Nathan v. Techtronics Industries Co., Ltd et al

Filing 47

MEMORANDUM (Order to follow as separate docket entry) re 31 MOTION for Summary Judgment filed by Ryobi, One World Technologies, Home Depot, Techtronic Industries North America, Techtronics Industries Co., Ltd Signed by Honorable Robert D. Mariani on 2/17/15. (rdmsec)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 3:12-CV-00679

WILLIAM D. NATHAN,

(Judge Mariani)

Plaintiff,
v.
TECHTRONIC INDUSTRIES NORTH
AMERICA, INC., et aI.,
Defendants.

MEMORANDUM OPINION
I. INTRODUCTION
This is a products liability action brought by Plaintiff William Nathan. Nathan was
injured while using a table saw manufactured and sold by Defendants. Presently before the
Court is the Defendants' motion for summary judgment. For the reasons set forth below, the
motion is granted in part and denied in part.

II. PROCEDURAL HISTORY
Plaintiff William Nathan commenced this diversity action on April 11, 2012, by filing a
complaint against defendant manufacturers, distributors, and retailers . (Doc. 1). Nathan
alleges state-law claims for products liability (Counts I, II, V, VI) and breach of implied
warranty (Counts III, IV). This Court has subject matter jurisdiction under 28 U.S.C. § 1332.
Defendants filed an answer on June 12, 2012. (Doc. 10). On March 18,2014, defendants
moved for summary judgment. (Doc. 31). Supporting materials were filed the same day.

(Docs. 32-35). Plaintiff submitted opposition materials on April 22, 2014. (Docs. 38-43).
Defendants filed a reply brief on May 5,2014. (Doc. 44).

III. STATEMENT OF UNDISPUTED FACTS
The following statement of undisputed facts is drawn from Defendants' statement of
facts (Doc. 32) and the underlying documents. Plaintiff did not dispute any of Defendants'
eleven factual assertions. (See Doc. 39).
In 2007, Plaintiff William Nathan purchased a Model T82400-1 table saw that was
manufactured, distributed, and sold by the defendants. (Doc. 32, ~~ 1, 10). The Model
T82400-1 has a suggested retail price of $399 and weighs 122 pounds. (Doc. 35-1, ~ 3).
The saw came with an operator's manual that contained safety warnings regarding proper
use of the saw's blade guard assembly and instructions on how to make rip cuts. (Doc. 32,
~ 6).

The saw itself contained on-product warnings to the same effect. (Doc. 32, ~ 8).

Nathan read that manual several times and was aware of the dangers posed by the saw's
rotating blades. (Doc. 32, ~~ 5,7). On June 27, 2011, Nathan was injured while using the
saw to make a rip cut through a narrow piece of wood. (Doc. 32, W1-2, 4; Doc. 39, p. 4). At
the time of the accident, Nathan was not using the blade guard assembly, which he
removed because it interfered with his ability to make narrow cuts. (Doc. 32, ~ 3; Doc. 39, p.
4).

2

IV. STATEMENT OF ADDITIONAL FACTS
The following statement of additional facts is drawn from Plaintiffs Statement of
Additional Facts (Doc. 39, pp. 4-8) and the underlying documents.
Defendants had been aware for at least 10 years prior to Nathan's injury that users
of table saws often removed the blade guard due to problems with its design. (Doc. 40-1,
Peot Dep. I, pp. 25, 61-62; Doc. 40-2, p. 89; Doc. 40-7, p. 53). Removal of the blade guard
increases the risk that the user will accidently come into contact with the blade. (Mehler
Decl.1f 14, 17, Doc. 42; Holt Decl.1f1f 30-31, Doc. 43). Even without the blade guard,
Nathan's injuries would have been avoided or significantly less serious had the table saw
employed active mitigation technology such as flesh detection. (Holt Decl., 1f 87-114,204;
Gass Decl.1f 11, Doc. 41).
In 1999, Dr. Stephen Gass, a physicist, patent attorney, and amateur woodworker,
developed flesh detection technology in his garage using materials commonly available at
retail electronics stores. (PI. Stmt. Nos. 6, 7, Doc. 39). The concept relies upon human
electrical capacitance: contact with human skin causes a change in the electrical charge
running through the blade. (Gass Decl,1f1f 4-6). The change in current triggers the release
of a compressed spring that pushes a block into the teeth of the rotating blade. (Jd.). The
blade comes to rest approximately three milliseconds after contact and the user typically
suffers only a small nick. (Id.).

