Gary Frederick Piserchia, Esq. Andrew Charles Rimol, Esq. PARKER MCCAY P.A. Mount Laurel, NJ, Attorneys for Plaintiffs Christine Mays and Mark Mays.
Wendy H. Smith, Esq. John G. O'Brien, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Roseland, NJ, Attorney for Defendant General Binding Corporation.
JEROME B. SIMANDLE, Chief District Judge.
This matter is before the Court on the motion of Defendant General Binding Corporation ("Defendant" or "GBC") for summary judgment. [Docket Item 17.] Oral argument was conducted on March 4, 2013.
The instant action is a product liability case arising from Plaintiff Christine Mays's use of a laminating machine while working at an elementary school. Plaintiff Mays, an elementary school teacher, was using the HeatSeal Ultima 65-1 laminating machine manufactured by Defendant General Binding Corp. when she received a static electric discharge while touching the power button to turn off the laminating machine. Plaintiff claims she suffered injury to her right index finger as a result of the discharge of static electricity while using the machine.
Plaintiffs Christine Mays and Mark Mays filed an amended complaint bringing three causes of action against GBC, the only defendant in this case: product liability (Count I); negligence (Count II); and loss of consortium (Count III). Plaintiffs' product liability claim makes three separate allegations. Specifically, Plaintiffs claim Defendant GBC is liable for a manufacturing defect, design defect and failure to warn.
Defendant GBC now moves for summary judgment on all claims. [Docket Item 17.] The Plaintiffs do not oppose granting summary judgment on their negligence claim (Count II) and manufacturing defect aspect of their product liability claim. However, the Plaintiffs argue that they have presented sufficient evidence to survive summary judgment on their design defect and failure to warn claims within their product liability count (Count I). The central issue before the court is whether Plaintiffs' expert, George P. Widas, presents sufficient proof in his expert report to establish Plaintiffs' product liability claim either for design defect or for failure to warn.
For the reasons discussed herein, the court finds that Plaintiffs' expert report is insufficient to meet their burden of proof to establish a design defect or a failure to warn claim. Therefore, the court will grant Defendant's motion for summary judgment and Plaintiffs' complaint will be dismissed with prejudice.
The facts of this case are straightforward and not heavily disputed by the parties. On April 20, 2010, Plaintiff Christine Mays was employed as a teacher at an elementary school and was using the school's laminating machine, a HeatSeal Ultima 65-1. (Def.'s Statement of Material Facts §§ 2-3.) Plaintiff used the laminating machine at issue roughly once a month during the school year from 2008 or 2009 until April 20, 2010, the date of the incident. Id. at § 5.
On the date of the incident, the Plaintiff was using the laminating machine and when she was finished, went to turn off the machine. (Pls.' Ex. C and Defs.' Ex. A, Deposition of Christine Mays taken on April 12, 2012 ("Mays Dep.") at 69:1-9.) The machine was on a cart and the Plaintiff was standing behind the machine, between the wall and the machine. (Mays Dep. at 69:1-21.) Plaintiff reached down with her right index finger and touched the on/off switch. (Id. at 69:21-70:11.) When Plaintiff touched the on/off switch, she felt a sensation from her finger through her arm to her shoulder and the machine made a popping noise but did not spark. (Id. at 70:25-71:3; 72:1-2.) The sensation Plaintiff received was a static shock as opposed to an electric shock and was caused by the discharge of static electricity. (Def.'s Statement of Material Facts § 9.)
The Plaintiff went to the nurse's office immediately after the shock and filled out an incident report. In this report, Plaintiff wrote that she was shocked when she turned off the laminator and "touched/bumped cord." (Id. at § 13; Mays Dep. at 78:1-25.) Plaintiff then testified at her deposition that she did not touch or bump the cord to the laminating machine and only wrote that on the incident report because she "was thinking it was an electrical shock and when I think of electrical shock I think of cord." (Id. at 15-17.)
This static discharge incident is unique. Before this incident, Plaintiff had never been shocked by the laminating machine nor had anyone else at the school to her knowledge. Id. at § 6. The laminating machine is still being used at the school presently and Plaintiff is not aware that anyone after this incident has been shocked. Id. at § 7. Karen Rockhill, the school's principal, testified that no one else had been shocked by the laminating machine either before or after this incident. Id. at § 11.
After the incident, the school's buildings and grounds employees, including possibly an electrician, along with the local Fire Marshall, examined the laminating machine to try to determine how the alleged incident occurred and could find nothing wrong with the machine and could not replicate the incident. (Def.'s Statement of Material Facts § 10.)
Over a year later, in November/December 2011, the laminator's plug had to be replaced because the ground wire prong was loose. (Id. at § 12.) In fact, the ground pin from the original plug was missing. (Id. at § 49.) A break in the equipment grounding circuit in the power cord assembly will permit the laminator metal housing to potentially become energized and may allow static charge to build up on the laminator. (Id. at § 50.) The damage to the power cord that was replaced was not consistent with normal wear and tear but was evidence of abuse either through improper insertion, removal or physical contact which damaged the cord cap. (Id. at § 52.) Prior to the incident, Defendant GBC repaired the laminator on one occasion on February 8, 2010, replacing the main display and control boards. (Id. at § 16.)
According to Defendant GBC, the laminating machine is designed to "dissipate static electricity as best as possible." Id. at § 22; (Deposition of GBC by Robert Elliot taken June 14, 2012, ("GBC Dep.") at 20:24-21:1.). This is accomplished through grounding the machine. Specifically, the materials in the laminating machine are grounded through the side frames and the side frames are then grounded through the power cord and through the ground prong on the plug. (Id. at 21:6-10; Def.'s Statement of Material Facts § 24.) This grounding does not result in the dissipation of all static electricity from the machine, and under certain conditions, a static shock could result. In particular, if the machine is operated in an environment which is dry or carpeted, the static electricity could not get fully discharged and result in a static shock to the user. (Id. at 23:1-24:17; 41:15-42:5; 51:8-52:24.)
The design and manufacture of similar, competitive products operate on the same principles with the same functional components as the subject laminator. (Def.'s Statement of Material Facts § 32.) The design of the laminator here complied with all applicable safety standards and was built to conform to Underwriters Laboratories, Inc. ("UL") 963 standard for design, was UL tested and was considered safe and fit as a result. (Def.'s Statement of Material Facts § 33.)
Of nine similar competitors' laminators, not one included a warning about static discharge and the competitors' literature did not identify static as a hazard associated with their respective machines or warn against potential static shock injuries relating to the operation of their respective machines. (Id. at § 43.) Further, there were no warnings regarding static discharge on nine competitors' similar models. (Id. at § 44.) The UL standard governing the laminating machine makes no mention of static in its Instruction and Marking requirements. (Id. at § 45.)
GBC does not consider static electricity to be a hazard or safety concern. (GBC Dep. 21:11-24.) GBC was not aware of anyone ever being hurt by static and no warning for static discharge was mandated by any safety agency, including OSHA. (Def.'s Statement of Material Facts §§ 39, 41.) GBC had never received another complaint or claim of anyone shocking ...