PINELLO v. STIHL AG

DAVID PINELLO, Plaintiff,

v.ANDREAS STIHL AG & CO. KG and STIHL, INC, Defendants.

No. 8:08-CV-00452 (LEK/RFT)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: March 31, 2011

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Presently before the Court is a Motion for summary judgment and to exclude Plaintiff's expert by Defendants Andreas Stihl AG & Co. KG and Stihl, Inc. (collectively, "Defendants") against David Pinello ("Plaintiff'). Dkt. No. 80. Also before the Court is Defendants' Motion for Rule 11 sanctions. Dkt. No. 81. In his Complaint, Plaintiff brings claims for negligence, breach of warranty, and strict liability, based on allegations of design defect, manufacturing defect, and failure to provide adequate warnings related to the STIHL TS 400. Dkt. No. 1. For the reasons that follow, Defendants' Motion to exclude Plaintiff's expert is granted, Defendants' Motion for summary judgment is granted, and Defendants' Motion for sanctions is denied.

II. BACKGROUND

The accident at issue in this case occurred on December 2, 2004. See Pl. 7.1 Statement ¶ 1 (Dkt. No. 85-1); Def. 7.1 Statement ¶ 1 (Dkt. No. 80-40). Plaintiff was injured while allegedly using a STIHL TS 400 Cutquik cutoff machine to cut a section of eight-inch ductile iron pipe in an excavated trench near the intersection of Route 22 and Sullivan Park Road, in or near the town of Peru, New York. See Pl. 7.1 Statement at 2; Def. 7.1 Statement at 2; Pinello Dep. at 174:3-175:6 (Dkt. No. 80-20). The STIHL TS 400 is a hand-held, gasoline-powered tool that uses either an abrasive composite or abrasive diamond wheel to grind through certain types of materials, including asphalt, concrete and other masonry materials and various metals. See Pinello Dep., Ex. 5 at 3-12 (Dkt. No. 80-25).

The TS 400 includes an instruction manual that provides its operator with certain warnings, including:

Warning!

Reactive forces may occur at any time the cutting wheel on a cutoff machine is rotating. If the wheel is slowed or stopped by frictional contact with any solid object or by a pinch, reactive forces may occur instantly and with great force.

These reactive forces may result in the operator losing control of the cutoff machine, which may, in turn, result in serious or fatal injury.

An understanding of the causes of these reactive forces may help you avoid loss of control. Reactive forces are exerted in a direction opposite to the direction in which the wheel is moving at the point of contact or pinch.

Pull-away, climbing, pinching and rotational forces.

The most common reactive forces are pull-away and climbing. If the contact is at the bottom of the wheel, a cutoff machine will try to pull away from the operator (pull-away). If the contact is at the front of the wheel, the wheel may attempt to climb the object being cut (climbing). Pinching occurs when the piece being cut closes on the wheel. If the wheel is severely pinched at the front, especially in the upper quadrant, the wheel may be instantly thrown up and back towards the operator with a great force in a rotational motion.

The greater the force generated, the more difficult it will be for the operator to control the cutoff machine. Any of the reactive forces can, in some circumstances, cause the operator to lose control of a cutoff machine, allowing the rotating wheel to come into contact with the operator. Severe personal injury or death can result.

Reducing the Risk of Reactive Forces

Warning!

Avoid cutting with the upper quadrant of the wheel where possible. If you must cut with this part of the wheel, be especially cautious for reactive forces and pinching.

Be alert to potential movement of the work piece or anything else that could cause the cut to close and pinch the wheel. In order to reduce the risk of pinching, support the work piece in such a way that the cut remains open during the cutting process and when the cut is finished.

Pinello Dep., Ex. 5 at 13-14.

The TS 400 also displays several on-machine warnings, including three warnings to read the instruction manual and a large yellow label on the guard of the machine, located directly over the thrust washers and bolt the operator must remove each time a cutting attachment is changed, which contains the following warnings:

Warning!

Read and follow all safety precautions in owner's manual - improper use can cause serious or fatal injury.

5. Use only composite wheels marked "high speed reinforced" or diamond wheels that are approved for use on hand held, portable cutting-off machines and meet the requirements of ANSI B7.1.

6. Only STIHL-branded wheels or other wheels approved by STIHL are authorized. Unauthorized wheels may break and cause serious personal injury.

Def. TS 400 Photos (Dkt. No. 80-9).