3

Dr. Gass introduced his technology and a prototype to defendant Ryobi and other
manufacturers in 2000. (PI. Stmt. No. 11). At the time, Ryobi had been aware of the
technology but had only conducted limited research due to resource constraints. (Peot Dep.,
pp. 105-06). In January of 2002, Ryobi licensed Dr. Gass's technology. (PI. Stmt. No. 12).
Instead of proceeding with the license, however, Ryobi formed a joint venture with other
table saw manufacturers in May of 2003. 1 (PI. Stmt. Nos. 13-14). The joint venture
developed its own flesh-detection prototype by 2005. (PI. Stmt. No. 14). Dr. Gass, for his
part, formed SawStop, LLC, which developed, produced, and placed on the market a table
saw with flesh-detection technology in August of 2004. (PI. Stmt. No. 16).
V. STATEMENT OF DISPUTED FACTS
A number of facts are in dispute. First, the parties dispute the existence of certain
problems with the "3-in-1" blade guard that came with the table saw. According to Plaintiff,
the 3-in-1 blade guard impedes visibility, acts as hindrance for small and narrow cuts, is
incompatible with certain cutting operations, and easily becomes misaligned; consequently,
users often remove the guard. (PI. Dep., pp. 31-33,75, Doc. 34-4; Holt Decl.

~~

17, 30-31,

38; Peot Dep. II 80-81, Doc. 40-4; Mehler Decl. ~ 12). Once removed, the guard is difficult
and time-consuming to replace due to its awkward design. (Holt Decl.,
Decl.

1f~

~~

17,30; Mehler

4-5, 17). As a result, the 3-in-1 blade guard is seldom used by a significant number

1 David Peot, Ryobi's Director of Engineering, testified that the joint venture was formed to ensure
that no single manufacturer would unilaterally adopt flesh detection technology and expose the remaining
manufacturers to legal liability. See Peot Tr., p. 4-125.

4

of table saw users. (Id.). Defendants dispute that the guard is difficult to install by pointing to
evidence that Nathan personally had little trouble removing and replacing the device. (PI.
Dep., pp. 43, 62; Doc. 34-2, p. 9).
Second, the parties dispute whether flesh detection technology was technologically
and economically feasible for small table saws at the time Nathan's saw was manufactured.
Plaintiff contends that it has been feasible since 2002. (Holt Dec.

~

195; Gass Decl. ~ 16).

According to Plaintiff, flesh-detection technology is the same for any size saw and could
have been incorporated into the type of saw Nathan purchased for approximately $50 to
$100. (Gass Dec!. ~~ 16-18; Doc. 40-18, p. 1239-40; Doc. 40-7, p. 6-161). Defendants, on
the other hand, argue that incorporating flesh-detection technology into a small table saw
would require an overhaul of the saw's basic design and greatly increase its weight and
price. (Otterbein Aff., W3-5, Doc. 35-1). Defendants also point out that SawStop currently
sells only industrial cabinet saws, professional cabinet saws, and contractor saws. (Doc. 34­
1, ~ 9). These saws are not comparable to a small table saw due to their vastly greater size,
weight, and price. (Holt. Dep., pp. 88-89, 126-27). Defendants further note that if SawStop
were to manufacture a small benchtop table saw with flesh-detection technology, the
manufacturing cost would be between $250 and $350 and the retail price would be least
$700. (Doc. 35, p. 1241). Plaintiff responds by noting that the absence of a small table saw
from SawStop's product line is attributable to business decisions and economic constraints
unique to a start-up company rather than the feasibility of incorporating flesh detection

5

technology. (PI. Addt'l Stmt. Nos. 22; Gass Tr. Test., pp. 2-118 - 2-122; Doc. 35, pp. 908­
911 ).
Finally, the parties dispute whether Nathan would have been injured had he been
using the blade guard at the time of the accident. Nathan contends that his hand would
have slid under the guard and made contact with the blade. (Holt Dec!.

