# Christopher A Mitchell v. Michael Weinig, Inc.

> District Court, S.D. Ohio · September 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10376708

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10376708

## How later opinions describe it (automated extraction)

- holding that, since the plaintiff did not read the operator’s manual, he would not have been aware of any additional or more specific warnings
- applying Daubert’s relevance inquiry; the testimony is not relevant if there is no “connection between the [opinion] being offered and [any] disputed factual issues” that are before a court
- stating that in Daubert “[t]he Court explained that Rule 702 displays a liberal thrust with the general approach of relaxing the traditional barriers to opinion testimony” (internal quotations omitted)

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHRISTOPHER A. MITCHELL,
Plaintiff, Case No. 2:17-cv-905
JUDGE EDMUND A. SARGUS, JR.
v. Chief Magistrate Judge Elizabeth P. Deavers

MICHAEL WEINIG, INC.,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant Michael Weinig, Inc.’s (“Defendant” or
“Weinig”) Motion for Summary Judgment (ECF No. 76) and Motion to Exclude Expert Report
and Testimony (ECF No 78); Plaintiff Christopher Mitchell’s (“Plaintiff’ or “Mitchell’’) responses
to the motions (ECF No. 83, 84), and Weinig’s replies (ECF Nos. 85, 86). Also, before the Court
is Plaintiff's Motion to Schedule a Jury Trial (ECF No. 87).
For the following reasons, Defendant’s Motion for Summary Judgment is GRANTED in
part and DENIED in part (ECF No. 76), Defendant’s Motion to Exclude is DENIED (ECF No.
78), and, Plaintiff's Motion to Schedule a Jury Trial is GRANTED. (ECF No. 87).
I.
This case arises from a workplace injury that Plaintiff Christopher Mitchell suffered on
October 22, 2015. (Compl. PP 13-18). Mitchell resides in New Boston, Ohio. (Mitchell Dep. 6:5—
6). At the time of the injury, Mitchell was employed at Appalachian Wood Floors (““AWF”), a
hardwood flooring manufacturer with approximately twenty employees, located in Portsmouth,
Ohio. (Jim Graf. Dep. 3:16-18; Compl. 2). Mitchell was injured at AWF while operating an

industrial wood flooring line manufactured by Defendant Weinig and installed at AWF. (Compl.
1-18). Weinig is a North Carolina corporation with its principal place of business in
Mooresville, North Carolina. (Compl. 3; Answer P 3).
A. Weinig Flooring Line purchased and installed at AWF
In September of 2014, AWF contracted with Defendant for the purchase of an industrial
woodworking machine known as the “Weinig Automated High Speed Flooring Line” (“the Weinig
line” or “the line”). (Andrew Graf Dep. 12:16-18, Ex. 34, at Weinig 0061). Weinig began shipping
the line to AWF from Germany in August of 2015. (Andrew Graf Dep. 18:3-7). The line would
be used to process the lumber received by AWF as part of its hardwood flooring manufacturing.
(Chris Gilbert Dep. 13318 14:21).
The purchase order contract for the line specified that the purchase from Weinig included
“installation” and “training.” (Andrew Graf Dep. at Ex. 34, at Weinig 0061). The contract did not
specify the scope of Weinig’s training obligation. (See id.). AWF President Andrew Graf handled
negotiations with Weinig and signed the purchase order contract on behalf of AWF. (/d. at 11:4—
12:18). Graf testified on deposition that Defendant Weinig was responsible for training AWF
employees on the line and that Weinig’s training obligation would not be limited to a certain
number of AWF employees. (/d. at 69:22—70:2, 75:15). AWF CEO Jim Graf testified to the same
on deposition —- that Weinig was responsible for training AWF employees who would operate the
line. (Jim Graf Dep. 57:14—18).
After AWF received the line components in August of 2015, Weinig sent technicians from
Germany to begin installation and training on the line. (Bernd Schaffer Aff. P 3; Gilbert Dep. 18:1-
16). Andrew Graf selected AWF employee Chis Gilbert to oversee the line’s operation. (Andrew
Graf Dep. 20:14-19). Graf and another AWF employee, Kenny Holsinger, received training by

Weinig on the line. (/d. at 20:21—21:8). Weinig states that it only contractually agreed to train
Chris Gilbert, Kenny Holsinger, and Andrew Graf. (Def.’s Resp. to Pls. Req. for Admis. 2). Those
three employees all received some amount of training from the Weinig technician sent from
Germany, Bernd Schaffer, along with other Weinig technicians sent to AWF. (Schaffer Aff. P 3;
Andrew Graf Dep. 21:1-8; Gilbert Dep. 28:13—21; Kenny Holsinger Dep. 24:6-10). Weinig had
“six to seven” different personnel on site at AWF for training. (Andrew Graf Dep. 32:11).
According to Gilbert, Defendant Weinig did not send enough people to test run the line
themselves, so AWF pulled employees in to help test the line alongside Weinig’s technicians.
(Gilbert Dep. 26:23 —27:8). Installation took longer than planned. (Andrew Graf Dep. 18:13-18).
But AWF and Weinig were able to begin running material through the line a few weeks before
Mitchell’s October 22 injury. (Andrew Graf Dep. 18:13-19:2), AWF did not accept the line as
fully installed until November 13, 2015, three weeks after Mitchell’s injury, which permitted
Weinig technicians to leave AWF. (Gilbert Dep. 98:2-12; Andrew Graf Dep. 75:1-17). But
according to Andrew Graf, the line was not fully operational as he expected it to be when he signed
the Bill of Receipt and Acceptance on November 13, 2015. (Andrew Graf Dep. 75:1-17). The
November 13 receipt also certified that Andrew Graf and Chris Gilbert had completed training.
(Gilbert Dep. 97:22—98:12).
B. Operation of the Weinig Line
The section of the Weinig line relevant to Mitchell’s injury is the vacuum lift area.
(Medlock Aff. at Ex. 1; Schaffer Aff. P 5; Andrew Graf Dep. 33:24—34:7). In that area, stacks of
wood are placed on a lifting table. The lifting table moves the stack of wood upwards while a
vacuum de-stacker lowers to pick up the wood. The vacuum de-stacker then picks up the wood,
transfers the wood overtop a chain conveyor, and places the wood onto the conveyor. The chain

conveyor then moves the wood onto the next phase of the line. (Medlock Aff. at Ex. 1; Kutchek
Dep. at Ex. 1).
Two employees at a time operate this area of the lift. (Holsinger Dep. 22:8). One
employee’s job is to operate the machine, while the other’s responsibility is to stand at the ready
in case the operator needs assistance. (/d. at 22:8-12). As the employees operate the machine, they
directly face the chain conveyor. (Mitchell Dep. at Ex. 6). The vacuum lift area is located
immediately to the operators’ right; it tansfers wood from the operators’ right and places it directly
in front of the operators onto the chain conveyor. (/d.).
As the two employees operate the system, they stand on a raised wooden platform. (Gilbert
Dep. 43:9~12). According to AWF employee Gilbert, the elevated wooden platform was necessary
for line operators to help them get to a height where they could straighten up the lumber as it
moved along the conveyor. (/d. at 44:3-6). Operators at AWF during this training/installation
period also used the added wooden platform and a small wooden box on top of the platform to
climb onto the chain conveyor to remove wood if it was too far to reach. (/d, at 47:12-20). Weinig
maintains that the wooden platform was not part of the line’s design specifications. (Medlock Aff.
at Ex. 1). AWF built and added the wooden platform to the line, but CEO Jim Graf testified on
deposition that one of Weinig’s technicians requested that the platform be built. (Gilbert Dep.
43:17-44:6; Jim Graf Dep. 37:4-14). Weinig’s operating instruction manual appears to show a
user operating the line while standing on an elevated surface like the wooden platform used by
AWF. (Mitchell Dep. at Ex. 21, at Weinig 0670).
The vacuum lift area is separated from the chain conveyor and operator station by a guard
fence. (Mitchell Dep. at Ex. 6). The purpose of the fence is to keep operators out of the vacuum
lift area because exposure to the vacuum lift while in operation could result in fatal injury if the

user became crushed by the lift. Medlock Aff. at Ex. 1; Mitchel Dep. at Ex. 21, at Weinig 0623).
A warning sign is attached to the fence a few feet away from the operator platform, near eye level.
(Mitchell Dep. at Ex. 6). The warning sign is a pictograph. The pictograph shows a red circle with
a diagonal line running from the top left to the bottom right, known as a prohibition sign. (Mitchell
Dep. at Ex. 13; Gilbert Dep. 60:2—12). Contained within the prohibition circle and slash is a
drawing of an operator with a bolded black palm outstretched, all five fingers extended. (/d. at Ex.
13). There are no words on this pictograph or the fence. (/d.).
The control panel to operate the system is immediately to the operators’ left as they face
the conveyor. (Mitchell Dep. at Ex. 6). The control panel contains several buttons. (/d. at Ex. 8).
Particularly relevant to this case, the panel contains a red mushroom-shaped button in the bottom
left which operates as the emergency stop. (/d.). The panel also contains a different, smaller red
button at the bottom that operates as a “Supply OFF button.” (/d.). The emergency-stop button
cuts off power and prevents motion on the entire line. (Kutchek Dep. at Ex. 1). The supply-off
button only stops power to the chain conveyor and anything outside of the safety fence—it does
not cut off power to the vacuum lift. (/d.; Andrew Graf Dep. 40:7-41:11).
During the few weeks of line operation before Mitchell’s injury, the vacuum de-stacker
routinely dropped boards onto the lift table as it moved a stack of wood from the lift area to the
conveyor. (Branagan Dep. 15:16-17; Andrew Graf Dep. 23:9-20). When the vacuum dropped a
board onto the lift table, it required the operator to clear out the board in order to resume operation.
(Andrew Graf Dep. 23:18-20). Sometimes, an operator standing on the wooden platform would
be able to use a chain deck to pull the board out of the area. (id, at 23:23-24). But if an operator
could not clear the fallen board from the platform, the fence guarding the lift area contained a
safety gate through which a user could enter the area to clear out the board. (/d. at 24:6-11).

