This Memorandum and Order addresses Defendant Allentown, Inc.’s Motion for Summary Judgment, ECF No. 27; Plaintiff Florence Parker’s Answer to Defendant’s Motion for Summary Judgment (“Opposition”), ECF No. 29; and Defendant’s Reply, ECF No. 31. I find that a hearing is unnecessary in this case. See D. Md. Loc. R. 105.6. For the reasons stated herein, Defendant’s Motion for Summary Judgment is GRANTED as to Counts Two and Three and DENIED as to Counts One, Four, and Five. This Memorandum and Order disposes of ECF Nos. 27, 29, and 31.
I. BACKGROUND
In reviewing the evidence related to a motion for summary judgment, the Court considers the facts in the light most favorable to the non-moving party. Ricci v. DeStefano,
Defendant is a company that manufactures and sells animal cage racks, which hold rows of animal cages that can be pulled out. Compl. ¶¶ 4-5, ECF No. 2; Def.’s Mem. in Supp. Mot. 1 & 4, ECF No. 27-1; see Pl.’s Mem. in Opp’n 4, ECF No. 29-1. In the last thirty years, Defendant has sold more than 20,000 such racks, and Johns Hopkins University (“Hopkins”) has purchased nearly 1,000 of them. Def.’s Mem. 3. Defendant sold the animal cage rack at issue in this litigation to Hopkins in September 2001. Id.; Pl.’s Mem. 6. It was estimated that the cage rack weighed between 750 and 1100 pounds. Dep’t of Labor, Licensing & Reg., Occup. Safety & Health, Citation & Notification of Penalty 5 (“MOSH Citation”), PL’s Mem. Ex. D, ECF No. 29-5.
Plaintiff began working as an animal facility specialist/animal caretaker at Hopkins in September 2002. Def.’s Mem. 3; Parker Dep. 33:7, 34:6-11, PL’s Mem. Ex. E, ECF No. 29-6. One of her primary responsibilities was to care for laboratory animals, such as rats and mice. Compl. ¶ 3; Def.’s Mem. 3. The animals were kept in individual cages, stored in animal cage racks that Defendant manufactured. Compl. ¶ 4; see Def.’s Mem. 4.
On or around September 22, 2009, Plaintiff was performing routine cage checks of the laboratory animals at Hopkins’ Bay-view campus. See Compl. ¶ 5; Def.’s Mem. 4; PL’s Mem. 7. Because she was unable to locate a stepladder, Plaintiff checked the top row of cages on each rack, which were above her eyelevel, by pulling out the cages from the rack, taking them down, looking in them, and putting the cages back. PL’s Mem. 7. When checking the second row from the top on the rack at issue, Plaintiff stood on her tiptoes and held onto the top of the rack with both hands. Id.; Def.’s Mem. 4. As she was checking that second row of cages, the cage rack tipped over, falling on top of Plaintiff, PL’s Mem. 7; Defi’s Mem. 4, and breaking her left leg in five places, MOSH Interview Worksheet, PL’s Mem. Ex. C, ECF No. 29-4. She was trapped under the rack until a coworker discovered her, nearly forty-five minutes later. Compl. ¶¶ 5-6; PL’s Mem. 7. She then was transported to the hospital. Compl. ¶ 6; Def.’s Mem. 4.