~~

23, 205).

Defendants assert that the accident "obviously [would] have been avoided" if the blade
guard had not been removed. (Doc. 33, p. 14).

VI. STANDARD OF REVIEW
Through summary adjudication, the court may dispose of those claims that do not
present a "genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). "As to materiality,
... [o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248,106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The party moving for
summary judgment bears the burden of showing the absence of a genuine issue as to any
material fact. Ce/otex Corp. v. Catrett, 477 U.S. 317, 323,106 S. Ct. 2548, 2552, 91 L. Ed.
265 (1986). Once such a showing has been made, the nonmoving party must offer specific
facts contradicting those averred by the movant to establish a genuine issue of material fact.

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888,110 S. Ct. 3177, 3188, 111 L. Ed. 2d 695
(1990). "Inferences should be drawn in the light most favorable to the non-moving party,
and where the non-moving party's evidence contradicts the movant's, then the non­

6

movant's must be taken as true." Big Apple BMW Inc. v. BMW of N. Am., Inc., 974 F.2d
1

1358, 1363 (3d Cir. 1992), cerl. denied 507 U.S. 912 (1993).

VII. ANALYSIS
Nathan alleges state-law claims for strict products liability (Counts I & II) and
negligence (Counts V & VI); both claims are premised upon a failure to warn theory and
three design defect theories. Nathan also alleges claims for breach of implied warranty
(Counts III & IV). Defendants seek summary judgment on four different bases. (Doc. 33, p.
2). First, Defendants claim that there was no reasonable alternative design available for any
of the alleged design defects. (ld. at 2,6). Second, Defendants argue that Nathan's misuse
of the saw caused the accident. (Id. at 2, 12). Third, Defendants contend that Nathan
cannot prevail on a failure to warn theory. (/d. at 2, 14). Finally, Defendants claim Nathan's
breach of warranty claims are untimely. (Id. at 2, 19). Each issue is addressed in turn.

A. Counts I, II, V, and VI
1. Design Defect Theories
In a strict products liability action, a plaintiff must show that the (1) product was
defective, (2) the defect proximately caused the plaintiffs injury, and (3) the defect existed
at the time the product left the defendant's control. Warnick v. NMC-Wollard, Inc., 512 F.
Supp. 2d 318, 322 (W.D. Pa. 2007) (citing Pavlik v. Lane Ltd., 135 F.3d 876, 881 (3d Cir.
1998)). To prevail in a negligence action, a plaintiff must plead and prove that the (1)
defendant owed a duty of care (2) the breach of which (3) caused (4) damages. Berrier v.

7

Simplicity Mfg Inc., 563 F.3d 38, 61 (3d Cir. 2009). Under either theory, the threshold
question is whether the product is in a defective condition. Warnick, 512 F. Supp. 2d at 323.
On November 19,2014, while this motion was pending, the Pennsylvania Supreme
Court adopted a new standard of proof to determine whether a product is in a defective
condition in strict liability cases. Tincher v. Omega Flex, Inc., 104 A.3d 328, 335 (Pa. 2014).
Under the approach set forth in Tincher, a plaintiff may prove that a product is in a defective
condition by showing either that (1) the danger is unknowable and unacceptable to the
average or ordinary consumer (consumer expectations test), or (2) a reasonable person
would conclude that the probability and seriousness of harm caused by the product
outweighs the burden or costs of taking precautions (risk-utility test). Id. Under either test,
whether a product is in a defective condition is a question of fact to be decided by the jury.
Id.
This Court is bound to follow the law as determined by Pennsylvania's high court.
Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538 (1941) ("[U]ntil such time as a case
is no longer sub judice, the duty rests upon federal courts to apply state law under the Rules
of Decision statute in accordance with the then controlling decision of the highest state
court."); Air Products &Chemicals, Inc. v. Hartford Acc. &Indem. Co., 25 F.3d 177, 181 (3d
Cir. 1994) ("[A] federal court exercising diversity jurisdiction is bound to follow the law as
decided by the highest court of the state even if it has changed during the pendency of the
federal action."). The court in Tincher, however, expressly declined to reach the question of

