Alnahhas et al v. Robert Bosch Tool Corporation et al

Filing 47

ORDER granting 37 Motion for Summary Judgment; striking as moot 38 Motion to Exclude; striking as moot 43 Motion to Strike. Signed by Honorable Timothy D. DeGiusti on 5/4/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HANNA ALNAHHAS
and BARBARA ALNAHHAS,
Plaintiffs,
vs.
ROBERT BOSCH TOOL
CORPORATION; SKIL TOOLS,
and CPO COMMERCE, INC.,
Defendants.

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Case No. CIV-13-178-D

ORDER
Plaintiff Hanna AlNahhas was injured while operating a random orbit sander
manufactured by Defendant Robert Bosch Tool Corporation (“Bosch”). Under tort
theories of strict products liability, negligence, and gross negligence,1 AlNahhas and
his wife sued Bosch, Skil Tools, and CPO Commerce, Inc., alleging the sander was
defectively designed and had inadequate warnings. Before the Court is Bosch’s
Motion for Summary Judgment [Doc. No. 37] to which Plaintiffs have responded
[Doc. No. 42]. The matter is fully briefed and at issue.

1

Plaintiffs have stipulated there is no cause of action for gross negligence. Resp.
to Mot. for Summary Judgment at 15. Accordingly, this Order does not address the
underlying merits of that claim.

BACKGROUND
AlNahhas began woodworking over twenty-five years ago, teaching himself the
craft. In 2007 or 2008, he purchased a new Skil Orbital Sander, Model No. 7490. The
sander is a hand-held power tool that includes an electrically powered rotating disc
and detachable sanding pad. The sanding pad is made with a reinforced glass-filled
center structure surrounded by foam. To use the sander, a user attaches sandpaper to
the foam portion of the disc, which then rotates at approximately 12,000 oscillations
per minute. The sanding pad deteriorates with use, for which Bosch sells replacement
pads.2
The sander purchased by AlNahhas was manufactured in November 2006.
Affixed to the sander is the following warning:

2

AlNahhas testified he “never buy[s] replacement parts” for tools; instead, he
“throw[s] them away if they go out.” Depo. of Hanna AlNahhas at 42:4-10.
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The sander’s instruction manual also contained operational and safety
directions. It read in pertinent part:
Read and understand all instructions. Failure to follow all instructions
listed below, may result in electric shock, fire and/or serious personal
injury.
***
Stay alert, watch what you are doing and use common sense when
operating a power tool. Do not use tool while tired or under the influence
of drugs, alcohol, or medication. A moment of inattention while
operating power tools may result in serious personal injury.
***
Use safety equipment. Always wear eye protection. Dust mask, nonskid safety shoes, hard hat, or hearing protection must be used for
appropriate conditions.
***
Check for misalignment or binding of moving parts, breakage of
parts, and any other condition that may affect the tools [sic]
operation. If damaged, have the tool serviced before using. Many
accidents are caused by poorly maintained tools. Develop a periodic
maintenance schedule for your tool.
(Emphasis in original). AlNahhas read the manual prior to using the sander.
AlNahhas used the sander to build cabinets for his kitchen and other jobs. When
not in use, the sander was stored on a shelf in his woodworking shop. The accident
giving rise to this lawsuit occurred on April 22, 2012, when AlNahhas was preparing
to replace the fascia board on his home. While testing the sander to see if it was still
functional, a fragment of the sanding disc/pad splintered off and struck him in his eye.
AlNahhas described the incident as follows:
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[T]he intent was to finalize the corners and nail holes on the fascia board
that following Monday. So I went to the shop after finishing with the
lawn to see if I had the sanding paper for the sander. And unfortunately
I found the wrapper for the sanding paper, but there was no sanding
paper. So I picked up the sander from the shelf, because there’s two
different kinds of sanding paper for it based on the size and number of
ventilation holes that’s in the disc itself. And I put it on the table saw in
the center of the shop, took a measuring tape, measured the width of the
disc. Counted the holes. And then set it on the table saw. And that’s
when – I haven’t used it in a while. That’s when I decided to plug it in
and make sure it was working. I looked at the dust collector and it was
clean. I pulled it off, looked at it and put it back in. And then I walked up
to the power plug, which is right by the door, plugged it in. Held it in my
left hand. And I pushed the power button. And within, I don’t know, a
couple of seconds, I felt being hit in the face with it.
Depo. of Hanna AlNahhas at 51:22-25 – 52:1-21. AlNahhas testified that when he
turned the sander on, he held it “at an angle” instead of facing down. Although he
normally wore safety glasses when using the sander, AlNahhas testified he did not
wear them on this occasion since he was merely testing the tool to see if it was
operational. Prior to the accident, AlNahhas experienced no trouble with the sander.
AlNahhas’ designated expert, Robert N. Anderson, Ph.D., provided a report
stating his belief as to the cause of the accident. It stated in pertinent part:
In my opinion, the presence of voids and the mixture of brittle and
plastic regions made the sanding disc too weak for the intended use.
Further, there is no warning that the sanding disc can fracture after
extended use. The manufacturer’s molding process was the cause of the
failure, and this made the disc unreasonably dangerous. Bosch did a
number of tests on the orbital sander, but did not specify or warn as to
end-of-life behavior of the disc. Without providing documentation or
warnings on how the disc might fail, Bosch should not have sold these
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discs. It is reasonable to expect that without initially putting on safety
glasses, a user might test the functioning of the orbital sander before
starting work. Therefore, knowledge of the stability of the disc during its
lifetime is critical. The manufacturing defects and the lack of warnings
with regard to the end-of-life behavior resulted in a dangerous condition
that caused the injury to Mr. AlNahhas.
At his deposition, Dr. Anderson testified he believed the sanding pad was initially
suited for its intended purpose, but failed to maintain its integrity over usage and time:
Q:

