Lee v. Carbonyx, Inc. et al

Filing 150

OPINION AND ORDER by Magistrate Judge Kimberly E. West : Deft Turck's Motion for Leave to File Answer Out of Time (Re: 103 ) is GRANTED, in part. Deft Turck's Motion for Summary Judgment (Re: 77 ) is GRANTED. Additionally, Deft Turck&# 039;s Motion to Strike Plaintiff's Expert Witnesses (Re: 78 ); Deft Turck's Daubert Motion to Strike Plaintiff's Expert Witness (Re: 107 ); Deft Turck, Inc.'s Motion in Limine (Re: 113 ) and Deft Turck's Objections to Plaintiff's Designation of Deposition Testimony of Tony Udelhoven (Re: 114 ) are deemed MOOT. The Daubert hearing set on 1/16/14 at 10:00 a.m. is hereby STRICKEN, as the associated Motion is moot. (neh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JAMES T. LEE,
Plaintiff,
v.
CARBONYX, INC. d/b/a
CARBONYX CARBON TECHNOLOGIES
and TURCK, INC.,
Defendants.

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Case No. CIV-12-102-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant Turck’s Motion
for

Summary

Judgment

(Docket

Entry

#77).

Upon

review

and

consideration of the briefs filed by the parties, this Court
renders this ruling.
Statement of Material Facts
On June 17, 2010, Plaintiff James T. Lee (“Lee”), a worker
provided by Oasis Staffing, was working at Defendant Carbonyx,
Inc.’s

(“Carbonyx”)

facility

located

in

Ardmore,

Oklahoma.

Carbonyx produces a product called Cokonyx, a form of coke used in
the steel manufacturing process.

Carbonyx’s automated production

process utilizes a transfer car system to transport Cokonyx at
various stages of the manufacturing process.

The Cokonyx billets

are loaded onto a kiln car and passed through a high-heat kiln
tunnel before the kiln car is loaded onto the transfer car.

The

billets are cooked in the kiln for up to twenty-four hours at
temperatures between 2,300 and 2,500 degrees Fahrenheit.

The

loaded kiln car is then cooled by jets of water and transported to
the unloading area by the transfer car where a large scraper pushes
the Cokonyx off the kiln car and onto a conveyor belt which carries
the billets out of the facility.

The transfer car then backs away

from the unloading area to the return tracks where the kiln car is
pushed off the transfer car.

The transfer car then returns to the

kiln exit to receive another loaded kiln car.
Carbonyx commissioned Star Engineering (“Star”) to design and
manufacture the transfer car system.

Star employed proximity

sensors which were designed and manufactured by Werner Turck GmbH
and distributed in the United States by Turck, Inc.

(“Turck”), on

the transfer car to detect the presence of the kiln car once loaded
on the transfer car. The proximity sensor is generally designed to
sense or detect a standard metal target within an assured distance.
The target for the sensors on the transfer car was a metal skirt
which hangs from the kiln car.
Once the sensor detects the metal skirt on the kiln car, the
transfer car will begin moving the kiln car on the tracks.

The

transfer car will only move when moth proximity sensors on the
transfer car detect the metal skirt of the kiln car.

If the sensor

does not detect the metal skirt or target, the transfer car will
not move.
The manufacture and design of the Turck sensor is governed by
the

International

Electro-Technical

2

Commission

(“IEC”),

which

prepares and publishes international and industry standards for all
electrical and electronic related technologies including proximity
sensors.
distance,

These standards are used to determine rated operating
assured

specifications.

operating

distance,

and

other

operational

The rated operating distance is a conventional

quantity used to designate the nominal operating distance. It does
not take into account either manufacturing tolerances or variations
due to external conditions such as voltage and temperature.

The

proximity sensor at issue has a rated or nominal operating range of
75 millimeters.
The assured range is defined as between 0 and 81% of the rated
operating distance.

It is the range within which the operation of

the proximity sensor under specified voltage and temperature ranges
is guaranteed.

