2007 Ohio 7097 | Ohio Ct. App. | 2007
{¶ 2} Appellants' chlorine feeder was a Hayward Model CL220 "off-line" feeder. "In-line" feeders are not meant to be removed for service or storage once installed; the off-line feeder requires removal, winterized storage, and re-installation. Mary had sealed the feeder for winter storage with chlorine tablet residue still inside. She had also connected the water inlet and outlet ports with a small plastic tube, effectively sealing the unit closed. The chlorine tablet residue caused chlorine gas to build up under high pressure inside the closed feeder container. The pressure created by the expanding chlorine gas tightened the plastic cap. The feeder, unlike other Hayward models and other manufacturers' chlorine feeders, did not have a dedicated opening tool or a pressure escape valve. When Mary went to de-winterize and re-install the feeder in June 2003, the feeder cap was too tight to open by hand. While Robert held the cylindrical feeder steady, Mary tapped the cap with a hammer to loosen it. The resulting explosion injured both.
{¶ 3} Appellants grounded their claims in four theories of liability: breach of the implied warranty of safety, strict liability, negligence in the product's design and warning, and statutory products liability. In support, they presented the expert testimony of Robert Yano, a registered professional mechanical engineer, who opined in a deposition and in an affidavit and report, that Hayward's chlorine feeder was defectively designed, lacked adequate warnings, and was not subjected to adequate safety testing. *3
{¶ 4} Hayward moved to disqualify Yano's expert testimony on two grounds: First, that he lacked expert qualifications; second, that his opinions were not based on adequate and reliable scientific methodology. Hayward also moved for summary judgment, arguing that, if Yano's testimony were stricken, appellants' claims would be rendered baseless. Alternatively, Hayward argued that even if Yano's expert opinion were not stricken, appellants' misuse of the feeder was not foreseeable, they could not prove the alleged defect proximately caused their injuries, the warnings Hayward provided were clear, and that appellants failed to heed the warnings.
{¶ 5} The trial court granted Hayward's motion to disqualify appellants' expert. Specifically, it held that Yano had "absolutely no prior experience in this type of case" and that his opinions were based on "outdated regulations and improper assumptions." In granting Hayward's motion for summary judgment, the trial court explicitly adopted Hayward's analysis and conclusion that appellants' misuse of the feeder was not foreseeable when Hayward placed it in the stream of commerce.
{¶ 6} Appellants have assigned two errors for review:
{¶ 7} "The trial court erred in excluding the testimony of plaintiffs' mechanical engineering expert Robert Yano, P.E.
{¶ 8} "The trial court erred in granting defendant's motion for summary judgment."
{¶ 9} Having reviewed the entire record in this matter, we find both of appellants' assignments of error well-taken. First, the trial court abused its discretion when it granted *4
Hayward's motion to strike appellants' expert's testimony and opinion.State v. Williams (1983),
{¶ 10} Evid.R. 702 provides:
{¶ 11} "A witness may testify as an expert if all of the following apply:
{¶ 12} "(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
{¶ 13} "(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
{¶ 14} "(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
{¶ 15} "(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
{¶ 16} "(2) The design of the procedure, test, or experiment reliably implements the theory;
{¶ 17} "(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result." *5
{¶ 18} Hayward first argued that Yano was unqualified as an expert because he lacked the requirements of Evid.R. 702(B). The trial court adopted Hayward's analysis as set forth in its motion to disqualify. Hayward (and, therefore, the trial court) focused specifically on Yano's lack of experience with pool equipment and pool systems.
{¶ 19} To be admissible, an expert's testimony must be both relevant and reliable. Daubert v. Merrill Dow Pharmaceuticals (1993),
{¶ 20} Hayward contends that Yano's lack of specific experience with pool equipment renders him unqualified. Hayward rightly points out that a "witness is not an expert simply because he claims to be." TharoSystems, Inc. v. Cab Produkktechnik *6 GMBH Co. KG (C.A. 6, 2006), 196 Fed. Appx. 366, 375, citing Pride v.BIC Corp. (C.A. 6, 2000),
{¶ 21} For example, a licensed electrician with extensive experience in electricity, electrocution, and wiring systems was qualified to opine as to whether an amusement park's ride electrical systems were properly grounded. State v. Rock, 11th Dist. No. 2004-L-127,
{¶ 22} Hayward cites our decision in Hamilton Mutual Ins. Co. v. FordMotor Co. (1997),
{¶ 23} Impliedly, then, the witness would have been qualified to opine as to the origin of the fire — which was his area of expertise. The rejection of his testimony had less to do with whether he was qualified and more with whether his qualifications were relevant and "fit" with the issue at hand. That is, the fact that a fire originates in a fuel injector does not alone support a conclusion that the fuel injector is defective.
