Williams et al v. Starrag Group Holding AG et al

Filing 74

MINUTE ORDER denying remaining portions of defendants' 53 Motion for Summary Judgment. In their respective trial briefs, the parties are DIRECTED to address whether DST is a product seller with the liability of a manufacturer. Authorized by Judge Thomas S. Zilly. (swt)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RICHARD AND LORIANN
WILLIAMS,
Plaintiffs,

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C14-764 TSZ
v.
MINUTE ORDER
STARRAG GROUP HOLDING AG, et
al.,

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Defendants.

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The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:
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(1)
On March 15, 2017, the Court held oral argument on plaintiffs’ motion for
partial summary judgment, docket no. 55, and defendants’ motion for summary
judgment, docket no. 53. At the conclusion of oral argument, the Court denied plaintiffs’
motion in its entirety and granted defendants’ motion in part, taking the remainder of the
parties’ arguments under advisement, see Minute Entry, docket no. 70. Two issues raised
by the defendants’ motion remain for the Court’s determination: (i) whether defendant
Dörries Scharmann Technologie, GmbH (“DST”) is a manufacturer of the relevant
product under the WPLA; and (ii) whether plaintiffs’ claim for defective design should
be dismissed as a matter of law. For the reasons set forth below, the remaining portions
of defendants’ motion for summary judgment, docket no. 53, are DENIED.
(i)
Under the Washington Product Liability Act (“WPLA”), the term
“manufacturer” includes a product seller who designs, produces, makes,
fabricates, constructs, or remanufactures the relevant product or component part of
a product before its sale to a user or consumer. RCW 7.72.010(2). The term also
includes a product seller or entity not otherwise a manufacturer that holds itself

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MINUTE ORDER - 1

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out as a manufacturer. Id. Here, DST admitted that “its design department created
the specifications for the enclosure of the DST Alpha 1000 M Serial No.
H-800231” at issue in this case. Decl. of Eugene Bolin in Support of Plaintiffs’
Response to Defendants’ Motion for Summary Judgment, docket no. 60, Ex. 14
(Request for Admission No. 9). The walkways Mr. Williams alleges are defective
are a part of the enclosure. Although DST’s designated 30(b)(6) witness on the
topic, Christian Frisch, testified that “DST gives the specification for the
enclosure, not specific for the walkway,” Decl. of William Leedom in Support of
Defendants’ Response to Plaintiffs’ Motion for Partial Summary Judgment
(“Leedom Decl.”), docket no. 59, Ex. 5 (“Frisch Dep.”) at 81:12-14, taking all
inferences in favor of plaintiffs, as the non-moving party, DST’s broad admission
creates a genuine issue of material fact with respect to whether DST designed the
walkways which are the relevant product in this case. Moreover, issues of
material fact remain concerning whether DST held itself out as a manufacturer of
the relevant product under RCW 7.72.010(2). See Cadwell Industries, Inc. v.
Chenbro America, Inc., 119 F. Supp. 2d 1110, 1115 (E.D. Wash. 2000) (holding
that whether an entity holds itself out as a manufacturer must be determined “from
the viewpoint of the purchasing public and in light of circumstances as of the time
of purchase.”). Although Mr. Frisch testified that DST provided HCR’s plans and
drawings to its purchaser, The Boeing Company (“Boeing”), Frisch Dep. at 45:48, and that HCR personnel were present during installation of the DST Alpha at
Boeing, Frisch Dep. at 53:8-16, the contract of sale for the DST Alpha is between
Boeing and DST, and makes no mention of HCR or STACO, Leedom Decl.,
Ex. 1, DST offered a warranty on the entire machine, including the walkways,
Frisch Dep. at 74:17-75:1, DST “branded” the DST Alpha with its brand name,
Leedom Decl., Ex. 6 (“Second Frisch Dep.”) at 7:24-8:2, and Boeing’s designated
30(b)(6) witness on the topic, Michael Wright, testified that Boeing contacts the
“DST service people” when its DST Alpha milling machines “break down” or
“require servicing,” Leedom Decl., Ex. 7 (“Wright Dep.”) at 10:25-11:6. Notably,
Mr. Wright never mentions HCR or STACO during his deposition. Taking all
inferences in favor of plaintiffs, issues of material fact remain regarding whether
DST is a product seller that holds itself out as a manufacturer of the relevant
product.
(ii)
To establish a prima facie case for defective design under the
WPLA, a plaintiff must prove (a) a manufacturer’s product; (b) that was not
reasonably safe as designed; (c) caused harm to the plaintiff. RCW 7.72.030(1);
see also Bruns v. PACCAR, Inc., 77 Wn. App. 201 (1995). A plaintiff can prove
that a product was not reasonably safe as designed using either a risk-utility
analysis or a consumer expectation standard. Pagnotta v. Beall Trailers of
Oregon, Inc., 99 Wn. App. 28, 36 (2000) (citing Soproni v. Polygon Apartment
Partners, 137 Wn.2d 319, 326-27 (1999)). The risk-utility test requires a plaintiff
to prove the existence of an adequate alternative design. Lovold v. Fitness

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Question Inc., No. C11-569Z, 2012 WL 529411, at *2 (W.D. Wash. Feb. 16,
2012). A plaintiff may “satisfy the requirement of showing an adequate
alternative design by showing that other products can more safely serve the same
function as the challenged product.” Ruiz-Guzman v. Amvac Chemical Corp., 141
Wn.2d 493, 504-05 (2000). Under Washington law, expert testimony is not
required to make this showing. See Lovold, 2012 WL 529411, at *2. Here, the
incident report prepared by Boeing indicates that the cause of Mr. Williams’s fall
was that the “[g]rate [b]roke.” Decl. of Eugene Bolin in Support of Plaintiffs’
Motion for Summary Judgment, docket no. 55, Ex. 6 at 2. Boeing concluded that,
even after the walkway was repaired, certain “Actions to Mitigate Recurrence”
were necessary, in all of the five DST Alpha machines in Boeing’s possession, to
remedy a “serious condition” in that the “grate has a 56 inch span with no support
in the middle.” Id. After its investigation, Boeing added center bracing to the
walkways in all five DST Alpha machines. Taking all inferences in favor of
plaintiffs, Boeing’s incident report, considered together with the remedial
measures undertaken by Boeing to mitigate recurrence of Mr. Williams’s fall,
create issues of material fact regarding whether the DST Alpha was reasonably
safe as designed and whether the allegedly defective design was the proximate
cause of Mr. Williams’s injuries.

(2)
The only claim remaining for trial is plaintiffs’ claim for defective design.
In their respective trial briefs, the parties are DIRECTED to address whether DST is a
12 product seller with the liability of a manufacturer under RCW 7.72.040(2)(e).
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(3)
record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 17th day of March, 2017.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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