8

whether the new standard applies retroactively. 104 A.3d at 410. A threshold question is
therefore whether the ruling in Tincher applies to this case. The Third Circuit has not
addressed the issue.2 Cf Baker v. Outboard Marine Corp., 595 F.2d 176, n.19 (3d Cir.
1979) (rejecting argument that Pennsylvania Supreme Court decision in Azzarello, which
overruled prior products liability law, should not be applied retroactively where court saw "no
indication . .. that Azzarello only applies prospectively"). Thus, this Court must determine
how Pennsylvania courts would decide whether to apply Tincher retroactively to this case.
See Paolella v. Browning-Ferris, Inc., 158 F.3d 183, 189 (3d Cir. 1998).
"The general rule followed in Pennsylvania is [to] apply the law in effect at the time of
the appellate decision." Blackwell v. Com., 589 A.2d 1094, 1099 (Pa. 1991) (noting that at
common law a decision announcing a new principle of law is normally retroactive); see also

McHugh v. Litvin, 574 A.2d 1040, 1044 (Pa. 1990) ("[T]he general law of our
Commonwealth continues to be . .. that our decisions announcing changes in the law are
applied retroactively, until and unless a court decides to limit the effect of the change, and
that litigants have a right to rely on the change, especially if they have a suit pending in our
courts at the time the change is announced."); Com. v. Cabeza, 469 A.2d 146, 148 (Pa.
1983) ("[W]here an appellate decision overrules prior law and announces a new principle,
unless the decision specifically declares the ruling to be prospective only, the new rule is to
In Williams v. U-Haul lnt'l, Inc., an unpublished decision, the Eastern District of Pennsylvania
applied Tincher to an action filed in state court prior to Tincher but that was removed to federal court
subsequent to Tincher. See generally Williams v. U-Haullntern., Inc., 2015 WL 171846 (E.D. Pa. 2015) .
That decision did not address the issue of retroactivity.
2

9

be applied retroactively . . .."). The general rule , however, "is not applied rotely. " Passarello
v. Grumbine, 87 A.3d 285,307 (Pa. 2014). In order to decide whether a decision should

have retroactive effect, Pennsylvania courts first determine "whether the decision
announced a new rule of law." Id. "A decision announces a new rule of law if it overrules
prior law, expresses a fundamental break from precedent that litigants may have relied on ,
or decides an issue of first impression not clearly foreshadowed by precedent." Id. at 308.
Here, the decision in Tincher announced a new rule of law because it overruled prior law
regarding the standard of proof and the roles of the judge and jury in strict liability cases.
104 A.3d at 400-01, 406-07.
If a decision announces a new rule of law, Pennsylvania courts "then consider
whether (1) retroactive effect will further or hinder the purpose of the new rule; (2) the
parties will be unfairly prejudiced because they relied on the old rule; and (3) giving the new
rule retroactive effect will detrimentally affect the administration of justice." Passarello , 87
A.3d at 307. For reasons set forth below, the three factors weigh in favor of giving Tincher
retroactive effect.
First, applying Tincher in this case furthers the purpose of the new rule. The purpose
of the new rule is to define the "defective condition" element of the strict liability cause of
action in terms of alternative standards "that are sufficiently malleable to account for product
diversity and a variety of legal claims, products, and applications of theory." Tincher, 104
A.3d at 408. Applying the new rule retroactively gives the plaintiff greater flexibility to prove

10

that a product was defective and thereby expands the range of products and defects that
are subject to strict liability. This furthers the policy underlying the strict liability cause of
action. 3 The new rule also provides that whether a product is in a defective condition is a
question of fact for the jury. The old rule, by contrast, required the court to balance risks and
utilities in order to determine, as a matter of law and policy, whether a product was
"unreasonably dangerous." The Pennsylvania Supreme Court concluded that rule was
"impractical" and "incompatible with basic principles of strict liability." Tincher, 104 A.3d at
380,406. Applying the new rule retroactively thus relieves the Court from the problematic
task of deciding issues of law and policy on the basis of risks and utilities. See id. at 381
(""The practical reality ... is that trial courts simply do not necessarily have the expertise to
conduct the social policy inquiry into the risks and utilities of a plethora of products and to
decide, as a matter of law, whether a product is unreasonably dangerous.").
Second, the parties will not be unfairly prejudiced because they relied on the old rule.
In Leland, the Pennsylvania Superior Court rejected a defendant-supplier's argument that

