McLelland v. Ridge Tool Company

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

BUBBA MCLELLAND PLAINTIFF

v. Case No. 4:17-cv-4007

RIDGE TOOL COMPANY,

d/b/a RIDGID DEFENDANT

MEMORANDUM OPINION

Before the Court is Defendant Ridge Tool Company’s Motion for Summary Judgment.

(ECF No. 36). Plaintiff Bubba McLelland filed a response. (ECF No. 43). Defendant filed a

reply. (ECF No. 49). The Court finds the matter ripe for consideration.

I. BACKGROUND

On February 15, 2014, Plaintiff, a master plumber with thirty years’ experience, arrived at

Burge’s Sandwich Shop in Lewisville, Arkansas, to clear a clogged drain line located behind the

restaurant. To accomplish this, he brought his Ridgid K-750 Drain Cleaning Machine (“K-750”),

a drum-style cleaning machine manufactured by Defendant that is used by professionals for

cleaning drain pipes.

The K-750 is powered by an induction motor that rotates a covered drum and cable,

allowing the cable to be fed down a drain line to clean the drain. The operator’s manual for the

K-750 instructs users to operate the K-750 by kneeling next to the machine and grasping the

exposed cable with gloved hands to control and support the cable as it is fed into and out of the

drain. The manual warns that the cable could twist, kink, or break if the cable is not controlled

and if certain procedures are not followed. The manual also instructs users to wear protective

eyewear when operating the K-750. The K-750’s on-product warning label features similar

instructions and warnings.

After arriving on location, Plaintiff set up the K-750, knelt, and began feeding the cable

down the line using the machine’s “auto-feed” feature, which deploys the cable using the

machine’s motor. Plaintiff placed a cutting tool on the end of the cable because he suspected that

tree or grass roots might have caused the drain stoppage. Plaintiff was not wearing eye protection

and did not grasp the cable as it went into the drain, but he had his open hand close to the cable.

Plaintiff could see the cable move as it encountered obstructions in the drain. After roughly fifteen

to twenty minutes of continuously feeding the cable into the drain, the cable suddenly broke

without warning. The cable struck Plaintiff in the face, causing injuries.

On February 10, 2017, Plaintiff filed the case at bar, asserting three strict product liability

claims against Defendant: failure to warn, manufacturing defect, and design defect. On June 11,

2018, Defendant filed the instant motion, arguing that there is no genuine dispute of material fact

and that it is entitled to summary judgment on all claims. Plaintiff opposes the motion.

II. STANDARD

The standard for summary judgment is well established. When a party moves for summary

judgment, “[t]he court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact, and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). This is a “threshold

inquiry of . . . whether there is a need for trial—whether, in other words, there are genuine factual

issues that properly can be resolved only by a finder of fact because they reasonably may be

resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A

fact is material only when its resolution affects the outcome of the case. Id. at 248. A dispute is

genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either

party. Id. at 252.

In deciding a motion for summary judgment, the Court must consider all the evidence and

all reasonable inferences that arise from the evidence in a light most favorable to the nonmoving

party. Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The

moving party bears the burden of showing that there is no genuine issue of material fact and that

it is entitled to judgment as a matter of law. See Enter. Bank v. Magna Bank, 92 F.3d 743, 747

(8th Cir. 1996). The nonmoving party must then demonstrate the existence of specific facts in the

record that create a genuine issue for trial. Krenik, 47 F.3d at 957. However, a party opposing a

properly supported summary judgment motion “may not rest upon mere allegations or denials . . .

but must set forth specific facts showing that there is a genuine issue for trial.” Id. at 256.

III. DISCUSSION

As an initial matter, the Court must address the parties’ statements of fact. Defendant’s

statement of undisputed facts contains seventy-one purported statements of fact. Plaintiff’s

statement of disputed facts disputes four of Defendant’s statements of fact. Defendant argues that

Plaintiff has failed to controvert Defendants’ statements of undisputed fact, and accordingly, the

Court should treat Defendants’ statements of fact as admitted.

