Gamboa et al v. Centrifugal Casting Machine Company
Filing
62
MEMORANDUM OPINION AND ORDER DENYING 48 Second MOTION for Summary Judgment , DENYING 47 MOTION to Strike Plaintiffs' Experts Dan Bagwell and Dr. David Altman. (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HECTOR & EUGENIA GAMBOA,
Plaintiffs,
v.
CENTRIFUGAL CASTING MACHINE CO.,
Defendant.
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CIVIL ACTION H-14-1273
MEMORANDUM OPINION & ORDER
Pending before the court are (1) defendant Centrifugal Casting Machine Company’s
(“Centrifugal”) motion to strike Plaintiffs’ experts Dan Bagwell and David Altman (Dkt. 47) and
(2) Centrifugal’s second motion for summary judgment (Dkt. 48). Having considered the motions,
responses, replies, and applicable law, the court is of the opinion that the motions should be
DENIED.
I. BACKGROUND
On May 30, 2013, plaintiff Hector Gamboa (“Mr. Gamboa”) was injured at work while
employed by Bearings Plus, Inc. in Houston, Texas. Dkt. 51 at 1. At the time of his injury,
Mr. Gamboa was operating a centrifugal casting machine (“the Machine”) that Centrifugal designed,
manufactured, marketed, and sold. Dkt. 48 ¶ 1. Mr. Gamboa alleges that, while he was operating
the Machine, a bearing ring became loose. Dkt. 51 at 1. A part of the Machine then struck
Mr. Gamboa and molten metal spilled onto his body. Id. at 1, 4-5. As a result of the incident,
Mr. Gamboa suffered broken bones and third-degree burns. Id. at 1.
On February 26, 2014, Mr. Gamboa and his wife, Eugenia Gamboa (“Ms. Gamboa”)
(collectively, “Plaintiffs”) filed suit against Centrifugal in Texas state court. Dkt. 1, Ex. A.
Plaintiffs brought strict products liability claims for defects in design, manufacturing, and marketing
of the Machine, as well as claims for negligence and gross negligence. Id. at 3-8. On May 8, 2014,
Centrifugal removed the case to this court. Dkt. 1. On December 2, 2014, Centrifugal filed its first
motion for summary judgment. Dkt. 24. The court granted partial summary judgment in favor of
Centrifugal on the manufacturing defect claim after Plaintiffs conceded that they had no evidence
to support the claim. Dkt. 36. The court denied the remainder of the motion without prejudice. Id.
Centrifugal now moves for summary judgment on the remaining claims. Dkt. 48.
The court set initial expert designation deadlines of September 15, 2014, for Plaintiffs and
January 15, 2015, for Centrifugal. Dkt. 9. After granting an agreed motion and Plaintiffs’ opposed
motion to extend expert deadlines, the court reset the expert designation deadlines to November 30,
2014, for Plaintiffs and March 30, 2015, for Centrifugal. Dkts. 17, 18, 36. Plaintiffs filed their
designation of expert witnesses on October 16, 2014. Dkt. 21, Ex. A. However, Plaintiffs did not
produce the joint expert report for their retained life care plan experts, David Altman and Dan
Bagwell, until March 20, 2015. Dkt. 47, Ex. A. Centrifugal now moves to strike Altman and
Bagwell. Dkt. 47. Trial is set for December 14, 2015. Dkt. 61.
II. LEGAL STANDARD AND ANALYSIS
A.
Centrifugal’s Motion to Strike Plaintiffs’ Experts Dan Bagwell and David Altman
In cases where federal subject matter jurisdiction is based on diversity, state law governs
substantive matters while federal law governs procedure. Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78, 58 S. Ct. 817 (1938); Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 395 (5th Cir. 2003). This
court applies the Federal Rules of Civil Procedure to matters governed by those rules. Rosales v.
Honda Motor Co., 726 F.2d 259, 261-62 (5th Cir. 1984); Johnson's Estate v. Bellville Hosp., 56
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F.R.D. 380, 384 (S.D. Tex. 1972) (Seals, J.). The Rules set forth a party’s obligations when
employing expert testimony.
When an expert has been retained or specially employed to provide expert testimony, Federal
Rule of Civil Procedure 26 requires a party’s expert disclosure to be accompanied by a written
report. Fed. R. Civ. P. 26(a)(2)(B). Here, Plaintiffs did not produce a written report for Altman and
Bagwell with their expert disclosures. Rather, Plaintiffs produced Altman and Bagwell’s expert
report on March 20, 2015, nearly four months after Plaintiffs’ November 30, 2014, expert disclosure
deadline. Dkt. 47, Ex. A. Therefore, Plaintiffs have violated Rule 26.
Where a party fails to provide information required by Rule 26(a), “the party is not allowed
to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). For those failures
that are not substantially justified or harmless, this sanction is “self-executing” and “automatic.”
Fed. R. Civ. P. 37(c)(1), Advisory Comm. Note (1993). To determine whether a failure to comply
with Rule 26(a) is substantially justified or harmless, the court considers four factors: “(1) the
importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the
possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's
failure to disclose.” Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 563-64 (5th Cir.
2004) (citation and internal quotation marks omitted).
1.
Importance of the Evidence
Plaintiffs indicate that they need Altman and Bagwell’s testimony to prove damages. Dkt. 49
at 3. Centrifugal does not argue that this evidence is unimportant. If Plaintiffs’ succeed, Altman and
Bagwell’s expert report suggests that a significant portion of Plaintiffs’ damages stem from life care
expenses. See Dkt. 47, Ex. A at 30 (estimating a life time cost total of $1,115,509.31). The expert
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report therefore is a key part of Plaintiffs’ damages evidence. This factor weighs in favor of
including the expert report. See Betzel v. State Farm Lloyds, 480 F.3d 704, 707-08 (5th Cir. 2007)
(finding that the importance of the challenged expert testimony weighed in favor of inclusion where
the testimony was necessary for plaintiff to prove damages). The importance of this testimony,
however, “cannot singularly override the enforcement of local rules and scheduling orders.”
Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990).
2.
Prejudice to the Opposing Party
Centrifugal argues that it has been prejudiced by Plaintiffs’ significant delay in producing
Altman and Bagwell’s expert report. Dkt. 47 ¶ 6. In particular, Centrifugal notes that the expert
report was produced only ten days prior to Centrifugal’s expert designation deadline of March 30,
2015. Id. In response, Plaintiffs argue that Centrifugal suffered no prejudice because it was able to
depose the experts and had adequate time to prepare for the deposition. Dkt. 49 at 3-4.
A party’s delay in filing an expert report “disrupt[s] the court’s discovery schedule and the
opponent’s preparation.” Geiserman, 893 F.2d at 791. Therefore, significant delay may be
prejudicial to the opposing party. Courts often find late expert designations prejudicial where the
delay interferes with the opposing party’s opportunity to depose the expert. See, e.g., id. at 791-92
(affirming district court’s decision to strike untimely expert designation where opposing party
complained that he would be unable to prepare for and take the expert’s deposition before the
discovery deadline); Bradley v. United States, 866 F.2d 120, 125 (5th Cir. 1989) (reversing district
court’s decision not to strike untimely expert designations where opposing party was forced to
depose the experts a few days before trial). By contrast, in this case, Plaintiffs’ delay did not
interfere with Centrifugal’s ability to depose Plaintiffs’ experts. Although Plaintiffs did not produce
an expert report until March 20, 2015, discovery remained open until June 5, 2015. Dkt. 39.
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Centrifugal had over a month to prepare for its depositions of Bagwell and Altman, which were held
on April 27, 2015. Dkt. 50, Exs. A, B.
Further, this case is distinguishable from those cases where an expert is revealed immediately
before trial. See, e.g., Bradley, 866 F.2d at 123 (noting that opposing party was put at great
disadvantage where government moved to designate expert witnesses ten days before trial); Robbins
v. Ryan's Family Steak Houses E., Inc., 223 F.R.D. 448, 454 (S.D. Miss. 2004) (striking expert
testimony where it was disclosed on the “eve of trial”). In this case, trial is set for December 14,
2015, almost nine months after Plaintiffs filed the expert report at issue. Dkt. 61. Therefore, there
is no unfair surprise that would prejudice Centrifugal’s trial preparations. See Primrose Operating
Co., 382 F.3d at 564 (holding that plaintiffs’ failure to disclose information about expert was
harmless where plaintiffs informed defendant of the nature of the expert’s testimony six months
before trial). Even though Plaintiffs’ expert report was produced only ten days before Centrifugal’s
expert designation deadline, Centrifugal did not find it necessary to request an extension of that
deadline. Moreover, Centrifugal does not assert that the report affected its decision on which experts
it would designate. The court recognizes that Plaintiffs were significantly late in producing Bagwell
and Altman’s expert report. Nonetheless, the court finds that Plaintiffs’ conduct has not caused
Centrifugal any significant prejudice. Therefore, this factor weighs in favor of including the
testimony.
3.
Possibility of Granting a Continuance
The court must consider the possibility of granting a continuance to cure any prejudice caused
by Plaintiffs’ violation of Rule 26. Centrifugal has stated that it is opposed to a continuance.
Dkt. 50 ¶ 5. Plaintiffs argue that a continuance is not necessary because the challenged experts have
already been deposed. Dkt. 49 at 3. In cases involving late-designated witnesses, a continuance
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allows a party to depose the witnesses and provides the party additional time to prepare for trial. See,
e.g., Betzel, 480 F.3d at 708-09 (finding that the district court should have granted a continuance to
give defendant an opportunity to depose plaintiff’s late-designated experts); Campbell v. Keystone
Aerial Surveys, Inc., 138 F.3d 996, 1001 (5th Cir. 1998) (finding that the district court should have
considered granting a continuance rather than requiring plaintiffs to depose defendants’ latedesignated witness during trial). In this case, however, Centrifugal was able to depose the
challenged experts far in advance of trial. Centrifugal has not experienced sufficient prejudice to
necessitate a continuance. Therefore, a continuance would provide limited value to the parties. This
factor is neutral.
4.
Plaintiffs’ Explanation
Plaintiffs have explained that their experts were unable to prepare a timely expert report due
to significant delays in obtaining Mr. Gamboa’s medical records while his treatment was ongoing.
Dkt. 49 at 2. Mr. Gamboa completed his treatment on February 16, 2015, and the expert report was
produced about a month later. Id.
Plaintiffs’ explanation is unpersuasive. Plaintiffs could have subpoenaed Mr. Gamboa’s
medical records at any time. Additionally, the final medical record reviewed by the challenged
experts is dated July 25, 2014. Dkt. 47, Ex. A at 9. This fact undermines Plaintiffs’ explanation
because the experts did not rely on any more recent medical records in coming to their conclusions.
Therefore, it is unclear why Plaintiffs’ experts waited until March of 2015 to review medical records
created in July of 2014. Because the court finds no legitimate justification for Plaintiffs’ delay, this
factor weighs in favor of excluding the testimony.
A review of the four factors listed above weighs in favor of including Altman and Bagwell’s
expert testimony. Although Plaintiffs’ failure to comply with Rule 26 was not substantially justified,
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it was harmless. The court will not impose a sanction that would cause significant damage to
Plaintiffs’ case where Plaintiffs’ failure has caused Centrifugal no measurable prejudice. See Betzel,
480 F.3d at 709 (reversing district court’s exclusion of late-designated damages experts because
exclusion imposed “the extreme end of the sanction spectrum . . . against the lowest end of the
prejudice spectrum”). Therefore, Centrifugal’s motion to strike Bagwell and Altman is DENIED.
B.