Azzarello should not be applied retroactively because the defendant had detrimentally relied
upon the prior rule. Leland v. J. T. Baker Chern. Co., 423 A2d 393, 397-98 (Pa. Super.
1980). The court reasoned that "parties do not alter their tortious conduct to conform to the

3 The Pennsylvania Supreme Court explained that policy as follows. "[T]hose who sell a product
(i.e., profit from making and putting a product in the stream of commerce) are held responsible for damage
caused to a consumer by the reasonable use of the product. .. The risk of injury is placed, therefore, upon
the supplier of products... No product is expressly exempt and, as a result, the presumption is that strict
liability may be available with respect to any product, provided that the evidence is sufficient to prove a
defect." Tincher, 104 A.3d at 382 (citations omitted).

11

most recent judicial pronouncements ... [and] strict liability per the [Second] Restatement is
not dependent upon the conduct of the defendant, but rather the condition of the product."

Id.; see also Tincher, 104 A.3d at 368 (citing Lewis, 528 A.2d 590 (Pa. 1987))
("[J]urisdictions with [consumer expectations and risk-utility] approaches agree[] that
relevant at trial is the condition of the product rather than the reasonableness of the
manufacturer's conduct."). Since under the Tincher formulation of the Second Restatement
the focus remains upon the condition of the product rather than the conduct of the
manufacturer, the defendant could not have prejudicially relied upon the prior rule set out in

Azzarello and progeny. Analogous considerations apply to the plaintiff. See Tincher, 104
A.3d at 369 (quoting Kimco, 637 A.2d 603 (Pa. 1993)) ("[I]n strict liability, 'the focus is on the
nature of the product and the consumer's reasonable expectations with regard to the
product, rather than upon the conduct of either the manufacturer or the person injured."').
Finally, neither party will be unfairly prejudiced by having the trier-of-fact, rather than the
court, balance risks and utilities. Cf. Passarello, 87 A.3d at 308 ("[O]efendants ... did not
rely on the "error in judgment" Oury] instruction as a substantive matter of law that alters or
modifies the essential standard of care."). Therefore, this factor weighs in favor of
retroactive application of the new rule.
Third, giving the new rule retroactive effect would not detrimentally affect the
administration of justice. Since this case is in the pre-trial stage, retroactive application of

Tincher will not result in the costs and delays associated with having to conduct a second

12

trial. Additionally, as noted above, applying Tincher frees the Court from having to expend
judicial resources in order to determine, as a matter of law and policy, whether a product is
"unreasonably dangerous." Similarly, the new rule clarifies the roles of the judge and jury,
clearly articulates the alternative standards of proof, and thereby will likely improve the
administration of justice in this case. Cf. Tincher, 104 A.3d at 380 (noting that the old rule
"did not indicate at which point of the trial the court should consider the question [of risk­
utility balancing], nor what pleadings or evidence would be relevant to the inquiry").
For these reasons, the decision in Tincher does not represent an exception to the
general rule of retroactivity. Therefore, the Court will apply Tincher in determining whether
the three design defects alleged in the complaint present issues for trial.
i. Flesh-Detection Technology

First, Nathan alleges that the omission of flesh-detection technology constitutes a
design defect. (Doc. 1, ~ 14). The primary issue in this motion thus centers upon whether a
benchtop table saw equipped with flesh-detection technology was a reasonable alternative
design when the Model TS2400-1 saw was sold. As noted above, the Third Restatement's
reasonable alternative design test is not the law of Pennsylvania. Facts pertinent to the cost
and feasibility of a safer alternative design, however, are also probative of whether a
product is defective under Pennsylvania's risk-utility test. See Tincher, 104 A.3d at 389-90.
Under that test, a product is defective if a reasonable person would conclude that the