Federal Rule of Civil Procedure 56(e) states that a court may deem undisputed a party’s

asserted fact if it is not properly controverted by the other party pursuant to Rule 56(c). Similarly,

Local Rule 56.1(c) states that all material facts asserted in the moving party’s statement of facts

shall be deemed admitted if they are not controverted by the nonmoving party’s own statement of

facts. Federal Rule of Civil Procedure 56(c)(1) provides that a party asserting a genuine dispute

of material fact must support the assertion by either citing to materials in the record or by showing

that the cited materials do not establish the absence or presence of a genuine dispute.

The Court finds that Plaintiff has failed to controvert Defendant’s statements of undisputed

fact. Plaintiff’s statement of facts largely fails to satisfy Rule 56(c)(1) because it contains no

citations to the record and does not show that Defendant’s cited materials fail to establish the

absence of a genuine dispute. The sole exception is Plaintiff’s first disputed fact, which disputes

Defendant’s statement that Plaintiff could hear a change in the K-750’s motor sounds as the cable

encountered obstructions. A review of Defendant’s citations to the record in support of this

statement reveals that Plaintiff testified in his deposition that he sometimes can hear a change in

motor sounds, but that he did not during the events at issue. Except for this particular fact, the

Court finds that Defendant’s other asserted facts are deemed admitted for summary judgment

purposes.

The Court now turns to the substance of the instant motion. To prevail on a claim for strict

liability under Arkansas law, Plaintiff must prove that: (1) Defendant engaged in the business of

selling a product; (2) the product was supplied in a defective condition which rendered it

unreasonably dangerous; and (3) the defective condition was a proximate cause of the harm. Ark.

Code Ann. § 16-116-101(a). A “defective condition” is one that renders a product unsafe for

reasonably foreseeable use and consumption. Ark. Code Ann. § 16-116-102(2).

Defendant argues that it is entitled to summary judgment as to Plaintiff’s three strict

product liability claims: failure to warn, manufacturing defect, and design defect. The Court will

address each claim in turn.

A. Failure to Warn

Plaintiff claims that Defendant failed to provide proper and adequate warnings to him that

the K-750 could suffer a cable break even under anticipated use of the machine. Defendant argues

that it is entitled to summary judgment on this claim.

Under Arkansas law, it is the plaintiff’s burden in a failure-to-warn case to prove that “the

warning or instructions provided were inadequate. Once a [p]laintiff proves the lack of an adequate

warning or instruction, a presumption arises that the user would have read and heeded adequate

warnings or instructions.” See Bushong v. The Garman Co., 311 Ark. 228, 235, 843 S.W.2d 807,

812 (1992). However, “this presumption may be rebutted by evidence which persuades the trier

of fact that an adequate warning or instruction would have been futile under the circumstances.”

Id.

Defendant argues that Plaintiff has failed to present any evidence to meet his initial burden

of showing that the warnings on the K-750 were insufficient. Defendant argues further that, even

if Plaintiff had overcome his initial burden, this claim nonetheless fails as a matter of law because

Plaintiff testified in his deposition that, over a thirty-year period, he has never read the manuals or

warnings on any of his drain cleaning machines, and that he specifically did not read the warning

label on the K-750 despite his awareness of the same.

Plaintiff responds that he has credible evidence to support his claim, specifically, the

opinions of his expert witness, Don Johnston. Plaintiff argues that this case will likely be

determined by expert testimony and, thus, the Court should not grant summary judgment on the

issue unless the Court grants Defendant’s motion to exclude Mr. Johnston’s opinions.1

The Court agrees with Defendant. Plaintiff has presented no evidence that the warnings or

the instructions for the K-750 were inadequate.2 Accordingly, the Court finds that Plaintiff’s

failure-to-warn claim fails because he has not met his initial burden of showing that the warning

1 The Court notes that on August 10, 2018, it granted Defendant’s motion to exclude Mr. Johnston’s expert testimony

and opinions. (ECF No. 53).

