By Nicholas Kaster, J.D.
The court refused to exclude the claimant’s expert witness, finding that his opinions were "based on sufficient facts and data to render his testimony admissible."
A product liability suit brought by a baggage handler against the maker of an allegedly defective aircraft belt loader survived a motion for summary judgment. According to a federal district court in Pennsylvania, a reasonable jury could conclude that: (1) the belt loader was involved in the accident that caused the claimant’s injuries; (2) the lack of a left-side guardrail on the belt loader caused the accident; and (3) the belt loader was defective under Pennsylvania law (Smith v. NMC Wollard, Inc., July 23, 2021, Beetlestone, W.).
Background. An airport baggage handler alleged that she sustained serious injuries when she was pulled from an aircraft’s cargo hold onto a mechanical belt loader and then fell to the airport tarmac below. A belt loader is essentially an inclined conveyor belt that is driven up to the side of an aircraft and used to load and unload luggage and cargo from the plane. It also serves as a ramp for baggage personnel to enter and exit the aircraft. The worker alleged that the belt loader at issue was a Model TC-888 designed, manufactured, and sold by Wollard International, LLC or one of its predecessors. The Wollard TC-888 has a collapsible guardrail on the right side only and no guardrail on the left side, from which the worker fell. She brought claims for negligence and strict liability, alleging that the lack of a left-side guardrail was a defect in the TC-888 because a proper left-side guardrail would have blocked her from falling or given her something to grab onto to prevent herself from falling. She also alleged that Wollard failed to include adequate warnings regarding the risk of falls while using the belt loader.
Wollard moved for summary judgment on the negligence and strict liability claims and moved to exclude the testimony of the worker’s liability expert under Federal Rule of Evidence 702.
Wollard contended that it was entitled to summary judgment because the worker did not establish that: (1) a Wollard TC-888 belt loader was involved in her accident; (2) the lack of a left-side guardrail caused her injuries; or (3) the TC-888 belt loader was unreasonably dangerous and therefore defective.
Identification of belt loader. First, Wollard asserted that the worker failed to present evidence that she was working with a belt loader designed and manufactured by Wollard when she was hurt.
Pennsylvania law requires a plaintiff to establish that a particular manufacturer’s or supplier’s product caused her injuries. In cases in which the exact product at issue is not available for inspection, a plaintiff may prove identification through circumstantial evidence. The determination of whether a plaintiff has produced sufficient circumstantial identification evidence is factual and, thus, case-specific.
Here, the court found that there was enough identification evidence to create a material issue of fact for the jury. At the time of the accident, American Airlines was using at least 85 belt loaders manufactured by three different companies, including Wollard. The American Airlines incident report regarding the worker’s accident did not identify or include photos of the belt loader in use at the time of the accident. In written discovery, the worker identified the belt loader at issue as the TC-888, manufactured exclusively by Wollard.
At her deposition, however, the worker was unable to directly identify Wollard as the manufacturer or the TC-888 as the model of the belt loader involved in her accident. Nevertheless, the court said, she offered sufficient circumstantial evidence for a reasonable jury to find that she was using a Wollard TC-888 belt loader at the time of her accident. She described the identifying features of the belt loader at issue, and she described its color and shape. And, although she did not know the manufacturer or model, she distinguished between the only two styles of belt loader that she used at American Airlines in 2017. Moreover, the court said, the worker testified that she had used this type of belt loader every day during her 16-year tenure as a baggage handler, lending credence to her identification.
Thus, the court concluded, a reasonable jury could find that a Wollard TC-888 was involved in the worker’s accident. Any inconsistencies in her identification, such as the color or whether the belt loader involved in her accident had a yellow step near the driver’s wheel, "are fodder for cross-examination and not grounds for summary judgment," the court stated.
Lack of left-side guardrail. Next, Wollard argued that the lack of a left-side guardrail did not cause the worker’s injuries because handrails on belt loaders do not provide fall protection for people located inside the aircraft. According to Wollard, the guardrails are intended to provide fall protection to people using the belt loader as a walkway, not for people loading baggage from inside the cargo hold.
The worker, however, contended that she would not have fallen from the belt loader to the tarmac had the Wollard TC-888 been equipped with a left-side guardrail system. The worker’s engineering expert likewise concluded that a proper guardrail would have blocked her fall. The expert also opined that the worker could have grasped a guardrail with her hand to prevent her fall. The worker’s expert witness, as well as Wollard’s chief engineer in his deposition testimony, suggested that this type of accident is a foreseeable risk to users of the belt loader.