The TS 400 cutoff machine (Serial Number 161281771) used during Plaintiff's accident was manufactured by Andreas Stihl in Waiblingen, Germany on October 6, 2003. See Stihl Answer to Interrogatories at 3 (Dkt. No. 80-12). On October 31, 2003, it was shipped to Stihl Incorporated, the U.S. importer of STIHL-branded products and an affiliate of ANDREAS STIHL. See Stihl Answer to Interrogatories at 3. The product was purchased by Stihl Southeast, an independent distributor of STIHL products, on January 8, 2004, and was sold to Best Equipment in Miami, Florida, an independent power tool retailer, the following day.

According to the maintenance supervisor for Plaintiff's employer, Steven E. Fuller Excavating, Inc., a vendor of cutting attachments, World Diamond Source, offered a free cutoff machine - the buyer's choice of either a Stihl TS 400 or a Partner K 750 - with the purchase of any twelve World Diamond Source-branded diamond abrasive wheels. See Friedrich Dep. at 5657 (Dkt. No. 80-33). Fuller Excavating purchased twelve of these wheels from World Diamond Source, selected the STIHL TS 400 over the Partner K 750, and received the TS 400 as part of this packaged deal. Id.

Plaintiff, according to his testimony, is a highly experienced, professional user of handheld, gasoline- powered cutoff machines. See Pinello Dep. at 93:13-17. Prior to his accident, he had used cutoff machines to cut pipes for 12-13 years. See id. at 69:20 - 70:24. On the day of the accident, Plaintiff used a TS 400 equipped with a World Diamond Source diamond wheel to cut and remove a section of an excavated ductile iron water main pipe. See id. at 198-202. A telephone line ran parallel to the water main, between the pipe and Plaintiff's body, as he attempted to cut the pipe. Plaintiff reached over the telephone line with the TS 400 and angled the machine sharply downward to allow it to fit between the water main and the telephone line. See id. 203-205, 246-247, 285-287.

While Plaintiff was attempting to cut from this position, the pipe was moving and binding the wheel because of inadequate support. See Pinello Dep. at 278:13 - 279:13. Before Plaintiff attempted the cut on the water main pipe that resulted in the accident, a strap was placed on the section of the pipe that was to be removed. See Pinello Dep. at 250-252. The other end of the strap was attached to the boom of an excavator located outside the trench. See Pinello Dep. at 250-252. Plaintiff stated that before his accident he noticed the cutting attachment "starting to get weak" and "wobbling." See Pinello Dep. at 142:24 - 143:9. Mr. Timmons and Mr. Downs, employees of the Town of Peru who were observing the pipe cutting, testified during depositions that they recognized the manner in which Plaintiff and his crew positioned the strap on the pipe exerted too much upward pull against the pipe. See Downs Dep. at 71-74 (Dkt. No. 80-31); Timmons Dep. at 116 (Dkt. No. 80-37). At the moment Plaintiff completed the cut he was struck in the face. See Pinello Dep. at 299:6-11.

Plaintiff initiated this action by filing a Complaint in the United States District Court for the Southern District of New York in January, 2008. Dkt. No. 1. In April 2008, this matter was transferred to this Court. See Dkt. No. 5. On October 2, 2009, Defendants moved to exclude Plaintiff's sole liability expert witness under Rule 37(c) because Plaintiff failed to timely serve an expert disclosure in accordance with the Federal Rules of Civil Procedure after two extensions of the filing deadline. Dkt. No. 62. The Court entered an order imposing monetary sanctions against Plaintiff, but allowed the case to proceed. Dkt. No. 76. Plaintiff ultimately served the report of his liability expert, Mr. Philip O'Keefe ("Mr. O'Keefe"), on September 30, 2009. See O'Keefe Report (Dkt. No. 80-18).

Mr. O'Keefe's report concluded that "under normal use, the Stihl TS 400 is inherently and unreasonably dangerous when used as a hand-held tool," and that the TS 400 instruction and safety manuals provide inadequate and confusing warnings with regard to the dangers associated with kickback. O'Keefe Report at 4. To reach these conclusions, Mr. O'Keefe did a mathematical analysis, which compared the machine's peripheral blade speed to established human reaction times to show that, when kickback occurs, the blade will reach the worker's face before the operator will be able to react to it. O'Keefe Report ¶¶ 10-19.

In his subsequent deposition testimony, Mr. O'Keefe revised the opinion in his written report that the TS 400 was unreasonably dangerous "under normal use," stating that "[i]t's dangerous as a handheld tool in this type of application where Mr. Pinello was hurt [a trenching application]" and that "[i]t's my opinion that in other applications, it can be used safely." O'Keefe Dep. at 160-61. In his deposition, Mr. O'Keefe also stated that he was not aware at that time of any manufacturing or design defects in the TS 400. O'Keefe Dep. at 184.

Plaintiff was also deposed by Defendants regarding the circumstances of the accident. With respect to the incident itself, Plaintiff testified as follows:

Q. Do you have a recollection about the...