13

probability and seriousness of harm caused by the product outweighs the burden or costs of
taking precautions. 104 A.3d at 335.
Defendants argue that flesh-detection technology was not a feasible alternative
design in 2006, the year Nathan's saw was manufactured. (Doc. 33, pp. 11-12). In support
of their position, Defendants point out that Dr. Gass's company SawStop currently sells only
industrial cabinet saws, professional cabinet saws, and contractor saws, none of which are
comparable in size, weight, and price to a small benchtop table saw. (Doc. 32,119; Gass
Decl., 119; Holt. Dep., pp. 88-89, 126-27). Aside from that uncontested observation,
Defendants' Statement of Undisputed Material Facts is completely devoid of any facts that
are probative of the feasibility, cost, and effectiveness of flesh-detection technology.
Although Defendants make additional factual assertions in their brief, facts omitted from
Defendant's LR 56.1 statement will not be considered in determining whether Defendants
have shown that there is Uno genuine issue" for trial. M.D. Pa. Local Rule 56.1 (UA motion for
summary judgment ... shall be accompanied by a ... statement of the material facts ... as
to which the moving party contends there is no genuine issue to be tried."); see also Isbell v.
Bellino, 983 F. Supp. 2d 492, 496 (M.D. Pa. 2012) (quoting 772 F.2d 1103, 1110 (3d Cir.
1985)) ("Arguments made in briefs 'are not evidence and cannot by themselves create a
factual dispute sufficient to defeat a summary judgment motion."').
The Court concludes that Defendants have utterly failed to show the absence of a
triable issue as to whether the failure to incorporate flesh-detection technology rendered the

14

saw defective under the risk-utility test. In particular, Defendants did not come forward with
any facts or evidentiary materials regarding the "probability and seriousness of harm caused
by the" table saw. Instead, Defendants only addressed one side of the risk-utility equation,
"the burden or costs of taking precautions." Even on that point, Defendants did not
demonstrate the absence of a genuine issue. Defendants' sole factual assertion focused
upon Dr. Gass's start-up company, SawStop. Yet, Defendants failed to show how the
business decisions and manufacturing constraints of SawStop, LLC, relate to the feasibility
and cost of implementing flesh-detection technology on a Ryobi, Inc., Model TS2400-1 table
saw. See Fed. R. Evid. 104(b) (UWhen the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding that the fact does exist.").
Thus, the absence of a small table saw from SawStop's product line, without more, in no
way demonstrates the absence of factual issues regarding the risks and utilities of flesh­
detection tech nology.
In any event, even if Defendants had met their initial burden as the moving-party,
Nathan has come forward with facts and supporting materials that raise a genuine issue as
to whether the Model TS2400-1 table saw was in a "defective condition" under a risk-utility
test. First, Nathan's experts opined that flesh-detection technology was feasible for small.
lightweight table saws. (See Holt Dec.1f1f 72-79,95; Gass Decl.1f1f 16-18). Although
Defendants' expert disagreed, this is a dispute of fact requiring resolution at trial. See
Hoffman v. Paper Converting Mach. Co., 694 F. Supp. 2d 359, 365-66 (E.D. Pa. 2010)

15

(explaining that conflicting expert opinions on feasibility of alternative design was not
susceptible of resolution at summary judgment stage).
Second, there is a factual dispute as to whether incorporating flesh-detection
technology into a small table saw could be accomplished at a reasonable cost. Specifically,
Nathan claims that it would cost approximately $50 to add the technology to a benchtop
table saw while Defendants point to testimony indicating the cost would be much greater.
(Gass Dec. ~~ 16-18; Holt Dec!.

~~

150,181). Since Nathan is the non-moving party, we

must take his version of contradictory facts as true for purposes of this summary judgment
motion, and draw reasonable inferences in his favor. Scott v. Harris, 550 U.S. 372, 377
(2007). Doing so here, we conclude that rational jurors could disagree about whether a $50
increase in the manufacturing cost of a saw that would otherwise sell for $400 is an
unreasonable cost. Therefore, the cost of incorporating flesh-detection technology, and the
reasonableness of that cost, are issues for trial.
Finally, there are factual issues about whether the risk of harm outweighs the cost of
implementing flesh-detection technology. Specifically, Nathan has come forward with
empirical data regarding the social costs and frequency of table saw accidents and the
effectiveness of flesh-detection technology in preventing such accidents. (Gass Dec!.,
12-14; Holt Dec!.