2 Even assuming arguendo that Mr. Johnston’s expert opinions were allowed, he testified in his deposition that he is

not an expert on warnings and explicitly expressed no opinion as to whether the warnings and instructions for the K-

750 were inadequate.

or instructions provided with the K-750 were inadequate. See id. Moreover, assuming arguendo

that Plaintiff had satisfied his initial burden, the evidence before the Court demonstrates that an

adequate warning would have been futile under the circumstances. Id. Plaintiff testified that he

has never read the warning for any drain cleaning machine he has owned over a thirty-year

period—including the K-750—despite his awareness of the warnings. Accordingly, the Court

finds that this evidence would necessarily persuade any reasonable trier of fact that an adequate

warning on the K-750 would have been futile because Plaintiff would not have read it. See id.

(affirming summary judgment on failure-to-warn claim where the plaintiff admitted he had never

read a warning label on the product at issue).

For these reasons, the Court finds that there is no genuine dispute of material fact and that

Defendant is entitled to summary judgment on Plaintiff’s failure-to-warn claim.

B. Manufacturing Defect

Plaintiff claims that Defendant’s K-750 suffered from a manufacturing defect that

proximately caused his injuries. Defendant argues that it is entitled to summary judgment on this

claim.

To prevail on a strict liability manufacturing defect claim, Plaintiff must demonstrate that

a defect in the manufacture of the K-750 was the proximate cause of his injuries, and that the K-

750 was in a defective condition when it left Defendant’s hands. See Lee Cnty., Ark. v. Volvo

Const. Equip. N. Am., Inc., No. 2:07-cv-0082-BSM, 2008 WL 4999063, at *4 (E.D. Ark. Nov. 20,

2008) (citing Higgins v. Gen. Motors Corp., 250 Ark. 551, 555, 465 S.W.2d 898, 900 (1971)).

In the absence of direct proof that the product is defective because of a

manufacturing flaw . . . [the] plaintiff must negate the other possible causes of

failure of the product for which the defendant would not be responsible in order to

raise a reasonable inference that the dangerous condition existed while the product

was still in the control of the defendant. The mere possibility that a defendant sold

a product which he should not have sold and that it caused the injury is not enough.

Id. (internal citations omitted).

Defendant argues that Plaintiff has offered no evidence to establish that the K-750 at issue

was defectively manufactured, or to negate all other possible causes of the incident. Defendant

states that Mr. Johnston’s expert report expressed no opinions regarding a manufacturing defect,

and that Mr. Johnston did not attempt to test the K-750 or negate any other possible causes of the

incident.

Plaintiff responds that he has credible evidence to support his claim, specifically, Mr.

Johnston’s expert opinions. Plaintiff argues that this case will likely be determined by expert

testimony and, thus, the Court should not grant summary judgment on the issue unless the Court

excludes Mr. Johnston’s expert opinions.

Upon consideration, the Court agrees with Defendant. As previously discussed, the Court

has excluded Mr. Johnston’s expert testimony and opinions. Plaintiff has offered no other

evidence to establish that the K-750 was defectively manufactured. Plaintiff has also not offered

any evidence to negate any other possible causes of the incident. Accordingly, the Court finds that

Plaintiff has failed to raise a reasonable inference that the alleged manufacturing defect was the

cause of his accident. See id. at *7. Accordingly, the Court finds that Plaintiff’s manufacturing-

defect claim fails.

For these reasons, the Court finds that there is no genuine dispute of material fact and that

Defendant is entitled to summary judgment as a matter of law on Plaintiff’s manufacturing-defect

claim.

C. Design Defect

Plaintiff claims that Defendant’s K-750 suffered from a design defect which proximately

caused Plaintiff’s injuries. Defendant argues that it is entitled to summary judgment on this claim.

Design-defect claims are distinct from manufacturing-defect claims. Simpson v. Wright

Med. Grp., Inc., No. 5:17-CV-0062-KGB, 2018 WL 1570795, at *9 (E.D. Ark. Mar. 30, 2018).