The Turck sensor used by Star in the process

employed by Carbonyx is guaranteed to operate, if used under
specified voltage and temperatures, up to 81% of 75 millimeters or
up to a detection distance of 60.75 millimeters.

The specified

operational temperature at which the range of the sensor at issue
is guaranteed is -13º F to 185º F (inclusive of a 10% to 15%
temperature drift).
According

to

Tony

Udelhoven,

the

designated

corporate

representative for Turck, Turck did not have input in the design of
the transfer car system at issue in this case.

To his knowledge,

Star did not call Turck to ask for input in the system. Further,

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Turck’s records indicate that there was no direct sales between
Star and Turck.

Additionally, Turck did not participate in the

installation of the proximity sensor in the transfer car system at
the Carbonyx plant.
The transfer car system operated without incident for a time
in the Carbonyx facility.

Problems developed with the transfer

car, however, when the target or metal skirt of the kiln car was
taken

out

of

the

proximity

sensor’s

detection

range.

This

condition was as a result of external problems present at the
Carbonyx plan including (a) hot Cokonyx falling on, melting, and/or
blocking the sensor at issue; (b) the kiln cars and skirts being
warped from the excessive heat in the kiln tunnel; (c) the kiln
cars and skirts being bent by forklifts; (d) the kiln cars and
skirts being bent from falling off the tracks; and/or (e) the kiln
cars and skirts being jostled when loaded onto the transfer car or
when the Cokonyx was scraped off in the unloading area.

Brandon

Darden (“Darden”), Lee’s direct supervisor at Carbonyx, testified
that the proximity sensor always detected metal when placed in
range of the sensor and the problems with the sensor not detecting
the kiln cars were caused by the damage to the kiln car skirting or
heating of the sensors.
When the proximity sensor did not detect its target because of
the conditions identified above, the transfer car would not move.
Carbonyx employees would place a metal object in front of the

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proximity sensor to “trick” it into detecting its target in an
effort to keep the manufacturing process moving.

Every time a

piece of metal was placed within the range of the proximity sensor,
the sensor would detect the metal and cause the transfer car to
move.
On the relevant date, Lee was sweeping and shoveling coal or
Cokonyx that had fallen off of the cars.

The transfer car stopped

moving and another worker at the plant, Edward Jack Richards
(“Richards”), responded to the problem.

When he arrived at the

stalled car, Richards observed Lee sweeping in the area.

He asked

Lee to grab a piece of metal, put it in front of the sensor on the
car, and keep it in place until the car arrived back at the kiln.
Lee walked along with the car in a “hunched over” position, placing
the metal piece in front of the sensor. Richards observed Lee jump
in

between

a

beam

and

the

transfer

car

and

become

pinched.

Richards estimated the clearance between the beam and the car was
approximately four inches. Richards testified he hit the emergency
stop and began “bumping” the car in reverse, releasing Lee.

Lee

sustained injury as a result of being trapped between the beam and
the transfer car.
Richards, a maintenance electrician for Carbonyx, testified
that the sensors never failed to detect metal and there was nothing
wrong with the Turck proximity sensor.
During

an

inspection

of

the

5

sensor

subsequent

to

Lee’s

accident and as part of the litigation discovery process, the kiln
car skirt was observed to be positioned between 60 and 61.5
millimeters away from the Turck proximity sensor.

Additionally,

during the inspection, the range at which the sensor was observed
to detect its target was 63.5 millimeters.

As stated, the assured

range of the sensor as established by Turck was 60.75 millimeters.
Turck’s product catalog provided to distributors, purchaser,
and users of its sensors provides as follows:
Turck sensors and peripheral devices DO NOT include the
self-checking redundant circuitry required to permit
their use in personnel safety applications. A device
failure or malfunction can result in either an energized
or de-energized output condition.
Never use these products as sensing devices for personnel
protection.
Their use as safety devices may create
unsafe conditions that could lead to serious bodily
injury or death.
On

October

31,

2011,

Lee

initiated

this

action

against

Carbonyx and Turck in the District Court in and for Carter County,
Oklahoma, alleging products liability and negligence claims.

