report further states that “[t]he results of the
inspection concluded that the employer should have had guarded
the metal rotating bar at the rear of the . . . machine.”
Plaintiff’s expert, Steven Batterman, Ph.D., found that
Plaintiff “sustained her injuries when the thermal blanket she
was holding was snagged by the rotating roll-out shaft, began
twisting around her hands, and she attempted to yank herself
PSSOF ¶ 81.
Batterman’s opinion is based on the nature
of Plaintiff’s injuries, the testimony of Plaintiff, the
testimony of Ms. Hall, and the OSHA report.
Id. & PRSOF ¶20.
Dr. Batterman never put a blanket near the rotating shaft to see
whether it would get caught, stating that such a test would not
be relevant, as one needs the machine under actual conditions of
In his report, Dr. Batterman stated that the design
defect of the solder machine could be eliminated if the roll-out
shaft is either guarded or if the length of the shaft is reduced
so it does not protrude through the door of the stand.
Ex. C at 7.
He also found that machine defective because it
neither contained a warning telling the user not to stand behind
the machine during roll out nor an instruction on when the
thermal blanket needs to be replaced.
Defendant’s expert, Donald Allison, Ph.D., performed
testing on an exemplar stand and rotating shaft using a new
blanket, a frayed blanket and other materials, which, he found,
did not get caught.
DSOF ¶ 28.
Plaintiff contends that
Allison’s jeans began to entangle on the shaft.
PRSOF ¶ 28.
III. Applicable Standard
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a). A fact is “material” if it will “affect the
outcome of the suit under the governing law . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
When deciding the
existence of a genuine dispute of material fact, a court’s role
is not to weigh the evidence; all reasonable “inferences,
doubts, and issues of credibility should be resolved against the
Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307
n.2 (3d Cir. 1983). However, a mere “scintilla of evidence,”
without more, will not give rise to a genuine dispute for trial.
Anderson, 477 U.S. at 252. Further, a court does not have to
adopt the version of facts asserted by the nonmoving party if
those facts are “utterly discredited by the record [so] that no
reasonable jury” could believe them.
Scott v. Harris, 550 U.S.
373, 380 (2007). In the face of such evidence, summary judgment
is still appropriate “where the record . . . could not lead a
rational trier of fact to find for the nonmoving party . . . .”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)). Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
56(e)). The non-movant’s burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat
Defendant contends that summary judgment is appropriate in
this case because “nothing is known about how the accident
occurred, which results in a lack of any evidence making it
possible for Plaintiff to prove causation, an essential element
of both her design defect and failure to warn claims.”
Br. at 1-2.
In addition, Defendant avers that Plaintiff’s
expert report is speculative and subject to exclusion under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) and Rule 702 of the Federal Rules of Evidence.
Defendant contends that Plaintiff’s failure to warn claim fails
because the risk of standing behind the solder machine is “open
Id. at 2.
In its reply brief, Defendant argues for the first time
that several averments propounded by Plaintiff are supported by
As an initial matter, “[w]here a reply
brief raises new arguments in support of a motion for summary
judgment, the district court is justified in disregarding them.”
Gucciardi v. Bonide Prods., No. 12-932, 2014 U.S. Dist. LEXIS
85509, at *24 (E.D. Pa. June 24, 2014).
Even if this Court were
to entertain these arguments, however, they are not outcome
determinative here for reasons set forth in more detail below.
Certainly, a motion for summary judgment must be opposed via
“admissible evidence containing ‘specific facts showing that
there is a genuine issue for trial.’” Vitalo v. Cabot Corp., 399
F.3d 536, 542 (3d Cir. 2005)(quoting Fed. R. Civ. P. 56(e)).
discussed infra, the Court has sufficient grounds upon which to
deny the summary judgment motion without rendering an opinion on
the purported hearsay evidence.
Certainly, any objections to
hearsay contained in testimony of alleged witnesses or the OSHA
report may be dealt with pursuant to appropriate motions in
limine prior to the time of trial.
See Rojas v. County of
Passaic, No. 04-3048, 2007 U.S. Dist. LEXIS 16873, at *19
(D.N.J. Mar. 9, 2007)(finding hearsay objections premature and
instructing defendant to renew such arguments via in limine
motion prior to trial).
Causation Issues and Expert Testimony
In order to prevail on her design defect claim, Plaintiff
must prove that “(1) the product was defective; (2) the defect
existed when product left the hands of the defendant; and (3)
the defect caused [an] injury to a reasonably foreseeable user.”