~

~~

87-116; Holt Report, p. 8). Thus, there is a genuine issue for trial as to

whether the "probability and seriousness of harm caused by the product outweighs the
burden or costs of taking precautions." Tincher, 104 A.3d at 335.

16

For these reasons, whether the omission of flesh-detection technology constitutes a
design defect is an issue for trial.

ii. Independent Riving Knife
Nathan also alleges that the failure to equip the table saw with an independent riving
knife constitutes a design defect. (Doc. 1, ,-r 14). Defendants' Statement of Undisputed Facts
does not contain any factual assertions relating to the lack of an independent riving knife.
That omission alone is enough to deny summary judgment. Even if the Court considers
materials referenced in Defendants' brief, summary judgment would still not be appropriate.
Relying on various experts, Defendants argue that a riving knife was not a true
alternative design when Nathan's saw was manufactured. (Doc. 33, p. 10; Otterbein Report,
p. 8; Holt Dep., p. 28; Holt Report, p. 5). Defendants also contend that a riving knife, which
functions to prevent kickbacks in the event the blade guard is removed, would not have
been effective given the circumstances of Nathan's accident. (Doc. 33, pp. 10-11; Holt Dep.,
pp. 19-28). Nathan did not address the lack of a riving knife in his opposition materials. (See
Doc. 38). Nevertheless, Defendants are not entitled to summary judgment. Even where no
opposing evidentiary material is presented, summary judgment should be denied if the
materials in support of the motion do not establish the absence of a genuine issue or the
moving party's own papers demonstrate the existence of material factual issues. Fed. R.
Civ. P. 56, Advisory Committee Notes; Drexel v. Union Prescription Centers, Inc., 582 F.2d
781,790 (3d Cir. 1978).

17

Here, the materials relied upon by the Defendants demonstrate the existence of
material factual issues regarding an independent riving knife. Defendants cite to the report
and deposition of Nathan's expert, Darry Holt. In that report, Holt states that table saws with
a separate riving knife have been in use since 1917 and have long been used in Europe.
(Holt Report, p. 5). In deposition, Holt testified that a riving knife protects users from
kickbacks. (Holt Dep., pp. 16-17). Holt further testified a kickback event "mayor may not
have occurred" in Nathan's case but that it was "probable" and he could not rule it out (ld. at
19-20,22-23). Finally, Holt testified that a table saw equipped with a riving knife could have
been designed to comply with applicable United States standards. (ld. at 28-30).
Accordingly, the materials cited by Defendants raise factual issues regarding the lack of an
independent riving knife. Those issues cannot be resolved on summary judgment.

iii. Blade Guard Assembly
Finally, Nathan alleges that the absence of a user-friendly blade guard constitutes a
design defect because the necessity of removing it for certain cuts combined with the
difficulty of reattachment leads many users to permanently remove the guard from the saw.
(Doc. 1, ~~ 14, 16). In their supporting materials, Defendants point to deposition testimony
indicating that Nathan personally had little difficulty installing and removing the blade guard.
(Doc. 33, p. 7; PI. Dep., pp. 43-44, 62, 75-76, 93; Doc. 34-2, p. 9). That testimony also
indicates that Nathan had not permanently removed the blade guard at the time of the

18

accident but instead removed it in order to accurately make a narrow rip cut. (/d.).4 In
opposing this motion, Nathan presents evidence that the blade guard was problematic and
as a result seldom utilized by table saw owners. (Holt Decl.1f 17, 30-31; Mehler Dec!. mr 4­
5,12, 17). Those problems included interference with the user's visibility and incompatibility
with certain cutting operations. (Id.). Nathan testified that he removed the blade guard prior
to his accident because it interfered with his vision while making a narrow cut. (PI. Dep., p.
76). Therefore, there is a factual dispute regarding problems with the blade guard assembly.
For the foregoing reasons, Defendants are not entitled to summary judgment on the
negligence and strict liability counts with respect to the above three theories of defective
design.
2. Failure to Warn Theory
The complaint alleges that the saw contained inadequate warnings about the
dangers of removing the blade guard and improper safety instructions. (Doc. 1, 1f1f 22,
33(e)-(g)). Defendants point to the abundance of warnings and safety instructions contained
in the operator's manual and on the saw itself. (Doc. 33, pp. 19-21). In his opposing brief,
Nathan states that he "does not oppose the dismissal of his strict-liability and negligence
claims to the extent they are based on a failure to warn ...." (Doc. 38, p. 1 n.1). The Court
interprets Nathan's statement as an agreement to dismiss his failure to warn claims.