Centrifugal’s Second Motion for Summary Judgment
Centrifugal moves for summary judgment on all of Plaintiffs’ claims. Dkt. 48. In
considering Centrifugal’s motion, the court applies Texas substantive law and federal procedural
law. Erie R.R. Co., 304 U.S. at 78; Hall, 327 F.3d at 395. Under the Federal Rules of Civil
Procedure, a court shall grant summary judgment when a “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.” Fed. R.
Civ. P. 56(c). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for
the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The
moving party bears the initial burden of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). If the party meets its
burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue
for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org.
v. City of Dall., 529 F.3d 519, 524 (5th Cir. 2008).
1.
Summary Judgment Evidence
As a preliminary matter, Centrifugal asks that the court not consider several expert affidavits
Plaintiffs have submitted in opposition to the motion for summary judgment. Dkt. 52 ¶ 4.
Centrifugal argues that these affidavits directly contradict the experts’ deposition testimony and
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contain unsupported conclusory statements. Id. ¶¶ 2-3. Further, Centrifugal argues that Plaintiffs’
expert reports should have contained all of the matters to which the experts would testify, and
Plaintiffs should not be allowed to provide additional, conflicting information via affidavits after the
expert disclosure deadline. Id. ¶ 4.
In general, a party may rely on affidavits in opposition to a motion for summary judgment.
Fed. R. Civ. P. 56(c) (noting that a party may cite to affidavits to support an assertion that a fact is
genuinely disputed). However, in deciding a motion for summary judgment, the court need not
consider conclusory statements set forth in affidavits. See Lechuga v. S. Pac. Transp. Co., 949 F.2d
790, 798 (5th Cir. 1992) (“Conclusory statements in an affidavit do not provide facts that will
counter summary judgment evidence, and testimony based on conjecture alone is insufficient to raise
an issue to defeat summary judgment.”). Courts have also refused to consider expert affidavits
where those affidavits offer opinions that contradict prior testimony or offer entirely new opinions
not contained in expert reports. See, e.g., Buxton v. Lil' Drug Store Prods., Inc., No. 2:02-CV-178,
2007 WL 2254492, at *5-6 (S.D. Miss. Aug. 1, 2007), aff'd, 294 F. App’x 92 (5th Cir. 2008)
(collecting cases where courts refused to consider expert affidavits as summary judgment evidence
when affidavits offered new opinions not contained in initial expert reports); Saudi v. S/T Marine
Atl., 159 F. Supp. 2d 512, 521 (S.D. Tex. 2001) (Harmon, J.) (holding that expert’s self-serving
affidavit was incompetent evidence where it contradicted his prior deposition testimony without
explanation); Brumley v. Pfizer, Inc., 200 F.R.D. 596, 603 (S.D. Tex. 2001) (Jack, J.) (“A subsequent
expert affidavit submitted to rebut a summary judgment motion may be excluded if it differs from
an earlier Rule 26 report.”). However, “the court is not required nor is it willing to parse out those
portions of the affidavits” that are proper summary judgment evidence and those portions that are
improper. Avance v. Kerr-McGee Chem. LLC, No. 5:04-CV-209, 2006 WL 3484246, at *6 (E.D.
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Tex. Nov. 30, 2006). Therefore, the court has assumed for the purposes of deciding this motion that
the expert affidavits are improper. Even without considering Plaintiffs’ affidavits, the court finds
that Plaintiffs have raised a genuine issue of material fact for trial.
2.
Design Defect
Under Texas law, a strict liability design defect claim requires a plaintiff to prove “that (1)
the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative
design existed; and (3) the defect was a producing cause of the injury for which the plaintiff seeks
recovery.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009).
i.
Unreasonable Dangerousness
To determine whether a product’s design renders it unreasonably dangerous, Texas courts
apply a risk-utility analysis that involves consideration of the following five factors:
(1) the utility of the product to the user and to the public as a whole
weighed against the gravity and likelihood of injury from its use; (2)
the availability of a substitute product which would meet the same
need and not be unsafe or unreasonably expensive; (3) the
manufacturer’s ability to eliminate the unsafe character of the product
without seriously impairing its usefulness or significantly increasing
its costs; (4) the user’s anticipated awareness of the dangers inherent
in the product and their avoidability because of general public
knowledge of the obvious condition of the product, or of the
existence of suitable warnings or instructions; and (5) the
expectations of the ordinary consumer.
Id. Plaintiffs need not produce evidence as to all five factors in the risk-utility analysis to succeed
on their claim. Shipp v. Gen. Motors Corp., 750 F.2d 418, 421-22 (5th Cir. 1985).
Centrifugal argues that Plaintiffs cannot prove the Machine was unreasonably dangerous
because there have been no same or similar accidents with the Machine. Dkt. 48 ¶ 29. Evidence
of similar incidents may be relevant to show whether a product is unreasonably dangerous. Nissan
Motor Co. v. Armstrong, 145 S.W.3d 131, 138-39 (Tex. 2004). However, the court is not aware of
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any case holding that evidence of similar accidents is required to sustain a design defect claim. To
the contrary, Texas case law suggests that the frequency of similar accidents is not alone dispositive
of the unreasonable dangerousness inquiry. See, e.g., Hernandez v. Tokai Corp., 2 S.W.3d 251, 260
(Tex. 1999) (holding that, in performing the risk-utility analysis, the rarity of the risk is a “relevant”
factor to be considered alongside the potential gravity of the harm); Uniroyal Goodrich Tire Co. v.
Martinez, 977 S.W.2d 328, 337 (Tex. 1998) (“While [evidence of few reported accidents] is certainly
relevant, and perhaps would persuade many juries, we cannot say that it conclusively establishes that
the tire is reasonably safe when weighed against the other evidence.”). Therefore, while the absence
of similar accidents is persuasive evidence in Centrifugal’s favor, it is not an appropriate basis for
summary judgment.
Centrifugal next argues that Plaintiffs have not performed the risk-utility analysis necessary
to prove that a product was unreasonably dangerous when sold. Dkt. 48 ¶ 17; Dkt. 52 ¶ 2.
