SIEGMAN v. SCHNEIDER ELECTRIC UNITED STATES et al
OPINION. Signed by Judge Renee Marie Bumb on 11/17/2017. (tf, )
[Docket No. 22]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 15-7072 (RMB/AMD)
SCHNEIDER ELECTRIC UNITED
STATES, et al.,
ROSSETTI & DEVOTO, P.C.
By: Andrew J. Rossetti, Esq.
20 Brace Road, Suite 115
Cherry Hill, New Jersey 08034
Attorney for Plaintiff Robert Siegman
SCHNADER HARRISON SEGAL & LEWIS LLP
By: Carl J. Schaerf, Esq.
140 Broadway, Suite 3100
New York, New York 10005
Attorneys for Defendants Schneider Electric United States
and Schneider Electric
BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff Robert Siegman, an electrician, was severely
burned by an arc flash emitted from a live electrical
transformer at the Federal Aviation Administration’s (“FAA”)
Technical Center in Atlantic City.
Electric United States, Schneider Electric, and Schneider
Electric d/b/a Square D (collectively, “Schneider Electric”)
designed the transformer. 1
Plaintiff alleges that his injuries
could have been prevented by feasible design changes that
Defendant Schneider Electric should have implemented.
Discovery is now complete.
Schneider Electric moves for
summary judgment asserting that the government contractor
defense set forth by the United States Supreme Court in Boyle v.
United Technologies Corp., 487 U.S. 500 (1988) precludes a
finding of liability.
The Court agrees.
For the reasons stated herein, the Motion for Summary
Judgment will be granted. 2
FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2013, Plaintiff Siegman was working for his
employer, Scalfo Electric, Inc., at the FAA Tech Center
Substation Number 2 when the accident occurred.
The Complaint also names Plaintiff’s employer, Scalfo
Electric Inc., as a Defendant for “discovery only.” The
Complaint expressly states that, “at this time it appears that
any direct claim by plaintiff would be barred by the workers
compensation bar.” (Compl., Count 4, ¶ 4) The Court has no
record of Scalfo Electric having been served with process in
this action, and no attorney has entered an appearance on behalf
of Scalfo Electric.
Schnedier also argues: (1) Siegman’s expert witness
should be disqualified under a Daubert analysis; and (2)
Siegman’s evidence fails to raise an issue of material fact as
to causation. In light of the Court’s decision concerning the
government contractor defense, the Court does not reach these
Plaintiff testified at his deposition that he “has no
recollection of” what happened.
(Siegman Dep. p. 16)
Electric’s Incident Report (Schaerf Aff. Ex. K) states the
The employee was working on the left-hand side of the
new Substation No. 2 electrical equipment making final
bus link connections between the transformer and 208
The left-hand side of the new
equipment was de-energized and lockout – tagout
devices were applied.
For unknown reasons the
employee decided to open the enclosure door for the
transformer (right-hand side) of the new Substation
No. 2, which was energized. The employee accidentally
came in contact with an energized exposed conductor
and an arc-flash occurred resulting in the employee
receiving significant burn injury [sic].
The employee did not follow the proper procedures /
protocol for the work activity. He was not authorized
to open the energized transformer enclosure. He did
not have the necessary written procedure for that work
activity. He did not wear the appropriate arc-rated
(Schaerf Aff. Ex. K).
The FAA’s post-incident investigation report states,
[Siegman] would have had to loosen the four bolts that
secure the door and then turn the handle to release
the door to open it. When [Siegman] stepped into the
cabinet contact was made with the transformer tap and
the cabinet causing the arch [sic] flash to occur and
tripping the two medium voltage breakers for that
(Rosetti Cert. Ex. E)
Siegman was working pursuant to Scalfo Electric’s contract
with the FAA to install the subject medium voltage cast coil
dry-type transformer designed by Defendant Schneider Electric.
(Antweiler 05/18/16 Dep. p. 9; Lesnieski Dep. p. 7)
specific area where Siegman was working was not open to the
public; only “trained personnel” who have been given “access to
that area” could enter.
(Duffy Dep. p. 22-23)
Schneider’s witness, James Antweiler 3, explained the
company’s general design process: “When [Schneider] receive[s]
an order for a transformer we process the order.
would go to whoever our supplier is, in this case ABB.
[it] would manufacture the transformer per the customer’s
specifications and our specifications.”