4 Again, none of these assertions, other than Nathan's removal of the blade guard, are found in
Defendants LR 56.1 statement of facts.

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Therefore, Defendants are entitled to partial summary judgment on the failure to warn issue
with respect to the negligence and strict liability counts. See Fed. R. Civ. P. 56(g).

B. Counts III and IV (Breach of Warranty)
Defendants argue the statute of limitations has run on Nathan's breach of implied
warranty claims (Counts III and IV). (Doc. 33, p. 23). In his opposing brief, Nathan states
that he "does not oppose the dismissal of his ... breach-of-implied warranty claims." (Doc.
38, p. 1 n.1). The Court interprets Nathan's statement as an qgreement to dismiss Counts III
and IV of the complaint. Therefore, Defendants are entitled to summary judgment on Counts
III and IV.

C. Misuse of the Saw
As an affirmative defense, Defendants argue that Nathan's misuse of the table saw
was the sole proximate cause of the accident. (Doc. 33, p. 14). In Pennsylvania, "evidence
of misuse is generally admissible to defeat causation in a strict liability design defect case."
Moyer v. United Dominion Indus., Inc., 473 F.3d 532,542 (3d Cir. 2007). Misuse involves a
plaintiffs "unforeseeable, outrageous, and extraordinary use of a product." Reott v. Asia
Trend, Inc., 55 A.3d 1088, 1097 (Pa. 2012). The defendant bears the burden of proving that
the use was so unforeseeable or outrageous that it was a sole or superseding cause. Parks
v. AlliedSignal, Inc., 113 F.3d 1327 (3d Cir. 1997); Reott v. Asia Trend, Inc., 7 A.3d 830, 836
(Pa. Super. 2010). Since misuse and causation are questions of fact, summary judgment is
proper only if the facts are not in dispute. Summers v. Cerlainteed Corp., 997 A.2d 1152,

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1164-65 (Pa. 2010); Smith v. Yamaha Motor Corp., 5 A.3d 314,321 (Pa. Super. 2010) ("[A]
plaintiffs misuse of a product cannot be grounds for granting summary judgment in favor of
the manufacturer under a design defect theory unless it is established that the misuse solely
caused the accident while the design defect did not contribute to it.").
In this case, Defendants assert that the accident would have been avoided if Nathan
had not removed the blade guard. (Doc. 33, p. 14). In order to prevail on summary
judgment, Defendants must show that there is no genuine dispute that the blade guard
would have prevented the accident. See Hollinger v. Wagner Min. Equip. Co., 667 F.2d 402,
407-08 (3d eir. 1981) (concluding that genuine issue of fact relating to whether accident
would have been avoided if safety feature not been removed precluded summary
judgment). To that end, Defendants rely on the uncontested fact that Nathan had removed
the guard in contravention of the saw's manual and safety warnings. (Doc. 32, 11113, 6, 8;
Doc. 39, pp. 2-3; Doc. 33, pp. 13-14). Nathan responds by noting that Defendants-who
would bear the burden of proving misuse at trial- produced no direct evidence that the
failure to use the blade guard was the sole proximate cause of the accident. (Doc. 38, p.
18). Nathan also produces the opinion of his expert, Darry Holt. (Doc. 38, p. 19). Holt opined
that based on Nathan's angle of approach, Nathan's hand would have slid under the blade
guard and still contacted the blade. (Holt Dec!., 11205; Holt. Dep. pp. 66-67). Holt's opinion
raises a triable issue of fact as to whether Nathan's removal of the blade guard was the sole

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proximate cause of the accident. Therefore, Defendants are not entitled to summary
judgment based on Nathan's alleged misuse of the saw.

VII. CONCLUSION
Based on the foregoing considerations, Defendants' Motion for Summary Judgment
(Doc. 31) is GRANTED IN PART and DENIED IN PART. A separate Order follows.

Robert D. Mariani
United States District Judge

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