Plaintiff filed a five-count complaint on March 2, 2011. Compl. 3-8. First, Plain
II. DISCUSSION
Summary judgment is properly granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Meson v. GATX Tech. Servs. Corp.,
If the moving party demonstrates that there is no evidence to support the non-moving party’s case, the burden shifts to the non-moving party to identify specific facts showing that there is a genuine issue for trial. To satisfy this burden, the non-moving party “must produce competent evidence on each element of his or her claim.” Miskin v. Baxter Healthcare Corp.,
Defendant argues, Def.’s Mem. 15-16, and Plaintiff concedes, Pl.’s Opp’n ¶ 1, that Plaintiffs breach of warranty claim is time barred. Defendant correctly notes that Md.Code Ann., Comm. Law § 2-725 establishes a four-year statute of limitations for breach of contract and breach of warranty claims,
B. Products Liability — Design Defect (Counts One, Four, and Five)
In her first count, Plaintiff alleges negligence, asserting that Defendant designed a rack that “required the user to pull drawers out,” an action that would “foreseeably shift the weight and balance of the rack” in such a way that it was likely to tip over. See Compl. ¶ 11. Moreover, Plaintiff claims that Defendant failed to include in the rack’s design “a device or element that would prevent the entire rack from falling over” when drawers were pulled out. See id. Plaintiff states that she suffered injury as a “direct and proximate result” of Defendant’s negligence, resulting in economic and noneconomic damages. Id. ¶ 12. Plaintiff maintains that she “acted reasonably at all times and did not cause or contribute to the occurrence” in any way. Id. ¶ 13.
Similarly, in her fourth count, Plaintiff alleges design defect, claiming that the product’s design was defective because “it was not designed to be secured to the floor or a wall to keep it from tipping over while in use,” even though (1) “it was supported by rollers, which are inherently unstable”; (2) it “required the user to pull cages out, like drawers, which would forseeably [sic ] shift the weight and balance of the entire rack”; and (3) it “was designed with a mechanical unit on top, which provided water and air for the animals below [and] created an additional instability, which made the rack dangerous and subject to tip over.” Id. ¶¶ 22-23. Likewise, in her fifth count, Plaintiff alleges design defect, this time as a strict liability claim, arguing that, as designed, the rack was “an abnormally dangerous product,” that presented to its users “an unreasonably dangerous risk of harm,” Id. ¶ 28. For each of these claims she alleges that the design defect proximately caused her injuries. Id. ¶¶ 27 & 30.
Plaintiffs first, fourth, and fifth claims are, in essence, products liability claims of design defect, sounding in negligence and strict liability. Fed.R.Civ.P. 8(e) provides that “[p]leadings must be construed so as to do justice,” and Fed.R.Civ.P. 1 instructs the Court to construe the rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Therefore, the Court will not exalt form over substance, and it will construe Plaintiffs first, fourth, and fifth claims as two counts of products liability, one for design defect in negligence and one for design defect in strict liability, each encompassing the relevant allegations contained in Plaintiffs Counts One, Four, and Five.
In Maryland, the existence of a defect may be established through (1) “direct proof based on the nature of the accident and the product involved”; (2) “opinion testimony of an expert witness”; or (3) “inference of a defect based on circumstantial evidence.” Fireman’s Fund Ins. Co. v. Tecumseh Prods. Co.,
1. Design Defect — Negligence
Defendant’s challenge to Plaintiffs negligence claim recites the four well-known elements of negligence — duty, breach, proximate cause, and damages— and focuses on showing that Plaintiff fails to allege the duty element. Def.’s Mem. 10-12. It is true that, in addition to the “product litigations basics” discussed above, see Laing,
a. Defect
Initially, in describing the rack’s defect in her Complaint, Plaintiff claims that as she “was working with the animals, pulling out the cages to check on the status of their water and the cleanliness of the cages, the rack suddenly fell over on [her].” Compl. ¶ 5. Defendant argues that Plaintiff offers no evidence that “the rack tipped over when she pulled the mice cages out to check them.” Def.’s Mem. 9. Indeed, Plaintiff never stated in her deposition or any of the statements that she provided after the accident that the accident occurred while the cages were pulled out. See Parker Dep. 145:1-156:2; Incident Report, Pl.’s Mem. Ex. B, ECF No. 29-3 (“Stepped on bottom row/bar to see top shelf. Rack fell on top of her.”); MOSH Interview Worksheet (“While checking in rack I pulled up on the rack to check the top level and the rack fell on me.”); PL’s Mem. 4-5 & 11-12 (referring only to tiptoes and holding onto top of rack; no reference to cages being pulled out). Rather, Plaintiff testified that she would put the cages back after she checked on them, Parker Dep. 147:3-8, that she had no trouble with the top row (the only row in which she pulled cages out), id., and that the accident occurred when she was standing on tiptoes and holding onto the top row to look into the cages on the row that was second from the top, id. at 149:11-19 & 151:1-152:6. Although it is true, as Defendant argues, that “the accident had nothing whatsoever to do with the position of the plastic drawers/cages that hold the mice,” Def.’s Mem. 9-10, such that Plaintiffs injury cannot be attributed to the aspect of the rack’s design that featured cages that pulled out, later in her Complaint Plaintiff contends that other design defects exist. Compl. ¶¶ 22 & 24. Specifically, she alleges that the rack is unstable and therefore defective as designed because it is on coasters, id. ¶ 22, and because it is top-heavy due to the water and ventilation equipment at the top of the rack, id. ¶ 24.