The

action was removed to this Court on March 8, 2012.
Turck filed the subject Motion contending it is entitled to
summary

judgment

on

all

claims

because

(1)

this

Court

has

determined that the proximity sensor was not defective in a prior
ruling; (2) Lee has not presented legally sufficient evidence of a
products liability claim against Turck; (3) Turck had no duty to
warn Lee of any risks associated with the proximity sensor; (4) the
misuse of the sensors bars recovery in this action; (5) Lee cannot
6

maintain a negligence claim against Turck; and (6) the proximity
sensor was not the proximate cause of Lee’s injury.

Turck also

asserts that Lee is not entitled to a claim for punitive damages
under the facts of this case.
course,

that

one

or

more

This latter claim presumes, of

causes

of

action

survives

summary

judgment.
Standard on Summary Judgment
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate, “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that, there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”

The moving party bears the initial

burden of showing that there is an absence of any issues of
material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106

S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).

A genuine issue of

material fact exists when "there is sufficient evidence favoring
the non-moving party for a jury to return a verdict for that
party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106

S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). In determining whether
a genuine issue of a material fact exists, the evidence is to be
taken in the light most favorable to the non-moving party. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26
L.Ed.2d 142 (1970).

Once the moving party has met its burden, the

7

opposing party must come forward with specific evidence, not mere
allegations or denials of the pleadings, which demonstrates that
there is a genuine issue for trial.

Posey v. Skyline Corp., 702

F.2d 102, 105 (7th Cir. 1983). With the exception of the statement
concerning whether Star contacted Turck in the installation of the
sensor, Lee did not contest any of the material facts as alleged by
Turck and set forth substantially verbatim above. Lee cited to the
addition
judgment.

of

other

facts

which

it

contends

precludes

summary

This Court will discuss the failure to include these

facts below.
Law of the Case
Turck first contends that this Court found the proximity
sensor was not defective in the Opinion and Order entered July 18,
2013 in relation to Carbonyx’s summary judgment motion.

Turck

argues this finding represents the law of the case and should be
enforced as to Lee’s claims against it.

This Court specifically

found that the briefing provided by Lee and Carbonyx did not
contain evidence that the sensors were defective or did not
function as they were designed.
The law of the case doctrine is “a restriction self-imposed by
the courts in the interests of judicial efficiency.”

Gage v.

General Motors Corp., 796 F.3d 345, 349 (10th Cir. 1986).

The

doctrine only applies when there has been a final decision.

Id.

Because it was not shown Carbonyx was the manufacturer of the

8

sensor as Lee originally alleged in the Petition, the issue of
defect was only obliquely addressed as it pertained to whether
Carbonyx had knowledge of the manner in which the sensor functioned
as

it

was

installed

in

its

facility.

Since

Turck

had

not

participated in this issue in the briefing and the specifics of the
defect had not been alleged, this Court will not apply the law of
the case doctrine to this finding.
Evidence of Products Liability Claim and Causation
Turck accurately sets forth the current state of the law on
products liability in Oklahoma.

In order to prevail on such a

claim, Lee must demonstrate that (1) the product was the cause of
the injury (“the mere possibility that it might have caused the
injury is not enough.”); (2) the defect existed in the product at
the

time

the

product

left

the

manufacturer’s

possession

and

control; and (3) the defect made the product unreasonably dangerous
to him.

Kirkland v. General Motors Corp., 521 P.2d 1353, 1362-63

(Okla. 1974).
Lee’s theory of a defect in the proximity sensor is stated in
his response as “[h]ad the subject sensor not failed to detect the
kiln car, Plaintiff would not have had to approach the car and
‘trick’ it; hence, he would not have been injured.” This theory at
the outset is fundamentally flawed on the required element of
causation.

