By Leah S. Poniatowski, J.D.
Although the malfunction theory can apply to strict liability manufacturing defect claims, specific design defect allegations prevented its application.
An electrician seriously injured after a Genie Industries, Inc.’s aerial lift tipped over could not recover from the lift manufacturer on strict liability claims because the electrician’s expert opined several possibilities as to the cause of the malfunction and the malfunction theory could not be applied because he had asserted specific defects. Without additional evidence of causation, the claims could not proceed, the Nebraska Supreme Court ruled, affirming the lower court’s grant of summary judgment favoring the manufacturer (Pitts v. Genie Industries, Inc., January 18, 2019, Freudenberg, J.).
A Genie Industries, Inc. aerial lift model TZ-34/20 was purchased by Nebraska Machinery Company in 2011. Shortly thereafter, the lift experienced numerous problems, including the "auto-leveling" system and outriggers. In 2013, the lift was leased to a general contractor and had operated with no problems for 10 days, although electrical tape had been placed over a button on the platform control panel. An electrician on the job used the lift to elevate him 30 feet and then the device tipped over, seriously injuring the electrician. According to bystanders, the left rear outrigger was "retracted." Genie stated that the taped-over button controlled the platform level when the platform was in the air. The electrician and his wife filed a lawsuit against Genie, asserting strict liability claims for manufacturing and design defect, failure to warn, negligence, breach of implied warranty, and loss of consortium. Genie moved to exclude the electrician’s expert testimony and for summary judgment.
Trial court’s rulings. The district court partially granted Genie’s motion to exclude the expert testimony, holding that the alternative design opinions were not relevant or reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court allowed testimony with respect to the unreasonably dangerous claim, specifically the opinions that the platform control and ground control circuitry were "interconnected," the diodes and wires were too close together, and the diodes and wires were not adequately sheathed.
The court granted the summary judgment motion favoring Genie, concluding that the electrician’s expert’s testimony was not sufficient to establish proximate causation as required for negligence and product liability claims because the expert had speculated as to several possibilities without having created a fact question. Additionally, the malfunction theory was not applicable because the expert had proffered many specific defects. The electrician appealed the trial court’s decision.
Expert testimony. The appellate panel agreed with Genie that the lower court did not err in its ruling. The panel also agreed that the electrician’s expert lacked knowledge in the relevant discipline based on his testimony that he did not know how other aerial lifts were designed or what the industry standards for lift design and manufacturing were. His alternative design for the switch was not tested or peer-reviewed, and he even admitted that his own design could malfunction. Under Daubert, the alternative design testimony was not reliable and, thus, was properly excluded.
Design defect. The appellate panel held that the remaining expert testimony was admissible, as had been determined by the lower court, but that it also failed to meet the causation requirement of the electrician’s claims. The panel observed that despite the expert’s opinion that the lift’s design was unreasonably dangerous because of several circuitry choices and the diode and wire sheathing, he also testified that there were other concerns separate from the design and out of Genie’s control that could have caused the lift’s malfunction. The expert conceded that he had no opinion with respect to what specifically failed on the day of the accident, thus failing to establish which possibility caused the problem with the necessary degree of certainty, the panel remarked. Because there was no logical sequence of cause and effect based on the expert’s testimony, no fact finder could conclude a defective design was or was not the proximate cause without speculation. Accordingly, the design defect claim failed and summary judgment in favor of Genie was proper.
Manufacturing defect. The appellate panel agreed that the trial court did not err with respect to the manufacturing defect claim. The panel explained that the electrician relied on the malfunction theory, which operates similar to res ipsa loquitur to allow a fact-finder to infer a product defect without proof of the specific defect. However, the theory is limited, and a plaintiff still must prove proximate causation or damages. Holding that the malfunction theory is applicable in strict liability manufacturing defect claims, the panel clarified that according to recent precedent, the theory cannot be used when specific defects are alleged as the electrician had done. Because there was no other evidence of a manufacturing defect, the district court’s ruling was affirmed.
The case is No. S-18-219.
Attorneys: Peter C. Wegman (Rembolt Ludtke, LLP) for Trevor Pitts and Rebekah Pitts. Michael L. Moran (Engles, Ketcham, Olson & Keith, PC) for Haco Electric Co., Inc. Michael F. Coyle (Fraser Stryker PC, LLO) for Genie Industries, Inc.
Companies: Haco Electric Co., Inc.; Genie Industries, Inc.
MainStory: TopStory DesignManufacturingNews ExpertEvidenceNews CausationNews NebraskaNews
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