Defendant contends that “there is no expert testimony from Mr. O’Donel [Plaintiffs expert] or anyone else suggesting that the rollers are unstable as alleged. Def.’s Mem. 16-17. Mr. O’Donel did conclude that the position of the wheels could “further increase the tip over hazard and propensity to tip over.” O’Donel Report 4, PL’s Mem. Ex. H, ECF No. 29-9. More significantly, Plaintiff presents two items of evidence to establish the existence of instability as a defect in the cage rack: (1) a citation issued to Hopkins by Maryland Occupation Safety and Health (“MOSH”), an agency in the Maryland Department of Labor, Licensing, and Regulation, Division of Labor and Industry; and (2) the expert
i. Maryland Occupational Safety and Health Citation
Plaintiff argues that an investigation and citation that MOSH issued to Hopkins is admissible to prove that the cage racks are defective. See Pl.’s Mem. 10. Specifically, the citation states that, in using the racks, employees “were exposed to being struck by/crushed by overturning animal storage racks, weighing approximately 750 to 1100 pounds, as a result of the rack’s [sic ] not having adequate base to height ratios.” MOSH Citation 5. It also states several methods for correcting the hazard. See id. (listing “increasing] the base dimensions of the racks by the installation of outriggers” or “diminishing] the height of the racks by the removal of the rack’s HVAC systems” as options). Also, with regard to a hazard posed in moving the racks (and therefore not relevant here), MOSH noted “the associated hazard of any applied force in the direction of the rack’s depth direction.” Id. In its reply, Defendant argues that Maryland Occupational Safety and Health Act (“MOSHA”), Md.Code Ann., Lab. & Empl. §§ 5-101-5-1001, regulations cannot be used to establish negligence per se because the statute prohibits private causes of action. See Def.’s Reply 4. Defendant further argues that the citation is irrelevant to determining if Defendant was negligent or if there was a defect because it was issued to Hopkins, not Defendant. Id. at 4-5.