Centrifugal’s argument is based on its assertion that Plaintiffs’ experts Francisco Godoy, Dennis
Scardino, and Gary Richetto “admitted at the time of their depositions that no risk-utility analysis
had been done to determine whether the product was unreasonably dangerous when sold.” Dkt. 52
¶ 2. As to Mr. Richetto, Centrifugal has not identified, nor has the court found, any portion of
Mr. Richetto’s deposition where he made such an admission. Mr. Scardino was unable to define an
“unreasonably dangerous product” and admitted that he did not personally perform an analysis of
whether the Machine was unreasonably dangerous. Dkt. 51, Ex. H. at 61-63. Mr. Godoy testified
that he did not know what an unreasonably dangerous product was, but he also testified that he “did
an analysis that this product is very unreasonable [sic] dangerous.” Dkt. 51, Ex. F at 54-55. When
asked what he did to determine whether or not the Machine was unreasonably dangerous, he stated:
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“After I analyzed this design of this product and I saw that it could have been implemented in a—in
a better design. I think it never was implemented to prevent this accident from occurring.” Id. at 55.
This unclear testimony is hardly sufficient to establish that these experts conducted no riskutility analysis. They were not questioned about the relative risk and utility of the Machine. Instead,
they were questioned about “unreasonable dangerousness,” a legal term of art with a particular
meaning in products liability law. It is unsurprising that these non-legal experts were unable to
define the term. While an attorney may have understood that an unreasonably dangerous product
is one that fails a risk-utility analysis, the court does not expect the experts to make that connection.
More importantly, Mr. Godoy, Mr. Scardino, and Mr. Lorenzo’s joint expert report indicates that
they did conduct a risk-utility analysis in this case. See Dkt. 26, Ex. F1 at 9 (“The absence of a
centering boss, the movement of a split pad ring, or the movement of a portion of a split pad ring
within the [Machine] during rotation would create an imbalance, which in turn could be
detected . . . Affordable vibration detection and monitoring devices are readily available for use in
a multitude of applications.”); id. at 10 (“All of the observed post incident modifications to the
[Machine] were technologically feasible at the time that the [Machine] was manufactured. These
modifications did not affect the utility or function of the [Machine].”). These experts suggested
several alternative designs for the Machine, and Centrifugal has neither produced evidence nor
asserted any arguments that these alternatives would have been unduly expensive or would have
made the Machine less useful. See id. at 10 (suggesting that the water guard should have been
reinforced, that the control panel should have been moved to a different location, and that the
Machine should have included a system to detect high vibration levels). The report therefore directly
addresses the risk-utility factor of “the manufacturer’s ability to eliminate the unsafe character of the
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product without seriously impairing its usefulness or significantly increasing its costs.” Gish, 286
S.W.3d at 311.
Plaintiffs have provided evidence in support of their contention that the Machine fails a riskutility analysis and is unreasonably dangerous. Notably, unreasonable dangerousness is generally a
fact question for the jury; it will be decided as a matter of law only where reasonable minds cannot
differ. Goodner v. Hyundai Motor Co., 650 F.3d 1034, 1040 (5th Cir. 2011); see also Hernandez,
2 S.W.3d at 260 (“The determination of whether a product is unreasonably dangerous because of
a defective design is often one that involves factual disputes that a party is entitled to have a jury
resolve.”). Courts have made the unreasonable dangerousness determination as a matter of law in
rare cases, such as where the plaintiff’s suggested alternative designs would have “completely
precluded some of the uses for which the product was designed.” Hernandez, 2 S.W.3d at 260. As
stated above, Centrifugal has not argued or produced any evidence that Plaintiffs’ proposed designs
would have limited the Machine’s intended uses. A juror could properly find the Machine
unreasonably dangerous. Therefore, the court will not decide this question as a matter of law.
ii.
Safer Alternative Design
To prove that a safer alternative design existed, Plaintiffs must meet a three-prong test by
showing that the alternative design “(i) would in reasonable probability have prevented or
significantly reduced the risk of the claimant's injury or damage (ii) without substantially impairing
the product's utility, and (iii) was economically and technologically feasible when the product was
manufactured or sold.” Id. at 258. An alternative design is not safer if it would impose an equal or
greater risk of harm under other circumstances. Martinez, 977 S.W.2d at 337.
As to the second prong, Plaintiffs’ experts indicated in their expert report that their suggested
alternative designs would not impair the utility of the Machine. See Dkt. 26, Ex. F1 at 10.
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Centrifugal has neither argued nor presented evidence that the suggested alternative designs would
interfere with current uses of the Machine. As to the third prong, Centrifugal has stated that it is not
contesting the feasibility of the proposed alternative designs. Dkt. 52 ¶ 6. Centrifugal has focused
its argument on the first prong—in particular, it argues that Plaintiffs’ alleged failure to test their
proposed alternative designs is fatal to their claim.
Centrifugal argues that “Plaintiffs have no evidence of a safer alternative design since
Plaintiffs’ experts conducted no testing and thus have no scientific proof as to whether the alleged
alternative designs are safer or pose a greater risk.” Dkt. 48 ¶ 9. For this point, Centrifugal relies
heavily on the Fifth Circuit’s opinion in Casey v. Toyota Motor Engineering & Manufacturing North
America, Inc., 770 F.3d 322 (5th Cir. 2014). In particular, Centrifugal points to the court’s broad
statement that “Texas law expects that an alternative design be tested before a jury can reasonably
conclude that the alternative would prevent or reduce the risk of injury.” Id. at 332. In that case,
Casey filed a products liability suit against Toyota following a fatal single-car accident. Id. at 325.
Casey brought a design defect claim based on the alleged inadequacy of the car’s side curtain airbag.
Id. As evidence of a safer alternative design, Casey introduced a patent application that proposed
using a different material for side curtain airbags than the material used in Casey’s car. Id. at 321.
