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March 28, 1973

Elizabeth WHEELER, Plaintiff,

Duffy, District Judge.

The opinion of the court was delivered by: DUFFY

DUFFY, District Judge.

The plaintiff, Elizabeth Wheeler, *fn1" presently a resident of the State of New York, was an employee of Becton, Dickinson & Company (hereinafter "Becton-Dickinson"), located in Canaan, Connecticut. On December 16, 1966, plaintiff was injured while operating a machine manufactured by defendant, Standard Tool & Manufacturing Company, a New Jersey corporation, with its principal office and plant located in Lyndhurst, New Jersey.

 The machine was designed to assemble hypodermic syringes. While operating the machine, the plaintiff slipped and thrust her right hand forward, caught the right index finger in the needle inserting station of the machine, causing the damage of which she now complains.

 The theory of plaintiff's case is not one of ordinary negligence, but is one of strict liability as against the manufacturer of a dangerous mechanism. (See Section 402(A) of the Restatement (Second) of Torts).

 It is incontrovertible that in 1961, Becton-Dickinson entered into an agreement with the defendant whereby the defendant would design a certain machine known as the "plastic syringe assembly machine". The design engineers employed by the defendant had numerous conferences with representatives of Becton-Dickinson, and finally submitted to Becton-Dickinson a design for such a machine. The design was approved by Becton-Dickinson, and the defendant manufactured and delivered one machine in its first order; one machine in the second order; and in a third order in 1963 ten additional machines, substantially the same as those in the first two.

 In the contract for the sale of the first two machines, the defendant assigned to Becton-Dickinson its plans and specifications for the machines since they were a specialty item.

 The machine on which the plaintiff, Mrs. Wheeler, was injured, was one manufactured pursuant to the third, that is 1963, order.

 The defendant's contentions include, inter alia, a denial of liability based on the claim that it "manufactured" only a component of the machine; that the machine was built to the specifications of plaintiff's employer; and that the defendant's design engineer had recommended that a guard be placed at the needle inserting station, which is the defect alleged to have caused plaintiff's injury, but that plaintiff's employer had failed to install such a guard.

 Since the case was tried without a jury, the Court permitted the parties to call witnesses out-of-order for the convenience of the parties and the witnesses.

 The first witness called, therefore, was Mr. Zihaly, who was produced by the defendant. Mr. Zihaly testified that he had designed the first "plastic syringe assembly machine" in consultation with certain Becton-Dickinson employees; that Becton-Dickinson had approved the design proposed by defendant; and that he supervised the manufacture of the "dial" or turntable part of the machine; and that he and others on behalf of the defendant strenuously urged Becton-Dickinson to put guards over all of the moving parts of the assembled machine, including the needle inserting station. The witness testified that defendant did not put the recommended guards on the machine since "Moorbin Hoppers", a device to hold the parts from which the product was to be assembled, were ordered by Becton-Dickinson and were to be added after the machine was "manufactured" by defendant.

 I find that portions of the testimony of this witness were not believable. The demeanor of the witness, shifting in his seat and speaking with hesitation and an awkward choice of words was such that he lacked the spontaneity of a person who was telling the whole truth.

 The witness specifically tripped himself up when he testified that each of the machines was "set up" at the defendant's factory and run for a period so that the defendant could "de-bug" the machine. He also testified that he had gone to the Becton-Dickinson plant and had further supervised the "de-bugging" of the machines at that plant with the Becton-Dickinson mechanics.

 One of the mechanics for Becton-Dickingson, Mr. Victorien, later testified that the machines were delivered to Becton-Dickinson completely assembled with the hoppers and all other parts attached. When this testimony is added to the testimony of Mr. Zihaly concerning the "de-bugging" of the machines, it is clear that while the defendant may not have produced "from scratch" the entire machine, it did assemble it and in this sense I find that the defendant did manufacture the machine in question.

 This finding is further supported by the exhibits produced by the defendant itself. The second page of defendant's exhibit H is an invoice which shows:

"Material and labor to make various changes and experiments as requested on #802 Plastic Srringe, (sic) machine to accommodate variance in the product as furnished from different molds. This includes development, alterations and correction to feeders, tracks and various mechanical devices, including detection devices to facilitate parts coming from feeders to machine. The above changes ...

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