So what caused the failure in this case?

A:

The fact that it had lost some of its strength during the previous
times that it had been rotated.
***

Q:

Was this product, when it left the manufacturer, an appropriate
sanding pad for the use?

A:

Evidently, initially, it was.

Q:

And then it’s your opinion that, what, it wore out over time or?

A:

The fact that you have a composite material, two different
materials responding different, they tore each other apart.

Q:

A:

***
So just because this pad wore out eventually, that doesn’t make
it defective when it was manufactured, does it, or designed?
Doesn’t it? If you have it capable of failing ballistically – that if
you have designed something that’s going to be in a moving
situation and after a period of time, it can ballistically fail – by
that I mean parts can be thrown off – that may be a bad design.

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Q:

The tires on your car, if you drive them until they are bald, will
they ballistically fail?

A:

Sure.

Q:

Is that a bad design?

A:

Yeah.

Q:

So is the way that you determine that this pad is unacceptable is
that it fails; that it failed ballistically?

A:

Absolutely. I want it to fail benignly. Just sort of lay down and
give up.

Depo. of Robert Anderson at 52:23-25; 66:12-25; 67:15-24.
Thomas Siwek, Bosch’s Senior Director of Product Safety and Engineering
Shared Services, examined the sander and concluded that (1) the sander was damaged
due to operator misuse and (2) AlNahhas’ injury was due to his failure to follow the
accompanying safety instructions:
It is my opinion . . . that prior to the day of the accident, the sander was
misused and abused as a result of the application of excessive downward
pressure during sanding . . . .When [Plaintiff] went to turn-on the sander,
there were two primary conditions that when combined, led to the
accident:
1.

Damage to the Friction Ring and Sanding Pad - With the damaged
friction ring, the pad has no restraint when it is operating at noload (not in contact in the work). This “freewheeling” operation
caused an over-speed condition that likely caused stresses to the
pad that are not normally seen when the friction ring is intact. Due
to wear down to the plastic substructure, it is highly likely that the
sanding pad was damaged and it[s] structure weakened. This
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coupled with the damaged friction ring lead to a condition where
when the tool was energized, the weakened sanding pad was
overstressed by a damaged machine causing the sanding pad to
fracture.
2.