The court held that Casey failed to demonstrate that the proposed alternative design would have
prevented or reduced the claimant’s risk of injury because Casey’s expert did no testing to determine
whether the alternative airbag would have changed the result of the accident. Id. at 321-22. Casey’s
expert did not explain why he believed that the alternative design would have withstood the forces
in the accident; rather, he relied on the patent application for that conclusion. Id. at 332. The court
found that the testing in the patent application was “too far afield to constitute evidence that the
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alternative design would have reduced the risk of injury in this particular accident” because that
testing did not involve forces similar to those in the accident. Id. at 322, 332.
The court’s decision in Casey highlights the evidentiary problems that occur when a party
relies on a patent application to prove a safer alternative design. The court found that the patent
application provided no evidence that the proposed alternative design had been implemented or even
could be implemented. Id. at 334. In reaching its decision, the Casey court looked to cases in
similar contexts. See, e.g., Gen. Motors Corp. v. Harper, 61 S.W.3d 118, 126 (Tex. App.—Eastland
2001, pet. denied) (holding that patent failed to show alternative seatbelt design was safer where
plaintiff’s expert “admitted that the benefits claimed in the patents were not necessarily accurate,
workable, or manufacturable”). Unlike in Casey, feasibility is not contested in this case. Dkt. 52
¶ 6. Therefore, there is no similar concern that the proposed alternative designs cannot be
implemented.
Further, this case is distinguishable from cases involving airbags and seat belts, which are
routinely put through crash testing. Plaintiffs’ expert Mr. Godoy testified that physical testing is not
the standard in this context. See Dkt. 51, Ex. F at 26-28 (acknowledging that the automobile industry
does significant crash testing, but explaining that physical testing is not necessary in the context of
the engineering analysis applied to this case). Mr. Godoy testified that he performed structural
analysis by computer to prepare the calculations for his expert report and that this procedure was
accepted in the scientific community. Id. at 23-28. Centrifugal has presented no contrary evidence
to suggest that physical testing is customary for the type of alternative designs at issue here.
Moreover, given that Plaintiffs’ expert did conduct testing via computer analysis, this is not truly a
case where “no testing” has occurred. Rather, at most, there is a factual question about whether
computer testing is sufficient. Huyser v. Ford Motor Co., No. 2:13-CV-280, 2015 WL 296075, at
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*1 (E.D. Tex. Jan. 21, 2015) (holding that, where plaintiff’s expert offered a computer simulation
as proof of a safer alternative design, the sufficiency of that method of testing was a disputed issue
of fact for the jury).
Most importantly, the Texas Supreme Court has stated clearly that Texas law does not require
testing to prove that a safer alternative design existed. See Genie Indus., Inc. v. Matak, 462 S.W.3d
1, 7 (Tex. 2015) (“This design need not be actually built and tested; a plaintiff must show only that
the alternative design was ‘capable of being developed.’”). In General Motors Corp. v. Sanchez, the
defendant argued that the alternative designs suggested by the plaintiff’s expert were inadequate to
prove a reduction in the risk of injury because the designs were never tested and therefore the
expert’s opinion was pure speculation. 997 S.W.2d 584, 590 (Tex. 1999). The Court held that this
argument addressed the reliability and admissibility of the expert testimony, not the sufficiency of
evidence of a product defect. Id. The Court explained that the plaintiff need not test the expert’s
proposed design changes. Id. at 592. The Court relied on the Restatement’s position that “qualified
expert testimony on the issue suffices, even though the expert has produced no prototype, if it
reasonably supports the conclusion that a reasonable alternative design could have been practically
adopted at the time of sale.” Id. (quoting Restatement (Third) of Torts: Products Liability § 2 cmt. f
(1998)) (internal quotation marks omitted). The Court found that plaintiff’s expert testimony
presented sufficient evidence to uphold a design defect verdict. Id.
As in Sanchez, Plaintiffs in this case have submitted qualified expert testimony regarding
whether a safer alternative design existed. As a matter of law, the Texas Supreme Court has stated
that such evidence is sufficient to sustain a jury verdict. Therefore, this court cannot grant summary
judgment on the ground that Plaintiffs conducted no physical testing in this case.
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iii.
Producing Cause
A plaintiff in a design defect case need prove only that the alleged defect was a “producing
cause” of the injury. Gish, 286 S.W.3d at 311. A producing cause is “a substantial factor in bringing
about an injury, and without which the injury would not have occurred.” Ford Motor Co. v.
Ledesma, 242 S.W.3d 32, 46 (Tex. 2007).
Centrifugal argues that Mr. Gamboa’s decisions, rather than any alleged defects, caused the
accident. Dkt. 48 ¶ 29. In particular, Centrifugal points out that Mr. Gamboa did not use the
approved “static pour procedure” while operating the Machine. Id. Further, Mr. Gamboa used only
four of the required six “bosses,” which secure the bearing when screwed in. Id. ¶¶ 22, 29.
However, an injury may have more than one producing cause. Shipp, 750 F.2d at 425. Therefore,
even assuming Mr. Gamboa’s use of unapproved procedures was a cause of the accident, Plaintiffs
could still succeed on their design defect claim by proving that the alleged defects were also a
producing cause of the accident.