Defendant is correct that MOSHA regulations cannot “be used to establish negligence per se,” C & M Builders, LLC v. Strub,
Federal Rule of Evidence 803(8)(A)(iii) establishes an exception to the hearsay rule (Fed.R.Evid.802) with respect to a “record or statement of a public office” that “sets out ... in a civil case ..., factual findings from a legally authorized investigation.” In the oft-cited case Beech Aircraft Corp. v. Rainey,
Masello v. Stanley Works, Inc.,
The court denied the plaintiffs motion, relying on Beech Aircraft and concluding that “[t]he OSHA report ... fit[ ] easily within [the Fed.R.Evid. 803(8)(A)(iii) ] exception” to the hearsay rule. Id. at 315. Further, the court rejected the plaintiffs argument that the OSHA report was “untrustworthy because the investigation did not include ‘any sworn statements, cross-examination or proceedings in an adjudicatory venue,’ ” reasoning that “the test for trustworthiness under Rule 803(8)[ (A)(iii) ] is not nearly so stringent.” Id. The court also rejected the plaintiffs arguments that the OSHA report was irrelevant and unduly prejudicial. Id. at 316. It said that the contents of the report, namely the summary of the condition of the stools used in the decedent’s place of employment, “ha[d] a ‘tendency to make the existence of [the compromised condition of the decedent’s stool] more or less probable than it would be without the evidence.’ ” Id. (quoting Fed.R.Evid. 401). The court determined that the OSHA report was “ ‘highly probative’ ” because it “reflect[ed] a comprehensive investigation of the very same incident that gave rise to th[e] lawsuit.” Id. (citation omitted). Moreover, it was not unfairly prejudicial, given that, “[t]o counter the effect of the report, the plaintiff [would] be free to emphasize any limitations on the investigation (including his point that OSHA’s mandate is to regulate the safety of the workplace, rather than the design of products)
Here, the citation at issue contains the factual finding, opinions and conclusions of the government agency MOSH following its investigation of the very incident that underlies this suit — the rack falling on Plaintiff. This Court has neither observed nor been presented with any facts calling into question the trustworthiness of the source or circumstances of the making of the MOSH Citation. Therefore, the MOSH Citation is admissible under Fed.R.Evid. 803(8)(A)(iii) for the purpose of proving that the racks are defective. See Beech Aircraft,
ii. Expert Opinion and Report
Plaintiff also offers the opinion of its expert, Brian O’Donel, to prove that the rack is defective. According to Plaintiff, Mr. O’Donel “inspected the subject rack and performed some tests on similar racks,” Pl.’s Mem. 10, and concluded that the “rack was front-heavy and top-heavy, with a propensity to tip over, which was a defect.” O’Donel Report 3-4. Defendant argues that Mr. O’Donel is not qualified to be an expert and that his testimony is neither reliable nor relevant. Def.’s Reply 8-13.
Pursuant to Fed.R.Evid. 104(a), the Court must determine “[preliminary questions concerning the qualification of a person to be a witness ... or the admissibility of evidence,” including the admissibility of expert testimony under Fed.R.Evid. 702. See Daubert v. Merrell Dow Pharm., Inc.,
To qualify as an expert under Rule 702, “a witness must have ‘knowledge, skill, experience, training, or education’ in the subject area in which he intends to testify.” Id. at *3 (quoting Fed.R.Evid. 702). The sufficiency of an expert’s qualifications “depends on ‘the nature of the opinion he offers.’ ” Id. (quoting Gladhill v. General Motors Corp.,
Cantrell,
[There is no requirement] that Mr. Clevenger must have personally designed a road milling machine to be qualified as an expert in this case. See, e.g., [Shreve,166 F.Supp.2d at 392 ] (citing Lavespere v. Niagara Machine & Tool Works, Inc.,910 F.2d 167 , 176 (5th Cir.1990) (allowing a professor of mechanical engineering to testify about designing point-of-operation safeguards for the press brake industry even though he had never designed a press brake or safeguards because he had practical experience designing similar devices and had conducted a review of the relevant literature)). To establish that he is qualified to testify, Mr. Clevenger need only demonstrate that he possesses some special skill, knowledge, or experience concerning the issue before this court, i.e., whether the W2000 was defectively designed.
Mr. Clevenger holds a bachelors and masters degree in agricultural engineering. He worked for over 35 years as a design and mechanical engineer at New Holland, during which time he held titles as Chief Engineer, Design Manager, and Design Engineer. Mr. Clevenger himself has designed and performed risk assessments of “hundreds of mobile machine products including industrial/construction equipment.” ... [I]t was part of Mr. Clevenger’s job to evaluate the limits of mobile machinery by measuring its intended and reasonably foreseeable uses. For purposes of this litigation in particular, Mr. Clevenger also reviewed the deposition testimony of Wirtgen GmbH’s safety director and design engineers and inspected the technical specifications for the W2000 product line. Finally, Mr. Clevenger conducted an inspection of an actual W2000, though not the same machine as the one involved in Mr. Cantrell’s accident.
