Petition for Writ of Certiorari — Ferguson v. F. R. Winkler GMBH & Co. KG

‘ FILED

“OG 28H AUG 20 199%

Nor es fo TE CLERK

In The

Supreme Court of the United States

+

October Term, 1995

BENNIE FERGUSON, ef ai.,

Petitioners,

VS.

F.R. WINKLER GMBH & CO. KG,

Respondent.

Petition for Writ of Certiorari from the United States Court

of Appeals for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES M. HANNY

Counsel of Record

MICHELLE A. PARFITT

MICHAEL E. GALLANT

ASHCRAFT & GEREL

Attorneys for Petitioners

2000 L Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 783-6400

9432

We e (800) SAPPEAL +(800) SAPPEAL +(800) BRIEF 21

Be erices ine.

QUESTIONS PRESENTED FOR REVIEW

1. Certiorari should be granted toresolve whether the Court

of Appeals for the D.C. Circuit violated the Erie Doctrine by

failing to apply applicable precedent of the District of Columbia

Court of Appeals regarding strict liability for a design defect.

2. Certiorari should be granted to determine whether the

Court of Appeals for the D.C. Circuit utilized the wrong standard

of review in failing to resolve all factual disputes in the light most

favorable to the non-movant and failing to draw all reasonable

inferences in a light most favorable to the non-movant.

ii

PARTIES TO THE PROCEEDINGS

Petitioners, Bennie Ferguson and Mary Ferguson are

residents of the state of Maryland. Mr. and Mrs. Ferguson were

Plaintiffs in the lower court proceedings of this case and were

Appellees before the United States Court of Appeals forthe D.C.

Circuit. .

Respondent, F.R. Winkler GMBH & Co. KG, is the German

parent corporation of Winkler USA, LP its wholly owned

subsidiary which was dismissed in prior proceedings. F.R.

Winkler GMBG & Co. KG was the defendant in the lower court

proceedings of this case and was Appellant before the United

States Court of Appeals for the D.C. Circuit.

There are no other parties to these proceedings.

iti

TABLE OF CONTENTS

Questions Presented forReview ...................

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ERR TIP a ie Sarai RT ag A

IS DRS Dus a as Re ee tet

I.

Certiorari Should Be Granted To Resolve Whether

The Court Of Appeals For The D.C. Circuit

Violated The Erie Doctrine By Failing To Apply

Applicable Precedent Of The District Of

Columbia Court Of Appeals Regarding Strict

Liability For A Design Defect. ..............

A. The D.C. Circuit Erred In Failing To Apply

The Risk-Utility Balancing Test In The

SINE Oka ns Coa wa ee acs wa ce

B. TheD.C. Circuit Erred In Failing To Evaluate

The Adequacy Of Winkler’s Warnings Under

EEN UC EEG sneak Va bees lick an cces

iv

Contents

II. Certiorari Should Be Granted To Determine

Whether The Court Of Appeals For The D.C.

Circuit Utilized The Wrong Standard Of Review In

Failing To Resolve All Factual Disputes In The

Light Most Favorable To The Non-Movant And

Failing To Draw All Reasonable Inferences InA

Light Most Favorable To The Non-Movant. ....

COS Cb. do ken cok bak eta ete

TABLE OF CITATIONS

Cases Cited:

Bennett Enterprise, Inc. v. Domino’s Pizza, Inc., 45 F.3d

CP5 CPA. GO. BOGS) a oc ccc uccecctevdviataneunes

Burch v. Amsterdam Corp., 366A.2d 1079 (D.C. 1976) ...

Carter v. Johns-Manville, 557 F. Supp. 1317 (E.D. Tex.

Page

19

24

19

11

SOG) 0 occ ceseccdasscankbaeeeusabeesvewas 8,12, 13,14

East Penn Mfg. Co. v. Pineda, 578 A.2d 1113 (D.C. App.

SOON) ci cdkieceextedeusnsestweseeeestueneen 15, 16, 17

Erie R. Co. v. Thompkins, 82 L. Ed. 1188 (1938) ... i,6,14,24

Ferguson v. F.R. Winkler GMBH & Co. KG, 79 F.3d 1221

(DL. Cit, F996) 20s stent eee eee eees 1,11, 15,22, 23

Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549 (D.C.

Ge, EPOGD scant hacect-a¥icteshicebebeeseechkeas

Vv

Contents

Page

Klein v. Sears, Roebuck and Co., 608 A.2d 1276 (Md. App.

at TEE CORE PE eRe Ome Sone a 11,12

Mackey v. United States, 8 F.3d 826 (D.C. Cir. 1993)... 19

Meredith v. Winter Haven, 88 L.Ed.9(1943) ......... 6

O’Brien v. Muskin Corp., 463 A.2d 298 (N.J. 1983) ....

Pe ee TT ee ORE TT pe ee 8,9,10,12,13,14

Payne v. Soft Sheen Products, Inc., 486 A.2d 712 (D.C.

WED. TONG) 66 i cid annecsccacennariee: 11,14,17

Pernell v. Southhall Realty, 416 U.S. 363 (1974) ...... 6

Salve Regina College v. Russell, 113 L.Ed.2d 190 (1991)

Simpson v. Standard Container Co., 527 A.2d 1337 (Md.

PR TROD 56.6055 S BER awd cas ee eee 11,12

Warner Fruehauf v. Boston, 654 A.2d 1272 (D.C. App.

nt EPO TO Ee ED 7,8, 10, 11,12, 13,14, 15, 16,17

Ziegler v. Kawasaki Heavy Industries, 539 A.2d 701 (Md.