Dep. p. 17)
With respect to the specific design process that occurred
between Schneider and the FAA, Antweiler further testified,
Q: . . . How are [FAA specifications] and [Schneider
A: Our specifications are general specifications that
apply to all transformers that we buy. And then the
FAA specifications are specific to the job. And that
would be the voltages required, the impedances
required, the size of the transformer required, all
those things that apply to the specific end user.
. . .
With regard to the specification for the doors
[on the transformer], the type of doors, the type of
Mr. Antweiler was deposed twice, once on May 18, 2016 as
a fact witness, and then again on February 14, 2017 as an expert
hinges, the handles, whose specs [sic] do they fall
That would be the FAA.
Q: So, the FAA specifies what type hinges they want
on their door?
A: No. . . . They would specify whether they want
doors or just removable panels.
(Id. at p. 18)
Siegman’s design defect theory is that the transformer’s
design should have included a “Kirk Key” which prevents access
to the inner workings of an energized transformer. 4
uncontroverted testimony, however, is that the decision to
include such a device on the door of a transformer “[is]
specified by the end user,” here the FAA.
Dep. p. 24)
Antweiler explained, “we provide interlocks when
the user tells us [it] want[s] interlocks and then we provide
A Kirk Key is a brand name for a mechanical interlock
system which requires the user to turn off the power source with
a key before the same key will unlock the access door to the
transformer. (Antweiler 05/18/16 Dep. p. 22-23)
Apparently as a secondary argument, Siegman also asserts
that Schneider Electric should have included another safety
device, such as an audible alarm, that would have prevent
someone like Plaintiff from accessing a live transformer. (See
Opposition Brief, p. 16, 24) Although the Court’s analysis of
the government contractor defense is not dependent upon the
specific safety device proposed by Siegman, the Court’s
discussion focuses on the proposed Kirk Key system because that
system was clearly the focal point in deposition questioning.
However, this opinion should not be misunderstood to be limited
to Kirk Key systems. Rather, the opinion encompasses all
alternative safety designs Plaintiff contends should have been
[it] with the interlocking of different devices depending on how
the user wants to shut [its] system down or do maintenance on
(Antweiler 02/14/2017 Dep. p. 10)
Siegman also testified that the FAA “would give the final say”
with regard to “any choices as to any safety devices,
interlocks, any Kirk Keys, anything like that.” (Siegman Dep. p.
It is undisputed that the FAA did not include a request for
a Kirk Key, or any other similar safety device, in its
specification for the transformer at issue.
(Lesnieski Dep. p.
8, 13-14, 17, 24, 27-28, 34; Antweiler 05/18/16 Dep. p. 25)(See
also Plaintiff’s Opposition Brief, p. 21)
Joseph Lesnieski was
the FAA’s “contracting officer representative” and “resident
engineer,” for the Scalfo Electric contract.
He drafted the specification at issue.
(Lesnieski Dep. p.
(Id. at p. 5-7)
Lesnieski testified, “I’ve been in the trade for 43 years and
have been involved with [K]irk [K]ey systems on numerous pieces
of equipment.” (Id. at p. 8)
“I personally have never seen
[K]irk [K]eys on a transformer cabinet inside a locked location
[such as the location where Siegman was injured].”
(Id. at p.
Lesnieski explained that the specification did not require
a Kirk Key “simply because . . . it was not required by the
national electric safety code or any of the other referencing
(Id. at p. 17)
According to Lesnieski, those
industry safety standards only call for Kirk Key-type devices
when the “general public or non-qualified individuals have
access to the areas.”
(Id. at p. 12-13)
Lesnieski further testified,
As an experienced specifier of equipment, were
you aware of the risks of arc flashing for this
specification as issued?
A: Yes, I have been, you know appraised [sic] of arc
flash because of industry accident standards for . .
. [p]robably at least 20 years. I mean naturally I
knew about it before then, but it was not enforced as
Q: But for at least the last 20 years, you have been
informed about arc flash?
Q: Did you need any sort of training from Schneider
Electric as to the risks of arc flash?
A: No. No, I did not need any specialized training.
We have our own FAA training.
(Lesnieski Dep. p. 25)
SUMMARY JUDGMENT 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[.]”
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.”
In determining 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 moving party.”
Meyer v. Riegel Prods.
Corps., 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.
Moreover, a court need not 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. 372, 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, 587 (1986).
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.
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
Anderson, 477 U.S. at 250 (citing Fed. R. Civ.