Failure to use Eye Protection - When the sanding pad was
overstressed and fractured, [Plaintiff] was exposed to a greater
risk of injury as a result of his failure to follow the operating
warnings/instructions and wear protective eyewear. . . . It is my
opinion that the average user would consider the act of simply
energizing a power tool to constitute “operation, or at least intent
to operate.
STANDARD OF DECISION

“Summary judgment is proper if, viewing the evidence in the light most
favorable to the non-moving party, there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Bonidy v. U.S. Postal
Service, 790 F.3d 1121, 1124 (10th Cir. 2015) (citing Peterson v. Martinez, 707 F.3d
1197, 1207 (10th Cir. 2013)). A movant may establish that a fact cannot be genuinely
disputed by citing to particular parts of depositions, documents, electronically stored
information, affidavits, declarations, stipulations, discovery responses, or other
materials. Fed. R. Civ. P. 56(c)(1)(A).
The Court does not weigh the evidence and make findings of fact on a motion
for summary judgment. The Court only determines whether there is a genuine dispute
concerning a material fact. Jones v. Barnhart, 349 F.3d 1260, 1265 (10th Cir. 2003).
An issue is “genuine” if there is sufficient evidence on each side so that a rational trier
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of fact could resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 670 (10th Cir. 1998). An issue of fact is “material” if under the substantive law
it is essential to the proper disposition of the claim. Id. Once the moving party has met
its burden, the burden shifts to the nonmoving party to present sufficient evidence in
specific, factual form to establish a genuine factual dispute. Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).
The nonmoving party may not rest upon the mere allegations or denials of its
pleadings. Rather, it must go beyond the pleadings and establish, through admissible
evidence, that there is a genuine issue of material fact that must be resolved by the
trier of fact. Salehpoor v. Shahinpoor, 358 F.3d 782, 786 (10th Cir. 2004).
Unsupported conclusory allegations do not create an issue of fact. Finstuen v.
Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007).
DISCUSSION
Because removal of this case was predicated upon diversity jurisdiction,
Oklahoma law governs Plaintiff’s claims. McPhail v. Deere & Co., 529 F.3d 947, 957
(10th Cir. 2008) (“Because jurisdiction is based on diversity, we apply the law of the
forum state, in this case the Oklahoma law of products liability.”).

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I.

STRICT PRODUCTS LIABILITY
In order to prevail on his products liability claim, AlNahhas must show: (1) a

defect existed in the product at the time it left the manufacturer or seller’s control; (2)
the defect made the product unreasonably dangerous; and (3) the defect in the product
was the cause of the injury. McPhail v. Deere & Co., 529 F.3d 947, 957 (10th Cir.
2008) (applying Oklahoma law, citing McMurray v. Deere & Co., Inc., 858 F.2d
1436, 1439 (10th Cir. 1988)); Kirkland v. Gen. Motors Corp., 1974 OK 52, ¶¶ 29-31,
521 P.2d 1353, 1363. “Under Oklahoma law, the test for whether a product is
unreasonably dangerous is whether the product is ‘dangerous to an extent beyond that
which would be contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its characteristics.’” McPhail,
529 F.3d at 957 (quoting McMurray, 858 F.2d at 1436). Whether a product is more
dangerous than would be expected by the ordinary consumer is an objective test. Cox
v. Ohio Mfg. Co., 732 F. Supp. 1555, 1560 (W.D. Okla. 1987).3
“It is not enough to merely contend that a defect existed, show that an accident
occurred, and assume the two are necessarily related.” Beverly v. Wal-Mart Stores,
Inc., 2000 OK CIV APP 45, ¶ 15, 3 P.3d 163, 167 (internal quotations and citations

3

Evidence that a product could be made “safer” does not establish that it was
less safe than would be expected by the ordinary consumer. Woods v. Fruehauf, 1988
OK 105, ¶ 17, 765 P.2d 770, 775.
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omitted). “[I]njury, of itself, is not proof of a defect and raises no presumption of
defectiveness.” Gates v. Ford Motor Co., 494 F.2d 458, 459 (10th Cir.1974) (citation
omitted). Instead, in order to survive summary judgment, a plaintiff must provide
sufficient evidentiary material which raises a reasonable inference from which the fact
finder may rationally conclude the plaintiff’s injuries “proximately resulted from the
product’s failure of performance causally related to its defective condition.” Smith v.
Sears Roebuck and Co., No. CIV-04-1271-HE, 2006 WL 687151, at *5 (W.D. Okla.
Mar. 17, 2006) (citing Kaye v. Ronson Consumer Prods. Corp., 1996 OK CIV APP
57, 921 P.2d 1300, 1302).
It therefore follows that “[t]he burden on the plaintiff in a products liability
action is ‘a large and heavy one . . . . for he must prove that his injury has been caused
not necessarily by the negligence of the Defendant but by reason of a defect ‘built in’
and existing at the time of injury.’” Prince v. B.F. Ascher Co., Inc., 2004 OK CIV
APP 39, ¶ 12, 90 P.3d 1020, 1026.
A.