{¶ 24} Berry v. City of Detroit, supra, gives an excellent illustration with respect to the relevance, or "fit," of particular scientific expertise with a particular issue:
{¶ 25} "[I]f one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts. *8
{¶ 26} "On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have."Berry,
{¶ 27} Keeping with the analogy, appellants' witness offers testimony more similar to that of an aeronautical engineer than a beekeeper. Although Yano may not have specific experience with pool equipment, his r É sum É lists knowledge and experience of "mechanical equipment evaluations, analysis and testing, and a determination of feasible safety standards for mechanical equipment" beyond the ordinary juror or layperson. Hayward's chlorine feeder — a relatively simple machine — and the issues — whether the product is defective and its warnings inadequate when it can create a dangerous pressurized buildup of chlorine gas — do not require more specialized knowledge and experience to understand than that of a mechanical engineer. The expert testimony required with respect to Hayward's chlorine feeder is not as specialized as that required for press brake operation and safeguarding, Vermett v.Fred Christen Sons Co. (2000),
{¶ 28} Hayward also notes that Yano has never rendered expert opinions as to the adequacy of product warnings, arguing that this lack of experience renders him unqualified to testify. This argument is also not well-taken. A witness should not be disqualified as an expert because he has never rendered an opinion regarding the adequacy of warnings on a particular type of product. Zapoola v. Leibinger, 8th Dist. Nos. 86038, 86102,
{¶ 29} Second, Hayward argued in its motion to disqualify that Yano's opinions were unreliable pursuant to Evid.R. 702(C). "A trial court's role in determining whether an expert's testimony is admissible under Evid.R. 702(C) focuses on whether the opinion is based upon scientifically valid principles, not whether the expert's conclusions are correct or whether the testimony satisfies the proponent's burden of proof at trial." Miller v. Bike Athletic Co. (1998)
{¶ 30} Yano rendered a three-part opinion in his expert report, based upon his review of, inter alia: appellants' exploded feeder; appellants' depositions; Hayward's engineering expert's deposition; the CL220's patent; the owner's guide and installation and operating instructions; discovery provided by Hayward; literature regarding chlorine, design and warning safety; and National Sanitation Foundation safety standards for chlorine feeders.
{¶ 31} First, he opined that the CL220 was defectively designed. It enables a user to create a closed system by sealing off the water inlet and outlets; if the user leaves wet chlorine inside, chlorine gas may create high pressure. Without a dedicated cap opening device or a pressure relief device, an explosion hazard results.
{¶ 32} Second, he found the labeling on the feeder inadequately warned a user of the potential hazard of "a high pressure explosion resulting from storing a sealed-up feeder, containing wet caked chlorine, over the winter" and "a high-pressure explosion resulting from tapping on the stored sealed-up feeder, containing wet chlorine (and now high-pressure chlorine gas), to unscrew the stuck cover cap."
{¶ 33} Third, he found Hayward's testing of the CL220 negligent, in that test results provided by Hayward during discovery showed that testing of a sealed feeder containing chlorine and water was only performed once. Yano's report stated: "The test was performed for only three weeks * * * and when the test was stopped * * * the *11 container pressure had already surpassed 70 psi [pounds per square inch] — and was rising rapidly * * *. If the limited Hayward data is extrapolated linearly out in time, the feeder pressure will approach 300 psi after only about 3 months. The normal winter shutdown period for most pools in Ohio is about 6 months. Furthermore, Hayward's pressure tests on other feeders show containers failing at 150 psi * * * and 186 psi * * *. In short, Hayward's own test data indicates that a sealed-up container will reach container burst pressures within the normal winter storage time period. These tests also indicate that Hayward was cognizant of this serious danger i) because of the very fact that they performed the chlorine and water sealed container test, and ii) because they stopped the one test as it approached dangerous internal container pressures."
{¶ 34} Further testing, the report continued, "would have revealed the design defects in the Hayward feeder, and corrective design actions could have been taken by Hayward. Corrective action could include: i) a stronger (e.g. thicker) plastic cover; ii) a different material for the cover (e.g. less brittle plastic that could withstand tapping); and/or iii) the implementation of a PRV (pressure release valve)."
{¶ 35} Yano's method of extrapolating a conclusion from Hayward's testing data is not an unsound scientific method. General Elec. Co. v.Joiner (1997),
{¶ 36} Given that both parties offer competing expert testimony as to whether the chlorinator is defective, summary judgment was improperly granted.