In Oklahoma, “[c]ausation is established if ‘in a

natural and continuous sequence, unbroken by independent cause; the

9

[product] produces an injury that would not have occurred if it had
not been administered.”

Korban v. Boostpower U.S.A., Inc., 533

Fed. Appx. 820, 823 (Okla. 2013) citing Hollander v. Sandoz Pharm.
Corp., 289 F.3d 1193, 1214 (10th Cir. 2002)(citation omitted).
Turck’s repeated assertion is inescapable - if the proximity sensor
it manufactures does not perform as designed in the system in which
it was installed at the Carbonyx facility, the transfer car stops.
The stopping of the transfer car did not cause Lee’s injury. Lee’s
use of the metal rod to “trick” the sensor into causing the
transfer car to move represented an intervening act which broke the
causal connection between the sensor’s operation and the injury Lee
sustained. If Lee had done nothing, no injury would have resulted.
Thus, Lee has failed to demonstrate the required element of
causation and a reasonable jury could not conclude that the failure
of the sensor to detect the kiln car caused Lee’s injury.
Additionally, nothing in the evidentiary record demonstrates
the proximity sensor was defective in either its manufacture or
design. Lee’s assertion that “[t]he application and environment in
which the subject sensor was utilized was both intended by and
foreseeable to Defendant, whose website contemplates the use of its
sensors in dangerous environments such as foundries and chemical
plants.” Lee’s Proposed Statement of Undisputed Material Facts No.
26.

While Turck’s website identified numerous sites where its

sensors were utilized, Lee did not provide evidence that the

10

extreme conditions of temperature were present at these facilities
as was present at Carbonyx.

Rather, Lee engages in supposition in

stating in a footnote that the conditions were comparable.
Lee’s main objection to the operation of the proximity sensor
rests with the distinction between the “rated operating distance”
and the “assured operating distance” as those terms are used in the
industry.
proximity

The IEC which establishes the industry standards in
sensors

define

these

terms.

The

“rated

operating

distance” is defined as “a conventional quantity used to designate
the operating distances.

It does not take into account either

manufacturing tolerances or variations due to external conditions
such as voltage and temperature.”
2.3.1.1.

IEC Standard 60947-5-2, Sec.

The “assured operating distance” is defined as “the

distance for the sensing face within which the correct operation of
the proximity switch under specified conditions is assured.”

IEC

Standard 60947-5-2, Sec. 2.3.1.7.
The Turck proximity sensor indicated on its face that it had
a “rated operating distance” of 75 mm.

The “assured operating

distance” as set forth in Turck’s literature is between 0 and 81%
of the “rated operating distance” or 60.75 mm.

The product

performed within this range upon inspection after the accident.
The evidence is deficient as to the existence of a manufacturing or

11

design defect.1
Indeed, the evidence from those who used the sensors indicates
they functioned properly.

Certainly, the sensor’s operation did

not make it an unreasonably dangerous product.
Lee also contends Turck failed to warn of the differences
between these two distances as only the “rated operating distance”
is on the face of the sensor.

Again, Lee’s failure to warn claim

cannot be maintained because the causal connection between the
alleged failure and the injury is lacking.

“The manufacturer of a

product has a duty to warn the consumer of potential dangers which
may occur from the use of the product when it is known or should be
known that hazards exist.”

Tortorelli v. Mercy Health Ctr., Inc.,

242 P.3d 549, 558 (Okla. Civ. App. 2010) quoting McKee v. Moore,
648 P.2d 21, 23 (Okla. 1982).

“To recover, a plaintiff must

establish both that the injury was caused by the product and by a
failure to warn of a possible detrimental reaction.” Id.; See also
Duane v. Oklahoma Gas & Elec. Co., 833 P.2d 284, 286 (Okla.
1992)(“The plaintiff must establish that the failure to warn was a

1

This Court specifically rejects Lee’s addition to the
Statement
of
Undisputed
Material
Facts
No.
30
as
a
mischaracterization of the evidence in the record. Lee states that
the sensor did not function properly at the “assured operating
distance”, attributing the statement to Turck’s corporate
representative. In fact, Mr. Udelhoven testified that the “assured
operating distance” would be specific to the particular application
where the sensor was utilized due to differences in the shape of the
object it was detecting. Additionally, the post-accident inspection
demonstrated that the sensor at issue in this case detected its
target within the outer bounds of its “assured operating distance.”