The purpose of the safety gate was to disable power to the vacuum de-stacker and lift table
to allow a user to enter the area without the risk of being injured by the vacuum dropping. (Schaffer
Aff. P 5). The gate was located a few feet away from the wooden platform, and could be accessed
by pushing a button, waiting for the vacuum to return to home position, and opening the gate. (/d.).
Once the vacuum was in its home position, the lift could not be restarted until the gate was closed.
(7d.). The lift restarted automatically after an operator closed the gate. (/d.).
Weinig technician Bernd Schaffer showed Gilbert and Holsinger how to access the safety
gate to clear fallen boards safely from the lift area. (Schaffer Aff. P 7; Gilbert Dep. 41:5—23).
Gilbert and Holsinger went through the gate several times before Mitchell’s accident. (Gilbert Dep.
39:12-40:2; Holsinger Dep. 24:6-18). So did Michael Branagan, another employee from AWF
assigned to the line. (Branagan Dep. 15:4—16). Mitchell was not shown how to use the safety gate.
Gilbert testified that he stood on the conveyor to pull boards out that had fallen or become
stuck. (Gilbert Dep. 66:18-67:24). Branagan testified that he also climbed on top of the conveyor
to clear boards out, and that he had once stepped over the safety fence while standing on the
conveyor to go into the life area and clear a board. (Branagan Dep. at 16:10—-16). According to
Weinig, the conveyor was not designed as a walking surface. (Futej Aff. at Ex. 1, 21). Weinig’s
instruction manual warns: “Do not climb onto conveyor elements.” (Mitchell Dep. at Ex. 21,
Weinig 0612). Gilbert testified that he saw Weinig technician Bernd Schaffer stand on top of the
conveyor to clear boards out in the manner Gilbert did. (Gilbert Dep. 68:4—18) The safety fence
guarding the lift area measured 71 inches in height above the ground, but only rose 27.75 inches
above the surface of the conveyor. (Kutchek Dep. at Ex. 1, at 17).

C. Mitchell’s Injury
After Mitchell’s lunchbreak on October 21, 2015, he was assigned by his supervisor Roger
Buruss to work as an operator at the lift area. (Andrew Graf Dep. 32:21—24; Mitchell Dep. 63:6—
18). At that time, Mitchell had worked on production numbers for AWF and its predecessor for
roughly 14 years. (Mitchell Dep, 41:3-42:23). Prior to his assignment on the line, Mitchell had no
experience operating woodworking equipment such as chop saws, moulders, and end matchers (/d.
at 47:23-48:5). Mitchell had no familiarity with emergency stop buttons and had never received
any form of lockout/tagout training from AWF. (Jd. at 62:2—15).
Mitchell recalls that, on October 21, he stood and watched Gilbert and Branagan work the
line. (/d. 73:14-20). He testified that he was not getting trained, only observing, and that he learned
“nothing.” (éd. at 75:12—77:3). He did not receive training from Weinig. Ud. at 91:12-15; 109:9-
10). Mitchell observed the line operate for a few hours. (/d. at 75:6-8). Mitchell remembers seeing
Gilbert and Branagan stand on top of the conveyor to “watch the wood.” (/d. at 73:24-74:7). He
also remembers seeing “a guy from Weinig” stand on the conveyor the day before Mitchell was
assigned to the line. (/d. at 75:3—7). Mitchell was not aware of the safety gate and was not told
anything about the safety fencing. (id. at 91:6—25). Mitchell never observed anyone access the
safety gate on the line. (/d. at 95:10—-13). He described that his job was to “make sure the boards I
guess just kept coming through the line.” (/d. at 69:3—7).
Mitchell came to work the next morning around 7:00 a.m. and began working the line with
Gilbert. (id. at 84:5-14). Gilbert discussed with Mitchell how to operate the control panel that
contained the emergency-stop button and the supply-off button. (/d.). Mitchell says that the only
thing Gilbert told him was, “If you want to stop the line, you hit the red button.” (/d. at 100:13-

14). Mitchell had no discussions with anyone who worked for Weinig about the control panel. □□□□
at 102:4-10).
Mitchell’s accident happened at 8:48 a.m. (/d. at 116:11). Gilbert stepped away from the
platform to investigate a problem on a different part of the line, leaving Mitchell alone on the
platform. (Gilbert Dep. 78:10-21). After Gilbert stepped away, Mitchell observed a board drop
from the vacuum onto the lift table. (Mitchell Dep. 118:7—-9). Mitchell then pressed the red supply-
off button on the control panel to his left. (Kutchek Dep. at Ex. 1, at 9). Mitchell believed that this
button was the red button Gilbert referred to when he told him that pressing the red button would
stop power to the line. (Mitchell Dep. 119:13—16).
After pressing the button, Mitchell climbed onto the conveyor, believing that power to the
line had been shut off. (/d. at Ex. 1, at 10; Mitchell Dep. 118:16). Mitchell then stepped his right
foot overtop of the safety fence, straddled the top of the fence, and moved into the lift area
underneath the vacuum de-stacker which was in a raised position. (Kutchek Dep. at Ex. 1, at 11).
When Mitchell cleared the board from underneath the vacuum, the vacuum automatically resumed
operation and pinned Mitchell onto the lift table. (/d.). AWF employees then activated the
emergency stop and pulled Mitchell out from under the vacuum, (/d. at 12). Mitchell fractured his
vertebrae, ribs, and pelvis and was airlifted to the hospital (Mitchell Dep. at Ex. 3).
Mitchell stated that he would not have climbed onto the conveyor and over the fence had
he known that the button he pressed was not the emergency stop. (id. at 119:12). When asked
during his deposition about the pictograph warning sign on the fence, Mitchell said he was standing
“maybe five feet” from the sign and that he is sure he saw it. (/d. at 107:14-21). Mitchell says that
he interpreted the sign to mean “Stop.” (/d. at 107:24).

It it undisputed that Weinig has an instruction manual for the Weinig line. Weinig
technician Bernd Schaffer stated that, “the Weinig mechanization employees were responsible for
training the AWF employees . The company has a copy of the operating manual. The company
has an operating manual book at the machine and an extra copy. They also have a CD.” (Second
Schaffer Aff. P 3).
Mitchell was shown the Weinig line instruction manual for the first time at his deposition.
at 132:9). Mitchell had no knowledge that a manual existed. (Id. at 134:5). The instruction
manual contains detailed instructions about how to operate the machine. (/d. at Ex. 21). It also
contains detailed warnings against climbing on the conveyor. Further, the instruction manual
indicates that the pictograph warning label posted on the safety fence means: “No access. Risk of
fatal injury. Before entering this area switch off the power supply and secure it against being
switched on again inadvertently.” (Ud. at Ex. 21, at Weinig 0623). Mitchell, after looking at this
description, stated that “it could have been a game changer” and that he would not have done what
he did had he seen the manual. (/d. at 133:25—136:23).
In is not disputed that no AWF employee recalls ever seeing the instruction manual. Gilbert
testified that he did not receive any manuals before Mitchell’s accident (Gilbert Dep. 69:12).
Branagan testified that he was never given an operator’s manual or instruction manual on how to
operate the machine. (Branagan Dep. 41:13—15). Andrew Graf stated that he did not recognize the
manual and did not know if the manual was present at AWF prior to Mitchell’s accident. (Andrew
Graf Dep. 28:17-21).
The parties dispute whether AWF ever received the instruction manual before Mitchell’s
injury. Weinig employee Edeltraud Fraske states that Weinig shipped the instruction manual via
DHL to AWF from Germany in September of 2015. (Fraske Aff. P 3). Fraske claims that Weinig

received a signed receipt confirming receipt of the instruction manual by AWF on September 21,
2015. (id.). The receipt shows the signature of AWF CEO Jim Graf and reads: “We confirm that
the documentation for the new mechanical handling system infeed and outfeed with order no.
120.283 & 120.284 was handed over us [sic] by the Weinig technician.” (Jim Graf Dep. at Ex. 43).
Graf was asked about this in his deposition: “Do you recall—do you recall whether when you
received Exhibit 43 ifthe manual marked Defendant’s 21 came with that document?” (/d. at 30:16—
18). Graf responded: “It absolutely did not.” (Ud. at 30:19). Graf also stated that he “was never
handed any kind of manual. (/d. 30:14—15).
Andrew Graf did not have any concern about Mitchell’s level of training “because Weinig
technicians were all right there” with AWF employees as they operated the lift. (Andrew Graf Dep.
33:14-18). Gilbert testified that “I guess I would’ve been” responsible for training Mitchell on
October 21 and 22. (Gilbert Dep. 91:23). But Gilbert stated that he “didn’t have training all the
way either.” Ud. at 91:24). He also stated that he was only “showed how to start [the machine] and
make it move. Again, it was just in testing. We was helping them.” (/d. at 97:5—7). In other words,
AWF employees were assisting Weinig in the test phase of the line. Gilbert stated that he felt
Mitchell “was trained to what [Gilbert] knew, but [Gilbert] also felt that we could’ve been trained
more.” (/d, at 116:21-22). Gilbert further stated that he “believed the same thing” when told that
Mitchell believed the button he pressed made it safe for him to step over the fence. (Jd. at 99:16-
23).
Andrew Graf testified that Weinig did not provide the training to AWF employees it
represented it would during sale negotiations. (Andrew Graf Dep. 75:1—5). Graf stated that AWF
employees were not trained correctly on the entire line. (/d. at 83:9-18). Branagan testified that
he did not have “adequate” information to work “safely” in the area that there could have been