Nonetheless, Centrifugal argues based on Merrel Dow Pharmaceuticals, Inc. v. Havner that
“[i]f there are other plausible causes of the injury or condition that could be negated, the plaintiff
must offer evidence excluding those causes with reasonable certainty.” Dkt. 48 ¶ 18 (citing Merrell
Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997)). Centrifugal suggests Plaintiffs
must actively disprove that Mr. Gamboa’s actions contributed to the accident. Unlike this case,
Havner involved unique issues regarding proof of causation in toxic tort cases. See Havner, 953
S.W.2d at 714-17. Havner offers no discussion of producing cause. Moreover, Havner involved
alternative causes; specifically, whether a birth defect was caused by a drug or by genetics. Id. at
714. By contrast, in this case, Mr. Gamboa’s actions and the alleged defects could have both
contributed to the accident. There is no reason to believe that these causes could not co-exist. In
16
fact, Texas products liability law specifically contemplates that a design may be defective even
where the consumer’s misuse also contributed to the accident. See Hernandez, 2 S.W.3d at 257-58
(noting that alleged misuse of a product is a factor that may be considered in allocating responsibility
for an injury, but misuse is not an absolute bar to liability for defective design). Therefore,
Mr. Gamboa’s alleged failure to follow approved procedures does not alone defeat Plaintiffs’ design
defect claim. Further, requiring Plaintiffs to disprove all other possible causes would effectively
defeat the rule that an injury may have multiple producing causes. See Shipp, 750 F.2d at 425
(holding that it would be improper to require a design defect plaintiff to prove that the defect was
the “sole producing cause” of her injury, where Texas law requires only that the defect be a
“contributing cause . . . in connection with any other cause or causes” (citation and internal
quotation marks omitted)). Therefore, Plaintiffs’ failure to rule out all other possible causes does
not defeat their design defect claim.
Centrifugal also argues that Plaintiffs have produced no evidence that the failure to employ
an alternative design caused the accident. Dkt. 48 ¶ 29. However, causation need not be supported
by direct evidence; rather, circumstantial evidence and reasonable inferences therefrom are
sufficient. Goodner v. Hyundai Motor Co., 650 F.3d 1034, 1044 (5th Cir. 2011) (citation omitted).
Plaintiffs have produced expert testimony that, had Plaintiffs’ suggested alternative designs been
implemented, Mr. Gamboa would likely not have been injured. See Dkt. 26, Ex. F1 at 10 (“An
alternative positioning of the control panel for the [Machine] most likely would have prevented
Mr. Gamboa from being struck by the ejected materials.”); id. (“If the [Machine] had incorporated
a vibration detection/monitoring system . . . and it was interlocked with the drive mechanism; then
the subject incident most likely would have been averted . . . .”). Centrifugal has offered no
17
contradictory evidence to suggest that the injuries would have occurred even with the alterative
designs in place.
Further, “causation generally is a question of fact for the jury.” Goodner, 650 F.3d at 1044.
A court should rule as a matter of law on the causation question only if “all the facts and inferences
point so strongly against causation that no reasonable jury could find causation.” Id. A juror could
infer that, had one or all of the proposed alternative designs been in place, Mr. Gamboa would not
have been injured. For example, a juror could infer that, had the control panel been placed in a
different location, Mr. Gamboa would not have been in a position to be struck by the flying debris
and molten metal pouring from the Machine. Such an inference would not be unreasonable as a
matter of law. Therefore, the court finds that there is at least a genuine issue of fact on the subject
of causation.
3.
Marketing Defect
“A defendant’s failure to warn of a product’s potential dangers when warnings are required
is a type of marketing defect.” Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995). A
defendant will be held liable on a marketing defect claim if the lack of adequate warnings renders
the product unreasonably dangerous. Id. A marketing defect claim requires proof of five elements:
1) a risk of harm that is inherent in the product or that may arise from
the intended or reasonably anticipated use of the product must exist;
2) the product supplier must actually know or reasonably foresee the
risk of harm at the time the product is marketed; 3) the product must
possess a marketing defect; 4) the absence of the warning and/or
instructions must render the product unreasonably dangerous to the
ultimate user or consumer of the product; and 5) the failure to warn
and/or instruct must constitute a causative nexus in the product user’s
injury.
USX Corp. v. Salinas, 818 S.W.2d 473, 482-83 (Tex. App.—San Antonio 1991, writ denied).
Centrifugal has raised several arguments in response to Plaintiffs’ marketing defect claim.
18
i.
No Evidence
Centrifugal argues that Plaintiffs have no evidence to support their claim that a marketing
defect rendered the Machine unreasonably dangerous and no evidence that the alleged defect was
a producing cause of Mr. Gamboa’s injury. However, the record contains evidence that supports
Plaintiffs’ marketing defect claim. Centrifugal’s corporate representative Jesse Harris testified that
Centrifugal was aware that its training manual rarely reached end users of the Machine. Dkt. 51,
Ex. A at 31-32. Further, Mr. Gamboa testified that he did not read any training materials. Dkt. 48,
Ex. C at 14. He also testified that he received no training on the Machine and was told to “figure
out how to run that machine.” Id. at 26. He stated that he always used two of the three centering
bosses to align the bearing. Id. at 31. There is, however, contradictory testimony. See Dkt. 48,
Ex. B at 11-12 (deposition of Alfred Ontiveros) (stating that he trained Mr. Gamboa on the Machine,
that he made Mr. Gamboa aware that he should use all three centering bosses, and that he allowed
Mr. Gamboa to look at the user manuals in his office). Therefore, there is conflicting evidence
regarding whether the warnings adequately informed Mr. Gamboa of the dangers of the Machine.
The jury is entitled to make credibility determinations and decide these disputed issues of fact. The
jury could reasonably find that the warnings offered by Centrifugal were insufficient to give end
users reasonable notice of the dangers of the Machine.
With respect to causation, Plaintiffs have offered evidence that alternative warnings would
have prevented the accident in this case. See Dkt. 42, Ex. G-1 at 4-6 (expert report of Gary M.
Richetto) (stating that Centrifugal should have affixed an on-product warning label that contained
several warnings regarding proper use of the Machine, and taking the position that Mr. Gamboa
would have heeded those warnings). Where a manufacturer fails to give adequate warnings, there
is a rebuttable presumption that adequate warnings would have been heeded. Magro v. Ragsdale
19
Bros., 721 S.W.2d 832, 834 (Tex. 1986); see also Gen. Motors Corp. v. Saenz ex rel. Saenz, 873
S.W.2d 353, 360 (Tex. 1993) (“A warning which is not displayed with sufficient prominence to give
reasonable notice to the persons to whom it is directed is hardly better than no warning at all. If
GM’s warning against overloading in this case [was] not sufficiently prominent, plaintiffs would be
entitled to the presumption that reasonable notice would have been heeded.”). A jury could find that
the warnings provided in Centrifugal’s training manual were not sufficient to give reasonable notice
to the end user. In that case, Plaintiffs would be entitled to a rebuttable presumption that an adequate
warning would have been heeded. Centrifugal has offered no evidence that would negate the
presumption of causation or that suggests Mr. Gamboa would have ignored a prominent, on-product
warning. Therefore, there are at least disputed factual issues regarding whether the warnings were
adequate and whether alternative warnings would have prevented Mr. Gamboa’s accident.
ii.