Id. at *3 (internal citations omitted).
The court also concluded, over the defendants’ objections, that the plaintiffs other expert, Dr. Vigilante, was “sufficiently qualified to opine on whether the placement of the shovel holder directly above the crawler tracks was a foreseeable and unreasonable danger” and “to testify on whether an alternative design would decrease the possibility of an accident like Mr. Cantrell’s.” Id. at *4. Dr. Vigilante
Here, Plaintiffs expert Mr. O’Donel holds a bachelor’s degree in mechanical engineering from Pennsylvania State University, and has “more than thirty years of experience in industrial equipment safety, facilities engineering and maintenance, material handling and storage, and regulatory compliance.” O’Donel Report 1. He regularly performs “industrial accident reconstruction and analysis.” Id. Also, Mr. O’Donel reports that he has “a tremendous amount of experience with portable racks, carts, [and] racking systems,” from which he is “able to formulate a comparison” to the rack at issue in this case. O’Donel Dep. I (Oct. 26, 2011) 48:14-17, Def.’s Reply Ex. 3. Additionally, he examined the rack at issue twice, as the experts did in Cantrell, and tested a rack with empty cages
iii. Indeterminate Defect
Alternatively, Plaintiff argues that circumstantial evidence establishes the existence of a defect. See Pl.’s Mem. 15-16. Maryland law provides that a defect may be inferred from circumstantial evidence under the indeterminate defect theory, which “allows a fact-finder to infer that a product defect caused a plaintiffs injury where circumstantial evidence tends to rule out other causes, such as misuse or alteration of the product.” Fireman’s Fund Ins. Co. v. Tecumseh Prods. Co.,
Rather than providing evidence addressing each of the five factors listed above, Plaintiff states that she “does not claim that the defects in the rack were indeterminate, but rather [that] the defects were such that it would be impossible to determine the precise factors that caused the rack to tip over.” Pl.’s Mem. 15. Plaintiff then poses a series of questions:
How far from the rack was [Plaintiff] standing? How much force did she apply as she stood on her tiptoes and held on the rack for support as she checked the animals? Precisely where was the center of gravity on the rack that day, given the number of animals, the number of cages, and the slope of the floor?
Id. at 15-16. Unfortunately, the questions Plaintiff poses demonstrate an absence of admissible evidence addressing the five factors that underlie the resolution of an issue regarding indeterminate defect.
Considering the evidentiary basis, vel non, for the five factors stated above, as Plaintiff should have done, I find that Plaintiff has not established the existence of an indeterminate defect. First, Plaintiff has provided no expert testimony eliminating potential causes of the accident other than design defect. See Fireman’s Fund,
In a second instance, another co-worker named Kamal Abdi, referred to as “Kami” in Plaintiffs filings, was purportedly injured when a rack fell on top of him. PL’s Mem. 6; Parker Dep. 83:13-15. According to Defendant, “Plaintiffs deposition testimony indicates that Plaintiff has no personal knowledge about this alleged incident, and her testimony on the subject is nothing more than rumor and hearsay.”