10

better training. (Branagan Dep. 39:7-10). Holsinger testified that he did not believe he was
properly trained to operate the line. (Holsinger Dep. 44:4-7). Holsinger stated that he needed to
learn, “[m]Jore about the control panels. There’s a lot of buttons on there.” (/d. at 44:10-11).
I.
Summary judgment is appropriate “if the movant shows that there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The Court may therefore grant a motion for summary judgment if the nonmoving party who has
the burden of proof at trial fails to make a showing sufficient to establish the existence of an
element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The “party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The
burden then shifts to the nonmoving party who “must set forth specific facts showing that there is
a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.
R. Civ. P. 56(e)). “The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Jd. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158—
59 (1970)).
A genuine issue of material fact exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Jd. at 248; see also Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986) (The requirement that a dispute be “genuine” means
that there must be more than “some metaphysical doubt as to the material facts.”). Consequently,
the central issue is “whether the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Hamad v.

11

Woodcrest Condo. Ass’n., 328 F.3d 224, 234-35 (6th Cir. 2003) (quoting Anderson, 477 U.S. at
251-52).
Il.
Mitchell asserts: (A) product liability claims under the Ohio Product Liability Act, Ohio
Rev. Code § 2307.74, et seg. (“OPLA”); (B) negligence claims; and (C) a claim for punitive
damages. Weinig moves for summary judgment on all Mitchell’s claims.
A. Product Liability Claims under the OPLA
Mitchell asserts claims under the OPLA for: (1) design defect; (2) failure to warn; and (3)
manufacturing defect.
1. Design Defect
Mitchell argues that the Weinig line was defective in design. To prevail on a design defect
claim, a plaintiff must establish: (1) the product was defective; (2) the defect existed when the
product left the defendant’s control; and (3) the defect directly and proximately caused his injury.
Butts v. OMG, Inc., 612 F. App’x 260, 262 (6th Cir. 2015),
“A product is defective in design or formulation if at the time it left control of its
manufacturer, the foreseeable risks associated with its design or formulation . . . exceeded the
benefits associated with that design for formulation.” Ohio Rev. Code § 2307.75(A). “Foreseeable
risk” means a risk of harm that is both: (a) “associated with an intended or reasonably foreseeable
use, modification, or alteration of a product in question” and (b) “is a risk that the manufacturer in
question should recognize” while exercising “the attention, perception, memory, knowledge, and
intelligence that a reasonable manufacturer should possess” and “any superior attention,
perception, memory, knowledge, or intelligence that the manufacturer in question should possess.”
Id. § 2307.71(A}(6).

12

The statute lists five non-exclusive factors for determining the foreseeable risks associated
with a product’s design, and three non-exclusive factors for determining the benefits associated
with the product’s design. See id. § 2307.75(B}{C). A manufacturer is not responsible for all
product misuses, but a “failure to design a product to prevent a foreseeable misuse can be a design
defect.” Welch Sand & Gravel, Inc. v. O & K Trojan, Inc., 107 Ohio App. 3d 218, 224 (1995)
(citing Menifee v. Ohio Welding Prod., Inc., 15 Ohio St. 3d 75, 78 (1984)).
Furthermore, a product is not defective in design if “at the time the product left control of
its manufacturer, a practical and technically feasible alternative design or formulation was not
available that would have prevented the harm . . . without substantially impairing the usefulness
or intended purpose of the product.” Id. § 2307.75(F). The plaintiff bears the burden of proving
alternative design. Monroe v. Novartis Pharm. Corp., 29 F. Supp. 3d 1115, 1124 (S.D. Ohio 2014)
(citing McGrath v. Gen. Motors Corp., 26 F. App’x 506, 510 (6th Cir. 2002)). Thus, to survive
summary judgment, a plaintiff must produce sufficient evidence of a safe alternative design. Rees
v. WM. Barr & Co., Inc., 736 F. App’x 119, 129 (6th Cir. 2018).
The “foreseeable uses of a product, foreseeable risks associated with a product, benefits
associated with a product, and consumer expectations regarding a product’s uses and risks are
ordinarily all factual questions.” Welch Sand & Gravel, Inc., 107 Ohio App. 3d at 225 .
Consequently, “summary judgment will rarely be granted in design-defect cases when any of these
elements is disputed.” Jd. at 534; see also Butts, 612 F. App’x at 263 (when both “foreseeable risks
and benefits of a product exist, the balancing of the two is best done by a jury.”). Summary
judgment for a defendant manufacturer is only appropriate when “a product is used in a capacity
which is clearly unforeseeable by the manufacturer and completely incompatible with the
product’s design.” /d. at 533.

13

Weinig argues that it is entitled to summary judgment because: (a) Mitchell climbing the
safety fence from the top of the conveyor was not a foreseeable use that Weinig should have
recognized; and (b) because Mitchell has not come forward with evidence of a design defect. (Def.
Min. Summ. J. at 20-21). Viewing the evidence in the light most favorable to Mitchell, the Court
disagrees.
a. There are genuine disputes of material fact about whether Mitchell’s use of the
Weinig line was foreseeable.
Weinig argues that Mitchell climbing over the safety fence from the top of the chain
conveyor was unforeseeable because: Mitchell did not use the line as it was intended to be used;
Weinig’s instruction manual gave multiple express warnings not to climb onto the conveyor or
climb the fence; and this type of injury has never happened before and has not happened since. (Id.
at 21). According to Weinig, “it is neither logical nor predictable that an employee would climb
onto a conveyor and breach a barrier guard with an access door meant for this activity located less
than ten feet from the operator’s station.” (Medlock Aff. at Ex. 1, at 8).
Mitchell does not dispute that stepping over the safety fence from the conveyor to clear
wood from the lift area was not the intended use of the machine. (Pls. Resp. to Def.’s Mtn. Summ.
J. at 10). Mitchell, however, posits that his use of the Weinig line was nonetheless reasonably
foreseeable because Weinig warns against that exact conduct, yet Weinig failed to convey that
warning to Mitchell.
Further, Weinig technicians were on site at AWF in the month leading up to Mitchell’s
injury and on the day of Mitchell’s injury and knew the vacuum lift was routinely dropping wood
before reaching the chain conveyor, which required a line operator to clear out the wood that was
stuck under the lift. Line operators also climbed onto the conveyor to clear wood. Indeed, AWF

14

employee Michael Branagan testified that he stepped over the safety fence from the top of the
conveyor to clear wood from the vacuum lift area “the same [Mitchell] has.” (Branagan Dep. 16).
Chris Gilbert stated that he also climbed onto the chain conveyor to grab wood. (Gilbert
Dep. 67). Gilbert is one of the three AWF employees that Weinig admits it had a duty to train.
(Def.’s Resp. to Pls. Request for Admis. 2) Gilbert was also Mitchell’s supervisor for the day
Mitchell worked on the Weinig line prior to his injury and the morning of Mitchell’s injury.
(Gilbert Dep. 96). Gilbert testified that he observed the Weinig’s technicians climbing onto the
conveyor to keep boards straight. (/d. at 68).
Importantly, Mitchell testified that he personally observed both Gilbert and Branagan
climbing onto the conveyor the day before his injury. (Mitchell Dep. 74). The safety fence
surrounding the vacuum lift was approximately 71 inches tall measured from the ground, but only
rose 27.75 inches above the top of the conveyor (Kutchek Dep. 71}. Consequently, a user standing
on the conveyor can step over the safety fence in a way that would not have been possible from
the ground. (/d.).
Weinig’s expert states that “the chain conveyor was never designed, or reasonably
expected, to satisfy the basic requirements for a safe walking surface” and thus “the chain conveyor
was never intended, or reasonably foreseen, as a means of accessing” the fence surrounding the
vacuum lift. (Futej Aff. at Ex. 1, 21). Weinig also relies on the fact that it warns against standing
on the chain conveyor; the instruction manual states: “Do not climb onto conveyor elements.”
(Mitchell Dep. at Ex. 21, Weinig 0612). However, as just stated supra, Mitchell has presented
evidence that trained AWF employees and Weinig’s own technicians walked on top of the chain
conveyor in the same manner Weinig now claims it could not have reasonably foreseen.