{¶ 37} The appellate court reviews a grant of summary judgment de novo, standing in the shoes of the trial court. Grafton v. Ohio EdisonCo. (1996),
{¶ 38} The moving party bears the initial burden of demonstrating that there are no genuine issues of material facts regarding an essential element of the nonmoving party's case. Dresher v. Burt (1996),
{¶ 39} Throughout the summary-judgment analysis, all inferences from the "evidence must be strongly construed in favor of the nonmoving party." Ferrando v. Auto-Owners Mut. Ins. Co.,
{¶ 40} Appellants' complaint stated claims for Hayward's breach of the implied warranty of safety; strict liability, citing Knitz v. MinsterMachine Co. (1982), *14
{¶ 41} This matter warrants an examination of the evolution of products liability in Ohio, beginning with Lonzrick v. Republic SteelCorp. (1966),
{¶ 42} Next, Temple v. Wean (1977),
{¶ 43} "1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
{¶ 44} "(a) the seller is engaged in the business of selling such a product, and
{¶ 45} "(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
{¶ 46} "2. The rule stated above applies although the seller has exercised all possible care in the preparation and sale of his product, and the user or consumer has not bought the product from or entered into any contractual relation with the seller." Id., paragraphs one and two of the syllabus.
{¶ 47} In Temple, the plaintiff, who had two fingers severed while operating an employer-modified punch press, argued that the punch press was defective because it was unreasonably dangerous and was placed in the hands of users without adequate warning. The court held that the defect arose by virtue of the plaintiffs employer's alteration of the product, not the manufacturer's design. Id. at 325. It recognized, however, the established rule that "a manufacturer or vendor is negligent when he has knowledge of a latent defect rendering a product unsafe and fails to provide a warning of such defect." Id., citingSams v. Englewood Ready-Mix Corp. (1969),
{¶ 48} The plaintiff also argued that the punch press was negligently designed because it was not equipped with barrier guards. The court examined the Industrial Commission Safe Code, which provided that punch presses may be made safe by use of either a fixed barrier guard or a two-hand tripping device. Considering this evidence and the fact that the punch press upon which the plaintiff was injured was equipped with a tripping device, the court held that the press was not negligently designed.
{¶ 49} Then, in Leichtamer v. American Motors Corp. (1981),
{¶ 50} The doctrine of strict liability for defective design was clarified further by Knitz v. Minster Machine Co. (1982),
{¶ 51} Following Knitz, in Cremeans v. International HarvesterCo. (1983),
{¶ 52} "Under the second prong, a defendant will be subject to liability if the plaintiff proves, by using relevant criteria, that the product design is in a defective condition because the benefits of the challenged design do not outweigh the risks inherent in such design. This standard is often referred to as the risk-benefit standard." Id. at 234. *18
{¶ 53} Although the test is a "single, two-pronged test," a plaintiff need not prove both but may proceed with one theory. "The test set forth in Knitz does not impose a dual requirement that an injured plaintiff prove that a product design is both in a defective condition and unreasonably dangerous. * * * To require an injured plaintiff to prove both that a product contained a defect and that the defect rendered the product `unreasonably dangerous' would place a greater requirement upon him than required by * * * Lonzrick * * *." Id. (Internal citations omitted.)
{¶ 54} Knitz and Cremeans "stand for the proposition that a product may be found defective in design under the risk-benefit test where the manufacturer fails to incorporate feasible safety features to prevent harm caused by foreseeable human error." Perkins v. Wilkinson Sword,Inc. (1998),
{¶ 55} Then, pursuing "tort reform," the Ohio Legislature passed the Ohio Products Liability Act, which codified the above tests. R.C.
{¶ 56} We dispense with Hayward's statement (adopted by the trial court) that the statutory provisions which now govern product liability law abrogate all common law product liability causes of action, citing R.C.
{¶ 57} Addressing just such a question, the Ohio Supreme Court held that, unless the General Assembly expressly intended statutory products liability law to supplant the common law, the common law remains in full effect. Carrel v. Allied Products Corp. (1997),
{¶ 58} Reviewing the claims asserted in appellants' complaint, we note that the separately stated claims for breach of the implied warranty of safety and the claim of strict liability allowed by Knitz are identical and therefore merge. See Temple v. Wean, supra. Therefore, appellants' claims are threefold.
{¶ 59} First, appellants have a claim that Hayward is strictly liable pursuant to the risk-benefit analysis test codified in R.C.
{¶ 60} Second, appellants' common law claim for negligent design survives the Products Liability Act. City of Cincinnati v. Beretta U.S.Corp.,
{¶ 61} Third, appellants can proceed with their common-law failure to warn claim. "To recover under a failure-to-warn theory at common law, the plaintiff must prove that the manufacturer knew or should have known, in the exercise of reasonable care, of the risk or hazard about which it failed to warn and that the manufacturer failed to take precautions that a reasonable person would take in presenting the product to the public." Id. at ¶ 33, citing Crislip v. TCH LiquidatingCo. (1990),
{¶ 62} The common-law claim for failure to warn was codified by R.C.