In the face of a properly supported motion for
summary judgment, the nonmovant’s burden is rigorous: she “must
point to concrete evidence in the record”; mere allegations,
conclusions, conjecture, and speculation will not defeat summary
Orsatti v. New Jersey State Police, 71 F.3d 480, 484
(3d Cir. 1995); accord, 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 summary judgment.”)).
In Boyle, the Supreme Court held, as a matter of federal
common law, “liability for design defects cannot be imposed,
pursuant to state law, when (1) the United States approved
reasonably precise specifications; (2) the equipment conformed
to those specifications; and (3) the supplier warned the United
States about the dangers in the use of the equipment that were
known to the supplier but not to the United States.”
500, 512 (1988). 5
When all three elements are established,
See also, Crespo v. Unisys Corp., 1996 WL 875565 at *8
(D.N.J. 1996) (Bassler, D.J.) (“The Boyle test boils down to
federal common law preempts state law design defect claims and
those claims must be dismissed.
Id. at 504;
see also, Carley
v. Wheeled Coach, 991 F.2d 1117, 1128 (3d Cir. 1993), cert.
denied, 510 U.S. 868 (1993) (“If [defendant] establishes at
trial that it satisfied the third prong of the government
contractor defense, then federal common law preempts state law
and [defendant] is not liable for the alleged design defect.”). 6
Although Boyle involved defects in equipment procured pursuant
to a military contract, the law is well-settled in the Third
Circuit that the Boyle defense “applies to both military and
Carley, 991 F.2d at 1119.
“The defendant bears the burden of proving each element of
Where a defendant has moved for summary judgment,
it must establish that there is no genuine issue of material
three elements: approval, conformance, and relative
The basic principle supporting the Boyle defense is that
sovereign immunity should extend to private contractors who
simply implement design decisions made by the United States.
See Boyle, 487 U.S. at 512 (“It makes little sense to insulate
the Government against financial liability for the [decision]
that a particular feature of military equipment is necessary
when the Government produces the equipment itself, but not when
it contracts for the production.”); Maguire v. Hughes Aircraft
Corp., 912 F.2d 67, 70 (3d Cir. 1990)(“The Supreme Court in
large measure based the identification of a government
contractor defense at federal common law upon the contours of
the discretionary function exception to liability under the
Federal Tort Claims Act.”).
fact as to each element of the defense.”
Carley, 991 F.2d at
The Court now turns to the three elements necessary for
the government contractor defense to apply.
A. “Approved reasonably precise specifications”
First, “it is necessary only that the government approve,
rather than create, the specifications” for the government
contractor defense to apply.
Carley, 991 F.2d at 1125.
differently, “[t]he government contractor defense is available
to a contractor that participates in the design of the product,
so long as the government’s approval consists of more than a
mere rubber stamp.”
Maguire, 912 F.2d at 71-72.
The record is clear and uncontroverted: the decision
whether to include a Kirk Key interlock was the FAA’s decision
(Siegman Dep. p. 54; Antweiler 05/18/16 Dep. p. 24;
Antweiler 02/14/2017 Dep. p. 10)
Indeed, the FAA did make the
Mr. Lesnieski, the FAA employee who drafted the
specification, explained his reasoning for not requiring a Kirk
In his extensive electrical engineering experience, he had
never seen a Kirk Key on a transformer in a non-public limited
access location (Lesnieski Dep p. 8-9, 12-14), and he chose not
to require one in the specification at issue because he believed
no industry safety standard required it. (Lesnieski Dep. p. 1214, 16-17)
Relying on Antweiler’s deposition testimony that the
specification did not require any sort of safety device,
Plaintiff draws the inference that the FAA must have left to
Schneider Electric’s discretion the decision whether to include
a Kirk Key or other similar device.
Such an inference cannot be
reasonably drawn, however, in light of Siegman’s and Lesnieski’s
contrary testimony, which Plaintiff’s opposition ignores.
On the record before this Court, a reasonable factfinder
could only conclude that the government did not simply rubber
stamp Schneider’s decision to omit a Kirk Key; on the contrary,
the government, not Schneider, made a reasoned decision not to
require a Kirk Key.
Accordingly, the Court holds that the first
prong of the Boyle test is met.
As to the second prong, Plaintiff does not argue that the
transformer did not conform to the specification and, as such,
does not seriously contend this prong.
The record evidence
conclusively establishes conformity: the specification did not
require a Kirk Key or any other similar safety device, and the
transformer sold by Schneider did not have any such device.
Moreover, Lesnieski testified that the transformer conformed to
(Lesnieski Dep. p. 24-25)
Accordingly, the Court holds that the second prong of the
Boyle test is met.