15

Moreover, Mitchell never received formal training on how to access the safety gate to
properly clear wood from the lift area. (fd. at 76-77, 95). Mitchell was also never informed which
button on the control panel was the emergency stop. (/d. at 94, 99). And Kenny Holsinger, who
did received training, stated that he needed more training on “the control panels” because, “There’s
a lot of buttons on there.” (Holsinger Dep. 44). The parties contest whose responsibility it was to
provide this information to Mitchell. But all three of the AWF supervisors whom Weinig admits
it had a duty fo train testified that Weinig did not train them adequately. (Gilbert Dep. 96, 116;
Holsinger Dep. 44; Andrew Graf Dep. 83).
Viewing the facts in the light most favorable to Mitchell, and drawing all reasonable
inferences in his favor, the Court cannot conclude that Mitchell’s use of the Weinig line was
“clearly unforeseeable” as a matter of law. Welch Sand & Gravel, Inc., 107 Ohio App. 3d at 224.
Instead, the Court finds that a reasonable jury could conclude from these facts that Weinig should
have foreseen an employee using the line in the manner that caused Mitchell’s injury.
b. Mitchell has come forward with enough evidence of a design defect to defeat
summary judgment.
Weinig next contends that Mitchell has not presented evidence of a defect. Weinig asserts
that, because the fence was already more than 71 inches tall from the ground, making the fence
any taller would not have prevented injuries arising from any reasonably foreseeable uses of the
Weinig line. (Def.’s Mtn. Summ. J. at 23-24). Weinig argues that mere feasibility of making 2
safer product does not establish the existence of a defect. (/d.) (citing Bourne v. Marty Gilman,
Inc., 453 F.3d 632, 638 (7th Cir. 2006) (Indiana law); Queen v. Hunter’s Mfg. Co., Inc., No. 5:16-
CV-2262, 2018 WL 6840872, *10 (N.D. Ohio Dec. 31, 2018) (Kentucky law)).
According to Weinig, AWF installed a raised wooden platform next to the conveyor that
was “not part of Weinig’s design.” (/d. at 22). This platform “further reduced the distance to the

16

top of the safety fence by placing a wooden box on top of the platform to make it easier for the
operator to climb onto the conveyor, despite Weinig’s multiple warnings in the instruction manual
against climbing onto the conveyor.” (/d. at 22 note 3; see also Medlock Aff. at Ex. 1, at 5 (““AWF
modified the work area around the chain conveyor by building a platform for the operators to stand
on. This platform, at 27 inches high, reduced the height of the conveyor to 34 inches and made it
more accessible.”))
Mitchell responds that there are genuine disputes of fact regarding the risks and benefits of
the design utilized by Weinig. (Pls. Resp. to Def.’s Mtn. Summ. J. at 11-12). This Court agrees.
Mitchell cites to Weinig’s instruction manual as evidence that the wooden box was part of
Weinig’s design specifications. (id. at 11; Mitchell Dep. at Ex. 21, at Weinig 0670). Mitchell
maintains that a reasonable jury could find that there was a foreseeable danger of a potentially fatal
injury if the lift area remained exposed and unguarded because the fence was not tall enough above
the conveyor to prevent someone from stepping over the fence. (/d.). Mitchell’s expert opines:
e “The guard fence which Weinig installed over the chain conveyor and in front of
the vacuum destacker was a height which was easily defeatable by stepping over
or straddling, rendering it ineffective.”
e “If Weinig would have installed the 71 inch guard fence over the chain conveyor
in front of the vacuum destacker, they would have provided a more effective
safeguard and better protection for personnel.”
e “A safer alternative was feasible and available to Weinig. This alternative was
known to Weinig and used by them in other areas of the machine. The provision
of an available safer alternative would not have defeated the utility of the machine
and would not have imposed a significant cost penalty.”
(Kutchek Dep. at Ex 1, at 17).
Weinig maintains that the elevated platform (which reduces the distance from the floor to
the conveyor, making it easier for a user to climb onto the conveyor) was not part of Weinig’s
design. However, Mitchell is correct that Weinig’s instruction manual shows a drawing of a line
17

operator standing on an elevated surface in the exact same location that the disputed wooden box
was located when Mitchell’s injury occurred. (Mitchell Dep. at Ex. 21, at Weinig 0670). AWF’s
CEO Jim Graf testified that the wooden platform was built by AWF, but that “Weinig was the one
that requested it be built.” (Jim Graf Dep. 37).
Moreover, Weinig technicians were on site installing the line and working with AWF
employees during the entire timeline relevant to this case. Weinig’s technicians knew that line
users were utilizing the wooden platform when working at the conveyor. That Weinig’s
technicians would have seen the wooden platform used daily leading up to Mitchell’s injury
undercuts Weinig’s contention that the platform was not part of the Weinig line’s design.
Mitchell has also demonstrated a genuine dispute about the risks and benefits associated
with Weinig’s design of the line. See Ohio Rev. Code § 2307.75(A). Mitchell’s expert opines that
the guard fence failed to comply with industry standards because the fence “does not prevent
access to the hazard” and can be “easily defeated by stepping over or straddling.” (Kutchek Dep.
at Ex. 1, at 18). Further, Weinig’s warning posted on the outside of the guard fence indicated that
there is a “risk of fatal injury” for a user entering the area without switching off the power supply.
(Mitchell Dep. at Ex. 21, at Weinig 0623). The balancing of these disputed foreseeable risks and
benefits “is best done by a jury.” Butts, 612 F. App’x at 263.
Mitchell has also come forward with sufficient evidence of a safe alternative design. Chio
Rev. Code § 2307.75(F); Rees, 736 F. App’x at 129. Both parties offer competing expert reports
on this issue. Weinig characterizes Mitchell’s expert as only offering the opinion that a higher
fence would have been “more effective” or “better.” (Def.’s Mtn. Summ. J. at 23). The Court
disagrees. Mitchell’s expert has explained why the safety fence was inadequate and how it led to
Mitchell’s injury, and has offered an alternative design. (Kutchek Dep. at Ex. 1, at 17).

18

The perimeter fence surrounding the guard area was measured at 71 inches tall from the
floor. Uid.). Mitchell’s expert proposes the alternative design of a fence that is 71 inches above the
surface of the conveyor. (Id.). The fence on guarding the lift area at the time of Mitchell’s injury
only measured 27.75 inches above the surface of the conveyor. (/d.}
According to Mitchell’s expert, it was foreseeable that users would walk on top of the
conveyor. (/d.). It follows, then, that Weinig should have installed a fence that was 71 inches tall
from the surface of the conveyor, because the purpose of a guard fence is to keep people from
entering the area it surrounds. (/d.) A 27.75-inch-high fence was not tall enough to prevent line
users who were walking on top of the conveyor from entering the hazardous area—the area under
the vacuum lift. (/d.). But a fence measuring 71 inches from the conveyor’s surface would have
accomplished this purpose because a user would not have been able to step over or straddle a fence
of that height. fd.) Mitchell’s expert concludes that, because Weinig used fences that were 71
inches tall to keep employees (who were on the ground, not an elevated surface) out of hazardous
areas around the perimeter of the line, the 71-inch-high fence design was known to Weinig and
could have been used to prevent a user from entering the vacuum lift area from the conveyor. (/d.)
Mitchell’s expert also opines that the proposed alternative design would not have impaired
the utility of the machine and “would not have imposed a significant cost penalty.” Ud.). Regarding
the utility of using a taller safety fence, Kenny Holsinger and Andrew Graf stated that they were
aware of no reason why the fence could not have been made taller. (Holsinger Dep. 48; Andrew
Graf Dep. 73). Holsinger and Graf were both familiar with the Weinig line because they are two
of the three AWF employees Weinig trained.
Accordingly, there are genuine factual disputes about the “foreseeable uses” of the Weinig
line, the “foreseeable risks associated with” the line, and the “benefits associated with” the line.

19

Welch Sand & Gravel, Inc., 107 Ohio App. 3d at 225, Furthermore, Mitchell has come forward
with sufficient evidence of a safe alternative design to defeat summary judgment. See Ohio Rev.
Code § 2307.75(F). Because these elements are genuinely disputed, Weinig is not entitled to
summary judgment on Mitchell’s design defect claim.
2. Failure to Warn
Mitchell’s second OPLA claim is for failure to warn. The statute provides that a product is
“defective due to inadequate warning or instruction at the time of marketing if, when it left the
control of its manufacturer, both of the following applied:”
(a) The manufacturer knew or, in the exercise of reasonable care,
should have known about a risk that is associated with the product
and that allegedly caused harm for which the claimant seeks to
recover compensatory damages;
(b) The manufacturer failed to provide the warning or instruction that
a manufacturer exercising reasonable care would have provided
concerning that risk, in light of the likelihood that the product
would cause harm of the type for which the claimant seeks to
recover compensatory damages and in light of the likely
seriousness of that harm.
Ohio Rev. Code § 2307.76(A)(1).
“Courts have restated the above statutory language as requiring three elements each of
which must be satisfied: (1) a duty to warn against reasonably foreseeable risks; (2) breach of this
duty; and (3) an injury that is proximately caused by the breach.” Monroe v. Novartis Pharm.
Corp., 29 F. Supp. 3d 1115, 1125 (S.D. Ohio 2014) (quoting Graham v. Am. Cyanamid Co., 350
F.3d 496, 514 (6th Cir. 2003) (internal quotations omitted)).
Weinig argues that it is entitled to summary judgment because: (a) it had no duty to warn
Mitchell individually because it reasonably relied on AWF to warn; (b) the warnings it provided

