By Georgia D. Koutouzos, J.D.
Allegations of defective design and defective warning were not incompatible as claimed by manufacturer; rather, they were complementary.
The manufacturer of a boom lift was not entitled to summary judgment in an action asserting design defect and failure to warn by a man who allegedly had been injured when the boom lift’s cage was thrown back and forth after he used the lift’s "drive enable switch" feature. Rejecting most of the manufacturer’s challenges to the admissibility of testimony offered by two of the injured man’s engineering experts, the federal court in Oregon held that one of those experts established an alternative design that was feasible and the other expert’s testimony was sufficient to allow consideration by the jury of the question of the adequacy of the manufacturer’s warnings (Bowden v. United Rentals (North America) Inc., September 11, 2020, Simon, M.).
An experienced boom lift operator sustained personal injuries after a 2013 Genie S-45 self-propelled man lift/boom moved suddenly and violently while he attempted to move the boom lift from a stationary position against a solid barrier, close to another boom lift. The subject boom lift originally had been positioned with its steering wheels directed toward the barrier against which the boom lift had been parked. The wheels were not straight but turned (as if a driver of a car had not straightened the front wheels after parking). Thus, to operate the boom lift, the operator needed to back the boom lift out of its parked position, with the boom positioned over the steering wheels. Completing this maneuver required him to activate a feature called the "drive enable switch." When he operated the boom using the drive enable switch feature, the boom lift threw the cage, along with the operator inside, back and forth.
The injured man filed suit against Genie Industries Inc., which had designed, manufactured, and sold the boom lift, alleging that the equipment was dangerously defective under theories of strict liability and negligence. According to the boom operator, a different design would have made the lift inoperable in high-speed mode when the drive enable switch was required for operation under certain conditions. He also claimed that Genie failed to provide an adequate warning about the danger of operating the lift in certain conditions.
The manufacturer moved for summary judgment on all claims, arguing that there was no genuine dispute of material fact relating to the claimed design defect and that the injured man failed to present evidence from which a reasonable jury could conclude that the company was liable for the plaintiff’s injuries. According to Genie, the injured man had to rely on expert testimony but failed to present sufficient evidence. Finally, the company maintained that he could not assert a failure to warn theory as part of a design defect claim.
Admissibility of expert testimony. The injured boom operator offered the expert testimony of two experts: (1) a Licensed Professional Engineer (LPE) with more than 40 years of work experience, a Master of Science degree in mechanical engineering, and a Bachelor of Science degree in metallurgical engineering; and (2) an expert in Human Factors Engineering who has a Ph.D. in mechanical engineering and both a Master of Science degree and a Bachelor of Science degree in industrial engineering.
In both his initial report and supplemental report, the LPE detailed the examination process he had relied upon to form his opinions. The court found that the methods and analysis he applied were sound and could not be construed as "unreliable" or "nonsense." Similarly, the Human Factors Engineer’s initial report laid out a clear and reliable methodology for his conclusions regarding the warnings on the boom itself and in the instruction manual. His analysis followed a structured methodology accepted in the human factors engineering profession to reach opinions that the jury could consider about whether the way in which the boom lift’s operation intersected with the warnings and instructions was unreasonably dangerous.
The Human Factors Engineer’s expert opinions regarding the warnings and labeling of the boom lift and its instruction manual were admissible, but his conclusions regarding design modifications were not supported by reliable methodology and, as such, were excluded. Moreover, to the extent that Genie challenged either of the experts’ conclusions, the company could cross-examine those individuals at trial. The manufacturer’s challenges went to the weight that should be given to the experts’ opinions and not to their admissibility, the court explained.
Design defect. Genie primarily argued that the injured man’s expert evidence was inadmissible because the LPE did not provide a basis for concluding that an alternative design was feasible. Based upon the evidence in the record, however, the court said that a reasonable jury could conclude that an alternative design was feasible, and that the manufacturer was liable for a design defect that caused the boom operator’s injuries.
While Genie was correct in stating that the LPE had not presented an analysis of the marginal cost of a change that would have prevented use of the boom lift in the configuration that allegedly caused the operator’s injuries, the court ruled that such an analysis was not required for the court to submit a question of unreasonable danger to a jury in this case. Therefore, given the current undisputed capabilities of the boom lift, the feasibility of the plaintiff’s proposed alternative design was suitable for determination by a jury, the court advised.
Failure to warn. Furthermore, the testimony submitted by the injured man’s Human Factors Engineer was sufficient to allow consideration of the question of the adequacy of the manufacturer’s warnings by the jury. As for Genie’s argument that the injured man’s failure to warn claim was improper under Oregon law because such a claim could not be brought along with a design defect claim, the court found that this argument misstated the applicable law and that the cases cited by the manufacturer in support of that argument missed the mark.
The injured man’s allegations of defective design and defective warning were not incompatible; rather, they were complementary, the court determined, noting that the boom operator had not claimed that the boom lift was so inherently defective that it was unsuitable for its intended use. Instead, he claimed first that the machine was unreasonably dangerous when used in a particular manner and the machine should be prevented from operating in that very specific way. Second, he claimed in the alternative that if the product could not feasibly be modified to eliminate the specific danger, then it needed a clear warning advising of that danger. Consequently, Genie’s motion for summary judgment was denied.
The case is No. 3:17-cv-1411-SI.
Attorneys: J. Randolph Pickett (Pickett Dummigan LLP) for Mark Bowden. Derek J. Ashton (Sussman Shank, LLP) for United Rentals (North America) Inc. Josephine Kovacs (Cosgrave Vergeer Kester, LLP) for Genie Industries Inc.
Companies: Genie Industries Inc.; United Rentals (North America) Inc.
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