C. Warned of dangers not known to the government
Turning to the third prong, Siegman extensively quotes
deposition testimony that Schneider Electric did not warn or
“educate” the government about the asserted dangers of omitting
a safety interlock device such as a Kirk Key.
Brief, Dkt. No. 24, p. 24-25)
According to Siegman, this
evidence is sufficient to raise a fact issue with regard to the
third prong of the Boyle test.
The Court disagrees.
The law is clear: a government contractor must only warn of
dangers that are “known to the supplier but not to the United
Carley, 991 F.2d at 1126 (citing Boyle) (emphasis
Only when the contractor is “more aware than the
government” of the danger, must the contractor warn in order to
obtain Boyle protection.
Id.; see also Crespo, 1996 WL 875565
at *8 (describing the third prong of the Boyle test as “relative
No reasonable factfinder could conclude on this record that
Schneider Electric was more aware than the FAA about Kirk Keys
and the danger of arc flashes.
testimony is unequivocal.
He had known about the risk of arc
flashes for more than 20 years; he did not need such information
from Schneider Electric; the FAA provided its own training.
(Lesnieski Dep. p. 25)
Indeed, Plaintiff fails to point to any
At most, Plaintiff’s evidence supports a
conclusion that Schneider Electric did not warn the FAA of the
risks of arc flashes, but that fact is not dispositive because
the relevant inquiry is not simply whether or not the government
was warned, but rather, relative knowledge.
In this regard, this case is analogous to Stout v. BorgWarner Corp., 933 F.2d 331 (5th Cir. 1991), cert. denied, 502
U.S. 981 (1991).
In Stout, an air conditioning repair man was
injured when he reached into an operating unit and caught his
hand in the rotating blades of the condenser fan.
Id. at 332.
Stout argued that the air conditioning unit was defectively
designed “because there was no safety device that would prevent
contact with the condenser fan while the unit was in operation.”
Id. at 333-34.
In affirming the district court’s grant of summary judgment
based on the government contractor defense, the Fifth Circuit
held that the third prong of the Boyle test was established for
two independent reasons.
First, the Court explained, the
contractor “only had the duty to warn the government of dangers
which the government had no knowledge.”
Stout, 933 F.2d at 336.
The record in Stout, the Court held, “demonstrate[d] undisputed
knowledge of the risk of repairing the unit in this manner.”
Id. at 337.
Second, the Court stated, the record established that “the
danger of coming into contact with the blades of the fan was
obvious to anyone who observed the air conditioner in operation.
The unit was so powerful that it would propel any object placed
on the fan outlet like a shell from a cannon.”
Stout, 933 F.2d
Based on this evidence, the Court held that “there was
no need for [the contractor] to communicate this warning for the
government contractor defense to apply” because “the Army must
be charged with knowledge of the obvious risk that the exposed
The Court finds Stout’s analysis applicable to this case on
First, the undisputed record demonstrates that the
FAA knew the dangers associated with opening an energized
Lesnieski’s deposition testimony conclusively
establishes this fact.
(Lesnieski Dep. p. 25)
Siegman also testified:
Q: Did you need warnings on machinery to tell you
[the] hazards [relating to arc flashes]?
A: At the FAA they have stickers posted on all the
gear, and tell you how far away you need to be if
[the transformer is] exposed, if the door is open.
. . .
Did the transformer cabinet in which you were
injured have a proximity warning on it?
A: I don’t think it had a proximity warning on it.
But it did have, you know, exposed live parts can
cause injury, those types of stickers.
(Siegman Dep. p. 13); accord. Stout, 933 F.2d at 337
(“[plaintiff] admitted in his deposition testimony that [he was]
specifically warned not to get his hand caught in the fan while
Second, the dangers of opening a live transformer are
equally, if not more, apparent as the danger of reaching into an
exposed fan outlet.
The record in this case establishes that
the dangers of arc flashes were common knowledge in the
electrical engineering field.
(See, e.g., Lesnieski Dep. p. 25,
Antweiler 05/18/16 Dep. p. 15-17, 21)
Thus the Court holds that
the third and final prong of the Boyle test is met.
Accordingly, because there are no genuine disputes of
material fact as to the three Boyle elements, Schneider Electric
is entitled to summary judgment as to the government contractor
For the foregoing reasons, Defendant’s Motion for Summary
Judgment will be granted.
An appropriate Order shall issue on
s/ Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: November 17, 2017
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