Open and Obvious
Centrifugal argues that all of the alleged defects on the Machine were open and obvious, and
therefore Centrifugal had no duty to warn as a matter of law. Dkt. 48 ¶¶ 9, 32, 36. A manufacturer
is not required to warn of obvious risks. Shears, 911 S.W.2d at 382-83. The court decides whether
a risk is open and obvious as a matter of law under an objective standard. Id. at 383. The
obviousness of the risk is determined from the perspective of the average user of the product. Sauder
Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349, 349 (Tex. 1998). In support of its argument,
Centrifugal points to testimony of Plaintiffs’ expert Mr. Godoy. Dkt. 48 ¶ 27.
The following exchange occurred during Mr. Godoy’s deposition while discussing three
alternative designs proposed in his expert report:
Q [Centrifugal’s counsel].
Okay. You agree that those three things
that we just discussed, they’re all open and obvious, correct, you can
see them?
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A [Mr. Godoy].
Yes, sir.
Dkt. 51, Ex. F at 60. Mr. Godoy is not qualified to make a legal determination about what is “open
and obvious” under Texas law. Therefore, Centrifugal has identified no supportive evidence that
the court is required to credit. Moreover, this testimony does not address the relevant issue with
respect to the open and obvious argument. The question is not whether the physical characteristics
of the product were open and obvious or whether the user “can see them.” The question is whether
the risk posed by the product is obvious to the average user. Centrifugal has pointed to no evidence
that the risks posed by the Machine are obvious to the average user. If anything, the testimony in
this case suggests that the nature and severity of the risks posed by the Machine were not obvious
to its users. See Dkt. 48, Ex. C. at 43-44 (deposition of Hector Gamboa) (explaining that he and
another employee knew an unbalanced bearing could be “a little dangerous,” but stating that they still
felt they could do the job safely); id. at 40-41 (stating that he had never been made aware of the
possibility that a weld might not hold). Therefore, Centrifugal has not established that the risks in
this case were open and obvious as a matter of law.
iii.
Sophisticated User
Centrifugal argues that Mr. Gamboa’s employer, Bearings Plus, has specialized training and
is a “sophisticated user.” Dkt. 48 ¶¶ 9, 32, 36. Therefore, even if a duty to warn existed in this case,
Centrifugal states that it met its obligation by warning Bearings Plus, which was responsible for
warnings its own employees. Id. ¶¶ 32, 36. In some situations, the sophisticated user doctrine
excuses a product supplier from warning knowledgeable customers or their employees of the risks
associated with use of the product. Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 194
(Tex. 2004). However, “the mere presence of an intermediary does not excuse the manufacturer
from warning those whom it should reasonably expect to be endangered by the use of its product.”
21
Id. at 185 (citation omitted). The Texas Supreme Court has held that the product supplier bears the
burden to prove that the sophisticated user doctrine applies. See id. at 195 (holding that defendant
supplier has the burden to prove that supplier’s ordinary legal duty to warn end users of product
dangers should not be applied). Centrifugal therefore must prove that the sophisticated user doctrine
applies.
In support of its argument, Centrifugal points out that Plaintiffs’ expert Gary Richetto
admitted in his deposition that Bearings Plus is a sophisticated user. Dkt. 52 ¶ 7. Mr. Richetto stated
that he “believed [Bearings Plus] could be described as a sophisticated user” and attempted to offer
a definition of the term. Dkt. 48, Ex. G at 18-19. However, Mr. Richetto is not a legal expert and
is not qualified to offer legal opinions. Mr. Richetto’s conclusion about who may be a sophisticated
user under Texas law is not entitled to any weight. Therefore, Mr. Richetto’s admission provides
little support for Centrifugal’s sophisticated user defense.
Centrifugal also notes that Bearings Plus “has an engineering department, has been using
these casting machines longer than Defendant has been making them, and made subsequent design
changes on their own.” Dkt. 52 ¶ 7. Even assuming that Bearings Plus is very experienced with
centrifugal casting machines, the strength of Bearings Plus’s qualifications is not the ultimate issue
with respect to the sophisticated user defense. Rather,
[t]he issue in every case is whether the original manufacturer has a
reasonable assurance that its warning will reach those endangered by
the use of its product. Thus, to avoid liability, a manufacturer must
affirmatively prove that the warning given by a third party provided
the user with actual, adequate, and specific knowledge of the hazard.
Coleman v. Cintas Sales Corp., 100 S.W.3d 384, 389 (Tex. App.—San Antonio 2002, pet. denied).
Here, Centrifugal was aware that the training manual for the Machine rarely reached the person
operating the machine. Dkt. 51, Ex. A at 31-32. Therefore, Centrifugal did not have a reasonable
22
assurance that its warnings would reach those endangered by its product and should not have relied
on Bearings Plus to communicate the appropriate warnings. See Gomez, 146 S.W.3d at 189
(“[W]hen the purchaser of machinery is the owner of a workplace who provides machinery to
employees for their use, and there is reason to doubt that the employer will pass warnings on to
employees, the seller is required to reach the employees directly with necessary instructions and
warnings if doing so is reasonably feasible.”). Centrifugal has not proven that the warnings provided
to Bearings Plus were adequate to alert end users like Mr. Gamboa of the Machine’s dangers. As
a result, Centrifugal’s sophisticated user defense fails.
iv.