{¶ 63} "(A) Subject to divisions (B) and (C) of this section, a product is defective due to inadequate warning or instruction if either of the following applies:
{¶ 64} "(1) It is defective due to inadequate warning or instruction at the time of marketing if, when it left the control of its manufacturer, both of the following applied: *21
{¶ 65} "(a) The manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm for which the claimant seeks to recover compensatory damages;
{¶ 66} "(b) The manufacturer failed to provide the warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages and in light of the likely seriousness of that harm.
{¶ 67} "(2) It is defective due to inadequate post-marketing warning or instruction if, at a relevant time after it left the control of its manufacturer, both of the following applied:
{¶ 68} "(a) The manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm for which the claimant seeks to recover compensatory damages;
{¶ 69} "(b) The manufacturer failed to provide the post-marketing warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages and in light of the likely seriousness of that harm. *22
{¶ 70} "(B) A product is not defective due to lack of warning or instruction or inadequate warning or instruction as a result of the failure of its manufacturer to warn or instruct about an open and obvious risk or a risk that is a matter of common knowledge."2
{¶ 71} Appellants also requested punitive damages. R.C.
{¶ 72} The defenses available to Hayward include assumption of the risk and unforeseeable misuse. "[T[he voluntary and unreasonable assumption of a known risk *23
can act as an absolute bar to recovery products liability action."Evanoff v. Grove Mfg. Co. (1994),
{¶ 73} As for whether a plaintiffs misuse of a product was foreseeable, "failure to design a product to prevent a foreseeable misuse can be a design defect." Welch Sand Gravel, Inc. v. O KTrojan, Inc. (1995),
{¶ 74} The principles of comparative negligence and comparative fault do not apply to the strict liability claim. Bowling v. Heil Co. (1987),
{¶ 75} Hayward's arguments depend in part upon assertions that appellants' misuse was unreasonable. Specifically, it notes its expert's report that, in order for this accident to occur, appellants had to ignore the owner manual's instructions to remove chlorine *24
tablets from the chlorinator before winterizing it; ignore the owner manual's instructions to screw the cap one and a half turns shut when winterizing; close the water intake and outtake valves with a single tube to create a closed system; and then, when de-winterizing, hit the cap with a hammer to open it. However "unreasonable" appellants' actions may have been, their claim does not fail unless the misuse was unforeseeable. "[U]nreasonable misuse is not even a defense to a strict liability claim. * * * [T]wo affirmative defenses exist to a products liability case based upon strict liability in tort: assumption of the risk and unforeseeable misuse of product. `Unforeseeable' and `unreasonable' are not synonyms. Therefore, unreasonable misuse is not a defense to a strict liability defective product claim." Calmes v.Goodyear Tire Rubber Co. (1991),
{¶ 76} Appellants' expert, Yano, offered two safety measures Hayward could have incorporated into its chlorinator in order to prevent post-winterizing explosions from pressurized chlorine gas: a pressure-release valve and a dedicated opening tool. Other evidence, such as the chlorinator patent and other models of chlorinators incorporating these safety devices, are relevant to and supportive of this point. This evidence creates genuine issues of fact as to whether the benefits of the chlorinator's design outweigh the risks. Appellants also presented evidence that their use of the chlorinator was foreseeable because Hayward performed internal pressure testing using water and chlorine inside a sealed unit and stopped the test before burst pressures were reached. Genuine issues of fact remain as to whether failing to completely rinse the unit and sealing it completely *25 before winterizing was reasonably foreseeable, and, if so, whether the risk of explosion when de-winterizing was more dangerous than the ordinary consumer would expect. A genuine issue of material fact also exists with respect to Hayward's alleged failure to warn; although the owner manual instructs users to clean chlorine residue from the unit and tighten the cap halfway, there is no indication in the owner manual that failing to do so may cause an explosion come springtime. Competing evidence was produced as to the feasibility and reasonableness of placing such warnings on the chlorinator itself versus the owner manual.
{¶ 77} Hayward also argues that appellants' misuse of the chlorinator was not foreseeable because its expert testified that this accident was the first of its kind reported to Hayward and the first of its kind its expert had encountered. Be that as it may, if Hayward's argument were correct, then any time a product's defectiveness was discovered through an accident the first claim would be barred because it would be the first time the manufacturer had encountered it. Precedent provides that Hayward may introduce evidence that it has no knowledge of similar accidents, if a sufficient foundation is laid at trial. Blanton v.Internatl. Minerals and Chem. Corp. (1997),
{¶ 78} As the testimony of both parties' experts creates genuine issues of material fact regarding each of appellants' three claims, summary judgment was improper. Appellants' second assignment of error is well-taken. *26
{¶ 79} The judgment of the Lucas County Court of Common Pleas is reversed and this matter remanded for further proceedings. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J. Arlene Singer, J., William J. Skow, J. CONCUR.