20

were adequate; and (c) any alleged inadequacy of the warnings was not the proximate cause of
Mitchell’s injury. (Def.’s Mtn. Summ. J. at 24-33),
Mitchell counters that summary judgment is improper because there are genuine issues of
material fact underlying all three elements. The Court agrees.
a. There is a genuine dispute of fact regarding Weinig’s duty.
Weinig contends that it discharged its duty to warn Mitchell by “providing the instruction
manual and training to Mitchell’s supervisors at AWF and reasonably relying on AWF and its
supervisors to provide a copy of the instruction manual to Mitchell and adequately train him.” (Id.
at 32). Weinig makes two assertions on this point. First, that “it is undisputed Weinig provided
AWF with the Weinig line instruction manual that included multiple prominent warnings against
climbing onto the conveyor, over the safety fence, and under the lift.” (/d. at 25). Second, that “it
is also undisputed Weinig trained AWF’s supervisors that the only safe way to clear a dropped
board from under the lift was to go through the safety gate.” (/d. at 26).
Weinig cites Adams v. Union Carbide Corp. to support its reasonable reliance argument.
737 F.2d 1453 (6th Cir. 1984). In Adams, the Sixth Circuit affirmed the district court’s grant of
summary judgment to a manufacturer on a negligent failure to warn claim under Ohio law, Jd. at
1458. The plaintiff was an employee at General Motors. /d. at 1454. The plaintiff sued the
manufacturer of TDI, a chemical used in the automobile assembling process, after she developed
arespiratory condition known as “TDI asthma” from her exposure to the chemical. Jd. She claimed
that the manufacturer of TDI negligently failed to warn General Motors and its employees of the
harmful effects of TDI. Jd. The manufacturer argued that the warnings it provided to General
Motors discharged its duty of care to warn individual employees of General Motors who were

21

likely to come into contact with the chemical. /d. at 1455. The district court agreed, granting
summary judgment in favor of the manufacturer. Id.
In affirming, the Sixth Circuit relied on comment n to Restatement 2d of Torts § 388: “the
restatement advises that the manufacturer’s duty to warn may be discharged by providing
information of the dangerous propensities of the product to a third person (GMC in the instant
case) upon whom it can reasonably rely to communicate the information to the ultimate users of
the product or those who will be exposed to its hazardous effects.” Jd. at 1456. The Court explained
that, in that case, it was undisputed that the manufacturer had repeatedly updated General Motors
about TDI and had relayed “comprehensive information concerning the use of TDI ... for the
express purpose of dissemination to GMC’s employees.” Jd. at 1457. Thus, it was reasonable for
the manufacturer to rely on General Motors, who had a duty to provide a safe working
environment, to convey the information about the hazards of TDI to the employees who
encountered it. Jd.
Weinig’s actions are distinguishable from the manufacturer in Adams. In that case, it was
undisputed that the manufacturer provided “comprehensive information” to the employer about
the use of its hazardous product. /d. In this case, whether Weinig provided the instruction manual
to AWF at all is very much in dispute. Mitchell points out that the “evidence strongly indicates”
that Weinig never provided its instruction manual to AWF. (Pls. Resp. to Def.’s Mtn. Summ. J. at
12; Mitchell Dep. 132; Gilbert Dep 69-70; Jim Graf Dep. 29-31; Andrew Graf Dep. 28-30;
Holsinger Dep. 44; Branagan Dep. 41). And, in “the absence of that Instruction Manual and any
other documentation, a reasonable jury could easily conclude that the Defendant” failed to provide
a warning as required by the statute. (id. at 12-13). Mitchell testified that, had he seen the

22

instruction manual, it would have been a “game changer” and he would not have done what he
did. (Mitchell Dep. 136).
The facts as presented by Weinig are supported by two affidavits from two of its German
employees that are offered as proof that it delivered the instruction manual to AWF. Bernd
Schaffer, a Weinig technician who was present at AWF overseeing installation of the line and
training of AWF stated: “the Weinig mechanization employees were responsible for training the
AWF employees on the infeed system. The company has a copy of the operating manual. The
company has an operating manual book at the machine and an extra copy. They also have a CD.”
(Second Schaffer Aff. [P 2). Weinig Employee Eldetraud Fraske testified in his affidavit that in
“September 2015, the Instruction Manual was shipped via DHL from Weinig AG to AWF in
Portsmouth, Ohio” and that Weinig received a signed receipt from AWF on “September 21, 2015,
over one month before” Mitchell’s accident. (Fraske Aff. P 4).
In contrast to the Weinig employees’ affidavits, every AWF employee deposed in this case
who was asked about the instruction manual testified that they never saw the manual prior to
Mitchell’s accident. (Mitchell Dep. 132; Gilbert Dep 69-70; Jim Graf Dep. 29-31; Andrew Graf
Dep. 28-30; Branagan Dep. 41). The receipt that Weinig puts forth as conclusive proof that it
delivered the manual contains AWF CEO Jim Graf's signature, and states: “We confirm that the
documentation for the new mechanical handling system infeed and outfeed with order no. 120.283
& 120.284 was handed over us [sic] by the Weinig technician.” (Jim Graf Dep. at Ex. 43).
However, Graf testified at his deposition that he “absolutely did not” receive the manual and that
he “was never handed any kind of manual.” (/d.).
Thus, the evidence before the Court presents disagreement that requires submission to a
jury to determine whether Weinig ever provided the instruction manual to AWF. The manual

23

contains detailed instructions about operating the line and includes a written description of the
warning sign posted on the safety fence next to the conveyor. (Mitchell Dep. at Ex. 21). The Court
also finds that there are genuine disputes regarding the training Weinig provided. It is undisputed
that Weinig never trained Mitchell on the Weinig line. AWF had only just begun installation of
the new line a few weeks prior to Mitchell’s injury, and AWF had not accepted the machine as
fully installed before Mitchell’s injury. Weinig technicians did show some AWF employees how
to properly access the safety gate to safely enter the vacuum lift area. (Schaffer Aff. P 5; Gilbert
Dep. 41; Holsinger Dep. 24). But, per Weinig’s records, the employees Weinig did train did not
complete their training until November 13, 2015—nearly a month after Mitchell’s injury. (Gilbert
Dep. 98). Those employees also testified that Weinig never trained them adequately. (Gilbert Dep.
97, 116; Andrew Graf Dep. 83; Holsinger Dep. 44). And, as discussed at length above, none of
those employees was ever shown the instruction manual.
Furthermore, Michell raises a genuine dispute about whether it was Weinig or AWF’s
responsibility to warn him about the line’s hazards. The purchase order agreement between Weinig
and AWF states that “training” is included with the delivery and installation of Weinig’s line.
(Andrew Graf Dep. at Ex. 34, at Weinig 0061). Weinig claims that it only agreed to train three
AWF employees. (Def.’s Resp. to Pls. Request for Admis. 2). But the written agreement contains
no language limiting Weinig’s obligation to three employees: AWF CEO Jim Graf testified that it
was his understanding that Weinig would be responsible for training AWF on Weinig’s line. (Jim
Graf Dep. 57).
AWF President Andrew Graf testified that AWF and Weinig never agreed that Weinig
would limit its training obligation to only a certain number of employees. (Andrew Graf Dep. 69-
70, 75). When asked, “Did you have any concerns about whether Mr. Mitchell had received

24

adequate training to be assigned to that area?” Graf responded, “No, because the [Weinig]
technicians were all right there with us as we were doing it.” (/d. at 33). Viewing the facts in the
light most favorable to Mitchell, Weinig has not shown it discharged its duty to warn Mitchell by
reasonably relying on AWF, because Weinig led AWF to believe that Weinig would warn
employees directly.
In sum, a host of factual disputes preclude this Court from granting summary judgment on
the basis that Weinig discharged its duty to warn Mitchell through reasonable reliance on AWF.
b. There is a genuine dispute of fact regarding whether the warnings provided were
adequate.
Weinig next posits that it did not breach its duty to warn because the warnings it provided
were adequate. Specifically, it argues that the warning label provided on the fence surrounding the
vacuum lift was sufficient to warn a user of the risk of entering the area. It further argues that any
additional on-product warning labels would make it more likely users would “ignore all the
warnings clutter, thereby increasing any dangers attendant to using the product.” (Def.’s Mtn.
Summ. J. at 27).
Mitchell responds that the on-product warning was not adequate. (Pls. Resp. to Def.’s Mtn.
Summ. J. at 13). Plaintiff argues that, because he was not provided with “access to the Instruction
Manual, Mr. Mitchell was left with only a single ambiguous pictograph to provide warning.
Unfortunately, the pictograph did not provide sufficient information.” (/d.). Both parties rely on
experts to opine on the adequacy of the warnings given by Weinig. Mitchell presents the opinion
of Dr. Nancy Grugle, a Human Factors expert,’ who concludes: “The pictograph fails to provide
adequate information to someone who has not, for example, been trained or read the user manual

1 Weinig has filed a motion to exclude Dr. Grugle’s expert opinion as irrelevant. For the reasons
discussed in Section IV of this opinion, the Court denies Weinig’s motion.
25

because it is not explicit and the hazard is not clearly identified, the consequences of encountering
the hazard are not clearly identified, and instructions for avoiding the hazard are not clear, specific,
or detailed.” (Grugle Dep. 72).
“Under Ohio law, a warning is adequate if it reasonably discloses all inherent risks, and if
the product is safe when used as directed.” Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d 445,
452 (6th Cir. 2000) (citing Crislip v. TCH Liquidating Co., 52 Ohio St. 3d 251 (1990)). “The fact
finder may find a warning to be unreasonable, hence inadequate, in its factual content, its
expression of the facts, or the method or form in which it is conveyed.” Seley v. G. D. Searle &
Co., 67 Ohio St. 2d 192, 198 (1981).
Weinig cites to Hatcher v. SCM Grp. N. Am., Inc. to support its argument that the warning
was adequate and that any additional on-product label would have diluted the effect of its warning.
167 F. Supp. 3d 719 (E.D. Pa. 2016), The plaintiff in Hatcher sued the manufacturer of a
woodworking machine for failure to warn under Pennsylvania law. Jd. at 722. The plaintiff was
injured after using the machine at work without the blade guard. Jd, The front of the machine
contained a warning which stated: “DON’T RUN THE MACHINE WITHOUT NECESSARY
SAFETY GUARDS.” Jd. Furthermore, the accompanying operating manual explained “in detail
how to use and assemble each of the safety guards” and warned, “Before starting machine, make
sure all guards are in place.” /d. The undisputed facts established that the plaintiff “never read the
existing warnings on the machine or the manual, even though he knew the manual was available
at the plant.” Id. at 727 (emphasis added). The plaintiff also admitted “that if he had read the
manual, he would have known how to use the blade guard.” Jd.
The court reasoned that additional on-product warnings would “diminish the likelihood of
an operator reading the manual so as to become aware of all the safety requirements.” /d. (citation