“Manufacturing defects involve a configuration of a product that deviates from the intended

design, while design defects involve a design that is executed according to plan but produces

unintended and unwanted results.” Id.

To prevail on his strict liability design defect claim, Plaintiff must demonstrate that a defect

in the design of the K-750 was the proximate cause of his injuries, and that the K-750 was in a

defective condition when it left Defendant’s hands. Lee Cnty., Ark., 2008 WL 4999063, at *4

(applying Arkansas law). A defective design can be established under Arkansas law without proof

of a safer alternative design. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 846

(8th Cir. 2001). However, “[w]hen a plaintiff’s sole proof of a defective design is the designer’s

choice not to pursue a safer design, the evidentiary burden is on the plaintiff to show that the safer

alternative design he or she advocates actually exists.” Id. Plaintiff does not have to prove that

his proposed alternative design is “available and feasible in terms of cost, practicality, and

technological possibility,” but he must prove that his proposed design will actually work. Dancy

v. Hyster Co., 127 F.3d 649, 654 (8th Cir. 1997) (applying Arkansas law). This showing often

requires expert testimony. See id.; Meza v. Ford Motor Co., No. 2:11-cv-2069-PKH, 2012 WL

1570040, at *2 (W.D. Ark. May 1, 2012) (noting that “the type of product defect that is most likely

to require expert testimony is that of design defect”).

Defendant argues that Plaintiff’s design-defect claim fails because Mr. Johnston’s expert

opinions should be excluded and that Plaintiff cannot satisfy his burden without expert testimony.

Defendant argues alternatively that, even if the Court allows Mr. Johnston to testify, his opinions

are speculative and do not show that his proposed alternative safety measures actually work and

would have prevented Plaintiff’s injuries.

Plaintiff responds that Mr. Johnston’s expert opinions support his design-defect claim.

Plaintiff argues that this case will likely be determined by expert testimony and, thus, the Court

should not grant summary judgment on the issue unless the Court excludes Mr. Johnston’s expert

opinions.

Upon consideration, the Court agrees with Defendant. As previously noted, the Court has

excluded Mr. Johnston’s expert opinions. Plaintiff offers no other evidence regarding the proposed

alternative safety measures, whether they work, and whether they would have prevented his

injuries. The design-defect claim fails for this reason.

Moreover, even assuming arguendo that the Court allowed Mr. Johnston’s opinions, the

Court finds that Plaintiff’s claim would still fail. Mr. Johnston testified at his deposition that he

believed that Defendant could have prevented the K-750’s cable from breaking and injuring

Plaintiff by implementing “cable control systems” or the “audible and visual signals” found on

certain of Defendant’s other models of drain cleaning machines. However, he also admitted that

he had not conducted any testing to support his opinions. He did not test or examine any drain

cleaning machine, including the K-750, while forming his opinions. He did not attempt to

reconstruct the accident by breaking a cable on a K-750. He testified that he does not know how

the “cable control systems” or the “audible and visual signals” found on certain of Defendant’s

other machines work, but he assumes the features are effective because “if [Defendant is] doing

something like that, it probably works or they wouldn’t be advertising it.” (ECF No. 47-1, p. 50).

The Court finds that, if allowed, Mr. Johnston’s speculative opinions fail to show that his proposed

alternative designs actually work and would have prevented Plaintiff’s injuries. Dancy, 127 F.3d

at 654. Accordingly, the Court finds that Plaintiff’s design-defect claim fails.

For these reasons, the Court finds that there is no genuine dispute of material fact and that

Defendant is entitled to summary judgment on Plaintiff’s design-defect claim.

IV. CONCLUSION

For the reasons discussed above, the Court finds that Defendant’s Motion for Summary

Judgment (ECF No. 36) should be and hereby is GRANTED. Plaintiff’s case is hereby

DISMISSED WITH PREJUDICE. A separate Judgment consistent with this Opinion will be

entered.

IT IS SO ORDERED, this 13th day of August, 2018.

/s/ Susan O. Hickey

Susan O. Hickey

United States District Judge