Jurado v. W. Gear Works, 131 N.J. 375, 385 (N.J. 1993). “Whether
a product is defective depends on whether it 'is not reasonably
fit, suitable and safe for its intended or reasonably
foreseeable purposes.'” McGarvey v. G.I. Joe Septic Serv., Inc.,
293 N.J. Super. 129, 142 (N.J. App. Div. 1996) (quoting Jurado,
131 N.J. at 385).
New Jersey courts use a seven-factor
balancing test to determine whether a product is fit for its
intended uses, considering:
(1) the usefulness and desirability of the product; (2) the
likelihood and seriousness of injury; (3) the availability
of a substitute product; (4) the manufacturer's ability to
eliminate the danger without impairing the product's
utility; (5) the user's ability to avoid danger by due
care; (6) the user's anticipated awareness of the danger
considering general public knowledge or the obvious
condition or the existence of suitable warnings or
instructions; and (7) the feasibility of the manufacturer's
spreading the loss by setting the price or carrying
McGarvey, 293 N.J. Super at 143.
With respect to her failure to
warn claim, Plaintiff “must establish all the same elements
required for an action based on a defective product.” Mathews v.
Univ. Loft Co., 387 N.J. Super. 349, 362 (N.J. App. Div.
2006)(quoting London v. Lederle Labs., 290 N.J. Super. 318, 326
(N.J. App. Div. 1996), aff'd as modified by Batson v. Lederle
Labs., 152 N.J. 14 (1997)).
Again, Defendant contends that both Plaintiff’s design
defect and failure to warn claims founder for lack of adequate
evidence of causation.
In the instant matter, an expert opinion
is required to prove this vital element of causation for both
the design defect and failure to warn claims because the wave
solder machine, including the roll-out shaft, constitutes a
See Toms v. J.C. Penney Co., No. 0512
2582, 2007 U.S. Dist. LEXIS 72659 (D.N.J. Sept. 28, 2007)(expert
needed as to causation on failure to warn claim); Lauder v.
Teaneck Volunteer Ambulance Corps, 368 N.J. Super. 320, 331-32
(N.J. App. Div. 2004)(requiring the use of expert testimony in
design defect products liability case involving complex
instrumentality); Rocco v. NJ Transit Rail Operations, 330 N.J.
Super. 320, 341, 749 A.2d 868 (App. Div. 2000)(finding locking
mechanism on railroad car’s sliding doors to be a complex
instrumentality requiring expert testimony); Sparrow v. La
Cachet, Inc., 305 N.J. Super. 301, 702 A.2d 503 (App. Div.
1997)(finding a facial machine that allegedly caused burns to a
plaintiff’s face and neck to be a complex instrumentality).
With respect to Plaintiff’s expert, Defendant argues that
his opinion is speculative and thus subject to exclusion under
Federal Rule of Evidence 702 4 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Rule 702 “requires
that only reliable testimony, offered with a sufficient factual
Rule 702 states:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise 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.
basis be admitted.”
JVI, Inc., v. Truckform, Inc., No. 11-6218,
2012 U.S. Dist. LEXIS 181769, at *10 (D.N.J. Dec. 26, 2012).
stated by the Third Circuit in Padillas v. Stork-Gamco, Inc.,
186 F.3d 412, 417 (3d Cir. 1999):
Daubert teaches that “faced with a proffer of expert
scientific testimony . . . the trial judge must determine
at the outset, pursuant to Rule 104(a), whether the expert
is proposing to testify to (1) scientific knowledge that
(2) will assist the trier of fact to understand or
determine a fact in issue.” Daubert, 509 U.S. at 592
(footnotes omitted). “The inquiry envisioned by Rule 702 is
. . . a flexible one . . . [directed at] the scientific
validity--and thus the evidentiary relevance and
reliability--of . . . the proposed submission." Id. at 59495. We have long stressed the importance of in limine
hearings under Rule 104(a) in making the reliability
determination required under Rule 702 and Daubert. See
United States v. Downing, 753 F.2d 1224, 1241 (3d Cir.
1985) ("It would appear that the most efficient procedure
that the district court can use in making the reliability
determination is an in limine hearing.").
Heeding the instruction of the Third Circuit, and because
the resolution of the instant motion requires a Daubert hearing
to determine the admissibility of the expert testimony, the
Court will deny the motion for summary judgment without
prejudice and permit Defendant to renew such motion prior to
trial, at which time the Court will conduct a hearing.
Daubert, 509 U.S. at 589 (recognizing district court's role as
gatekeeper to ensure that all expert testimony and evidence is
relevant and reliable); Padillas, 186 F.3d at 417; Martin v.