Defective Design

Having carefully reviewed the record, the Court concludes that Plaintiffs have
failed to present sufficient evidence for a jury to conclude that the sander was
unreasonably dangerous. As reflected in Dr. Anderson’s deposition testimony,
Plaintiffs do not contend the sander was defective per se when it left the manufacturer,

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but that it was not sufficiently designed to withstand repeated use over time. As also
noted, Dr. Anderson testified the sander failed because “it had lost some of its strength
during the previous times that it had been rotated.” Anderson Depo. at 52:23-25. Dr.
Anderson also noted he saw evidence of “a lot of use” and the sander “ha[d] been used
quite a bit.” Id. at 58:8-10.
The fact that the sanding pad eventually wore down over time and repeated use
is antithetical to a products liability claim. Bosch is not obligated to make a fail-safe
product. See Cox v. Murray Ohio Mfg. Co., 732 F.Supp. 1555, 1561 (W.D. Okla.
1987) (“Unfortunately, in today’s marketplace, one cannot expect the components of
a mower, an appliance, a car or other machinery to last for many years. For this
reason, [defendant] provided an extensive list of replacement parts and distributors in
the Owner’s Handbook. The fact that a guard on the mower may have failed sooner
than the plaintiff would have liked does not make the product less safe than expected
by the ordinary consumer.”); Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 21,
586 P.2d 726, 731 (“A manufacturer does not undertake to provide a product that will
never wear out, particularly if used in a continually abnormal manner. The doctrine
of manufacturers’ products liability cannot be said to require a manufacturer to build
a fail-safe product.”).

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In sum, Plaintiffs have failed to present sufficient evidence to raise a triable
issue of fact as to whether the sander was dangerous beyond the extent contemplated
by an ordinary consumer; consequently, the Court concludes that as a matter of law,
Plaintiffs cannot establish either the existence of a defect or that the sander was
“unreasonably dangerous,” and Bosch is thus entitled to summary judgment on this
issue.
B.

Inadequate Warning

Plaintiffs also contend the sander was defective due to the absence of adequate
warnings. Under Oklahoma law, “the failure to adequately warn of a known potential
risk renders a product defective, however, the plaintiff must establish that the failure
to warn caused the injury.” Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1332 (10th
Cir.1996) (internal citations omitted).“[E]ven where a product’s design defect makes
the product unreasonably dangerous, Oklahoma law does not impose liability if the
product contains a warning that adequately addresses the known risks of use.”
McPhail, 529 F.3d at 958 (citing Smith v. U.S. Gypsum Co., 1980 OK 33, 612 P.2d
251, 253-54). In McPhail, the Tenth Circuit Court of Appeals recited the following
standard as to warnings:
If a product is potentially dangerous to consumers, a manufacturer is
required to give directions or warnings . . . as to its use. If these warnings
cover all foreseeable use and if the product is not unreasonably
dangerous if the warnings and directions are followed, the product is not
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defective in this respect. If the warnings are unclear or inadequate to
apprise the consumer of the inherent or latent danger, the product may
be defective; particularly where a manufacturer has reason to anticipate
danger may result from the use of his product and the product fails to
contain adequate warning of such danger, the product is sold in a
defective condition.
Id. (quoting Smith, 612 P.2d at 253-54). “Oklahoma law does not require a
manufacturer ‘to foresee that [professionals who use its product will] fail to read its
warnings, and then use [the product] in a manner that manufacturer’s instructions
expressly warned against.’” Id. (quoting Hutchins v. Silicone Specialties, Inc., 1993
OK 70, 881 P.2d 64, 67 (paraphrasing in original)). Finally, “there is no duty to warn
a knowledgeable user of the product of the dangers associated therewith.” McPhail,
529 F.3d at 958 (quoting Duane v. Oklahoma Gas & Elec. Co., 1992 OK 97, 833 P.2d
284, 286); Ahrens v. Ford Motor Co., 340 F.3d 1142, 1146 (10th Cir. 2003)
(“Oklahoma does not recognize a duty to warn of dangers that are obvious.”).4
The presence of the aforementioned warning label requires Plaintiffs to prove
the warning was “unclear or inadequate to apprise the consumer of the inherent or
latent danger.” McPhail, 529 F.3d at 959 (citation omitted). On this issue, the Court
finds persuasive the decision in Previto v. Ryobi N. Am., Inc., No. 08cv177, 2011 WL