Fourth, Plaintiff has not, in any of her filings, eliminated other potential causes of the accident. See Fireman’s Fund,
b. Attribution of Defect to Defendant
Plaintiff claims that the animal cage rack was “designed, manufactured, marketed and sold by the defendant! ],” Compl. ¶4, and that “[a]t all times the defendant! ] had control over the design of the rack,” id. ¶ 29. Defendant admits that it “manufactured and sold animal cage racks,” including the one at issue, to Hopkins, Def.’s Mem. 1 & 3, and does not suggest that its design should be attributed to anyone else or that the alleged defect occurred after Defendant sold the rack to Plaintiffs employer. Indeed, John Coiro, President of Allentown, when asked in his deposition whether “the rack was in essentially the same condition it was at the time of the injury as it had been when Allentown delivered it to Hopkins,” answered that “it looked like it had some damage from falling over,” without noting any other alterations. Coiro Dep. 75:1-8, Def.’s Mem. Ex. B. Therefore, it is undisputed that the design can be attributed to Defendant. Moreover, if the jury finds that the design is defective, a reasonable jury could attribute that defect to Defendant. See Laing v. Volkswagen of Am., Inc.,
c. Causal Relationship Between Defect and Injury
The parties agree that Plaintiff “applied enough force to the top [of the rack] that it fell over onto her.” PL’s Mem. 2; see Def.’s Mem. 12 (stating that “it is undisputed that the rack did not fall over by itself’). Yet, Defendant sees this undisputed fact as proof that the rack’s design did not proximately cause it to tip over, because, in Defendant’s view, it was Plaintiffs actions that caused the rack to tip. Def.’s Mem. 12. Defendant argues
d. Reasonably Safe for All Foreseeable Uses
Defendant insists that the harm suffered by Plaintiff was not foreseeable. Def.’s Mem. 10-11. Yet, the issue is whether Plaintiffs use of the rack was foreseeable, i.e., whether Defendant should have anticipated that someone inspecting the upper racks of cages would hold on to the top of the rack to view the upper cages while on tiptoes or step on the bottom of the rack to view the upper cages.
It is undisputed that the rack, including the wheels, is about six feet, eight inches high, (with an approximately eleven-inch-high ventilation until on top) with ten rows of seven cages each, intended to be used to contain animals. O’Donel Dep. I 97:2-9; Parker Dep. 43:11-44:6. There
To summarize the viability of the negligence claim, some, but not all, elements are disputed. The existence of Defendant’s duty is established as a matter of law; Plaintiffs injury is undisputed; and it is undisputed that, if the design of the rack was defective, that defect was attributable to Defendant. There are disputes of material fact concerning whether the rack was defective; whether the alleged defect was related causally to Plaintiffs injury; how Plaintiff used the rack; and whether that use was foreseeable. Moreover, Plaintiff has offered admissible evidence in the form of a MOSH citation and Mr. O’Donel’s expert testimony to establish the existence of a defect. Consequently, Plaintiff is able to generate a triable dispute regarding a design defect products liability claim in negligence. See Stanley Martin,
2. Design Defect — Strict Liability
Defendant argues that summary judgment is appropriate on Plaintiffs claim of design defect in strict liability because “no recognized standard ... was breached as to the design or manufacture of the subject product,” and Plaintiff did not offer any expert testimony “suggesting that the rollers are unstable as alleged.” Def.’s Mem. 15. According to Defendant, “Plaintiffs claim rests entirely on the testimony and opinion of her expert, Brian O’Donel,” who is not “qualified to render any opinion in this case,” and whose opinion is not “supported by sufficient facts or reliable methodology to be accepted by this Court.” Def.’s Reply 7-8. Defendant argues that “without proof that specific manufacturing or design defects or a deviation from any applicable standard of care, there is no evidence of proximate causation to sustain Plaintiffs elaim[ ] for strict liability.” Id. at 16.
As noted, a significant overlap exists between negligence and strict liability claims of design defect in that the claims share the “product litigations basics,” i.e., a defect attributable to Defendant and a causal relationship between that defect and Plaintiffs injury. See La
To determine whether a product is “defective and unreasonably dangerous, for strict liability purposes,” courts apply either the risk/utility test or the consumer expectation test. Halliday v. Sturm, Ruger & Co.,
(1) The usefulness and desirability of the product — its utility to the user and to the public as a whole.
(2) The safety aspects of the product— the likelihood that it will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user’s ability to avoid danger by the exercise of care in the use of the product.