Blaser Swisslube, Inc., Civ. No. 03-6116, 2005 U.S. Dist. LEXIS
33859, 2005 WL 3454291, *7 (D.N.J. Dec. 16, 2005) ("A motion for
summary judgment should be denied without prejudice pending the
outcome of a Daubert hearing, when disposition of the motion
depends on a determination of the admissibility of expert
Open and Obvious
In addition to the causation argument discussed above,
Defendant asserts that Plaintiff’s failure to warn claim also
fails because the alleged risk was open and obvious.
to warn exists where the danger presented by a product is ‘open
Calender v. NVR Inc., 548 F. App’x 761, 764 (3d
Cir. 2013)(quoting McWilliams v. Yamaha Motor Corp., U.S.A., 987
F.2d 200, 202-03 (3d Cir. 1993)).
Defendant, citing testimony
of Plaintiff’s coworkers stating that it would be dangerous to
stand behind a moving pot of hot solder, argues that the risk
presented by hot solder is open and obvious, obviating the duty
In a footnote at the end of its brief, Defendant assets
that Plaintiff’s design-defect claim also fails because
Plaintiff did not demonstrate that either 1) the product’s risks
outweigh its utility or 2) the product could have been designed
in an alternative manner that would have prevented the accident.
Plaintiff’s expert did propose an alternative design and the
admissibility of his opinion will be subject to a Daubert
hearing. Thus, this additional argument does not compel this
Court to reach a different result.
In response, Plaintiff contends that it was not the hot
solder that injured her; instead it was the exposed roll-out
shaft and the application of the thermal blanket.
Plaintiff argues that the danger posed by the pot of hot solder
This Court agrees.
Defendant has pointed to no
evidence of record demonstrating that the alleged danger from
the roll-out shaft was open and obvious and, further, has not
shown this Court that a reasonable person would recognize the
danger presented by the roll-out shaft.
Cf. Calender v. NVR
Inc., No. 10-4277, 2012 U.S. Dist. LEXIS 138069 (D.N.J. Sept.
26, 2012)(granting summary judgment on failure to warn claim
where danger of falling from attic access panel was open and
obvious), aff’d Calender v. NVR Inc., 2013 U.S. App. LEXIS 24769
(3d Cir. N.J., Dec. 13, 2013).
Finally, in addition to the reasons stated above as a basis
to deny summary judgment, this Court notes that Defendant’s
argument that Plaintiff has no recollection of how the accident
occurred is unconvincing.
Certainly, Defendant cites to
portions of Plaintiff’s deposition testimony that appear to
support the idea that Plaintiff’s memory is not entirely clear:
Q: Do you know if, in fact, the canvas got caught on that
rotating shaft or on some other part of the pot as it moved out?
A: No. It has to have been the -– the rotating thing.
Q: Now why do you say that?
A: Because that’s the only thing that could have gotten
stuck on it.
Q: So you don’t have any recollection of the canvas itself
ever wrapping around that shaft, do you?
A: No, I don’t.
Def.’s Ex. C, Pl.’s Dep. at p. 108:14-23 & 110: 20-24.
In citing only limited sections of testimony, however,
Defendant fails to cite portions of the Plaintiff’s testimony
where she remembers the thermal blanket being caught on the
Q: Did you see the pot come out?
A: I – I’m trying to think. All I remember is it spindled
out. It caught me. I don’t – I really don’t remember. It
happened so fast.
Q: You talk about spindling out.
A: Well, it rotates out.
Q: It doesn’t rotate out.
A: Well, it spins around.
Q: And you’re talking about this smooth shaft –
Q: -- right here (indicating)?
A: Yes, the screw shaft. Yes.
Q: Did you ever see the canvas go into the machine?
A: All I know was it was sucked – it got caught. It sucked
– my hands into the canvas.
Def.’s Ex. C, Pl.’s Dep. at p. 104:5-20 & 108:8-13.
Reviewing this testimony and taking all reasonable
inferences in favor of the non-movant, this Court finds that
Plaintiff’s testimony speaks to the issue of causation.
extent Defendant maintains that her recollection is not
credible, any credibility issues are appropriately resolved by a
Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999)(“Cases that
turn crucially on the credibility of witnesses’ testimony in
particular should not be resolved on summary judgment.”).
Again, this Court will deny summary judgment.
See Patterson v.
City of Wildwood, 354 F. App’x 695 (3d Cir. 2009)(holding that
accepting one version of testimony over another was in error at
the summary judgment stage and that all testimony should be
heard by a jury and credibility judged accordingly.”); Hayes v.
Kenneth Easterday et al., 879 F. Supp. 2d 449 (E.D. Pa.
2012)(denying summary judgment in light of inconsistent
For the reasons set forth above, this Court finds that
Defendant’s motion for summary judgment and to exclude the
expert report shall be denied without prejudice.
Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
October 22, 2014
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?