4

Oklahoma law recognizes a rebuttable presumption that a party would have
read and heeded an adequate warning. Daniel, 97 F.3d at 1332. The Court need not
reach this issue here, as it finds Bosch has shown its warnings adequately informed
AlNahhas of the inherent dangers of operating the sander.
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135673 (S.D. Miss. Jan. 14, 2011). In Previto, the plaintiff was injured when the
carbide tip of a power table saw he was using separated from the saw and struck him
in his eye. As here, the plaintiff advanced claims of negligence and strict products
liability, alleging that the defendants manufactured and distributed a defective blade
and, inter alia, provided inadequate warnings. Of particular relevance here, the court
rejected the plaintiff’s argument that the warnings were inadequate because they “did
not alert users to the specific hazard involved, namely that a carbide tip could come
off the blade during operation, but instead only instructed that the hazard could be
avoided by wearing safety goggles.” Privito, 2011 WL 135673 at *6 (emphasis
added). Rather, the district court granted summary judgment on the inadequate
warning claim, noting the saw and its accompanying manual both contained specific
warnings about the need to wear proper eye protection. Id. at *6.5

5

In Privito, the table saw’s manual contained a warning depicting a user
wearing protective goggles and stating:
! WARNING:
The operation of any power tool can result in foreign objects being
thrown into your eyes, which can result in severe eye damage. Before
beginning tool operation, always wear safety goggles or safety glasses
with side shields and a full face shield when needed. We recommend
Wide Vision Safety Mask for use over eyeglasses or standard safety
glasses with side shields. Always wear eye protection which is marked
to comply with ANSI Z87.1.
In another location, the manual advised the user should “ALWAYS WEAR SAFETY
GLASSES WITH SIDE SHIELDS. Everyday eyeglasses have only impact resistant
(continued...)
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Similarly, in Tripolone v. Genova Products, Inc., No. 95-cv-1018, 1997 WL
583120 (N.D.N.Y. Sept. 3, 1997), the plaintiff was preparing to fasten a toilet to a
flange manufactured by the defendant. The flange contained a center plug which
required removal before being fastened to the toilet. The plaintiff was not wearing eye
protection. To remove the knockout plug, the plaintiff cut around the groove
surrounding the plug with a utility knife. He then inserted a screwdriver into the
groove, and pried up, using the screwdriver as a lever to force the plug out. The plug
shattered, sending shards of plastic into his eye.
In raised letters on the side of the plug was the warning “GENOVA POP TOP
CLOSET FLANGE, KNOCKOUT BEFORE INSTALLING CLOSET, WEAR EYE
PROTECTION.” Id. at *1 (bold added). Plaintiff contended that the “WEAR EYE
PROTECTION” warning was “inadequate in light of the risk of injury, and that it
failed to adequately apprise the installers ... of the risks of serious eye injuries
associated with pop-top removal.” Tripolone, 1997 WL 583120, at *4. After citing a