26

omitted) (emphasis added). The court granted summary judgment for the manufacturer, holding
that the danger of the spinning blade was obvious; and “the warnings provided on the machine and
in the accompanying manual were adequate to alert the operator of any unobvious dangers|.]” Id.
at 727-28 (emphasis added).
The facts here differ materially. In Hatcher, the product was accompanied with a
conspicuous written warning. Id. at 722. Here, the on-product warning label was a pictograph with
no accompanying words. (Mitchell Dep. at Ex. 13). More importantly, there is a genuine dispute
about whether Weinig ever provided AWF with the line’s instruction manual. The court in Hatcher
relied heavily on the fact that the plaintiff had access to the instruction manual and admitted that,
had he read the manual, he would have known how to use the blade guard. Jd. at 727-28. Mitchell
similarly testified that, had he read the manual, it would have been a “game changer” and he would
not have done what he did. (Mitchell Dep. 136). But its unclear whether Mitchell ever had access
to that manual.
Moreover, a reasonable jury could find that the pictograph on the fence, by itself, was
inadequate in “its factual content, its expression of the facts, or the method or form in which it is
conveyed.” Seley, 67 Ohio St, 2d at 198 . Mitchell, at this deposition, interpreted the pictograph to
mean, “Stop.” (Mitchell Dep. 108). But the meaning of the pictograph as described in the
instruction manual reads: “No access. Risk of fatal injury. Before entering this area switch off the
power supply and secure it against being switched on again inadvertently.” (Mitchel Dep. at Ex.
21, at Weinig 0623), And, while it was obvious to Mitchell not to go under the lift while it was in
operation, (/d. at 106), Mitchell mistakenly believed that he triggered the emergency stop because
he did not receive training on how to operate the machine, nor did he receive the instruction manual
which explained how to safely operate the machine. (/d. at 157, 160). Mitchell also presents expert

27

testimony on this point. Thus, a jury could find that the pictograph alone did not adequately warn
Mitchell of the danger of entering the vacuum lift area.
c. There are genuine disputes regarding whether Weinig’s alleged failure to warn
proximately caused Mitchell’s injury.
Weinig makes several arguments supporting its position that Mitchell has failed to raise
any genuine issue related to proximate cause. First, that Mitchell’s unforeseeable use of the line
was the sole proximate cause of his injuries. Second, AWF’s failure to train Mitchell was an
intervening cause. (Def. Mtn. Summ. J. at 13-14). The Court has already addressed these two
arguments supra and concluded that there are genuine disputes regarding the foreseeability of
Mitchell’s use of the Weinig line and whether it was Weinig or AWF’s responsibility to train
Mitchell how to use the line.
Weinig next argues that because Mitchell “did not read the instruction manual and does
not recall seeing the warning label on the vacuum lift’s safety gate” he would not have been aware
of any additional or more specific warnings Weinig could have provided. (Jd. at 33). Lastly,
Weinig asserts that Mitchell has not provided any evidence establishing that the alleged failure to
warn caused his injury. (/d. at 34).
Proximate cause is ordinarily a question for the jury. Vermett v. Fred Christen & Sons Co.,
138 Ohio App. 3d 586, 612 (2000). But a defendant will be entitled to summary judgment when it
is undisputed that the plaintiff would not have read any additional warning had one been provided.
See id; see also Wade v. Diamant Boart, Inc., 179 F. App’x 352, 355 (6th Cir. 2006) (holding that,
since the plaintiff did not read the operator’s manual, he would not have been aware of any
additional or more specific warnings).
Mitchell has come forward with enough evidence of proximate cause to put the issue to a
jury. Weinig’s argument that proximate cause is lacking because Mitchell “did not read the

28

instruction manual” fails because whether Weinig ever provided Mitchell and AWF access to the
manual is in dispute. Furthermore, Mitchell stated in his deposition that he was standing “maybe
five feet” from the warning sign on the fence. (Mitchell Dep. 107). When asked, “did you see that
[sign] either of those two days?” Mitchell responded, “I’m sure I did, but I just don’t recollect it.”
(/d.) (emphasis added). A reasonable jury could conclude that, because Mitchell was five feet away
from the sign and stated that he was “sure [he] did” see the sign, that Mitchell did in fact see the
sign—even if he did not recall seeing it at the time of his deposition. Thus, Weinig is not entitled
to summary judgment on grounds that Mitchell would not have read any additional or more
specific warnings had Weinig provided those warmings because the facts underlying that
contention are in dispute.
3. Manufacturing Defect
Mitchell’s last OPLA claim is for manufacturing defect. Under OPLA, “[a] product is
defective in manufacture or construction if, when it left the control of its manufacturer, it deviated
in a material way from the design specifications, formula, or performance standards of the
manufacturer[.]” Jd. § 2307.74. “The plaintiff has the burden of proving the existence of a defect”
to prevail on a manufacturing defect claim. Miller v. ALZA Corp., 759 F. Supp. 2d 929, 941 (S.D.
Ohio 2010). The plaintiff must also prove that the defect “was present when it the product left the
hands of the manufacturer and proximately caused the claimed injuries.” Jd. (citing State Farm
Fire & Casualty Co. v. Chrysler Corp., 37 Ohio St.3d 1, 6-7 (1988) (abrogated on other grounds
by statute)).
A plaintiff may prove the existence of a defect through circumstantial evidence. Jd.
“However, such circumstantial evidence must permit a jury to go beyond speculation and render a
judgment in accordance with law.” /d. (cleaned up). A defendant is entitled to summary judgment

29

if the plaintiff fails to provide evidence from which a reasonable jury could conclude that the
product at issue was defective upon leaving control of the manufacturer. Smitley v. Nissan N. Am.,
Ine., No. 2:09-CV-148, 2010 WL 3027915, at *4 (S.D. Ohio Aug. 2, 2010).
Mitchell has failed to provide evidence from which a jury could find the existence of a
manufacturing defect. In the Complaint, Mitchell cites as the basis for his manufacturing defect
claim that “despite the fact that Mitchell activated the emergency stop prior to clearing the lumber,
the machine suddenly and unexpectedly activated and crushed Mitchell.” (Compl. | 32). However,
discovery has revealed Mitchell failed to activate the emergency stop. Mitchell instead pressed a
button that he believed to be the emergency stop. Rather than the emergency stop, Mitchell pressed
a different red button on the same control panel that only stopped the conveyor instead of cutting
off power to the entire line (which the emergency stop button would have done). Thus, even if the
emergency stop button was defectively manufactured, it would not have been the proximate cause
of Mitchell’s injury.
Mitchell has failed to come forward with a different basis for his manufacturing defect
claim. And Mitchell appears to concede that Weinig’s position is accurate in that he does not
address his manufacturing defect claim in his Response to Weinig’s Motion for Summary
Judgment. Therefore, Weinig is entitled to summary judgment on Mitchell’s manufacturing defect
claim.
Accordingly, on Mitchell’s OPLA claims, this Court GRANTS summary judgment for
Defendant on the manufacturing defect claim and DENIES summary judgment on the design
defect and failure to warn claims.

30

B. Negligence
Mitchell asserts two negligence claims; Weinig moves for summary judgment on both.
Mitchell claims: (1) Weinig negligently failed to train Mitchell; and (2) Weinig negligently
installed the line at AWF. (Compl. PP 20-31).
1. Negligent Training
For Mitchell’s negligent training claim, Weinig argues that it owed no duty to train Mitchell
under Ohio law because it lacked an employer-employee relationship with Mitchell. (/d.) Weinig
also argues—as in arguments on Mitchell’s failure to warn claim—it owed no duty to train
Mitchell. Weinig maintains that it only assumed a duty to train some AWF employees, and that
AWF had the sole responsibility to train its other employees. (Def.’s Reply in Sup. Mtn. Summ. J.
at 7-8).
Under Ohio law, negligent training is a tort that allows a third party to recover against an
employer when an employee commits a tort against the third party as a result of the employer’s
negligent failure to train. Strock v. Pressnell, 38 Ohio St. 3d 207, 217 (1988). That type of negligent
training claim requires an employer-employee relationship. /d. It also requires that the employee
be individually liable against the plaintiff for an act committed within the scope of the employee’s
employment. Jd,
While Mitchell labeled his negligence claim “Negligent Training” in the Complaint,
Mitchell has clarified throughout this case that he is alleging that Weinig was negligent under the
elements of ordinary negligence. (See Compl. At [IP 20-25). Specifically, Mitchell claims that
Weinig assumed a duty to train Mitchell directly. (Pls. Resp. to Def.’s Mtn. Summ. J. at 16).
The elements of a negligence claim are the existence of a duty, a breach of that duty, and
an injury proximately resulting from the breach. Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.