(6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
Klein v. Sears, Roebuck & Co.,
Here, there is undisputed evidence that the product is useful because it provides a storage solution for laboratory animals and is designed “to ensure the safety of the animals” in the cages. Coiro Dep. 5:18-21, 31:3-4. The fact that Defendant has sold about 20,000 animal cage racks, with “several” customers purchasing more than 1,000, see id. 32:12-33:6, strongly suggests that customers have found the racks to be useful. The parties have pre
The likelihood of injury is disputed. Defendant has provided evidence that it has not heard any reports of incidents for the approximately 20,000 similar racks it has sold. Coiro Dep. 10:1-2; 36:20-21. Yet, Plaintiff has provided admissible evidence that injury is likely. Specifically, in his report, Mr. O’Donel stated that “[t]he rack has a potential and propensity to tip over, a hazard, as designed and manufactured by Allentown,” due in part to its “front, top heavy condition.” O’Donel Report 4. Also, Mr. O’Donel testified that, “[b]ased on the description of the incident, based on how narrow the base is and how high the rack is, the tendency [of the rack] is to tip.” O’Donel Dep. I 113:11-13. Similarly, the MOSH Citation stated that the rack lacked “adequate base to height ratios.” MOSH Citation 5. Additionally, if injury were to occur, it likely would be serious because the rack weighed “approximately 750 to 1100 pounds” and was “likely to cause death or serious physical harm to employees.” Id Also, Plaintiff provided evidence that, although the user could avoid injury by not holding onto the rack, a user is likely to hold onto the rack when pulling out cages, even if standing on a stepladder. Parker Dep. 148:15-19. In her deposition, Parker stated that, even if a user were on a ladder, the user “would still have to brace [her]self on something. The ladder may be there but when [she is] turning around and ... holding a case in [her] hand, [she is] going to stop [her]self from leaning over.” Id
Most tellingly, the evidence shows that Defendant easily could “eliminate the unsafe character of the product” by affixing warning labels or providing a mechanism for securing the rack to the wall; neither solution would “impair[ ] its usefulness or mak[e] it too expensive to maintain its utility.” Klein,
Defendant also contends that the rack “was specifically designed in accordance with Hopkins’s requirements including the use of large castors specifically requested by that customer.” Def.’s Mem. 16. It is true that some states have adopted the legal principle that “[t]he contractor’s defense shields a manufacturer from liability for injuries caused by a product fabricated according to specifications or plans provided by the purchaser.” Miller Metal Fabrication, Inc. v. Wall,
More significantly, the contractor’s defense does not apply if the customer specifies its requirements but the manufacturer is involved in the design. See Thompson,
Here, Plaintiff has presented evidence that Defendant designed the animal cage rack to include wheels and the ventilation unit. Mr. O’Donel stated in his report that Defendant “designs and manufactures animal cages for research facilities,” and that “[t]he Allentown cage racks are designed to have individual pull out cages for viewing, feeding, and cleaning. The racks are provided with casters.” O’Donel Report 2. Additionally, when deposed, the company president explained that Defendant “make[s] animal caging” that includes “[v]entilation unit[s], [which are] part of some of the equipment,” and wheels. Coiro Dep. 5:18-20, 6:20-21, 65:21-66:1. Although he described Defendant as a “custom manufacturer,” Coiro affirmed that Defendant’s 275-300 employees include engineers who design the racks and individuals who construct the racks. Id. at 12:1-20, 36:4.