12

proximate, producing cause of the injuries received.”)
In this case, the record is devoid of evidence to indicate
that the failure to include a warning on or around the sensor that
the “assured operating distance” was somewhat shorter than the
“rated operating distance” caused Lee’s injury.

Clearly, the

evidence establishes that the cause of his injury is directly
attributable to the use of the metal rod to cause the sensor to do
something it was not doing.

Simply put, if Lee had done nothing to

attempt to circumvent the limitations of the sensor, he would not
have been injured.
Leave to File Answer to Include Misuse
Turck also contends that the sensor was misused or abused by
Carbonyx such that it cannot be held liable under strict products
liability.

This Court must first address the failure of Turck to

include this defense in its answer.

Turck has filed a motion

requesting that it be permitted to file an answer out of time.

The

defense of alteration, misuse, and abuse of the product.

Lee

objects to permitting Turck to file an answer as it has failed to
give an adequate basis for its failure. In particular, Lee objects
to the inclusion of affirmative defenses into this action at this
late date.
In Oklahoma, misuse of a product is an affirmative defense to
a products liability claim.

Black v. M & W Gear Co., 269 F.3d

1220, 1234 (10th Cir. 2001)(citation omitted). As such, it must be

13

specifically plead.
This Court (and the parties) have not identified relevant case
authority in allowing the filing of an omitted answer to include
affirmative defenses.

However, the case authority governing the

allowance of the amendment of an answer to include affirmative
defenses is instructive.
“Refusing leave to amend is generally only justified upon a
showing of undue delay, undue prejudice to the opposing party, bad
faith

or

dilatory

motive,

failure

to

cure

deficiencies

by

amendments previously allowed, or futility of amendment.” Bylin v.
Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) quoting Frank v.
U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).

The delay has

certainly been extended since this case was removed to this Court
on March 8, 2012 and Turck did not file its Motion until December
20, 2013.

In essence, Turck’s counsel states that he “cannot

explain” the omission.
This Court is most concerned with any prejudice the filing of
the answer with affirmative defenses included might heap upon Lee.
From all indications, Lee did not raise the matter until December
19, 2013 when counsel was preparing a proposed pretrial order which
precipitated the filing of the subject Motion.

An examination of

prior filings in the case indicates that Joint Status Report
submitted by counsel contained Turck’s specific defenses of (1) a
denial that Lee showed the sensor at issue was manufactured by

14

Turck; (2) a denial the sensor was defective; and (3) a denial that
the sensor was “used in its intended manner.”

Joint Status Report

filed April 27, 2012 (Docket Entry #13).

In Turck’s summary

judgment motion, the defense of misuse was alleged. Turck’s Motion
for Summary Judgment filed August 26, 2013 (Docket Entry #77), p.
18.

In response, Lee did not address misuse let alone object to

its inclusion as an issue on summary judgment as having not
previously been plead.
In short, the record indicates the parties were aware that the
misuse defense was being alleged relatively early in the case. Lee
cannot now claim surprise or prejudice based upon the omitted
answer and attendant affirmative defense.

As a result, Turck will

be permitted to file an Answer to the Petition but may only include
the affirmative defense of misuse.