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3d 75, 77 (1984). To survive a defendant’s motion for summary judgment on a negligence claim,
“a plaintiff must identify a duty owed to him by the defendant.” Adelman v. Timman, 117 Ohio
App. 3d 544, 549 (1997).
“The existence of a legal duty is a question for the court, unless alternate inferences are
feasible based on the facts.” Grover v. Eli Lilly & Co., 63 Ohio St. 3d 756, 762 (1992). Once a
duty of care is established, it is for the fact finder to determine if the defendant breached its duty.
Commerce & Indus. Ins, Co. v. Toledo, 45 Ohio St. 3d 96, 98 (1989). “The existence of duty
largely depends on the foreseeability of injury. The test for foreseeability is whether a reasonably
prudent person, under the same or similar circumstances as the defendant, should have anticipated
that injury to the plaintiff or to those in like situations is the probable result of the performance or
nonperformance of an act.” /d. (internal citations omitted).
If the facts are in dispute on the issue of foreseeability, summary judgment is improper.
See, e.g.,In re E. I. Du Pont De Nemours & Co. C-8 Pers. Injury Litig., No. 2:13-MD-2433, 2015
WL 4943966, at *4 (S.D. Ohio Aug. 19, 2015) (denying summary judgment on Ohio and West
Virginia negligence claims because the facts regarding the foreseeability of harm were genuinely
disputed) (citing, inter alia, Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984);
Grover v. Eli Lilly & Co., 63 Ohio St. 3d 756, 762 (1992); Commerce & Indus. Ins, Co. v. Toledo,
45 Ohio St.3d 96, 98 (1989)).
The parties’ arguments about duty pull the Court into a mixed realm of tort and contract.
Mitchell argues that Weinig assumed a duty to train Mitchell because it agreed to train AWF
employees in purchase order contract. (Pls. Resp. to Def.’s Mtn. Summ J. at 16). Further, Mitchell
argues that, because Weinig admits it had a duty to train at least some AWF employees, its failure
to adequately train those employees resulted in a foreseeable risk of harm to Mitchell. In support,

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Mitchell cites to a case from this district applying Restatement 2d of Torts § 324A, which generally
holds that, where one party undertakes to render services to another involving the protection of a
third person, the party can be liable to the third person if those services are negligently performed.
Clark v. W & M Kraft, Inc., No. 1:05-CV-00725, 2007 WL 120136, at *7 (S.D. Ohio Jan. 10,
2007).

The Ohio Supreme Court has not expressly adopted § 324A. Hill v. Sonitrol of Sw. Ohio,
Inc., 36 Ohio St. 3d 36, 42 (1988). In Hilli—the only Ohio Supreme Court case to consider §
324A—the court held that it need not adopt § 324A(C) because it did not apply anyway. Jd, The
plaintiff failed to set forth any evidence that her employer relied on the defendant to protect its
employees; thus, there was no evidence that the defendant should have foreseen its services as
necessary to protect the plaintiff. Jd. However, several Ohio courts have adopted § 324A, which
guides this Court’s analysis. See Root v. Stahl Scott Fetzer Co., 2017-Ohio-8398, 4 35; Stevens v.
Jeffrey Allen Corp., 131 Ohio App. 3d 298, 305 (1997).
Further, the Ohio Supreme Court has held that a party can be liable for the negligent
performance of a contractually assumed duty if it was foreseeable that the failure to exercise
reasonable care in performance of that duty would injure a third person. Durham v. Warner
Elevator Mfg. Co., 166 Ohio St. 31, 37 (1956). In this instance, liability is not “dependent upon
any contractual relation between the person injured and the contractor but on the failure of the
contractor to exercise due care in the performance of his obligation.” Jd.
With these cases and Mitchell’s arguments in mind, there are two ways Weinig could have
“have anticipated that injury to the plaintiff or to those in like situations [was] the probable result
of the performance or nonperformance” of Weinig’s training and thus owed Mitchell a duty of
care, Commerce & Indus. Ins., Co., 45 Ohio St. 3d at 98 : First, Weinig could have assumed a duty

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of to train Mitchell directly through the purchase order contract; second, Weinig could have
foreseen that failing to adequately train the AWF employees it admits it had a duty to train would
result in injury to other AWF employees like Mitchell. The Court concludes that there are genuine
disputes of fact on both points.
The purchase order contract is ambiguous regarding the extent of Weinig’s duty to □□□□□□□
Page two of the contract states in handwriting that “training” is included with the purchase of the
line with no other references to the scope of that training. (Andrew Graf Dep. at Ex. 34, at Weinig
0061). Weinig points to another provision, contained in the terms and conditions of sale, which
reads:
“Purchaser acknowledges and agrees that . . . [the line] can cause
serious injuries or death if all safety precautions are not taken or if
the [line is] used improperly or [is] accessible to unqualified,
untrained, unsupervised, inexperienced or careless personnel;
that only fully and properly trained and alert personnel will be
allowed to work with or near [the line]; that all personnel shall be
constantly alert to possible safety hazards on or around [the line];
that all warnings, safety instructions and recommendations, and
maintenance and operating instructions shall be thoroughly
reviewed and followed by every employee working with [the
line] before and after [the line is] put into operation; that all
machinery shall be turned off at the first sign of any potential
problem and all moving parts shail be allowed to come to a complete
stop before any maintenance, cleaning, clearing, service or
adjustment is attempted... .”
(Def.’s Third-Party Compl. at Ex. 1, at 3, P 8) (emphasis added).
Weinig contends that the language in this paragraph means that AWF expressly assumed
sole responsibility to train Mitchell and to ensure that no untrained personnel would operate the

? The terms and conditions contain a North Carolina choice of law provision, but that provision is limited
to claims “between Seller and Purchaser.” (Def.’s Third Party Compl. at Ex 1, at 3, P10). Regardless, the
Court need not engage in a choice of analysis for purposes of this motion because the law of Ohio and
North Carolina agree that, when a contract is ambiguous, interpretation is a question of fact and resort to
extrinsic evidence is necessary. See Crider v. Jones Island Club, Inc., 147 N.C. App. 262, 267 (2001);
Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 220 (2003).
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Weinig line. While Weinig admits that it owed AWF a contractual duty to train some employees,
it argues that its duty was limited to Andrew Graf, Chris Gilbert, and Kenny Holsinger. (Def.’s
Resp. to Pls. Request for Admis. 2). However, this provision says nothing about the scope of
Weinig’s duty to provide “training” to AWF employees during installation of the Weinig line. The
contract itself does not contain such a limitation. AWF President Andrew Graf, who negotiated
the purchase order contract on behalf of AWF, testified that AWF and Weinig never agreed that
Weinig would limit its training obligation to only a certain number of employees. (Andrew Graf
Dep. 69-70, 75). AWF CEO Jim Graf testified that Weinig was responsible for training all AWF
employees who would operate Weinig’s line. (Jim Graf Dep. 57). Thus, there is a genuine dispute
of fact regarding the scope of Weinig’s contractual duty to train AWF employees. And, Weinig
has admitted that it never provided any training to Mitchell.
There is also a genuine dispute about whether Weinig could have foreseen that failing to
adequately train the AWF employees it did train would result in injury to Mitchell. Weinig admits
it had a duty to train some AWF employees. Mitchell has come forward with evidence that:
e Weinig was “supposed to send people [to A WF] to help run the line, and they didn’t
have enough people to do it,” so AWF had to bring people onto the line to help “test
run the line.” (Gilbert Dep. 26-27);
e Weinig was on site and had knowledge that Mitchell was working the line even
though he received no formal or informal training on how to safely operate the line;
e Another AWF employee who was pulled into working the line was not given
adequate safety training. (Branagan Dep. 39);
e The three AWF employees Weinig claims it had a duty to train all testified that they
did not feel they received adequate training. (Gilbert Dep. 96, 116; Holsinger Dep.
44; Andrew Graf Dep. 83);
e Weinig never provided the line’s instruction manual to anyone at AWF. (Mitchell
Dep. 132; Gilbert Dep 69-70; Jim Graf Dep. 29-31; Andrew Graf Dep. 28-30;
Branagan Dep. 41);

35

Mitchell also presents expert testimony about the quality of the training AWF employees
received from Weinig, and how the quality of that training affected those employees’ ability to
convey necessary information to Mitchell. (Schaible Dep. 64). Under these facts, a reasonable jury
could determine that it was foreseeable to Weinig that negligently performing its contractual duty
to train some AWF employees would result in harm to other employees working the line.
Thus, Weinig is not entitled to summary judgment on Mitchell’s negligence claim.
2. Negligent Installation
Weinig also moves for summary judgment on Mitchell’s claim that Weinig was negligent
in its installation of the Weinig line. Mitchell pleaded in the Complaint that Weinig failed to install
the line “in a safe, professional and workmanlike manner” and that Weinig’s “employee damaged
the control panel components of the machine prior to Mitchell’s accident.” (Compl. § 27). Weinig
has identified several facts in the record to refute this claim. (Def.’s Mtn. Summ J. at 37-38).
Mitchell was asked during his deposition, “the allegation that whatever he did when he hit the
panel that that caused the panel to malfunction, that’s total speculation; right?” Mitchell responded,
“It is. But I’m just wondering why he was sitting there punching on it to start off with.” (Mitchell
Dep. 150-51). Mitchell has not pointed any evidence in the record to support this speculation.
Accordingly, Mitchell has not demonstrated a genuine issue of material fact on the negligent
installation claim and Weinig is entitled to summary judgment.
3. Comparative Fault Bar
Weinig contends it is entitled to summary judgment on Mitchell’s negligence claims
because Mitchell’s comparative fault bars recovery. (Def.’s Mtn. Summ. J. at 35). Under Ohio
law, a plaintiff cannot recover damages for negligence if his comparative fault exceeds the
combined tortious conduct of all other parties. Ohio Rev. Code § 2315.33.

