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Milliman v. Mitsubishi Caterpillar Forklift America

January 28, 2009

PERRY MILLIMAN, INDIVIDUALLY AND AS HUSBAND AND WIFE, AND ROBIN MILLIMAN, INDIVIDUALLY AND AS HUSBAND AND WIFE, PLAINTIFFS,
v.
MITSUBISHI CATERPILLAR FORKLIFT AMERICA, INC. DEFENDANT.



The opinion of the court was delivered by: David N. Hurd United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 3 -

II. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 -

III. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7 -

A. Defendant's Motion to Disqualify Dr. Engin as an Expert Witness.. . . . . . . . - 7 -

B. Defendant's Motion to Bar Dr. Engin's Proffered Testimony. . . . . . . . . . . . . - 9 -

1. The Safety Tether and Harness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -

2. The Interlock Device. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 15 -

3. The Segmented Guard Rail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 -

4. The Cost of Dr. Engin's Alternative Design.. . . . . . . . . . . . . . . . . . . . - 17 -

C. Defendant's Motion for Summary Judgment. . . . . . . . . . . . . . . . . . . . . . . . - 18 -

1. Alteration of the Orderpicker After Delivery.. . . . . . . . . . . . . . . . . . . . - 19 -

a. Delivery of the Orderpicker. . . . . . . . . . . . . . . . . . . . . . . . . - 19 -

b. Substantial Alteration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 21 -

2. Unforeseeable Misuse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 -

3. Evidence of the Proximate Cause of Mr. Milliman's Injuries. . . . . . . . - 24 -

4. Failure to Warn. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -

a. Open and Obvious Dangers. . . . . . . . . . . . . . . . . . . . . . . . - 26 -

5. Preemption by Federal Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 -

a. Field Preemption.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 -

b. Conflict Preemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 29 -

6. Inadmissibility of Dr. Engin's Opinions. . . . . . . . . . . . . . . . . . . . . . . . - 30 -

IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 -

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiffs Perry Milliman and his wife Robin Milliman (hereinafter "plaintiffs") bring a product liability action against defendants Mitsubishi Caterpillar Forklift America, Inc. (hereinafter "Mitsubishi" or "defendant") and Citicorp Del-Lease, Inc.*fn1 Plaintiffs assert five causes of action in their complaint against both defendants. First, plaintiff alleges manufacturing and design defects arising from defendants' negligence. Second, plaintiff alleges the defendants are strictly liable for manufacturing and design defects. Third, plaintiffs assert a breach of warranty claim. Fourth, plaintiffs allege defendants failed to adequately warn of the dangers associated with its product. Fifth, plaintiff Robin Milliman asserts a claim for loss of consortium relating to her husband's injury.

Defendant Mitsubishi moves to strike the expert designation of plaintiffs' witness, Dr. Ali Engin, or alternatively, to preclude plaintiffs' expert from testifying pursuant to Federal Rule of Evidence 702 and the legal standard delineated in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993). Mitsubishi also moves for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 56 for all of plaintiffs' claims. Plaintiffs concede that the statute of limitations for their breach of warranty claim has lapsed but oppose Mitsubishi's motions in all other respects. Accordingly, the breach of warranty claim will be dismissed without further consideration.

Oral argument was heard on December 15, 2008. Decision was reserved.

II. BACKGROUND

Mr. Milliman was hired as a "product picker" for Primesource Building Products, Inc. (hereinafter "Primesource") in late January 2004. His employment duties primarily consisted of retrieving various construction products from warehouse shelves after reviewing customers' order forms. Many of Primesource's warehouse shelves are stacked several feet in the air, requiring product pickers such as Mr. Milliman to be lifted high above the ground by way of a forklift-like machine commonly referred to as an "orderpicker." On March 15, 2004, Mr. Milliman fell a distance through the air from an orderpicker sold by defendant, thereby suffering severe and permanent physical injuries to his feet. In the moments before he fell, Mr. Milliman lost his balance while attempting to place a fifty-pound box of screws on the pallet of the orderpicker. Both parties agree that the orderpicker was delivered with a yellow warning label instructing product pickers to use a safety harness when operating the machine at elevation. At the time of his fall, Mr. Milliman was not wearing a safety harness, no safety tether or harness was attached to the orderpicker, and the yellow warning label was no longer affixed to the machine.

Subsequent to the removal of plaintiffs' lawsuit into federal court, defendant moved to strike the report of plaintiffs' expert witness, Dr. Ali Engin, for failure to comply with Federal Rule of Civil Procedure 26, and alternatively, to preclude Dr. Engin from testifying at trial under Federal Rule of Evidence 702 and Daubert. In response to the Rule 26 challenge, plaintiffs provided defendant with Dr. Engin's expert disclosure documents. Following oral argument on July 11, 2008, defendant's motion was adjourned sine die to allow defendant to depose Dr. Engin before either renewing or withdrawing its motion.

Dr. Engin was deposed on August 21, 2008, whereupon he discussed the basis for his opinions and his experience as a mechanical engineer. See Engin Dep., Exs. 3A-3C to Def's. Mot. to Strike Pls.' Expert Designation, Dkt. Nos. 34-6, 34-7, 34-8. A summary of his opinions are as follows:

(1) instead of a safety tether that could be attached at the election of the operator, the orderpicker should have been designed with a safety tether permanently attached to the overhead platform of the machine;

(2) the safety harness used with the orderpicker should have been an integral part of the safety tether, i.e., the harness should have been permanently attached to the tether;

(3) defendant did not design an orderpicker with a fully retractable safety tether;

(4) there should have been a large, concise, standing alone warning sign on a metallic surface instructing users that the safety tether and harness should be used at all times during operation;

(5) the orderpicker should have been designed with an interlock device preventing operation without use of the safety tether and harness;

(6) as either an alternative or supplement to a permanently attached safety tether and harness restraint system, the orderpicker could have been designed with guardrails around the perimeter of the operator platform which would have prevented Mr. Milliman's fall; and

(7) because of the distance Mr. Milliman fell, he suffered injuries to parts of his body other than where he impacted the ground.

Supplemental Engin Report, Ex. 2 to Def's. Mot. to Strike Pls.' Expert Designation, Dkt. No. 34-5, 2-6; see also Engin Report, Ex. 1 to Def's. Mot. to Strike Pls.' Expert Designation, Dkt. No. 34-4, 3-4. Dr. Engin further opines that "incorporation of the above-referenced changes would not have been cost prohibitive, would have resulted in minimal additional cost per machine, and consists of revisions that were readily available, known, in existence and/or state of the art at the time the subject was ...


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