By David Yucht, J.D.
A design expert designed and built an alternative saw, modeled on the subject saw, that employed a self-deploying blade guard which automatically deployed when the saw’s operator moved away.
The U.S. Court of Appeals for the Eleventh Circuit upheld a $4,050,000 jury verdict against a saw manufacturer in favor of a supermarket employee who lost his arm from contact with the unguarded blade of a meat saw. The panel agreed with the trial court that the testimony of a design expert and reports issued by OSHA were admissible. A failure to instruct the jury on the state-of-the-art defense was, at worst, harmless error and there was sufficient proof of negligent design to sustain the jury’s verdict. A dissenting opinion was filed (Crawford v. ITW Food Equipment Group, LLC, October 21, 2020, Anderson, R.).
A supermarket employee was cutting meat with a commercial vertical band meat saw when he was called away for other duties. Before leaving the saw, he forgot to deploy the saw’s blade guard. When he returned to the saw, he reached for his box cutter and his arm contacted the unsheathed blade and was amputated. He brought a products liability action against the saw’s manufacturer, raising a negligent design defect claim.
At trial, the employee offered the testimony of an expert in saw design who testified that the manufacturer failed to use reasonable care in designing its saw, thereby contributing to the injury. He testified that the saw should have been designed with a self-deploying blade guard. The expert designed and built an alternative meat saw, modeled on the subject saw, that employed a self-deploying blade guard. His design used a foot pedal connected to air compressors to lower the guard when the pedal was depressed and raise the guard when released, so that when the saw’s operator walked away, the guard automatically deployed. The worker also presented the testimony of a human factors engineer who discussed how workers can fail to see objects that are not the focus of their attention. He opined that a self-deploying guard could protect against "the inevitability of human error."
The jury found that both the worker’s and the manufacturer’s negligence were responsible for the injury. It found the worker 70 percent at fault and the manufacturer 30 percent at fault. The jury found that the total damages were $13.5 million, of which just over $4 million were allocated to the manufacturer. The manufacturer appealed the trial court’s denial of its motions for judgment as a matter of law and for a new trial.
Expert testimony—design. The Eleventh Circuit disagreed with the manufacturer’s contention that the trial court should not have allowed the testimony of the design expert. The appellate court found that most of the issues the manufacturer raised concerning this testimony were objections involving the weight of the testimony rather than objections to its admissibility. For example, it argued that the auto-deploying blade guard could be "easily bypassed" by locking the guard in place. Arguments that an alternative design cost too much or did not increase safety as much as was claimed were arguments that went to the weight of the testimony and not its admissibility. Moreover, the trial court did not abuse its discretion by allowing testimony concerning other patents and saws which was disclosed late in the proceedings.
Negligent design. The appellate panel determined that there was sufficient evidence for the jury to find negligent design. The manufacturer argued that the district court discussed the burden of proof in overly general terms when it instructed the jury that the worker needed to demonstrate that the saw was not designed with "reasonable care" and was not "reasonably safe for use in a foreseeable manner." The manufacturer suggested that the trial judge should have employed either the "risk utility" test, or the "consumer expectations" test. The panel found that the manufacturer did not preserve an objection to the failure to give these instructions and did not argue on appeal that the lower court erred by failing to give such instructions. Rather, the manufacturer argued that there was insufficient evidence to satisfy either test. The appellate court concluded that there was sufficient evidence introduced at trial to satisfy Florida’s risk utility test and, consequently, was sufficient to uphold a verdict of negligent design. A reasonable jury could have concluded that a blade guard that did not automatically slide into place when the saw was not in use posed the likelihood of a grave injury while not seriously enhancing the saw’s utility. The availability of other, safer products to meet the same need was demonstrated by the witness’s proposed alternative design and his introduction of other meat saws that used automatically deploying blade guards. The expert also provided testimony that his alternative model was not only economically feasible, but also could efficiently handle the necessary large volume of meat.
Jury instructions—state of the art. The panel was not persuaded by the manufacturer’s argument that it was entitled to a new trial because the trial court did not instruct the jury on Florida’s state-of-the-art defense. Assuming that this instruction applied to negligent design claims as well as strict liability claims, the panel concluded that the court’s failure to charge was not reversible error because the only issues relevant to the instruction were undisputed. Neither the relevant time-period (the time of manufacture) nor the state of the art at that time were disputed. Moreover, the jury was instructed on the proper substantive standard for negligence.
Evidence—OSHA reports. Finally, the panel concluded that the trial court committed no error in admitting OSHA reports. At trial, the lower court admitted summaries of OSHA reports of fatalities and catastrophes involving meat saws. The manufacturer claimed that these reports were irrelevant hearsay. Although hearsay, the reports were admissible under the public records exception to the hearsay rule. They were "factual findings from a legally authorized investigation" based on established procedures. The manufacturer failed to show that the reports were untrustworthy, and there was no evidence of untrustworthiness suggested by the reports themselves. Additionally, the panel concluded that the reports were clearly relevant. They illustrated the danger of an unguarded saw blade which was a major focus of the testimony in this case. The reports also were relevant on the issue of whether the manufacturer had notice of the danger its product posed.
Dissenting opinion. Judge Gerald Tjofalt disagreed with the majority’s opinion. He opined that the majority applied the wrong legal standard to determine whether portions of the design expert’s trial testimony should have been excluded. The district court should have excluded this testimony concerning other patents and saws because it was disclosed late in the proceedings. For it to be admitted, the court needed to find that the rule violation was accidental, and that the manufacturer already knew of the patents and saws. These findings were not made here. Additionally, he opined that the majority erred in holding that the trial court’s failure to instruct the jury on the state-of-the-art defense was harmless error. He found that the lower court abused its discretion by failing to give the requested instruction because the requested instruction correctly stated the law, it dealt with an issue properly before the jury, and the failure to give the instruction resulted in prejudicial harm to the manufacturer.
The case is No. 19-10964.
Attorneys: Courtney Rebecca Brewer (Mills Firm, P.C.) for Danny Crawford and Betty Ann Crawford. Elizabeth B. Wright (Thompson Hine, LLP), Jessica Davidson Miller (Skadden Arps Slate Meagher & Flom, LLP) and Laura Beard Renstrom (Holland & Knight, LLP) for ITW Food Equipment Group, LLC.
Companies: ITW Food Equipment Group, LLC
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