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Comparative fault is for the jury to resolve “unless the evidence is so compelling that
reasonable minds can reach but one conclusion.” Simmers v. Bentley Constr. Co., 64 Ohio St. 3d
642, 646 (1992). For the reasons discussed above, reasonable minds can reach different
conclusions about the fault of the parties in this case. Thus, the determination of comparative fault
in this case is a question for the jury.
Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment on
Plaintiff's negligence claim and GRANTS Defendant’s Motion on Plaintiff's claim for negligent
installation.
C. Punitive Damages Claim
Weinig also moves for summary judgment Mitchell’s claim for punitive damages. Weinig
correctly points out that a “punitive damages claim is a derivative action that must be dismissed
where the primary claim is subject to summary judgment.” Stolz v. J & B Steel Erectors, Inc., 76
F, Supp. 3d 696, 703 (S.D. Ohio 2014), Here, Mitchell has negligence and OPLA claims that have
survived summary judgment. Therefore, Weinig’s motion for summary judgment on Mitchell’s
claim for punitive damages is DENIED.
Iv.
The Court next takes up Defendant’s Motion to Exclude Report and Testimony of
Plaintiff's Expert Nancy Grugle. (ECF No. 78).
Dr. Nancy Grugle earned her B.S. in Indusial and Systems Engineering from Ohio
university, and her M.S. and Ph.D in Human Factors; Industrial Engineering from Virginia
Polytech Institute and State University. She is a licensed Certified Human Factors Professional
(“CHFP”) Dr. Grugle is licensed by the Board of Certification in Professional Ergonomics. Dr.
Grugle has worked on similar cases involving issues of energy control and training related to

37

workplace safety, and controlling those exposures. She has also written numerous peer reviewed
publications, made several presentations, and participated on panels in the human factors area.
(Grugle Dep. at Ex. 5). Dr. Grugle offers opinions about the adequacy of the warnings Weinig
provided to Mitchell for purposes of Mitchells failure to warn claim under the OPLA.
Weinig also presents expert reports and testimony about the adequacy of Weinig’s
warnings. Weinig’s expert, Gerald Futej, opines in his report that it is “reasonable to conclude that
Weinig provided an internationally accepted warning that indicated not to enter the Vacuum
Destacker area . . . Weinig did not deprive the operator of the Infeed Section of sufficient warning
of the potential danger. However, AWF failed to properly train the employees as to how to respond
to the warning signs provided by Weinig.” (Futej. Aff. at Ex. 1, at 33-34). Weinig’s expert, Rob
Medlock, states in his report: “Pictograph warning signs were designed with the appropriate color
scheme and were clear in the message they wished to convey which is that the machine has the
potential to be dangerous if not accessed properly.” (Medlock Aff. at Ex. 1, at 8).
A. Standard
Rule 702 of the Federal Rules of Evidence governs the use of expert testimony, providing:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts of
the case.
Fed. R. Evid. 702.
This rule, as amended in 2000, reflects the Supreme Court’s decisions in Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Fed. R. Evid. 702 advisory committee’s notes, 2000 amend. (“In Daubert the Court charged trial

38

judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony, and
the Court in Kumho clarified that this gatekeeper function applies to all expert testimony, not just
testimony based in science.”).
This Court has broad discretion to determine whether to admit or exclude expert testimony.
In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th Cir. 2008). The burden is on the party
proffering the expert report and testimony to demonstrate by a preponderance of proof that the
opinions of their experts are admissible. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th
Cir. 2001).

Determining the admissibility of expert testimony entails a flexible inquiry and any doubts
should be resolved in favor of admissibility. Daubert, 509 U.S. at 594; Fed. R. Evid. 702 advisory
comimittee’s notes, (“[A] review of the case law. . . shows that rejection of the expert testimony is
the exception rather than the rule.”); Jahn v, Equine Services, PSC, 233 F.3d 382, 388 (6th Cir.
2000) (stating that in Daubert “[t]he Court explained that Rule 702 displays a liberal thrust with
the general approach of relaxing the traditional barriers to opinion testimony” (internal quotations
omitted)). Additionally, if the evidence is deemed admissible by a court, but it is ultimately found
“¢nsufficient to allow a reasonable juror to conclude that the position more likely than not is true,
the court remains free to direct a judgment.” Daubert, 509 U.S. at 596; see also Fed. R. Civ. P. 50.
As to Rule 702, the Sixth Circuit explains:
Parsing the language of the Rule, it is evident that a proposed expert’s
opinion is admissible, at the discretion of the trial court, ifthe opinion satisfies three
requirements, First, the witness must be qualified by “knowledge, skill, experience,
training, or education.” Fed. R. Evid. 702. Second, the testimony must be relevant,
meaning that it “will assist the trier of fact to understand the evidence or to
determine a fact in issue.” Jd. Third, the testimony must be reliable. Jd. Rule 702
guides the trial court by providing general standards to assess reliability: whether
the testimony is based upon “sufficient facts or data,” whether the testimony is the

39

“product of reliable principles and methods,” and whether the expert “has applied
the principles and methods reliably to the facts of the case.” Jd.
In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008) (emphasis added).
B. Analysis
In the case sub judice, Weinig challenges admissibility only on relevance, the second noted
inquiry. See id. Under Rule 702 and Daubert, an expert opinion is not admissible uniess it is
relevant to the facts at issue in the case. Daubert, 509 U.S. at 590-90; Price v. BIC Corp., 218
F.3d 566, 578 (6th Cir. 2000) (applying Daubert’s relevance inquiry; the testimony is not relevant
if there is no “connection between the [opinion] being offered and [any] disputed factual issues”
that are before a court).
Weinig argues that Dr. Grugle’s opinions about the adequacy of the warnings are irrelevant
because: (1) Mitchell and his coworkers saw the pictograph label and understood the warning it
conveyed”; (2) the instruction manual instructed users the safe way to enter the lift area is through
the safety gate; and (3) a more explicit warning would not have deterred Mitchell from climbing
over the safety fence, so Dr. Grugle’s opinions are irrelevant because a more explicit warning label
would not have deterred Mitchell from climbing the fence. (Def.’s Mtn. Exclude at 7). The Court
disagrees with Weinig’s contentions. As discussed at length above in the analysis of Mitchell’s
OPLA failure to warn claim, there are genuine disputes of fact regarding all three of Weinig’s
arguments for excluding Dr. Grugle’s testimony.
First, Dr. Grugle’s opinions bear directly on the issue of whether Weinig provided adequate
wamings. She acknowledged in her deposition that the warnings provided in the instruction
manual were adequate (Grugle Dep. 71), but there is a genuine factual dispute as to whether Weinig
ever provided A WF with the instruction manual. On this point, Dr. Grugle explains: “My opinions
are... limited to, for example, the fact that Weinig failed to provide the instruction manual to

40

Mitchell in accordance with their own policies. And then, [my opinions] specifically related to the
warning that was placed on the fence—that pictograph on the fence.” (Id. at 72).
Dr. Grugle’s offers the opinion that the pictograph “fails to provide adequate information
to someone who has not . . . been trained or read the user manual because it is not explicit and the
hazard is not clearly identified, the consequences of encountering the hazard are not clearly
identified, and instructions for avoiding the hazard are not clear, specific, or detailed.” (/d.). Dr.
Grugle’s opinion about the pictograph is especially relevant because the jury “may find a warning
to be unreasonable, hence inadequate, in its factual content, its expression of the facts, or the
method or form in which it is conveyed.” Seley, 67 Ohio St. 2d at 198.
Furthermore, both expert reports Weinig put forth in its motion for summary judgment
offer opinions about the adequacy of the pictograph on the fence. (Futej. Aff. at Ex. 1, at 33-34;
Medlock Aff. at Ex. 1, at 8). Thus, Weinig undercuts its own contention that Dr. Grugle’s opinions
are irrelevant because it also offers expert reports on the same disputed topic. Because Dr. Grugle’s
opinions are relevant, the Court DENIES Defendant’s motion to exclude her testimony.
V.

The last matter before this Court is Plaintiff's motion for a trial to be scheduled in this
action. (ECF No. 87.) Defendant opposed, arguing that if summary judgment is granted there will
be no need for trial. (ECF No. 88.) Shortly after Plaintiff's motion was filed, Judge George C.
Smith recused himself from this case and the undersigned was randomly assigned to it. (ECF No.
89.} This Court in its normal course schedules trials in cases that survive summary judgment and
will do so in this case regardless of whether a party so moves. Accordingly, while it is unnecessary
to move the Court for a trial schedule, the Court GRANTS Plaintiff's request and will issue its
trial schedule forthwith.

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VI.
For the reasons stated above:
(1) Defendant’s Motion for Summary Judgment is GRANTED in part and DENIED in
part. (ECF No. 76). Specifically, with regard to Plaintiff's OPLA claims, the Court GRANTS
summary judgment for Defendant on the manufacturing defect claim and DENIES summary
judgment on the design defect and failure to warn claims. The Court DENIES summary judgment
on Plaintiff's negligence and punitive damages claims and GRANTS summary judgment on
Plaintiff's claim for negligent installation.
(2) Defendant’s Motion to Exclude is DENIED. (ECF No. 78).
(3) Plaintiff's Motion to Schedule Jury Trial is GRANTED. (ECF No. 87).
IT IS SO ORDERED.

J- A$- XOX sm 2
DATE EDMUND. SARGUS, JR.
UNIT TES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376708. Public record. Not legal advice.