The remaining affirmative

defenses asserted in the proposed Answer which accompanied the
Motion for Leave to File an Answer Out of Time have not previously
asserted in this case with adequate specificity to put Lee on
notice of their inclusion in this action.
Misuse
Turck contends its proximity sensor was misused or abused in
the manner in which it was utilized in the Carbonyx facility.2
2

In

The misuse defense is cited here only as an alternative
finding since this Court has determined that the evidence does not
indicate the sensors were defective or that they caused Lee’s
injury.
To the extent the sensors’ failure was attributable to
melting as Darden testified occurred on some occasions, misuse
through exposure to extreme temperatures was the cause of the

15

Oklahoma, “an abnormal use or misuse of [a] product . . . is a
complete defense to strict liability.” Kirkland, 521 P.2d at 1367.
“Generally when we speak of the defense of misuse or abnormal use
of a product we are referring to cases where the method of using a
product is not that which the maker intended or is a use that could
not reasonably be anticipated by a manufacturer.”

Fields v.

Volkswagen of America, Inc., 555 P.2d 48, 56 (Okla. 1976).
Turck’s

literature

clearly

indicates

the

operational

temperature range for the proximity sensor at issue in this case is
-13º F to 185º F, inclusive of a 10% to 15% temperature drift.
Carbonyx

utilized

the

temperature limitations.

sensor

in

conditions

exceeding

these

Both the “rated operating distance” and

the “assured operating distance” for this product were conditioned
upon the voltage and temperature specifications.

The failure of

Star

the

and

Carbonyx

to

use

the

product

under

specified

temperature conditions constituted a misuse of the product as the
product was not used as Turck intended.3

condition.
3

Turck also asserts that sophisticated user defense,
contending that its product was intended for those who were
experienced in the use of their product.
This Court does not
address this defense because it must be plead affirmatively and
Turck did not do so in its proposed Answer to the Petition or in any
other filings other than the Reply in connection with its summary
judgment motion. In the event the defense is not required to be
affirmatively set forth in an Answer, it does appear that at least
in connection to the duty to warn claim, “where a product is used
in an industrial setting by one supposedly skilled at his job, a
manufacturer has ‘no duty to warn of dangers inherent in the task
or which are created by oversight or negligence of the contractor

16

Negligence Claim
Turck contends it is unsure whether Lee is also pursuing a
claim for negligence against it but maintains that the evidence
does not support a finding of simple negligence.
address this contention in his response.

Lee does not

As such is the case, he

is deemed to have confessed the argument and waived any such claim.
This Court need not address the arguments concerning the
propriety of punitive damages since Turck is entitled to summary
judgment on all claims asserted against it.
IT IS THEREFORE ORDERED that Defendant Turck, Inc.’s Motion
for Leave to File Answer Out of Time (Docket Entry #103) is hereby
GRANTED, in part.

Turck, Inc. may file its Answer out of time but

may assert the sole affirmative defense of misuse/abuse of the
product no later than JANUARY 21, 2014.
IT IS FURTHER ORDERED that Defendant Turck’s Motion for
Summary Judgment (Docket Entry #77) is hereby GRANTED on all claims
asserted against it in this action.
IT IS FURTHER ORDERED that Defendant Turck’s Motion to Strike
Plaintiff’s Expert Witnesses (Docket Entry #78); Defendant Turck’s
Daubert Motion to Strike Plaintiff’s Expert Witnesses (Docket Entry

or fellow employees.’” Duane, 833 P.2d at 287. The manufacturer is
entitled to assume that professional users of its product will heed
its warnings. Hutchins v. Silicone Specialties, Inc., 881 P.2d.
64,67 (Okla. 1993). If it could assert the defense, Turck would be
entitled to rely upon the skill of the purchaser of the product,
Star and Carbonyx, in setting forth its warnings and expecting them
to be followed.

17

#107); Defendant Turck’s Motions in Limine (Docket Entry #113); and
Defendant

Turck’s

Objections

to

Plaintiff’s

Designation

of

Deposition Testimony of Tony Udelhoven (Docket Entry #114) are
hereby deemed MOOT.

Additionally, the Daubert hearing set on

January 16, 2014 at 10:00 a.m. is hereby STRICKEN, since the
associated Motion is moot.
IT IS SO ORDERED this 14th day of January, 2014.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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