No Prior Accidents
Centrifugal argues that Plaintiffs cannot prove that Centrifugal was on notice of the danger
posed by the Machine because there have been no prior accidents with the Machine. Dkt. 48 ¶ 9.
However, there are many ways for a plaintiff to prove that a product supplier knew or should have
known of the dangers of the product, including: “(1) evidence of similar accidents or other
complaints; (2) presentation of post-accident warnings; (3) presentation of recall letters; (4) evidence
of governmental standards; (5) expert testimony, lay testimony, or documentary evidence to show
information about risks available to defendant; and (6) reliance on well-established presumptions.”
Salinas, 818 S.W.2d at 484. Although evidence of prior accidents is one way to prove foreseeability
of the danger, it is not required. Therefore, the absence of prior accidents is not dispositive of
Plantiffs’ marketing defect claim.
4.
Negligence and Gross Negligence
Centrifugal argues that Plaintiffs have alleged no negligence other than that the product was
defective when sold; therefore, Plaintiffs’ negligence theory is “encompassed and subsumed” in their
defective product theory. Dkt. 48 ¶ 9. In products liability cases, courts have occasionally refused
23
to give a negligence instruction where the plaintiff’s evidence has focused solely on the issue of
unreasonable dangerousness. See, e.g., Garrett v. Hamilton Standard Controls, Inc., 850 F.2d 253,
257-58 (5th Cir. 1988) (holding that, where proof in the case was directed entirely to the issue of
whether the product was unreasonably dangerous, district court’s refusal to give a negligence
instruction was harmless); Shaun T. Mian Corp. v. Hewlett-Packard Co., 237 S.W.3d 851, 857 (Tex.
App.—Dallas 2007, pet. denied) (holding that appellants’ negligence theories were subsumed in their
defective product theories where appellants alleged no conduct other than that relating to
unreasonable dangerousness).
It is clear, however, that Plaintiffs generally have a right to bring their action in both strict
liability and negligence. See Garrett, 850 F.2d at 255 (noting that Texas law allows a products
liability action to be brought under theories of strict liability, breach of warranty, and negligence);
Syrie v. Knoll Int'l, 748 F.2d 304, 306 (5th Cir. 1984) (explaining that alternative pleading in strict
liability and negligence is proper and common). Strict liability and negligence are distinct theories
that require a plaintiff to make different showings. The Texas Supreme Court has explained the
distinction as follows:
The care taken by the supplier of a product in its preparation,
manufacture, or sale, is not a consideration in strict liability; this is,
however, the ultimate question in a negligence action. Strict liability
looks at the product itself and determines if it is defective. Negligence
looks at the acts of the manufacturer and determines if it exercised
ordinary care in design and production.
Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867, 871 (Tex. 1978). Because these theories are
legally distinct, the court should rarely find that a plaintiff’s negligence allegations are subsumed in
the plaintiff’s strict liability claims. The Fifth Circuit has indicated that the bar is very low for a
plaintiff to properly raise a negligence issue for the jury:
24
Frequently, much of the evidence that establishes a jury question of
strict liability will establish a jury question of negligent design or
marketing. Only when the plaintiff has failed to submit sufficient
evidence concerning the manufacturer’s conduct in designing,
manufacturing, or marketing a product should the court refuse to
instruct the jury on a theory of the case presented in the pleadings.
The question, then, is whether there was evidence or an offer of proof
from which the jury could conclude that the [product] was negligently
designed or marketed . . . . In other words, . . . was the issue of
[defendant’s] conduct in designing or marketing the [product] ever
raised?
Syrie, 748 F.2d at 309. In this case, Plaintiffs have submitted allegations and evidence that relate
to Centrifugal’s conduct. As noted above, Centrifugal’s corporate representative Jesse Harris
testified that Centrifugal was aware the training manual for the Machine often did not reach the
person operating the machine. Dkt. 51, Ex. A at 31-32. As a result, Centrifugal implemented a
training program, but Harris stated that Centrifugal’s customers in this sector rarely purchased the
training program.
Id. at 30-31.
A jury could find that Centrifugal acted negligently and
unreasonably in failing to educate the Machine’s ultimate users on its proper operation when
Centrifugal knew these operators rarely received the training manual or attended a training program.
Further, the jury could conclude that an accident is reasonably foreseeable where the Machine’s
operators frequently lack proper training. Even though Plaintiffs’ negligence claims certainly raise
issues and facts that overlap with their strict liability claims, some commonality is expected and does
not require dismissal of their negligence claims. See Syrie, 748 F.2d at 307 (“Although a negligence
claim and a strict liability claim may share certain similar or common elements, they involve two
separate theories of recovery.”). After reviewing the evidence and Plaintiffs’ allegations, the court
finds that Plaintiffs have at least raised the issue of Centrifugal’s conduct. Therefore, it would be
inappropriate for the court to dispose of Plaintiffs’ negligence claims.
25
As to Plaintiffs’ claims for gross negligence, Centrifugal argues only that Plaintiffs’ gross
negligence claims must fail because Plaintiffs’ negligence claims fail as a matter of law. Dkt. 48 ¶¶
20, 31. Because the court has found that Plaintiffs’ negligence claims do not fail, Plaintiffs’ gross
negligence claims also survive.
5.
Loss of Consortium
Centrifugal argues that Ms. Gamboa’s loss of consortium claim must fail because it is
derivative of Plaintiffs’ other claims, which fail as a matter of law. Dkt. 48 ¶ 9. Because the court
has held that Plaintiffs’ other claims do not fail, Ms. Gamboa’s derivative loss of consortium claim
survives.
Having reviewed Centrifugal’s arguments in favor of summary judgment, the court finds that
the motion should be DENIED.
III. CONCLUSION
Centrifugal’s motion to strike Plaintiffs’ experts Dan Bagwell and David Altman (Dkt. 47)
and Centrifugal’s second motion for summary judgment (Dkt. 48) are DENIED.
Signed at Houston, Texas on November 6, 2015.
___________________________________
Gray H. Miller
United States District Judge
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