5

(...continued)
lenses; they are NOT safety glasses.” The saw itself had a warning sticker adjacent to
the power switch that stated:
! WARNING
• To reduce the risk of injury, user must read and understand operator’s
manual.
• Wear eye protection.
Previto, 2011 WL 135673, at **6-7 (emphasis in original).
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string of state court decisions, the district court found the general warning adequately
apprised the user of the dangers associated with installing the flange:
These cases all involve relatively simple, straightforward warnings
correlating to implicit but unexpressed dangers. For instance in Broadie
the jack labels instructed the user not to climb under the vehicle when it
was elevated by the jack. The labels did not expressly state that such
precaution would prevent the hazard of the jack slipping and the car
falling, but such information will necessarily be deduced by even the
dullest user. In Ruggles the warning on the product advised the user
never to climb a damaged ladder. The warning need not have explained
that failure to heed the precaution could lead to the collapse of the ladder
and injury therefrom.
The warning “WEAR EYE PROTECTION” is similarly unambiguous
and sufficient to warn of the dangers of PVC debris. Did the flange plug
have to warn the user to “WEAR EYE PROTECTION TO PREVENT
EYE INJURY FROM PLUG REMOVAL,” for instance, in order to
discharge the duty to warn? This court thinks not[.]
Id. Likewise, the Court finds the sander’s general caution to “always wear eye
protection” and other warnings were unambiguous and adequately advised AlNahhas
of the danger of the very injury of which he now complains. Privito, 2011 WL 135673
at *6. AlNahhas was placed on notice of the importance of wearing eye protection to
prevent foreign debris from entering his eyes, and as evidenced by his past experience
and admitted prior use of such eye protection when operating the sander, he was
keenly aware of such danger occurring. The warnings cautioned AlNahhas to always
wear eye protection and to use common sense in operating the tool. He was also
advised of the importance of tool maintenance and to check for (and replace) any
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broken machinery/parts, which he testified he had no intention of doing. The warnings
were simple, straightforward, and correlated to implicit but unexpressed dangers; they
need not have warned a user to always ear eye protection to prevent injury from the
specific occurrence of a broken sanding disc. Therefore, based on the record before
it, the Court finds Plaintiffs have failed to present sufficient evidence that would lead
a reasonable trier of fact to believe the sander’s warnings were inadequate.
In addition, AlNahhas has not presented any sufficient evidence indicating that
he would have heeded and followed a more adequate warning. Even assuming the
sander included some warning about “end-of-life” usage, as Dr. Anderson advises,
AlNahhas’ own testimony reveals he would not have followed it since, in his view,
he was not “using” the sander when the accident occurred. In this regard, the Court
finds no merit or distinction in AlNahhas’ argument that he was not “using” the
sander, since both actions (“testing” and “using”) require the device to be turned on
and carried the inherent danger of debris being thrown into his eyes, an occurrence of
which the sander and manual both adequately warned him.
In sum, the Court concludes the warnings on the sander and those found in the
manual were adequate and Plaintiffs have failed to present sufficient evidence for a
jury to conclude that the alleged inadequate warnings caused the injury at issue.
Accordingly, Bosch is entitled to summary judgment on this issue as well.

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II.

NEGLIGENCE
Under Oklahoma law, a negligence cause of action requires proof of (1)

existence of a duty on the part of the defendant to protect plaintiff from injury; (2)
defendant’s breach of the duty; and (3) injury to plaintiff proximately resulting
therefrom. Scott v. Archon Group, L.P., 2008 OK 45, ¶ 17, 191 P.3d 1207, 1211.
Although Bosch clearly had a duty to protect AlNahhas from injury, the Court finds
there is insufficient evidence from which to support the finding that Bosch had
breached such duty. Accordingly, summary judgment is granted to Bosch on
Plaintiffs’ negligence claim.
CONCLUSION
Defendant’s Motion for Summary Judgment [Doc. No. 37] is GRANTED as
set forth herein. Judgment shall be entered accordingly.6 Bosch’s Motion to Exclude
Expert Testimony of Plaintiffs’ Expert Dr. Robert Anderson [Doc. No. 38] and its
Motion to Strike Affidavit of Robert N. Anderson [Doc. No. 43] are hereby
STRICKEN as moot.

6

Defendant CPO Commerce was dismissed from this action for lack of service
[Doc. No. 10]. Bosch contends Defendant Skil Tools should be dismissed because it
is merely a brand name and not a separate entity. Although Plaintiffs do not
necessarily dispute this contention, the Court need not address it in light of its grant
of summary judgment on all remaining claims.
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IT IS SO ORDERED this 4th day of May, 2016.

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