In contrast, the only evidence that Defendant presented that it followed Hopkins’ specifications is Coiro’s testimony that Hopkins “requested 8-inch casters,” which made the rack taller than usual. Coiro Dep. 47:4-5. Defendant does not show, or even contend, that Hopkins designed the wheels, specified how they connected to the rack, or provided any other specifications with regard to the wheels. Nor does Defendant show, or even argue, that the size of the wheels created or exacerbated the alleged defect. Rather, Defendant argues that “[a]ny equipment that has to roll across a floor on castors or wheels can tip over with the application of force.” Def.’s Mem. 12. Defendant also does not address whether the larger wheels were an obvious danger. Thus, Plaintiff has presented sufficient evidence, especially in the face of Defendant’s scarce evidentiary showing, to create a genuine dispute of material fact regarding whether Defendant contributed to the design of the wheels as a component of the animal cage rack, and “[f]rom this record, a jury could determine that both [customer and manufacturer] were designers of the defective [rack].” See Thompson,
Consequently, based on the evidence that the rack was unreasonably dangerous,
C. Failure to Warn (Count Two)
Plaintiffs second count, which alleges failure to warn, is really a subset of its negligence claim. Plaintiff maintains that Defendant had a duty to warn users of its product of potential hazardous conditions in the product. See Pl.’s Mem. 14-16. Defendant argues that it had no duty to warn Plaintiff of an obvious danger or a danger of which she was already aware. Def.’s Mem. 14. Defendant also asserts Maryland’s sophisticated user defense. See id.
Under Maryland law, “the existence of a legal duty is a question of law to be decided by the court.” RLI Ins. Co. v. John H. Hampshire, Inc.,
Here, Plaintiff possessed considerable knowledge about the product in question. She had been employed in the same position at Hopkins since 2002, and had been working with the racks for at least two years prior to her accident. See
Even were I to find, arguendo, that the danger presented by the racks was not open or obvious, Plaintiffs failure to warn claim is barred by Maryland’s sophisticated user defense. Under that defense, “a supplier is not negligent when it relies on an intermediary ‘already well aware of the danger’ to relay any necessary warning.” Id. at 352 (quoting Eagle-Picher Indus., Inc. v. Balbos,
A consideration of these factors leads to two conclusions. First, Defendant alleges, and Plaintiff does not contest, that Defendant has sold more than 20,000 similar racks in the last thirty years, and that Hopkins has purchased nearly 1,000 such racks. Def.’s Mem. 3. In that time, Defendant has “had no notice of any design or manufacturing defects that caused one of these racks to fall resulting in personal injuries.” Id. (citing Coiro Dep. 42:18-19); see Def.’s Mem. 10-11 (“Out of 20,000 racks sold worldwide, [Plaintiffs] accident is the only occasion when a stationary rack ... fell onto someone.”). Consequently, Defendant had little, if any knowledge, of the risk posed by the product. Second, the product, Defendant states, is a piece of “highly specialized equipment that is used exclusively in animal research facilities.” Def.’s Mem. 3. Consequently, Defendant “has always relied on its knowledgeable,
In addition to the various considerations stated above, I note that “the failure to warn is not an independent theory of liability” under Maryland law, but a subset of tort liability. Morgan v. Graco Children’s Prods., Inc.,
III. CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment is GRANTED as to Counts Two and Three and DENIED as to Counts One, Four, and Five. Counts One, Four, and Five are consolidated into two counts of products liability, one for design defect in negligence and one for design defect in strict liability, each encompassing the relevant allegations contained in Plaintiffs Counts One, Four, and Five.
Counsel jointly will contact my chambers within fourteen (14) days to schedule a telephone conference with the Court regarding the remaining pretrial schedule and the setting of a trial date.
Notes
. Each row contained cages which could be pulled out, see PL’s Mem. 7; the parties sometimes refer to these cages as "drawers.”
. Because this case is a diversity action in federal court, Notice of Removal ¶¶ 4-6, ECF No. 1, the Court must apply Maryland substantive law to the merits of the case. Erie R.R. v. Tompkins,
. Notably, “MOSHA is modeled on the Federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C.A. §§ 651-678 (2001), and tracks the Federal law in most respects.” Labor Comm’r v. Cole Roofing Co.,
. Mr. O’Donel was not able to “tip test the full incident rack” because of "animal contamination constraints.” O’Donel Report 4.
. It is disputed whether Plaintiff climbed on the rack or simply held onto it while standing on the floor. PL’s Mem. 11-12; Def.'s Mem. 4. Because I consider the facts in the light most favorable to Plaintiff, Ricci v. DeStefano,