The worker, therefore, produced evidence from which a reasonable jury could determine that the lack of a left-side guardrail on the TC-888 was the factual and proximate cause of her injuries, the court concluded.
Belt loader defect. Finally, assuming that a Wollard TC-888 belt loader was in use at the time of the accident, Wollard argued that the worker could not show it was unreasonably dangerous and therefore defective. Under Pennsylvania law, a plaintiff may show such a defective condition through either a "consumer expectations" or "risk-utility" theory, or both.
In its summary judgment motion, Wollard challenged only the risk-utility standard.
Under this standard, "a product is in a defective condition if a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions." Wollard argued that, because American Airlines would not have purchased a belt loader with two guardrails, the worker failed to point to a feasible alternative design.
However, the court noted that the very premise of this argument was a disputed material fact. Wollard claimed that American Airlines owned no two-railed belt loaders at the Philadelphia International Airport because certain cargo and baggage would not fit on them. Yet, the worker and another American Airlines employee testified that they had seen American Airlines use belt loaders with two rails. Moreover, the court noted, American Airlines’ purchasing preference was not dispositive on the issue of whether it was feasible for Wollard to implement a safer alternative design. Wollard’s chief engineer testified that Wollard has offered a left-side guardrail on every model of the TC-888 since 1999, and first installed such a guardrail that same year. The Wollard product catalogue offers to install guardrails on both sides of the TC-888 of the exact variety recommended by the worker’s expert. Wollard’s chief engineer conceded that no major modifications to the TC-888 were needed to install such guardrails.
Therefore, there were triable issues of fact relevant to the risk-utility analysis, such as the probability and severity of injuries caused by the TC-888, the utility of the TC-888 with dual guardrails, and the costs of implementing such an alternative design, the court concluded.
Expert testimony. In addition, Wollard moved to exclude the testimony of the worker’s expert witness. The expert conducted an inspection of an exemplar American Airlines Wollard TC-888 at the Philadelphia International Airport. Based on this inspection, he opined that: (1) the TC-888 was a "walking-working surface" under Occupational Safety and Health Administration (OSHA) standards and yet failed to comply with fall protection requirements applicable to such devices; (2) the Wollard TC-888 was defective and unreasonably dangerous because the lack of a left-side guardrail exposed users to an unprotected fall hazard; and (3) a guardrail of the alternative design described in his report would have prevented the worker’s fall.
Wollard contended that the expert’s reports and testimony were inadmissible because his testimony was not based on sufficient facts and data, and he did not use a reliable or objective methodology in formulating his opinions. According to Wollard, the expert’s failure to conduct independent testing to prove that a guardrail would have prevented the worker’s fall rendered his opinion speculative.
The court disagreed, finding that the expert’s opinions were "based on sufficient facts and data to render his testimony admissible." Wollard’s argument that the expert did not inspect or physically examine the correct type of belt loader was a disputed fact for the jury to determine and not a basis to exclude his testimony, the court said. In addition, the court noted, the expert based his opinions on OSHA safety standards, industry practices, and his expertise in engineering principles. That OSHA standards govern workplace conditions and therefore impose duties directly on American Airlines (the employer) and not Wollard (the manufacturer of workplace equipment) did not render them inapposite. Nationally applicable design standards, such as OSHA guidelines, "represent important parameters for industrial design," the court said.
Wollard’s contention that the expert should have conducted a more complete re-creation or testing "seeks to impose a standard higher than what is required under Rule 702," the court said. Such critiques regarding the expert’s methodology and conclusions are properly raised during cross-examination so that the jury may assess the weight and credibility of his opinions, the court concluded. Wollard’s motion to preclude the expert from testifying was therefore denied.
The case is No. 19-5101.
Attorneys: Robert N. Braker (Saltz Mongeluzzi Barrett & Bendesky PC) for Regina Smith. Joseph R. Fowler (Fowler Hirtzel McNulty & Spaulding, LLP) for Wollard Equipment Co., Inc., NMC Wollard, Inc., Hobart Brothers Co. and Steingart Acquisition Co., Inc.
Companies: Wollard Equipment Co., Inc.; NMC Wollard, Inc.; Hobart Brothers Co.; Steingart Acquisition Co., Inc.; Criton Technologies
MainStory: TopStory DesignManufacturingNews AircraftWatercraftNews IndustrialCommercialEquipNews EvidentiaryNews SCLIssuesNews ExpertEvidenceNews CausationNews PennsylvaniaNews
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