ROD. IDET) ccisacacatetaskckevie cn 8,9, 10, 11,12, 13

Statutes Cited:

TOU D Sos GL ACI PULSED vaschncsansscnnsivncks ]

vi

Contents

Page

Other Authorities Cited:

American Law of Products Liability § 28:15 ......... 13,14

Restatement Second of Torts § 402A ................ 13

Restatement Second of Torts §402Aj ............... 13

E.S. Diggs & T.J. Billmyre, Product Liability in

Maryland: Traditional and Emerging Theories of

Recovery and Defense, 16 University of Balt. L. Rev. 1

CRODGD 66 0s oundi cud vnguas beGSNAKR ESA 9

Wade, On the Nature of Strict Tort Liability For Products,

op ek, ot rp Pere ree ares 9,11

Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J.

DURMOO) ai vd ccbunsacdsceaneedsy on eekeeeeeeane 9

APPENDIX

Appendix A — Orders of the United States Court of

Appeals for the District of Columbia Circuit Filed May

Ray SOUS obo cdb dv ndeen taveusds sana ekaeesaen la

Appendix B — Opinion of the United States Court of

Appeals for the District of Columbia Circuit Decided

Pv, ee eye rey yr r re ren ts Per 4a

Appendix C — Order of the United States District Court

for the District of Columbia Dated March7,1995 ... 17a

]

OPINIONS BELOW

On April 5, 1996, the United States Court of Appeals for the

District of Columbia Circuit issued its opinion reversing the

decision of the district court and entering judgment

notwithstanding the jury’s verdict in favor of respondent, F.R.

Winkler GMBH & Co., KG and is reported as Ferguson v. F.R.

Winkler GMBH & Co. KG, 79 F.3d 1221 (D.C. Cir. 1996). On

May 24, 1996, the United States Court of Appeals for the D. C.

Circuit denied Petitioner’s petition for rehearing and suggestion

of rehearing in banc.

STATEMENT OF JURISDICTION

Petitioner seeks review of the opinion of the United States

Court of Appeals for the District of Columbia Circuit and its

judgment of April 5, 1996. (Annexed hereto as Appendix B). On

May 22, 1996, Petitioner’s Petition for Rehearing and

Suggestion of Rehearing In Banc were denied by the United

States Court of Appeals for the D.C. Circuit. (Annexed hereto as

Appendix A). The D.C. Circuit’s April 5, 1996 opinion reversed

the district court’s denial of respondent’s motion for judgment

notwithstanding the jury’s verdict and, in the alternative, fora

new trial. (Order denying Winkler’s Motion for Judgment as a

Matter of Law annexed hereto as Appendix C). Petitioner

invokes the certiorari jurisdiction conferred on this Court by 28

U.S.C. § 1254(1) (1996).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

There are no statutes nor constitutional provisions involved.

~

STATEMENT OF THE CASE

Petitioner, Bennie Ferguson, had been an employee of

Ottenberg Bakery located in Washington, D. C. since 1971.

2

During the course of his employment by Ottenberg, Mr.

Ferguson had risen from the position of baker’s helper to

apprentice and finally to baker in approximately 1980.

Ottenberg purchased the Winkler String Line Proofer in

1975 from Winkler U.S.A., LP, a wholly owned subsidiary of

Winkler GMBH & Co. KG organized under the laws of Germany

(hereinafter referred to as Winkler). Winkler designs,

manufactures, markets, sells and installs bakery equipment.

One such product Winkler designed for integration into

bakery production lines was the Winkler String Line Proofer.

The String Line Proofer was designed by Winkler to interface

with other parts of the production line in operation at Ottenberg

Bakery. The function of the Proofer was to receive pre-formed

pieces of dough from the line and transport them to another

segment of the line while allowing the dough to rest or proof,

before being baked.

After delivering the String Line Proofer to Ottenberg,

Winkler oversaw the installation and integration of its product

into Ottenberg’s production line for no less than eight months.

Winkler’s representative on site at Ottenberg was one of the

String Line Proofer’s designers, Bernard Jehle. Before turning

the String Line Proofer over to Ottenberg, Mr. Jehle reportedly

placed a warning at the discharge end or rear of the Proofer which

read in its entirety “WARNING: Before cleaning or servicing or

removing protective guards or covers, disconnect electric power

to machine. While in operation, keep hands, loose clothing or

loose hair away from moving parts.” This was the only warning

on the String Line Proofer.

Prior to Winkler’s sale of the String Line Proofer to

Ottenberg, Winkler changed the original design of the proofer.

Initially, the Proofer was designed with steel access panels

which were bolted onto the machine. After learning that

3

operators of various proofers were leaving these steel covers off

the machine, Winkler redesigned the Proofer’s covers replacing

the bolts with a hook system to provide greater ease in removing

and replacing the panels. It was this redesigned String Line

Proofer with hooks, not bolts, which was sold and installed by

Winkler at Ottenberg.

As an Ottenberg baker, Mr. Ferguson spent about one third

of his time working on the Winkler String Line Proofer. The

other two thirds of his time Mr. Ferguson spent working on other

machines in the bakery.

As part of his job as a baker at Ottenberg, Mr. Ferguson was

responsible for correcting problems that frequently arose in the

String Line Proofer and greatly affected the machine’s

performance. One such problem was the occurrence of a

condition known as a “hanger.” A hanger occurs when, for a

variety of reasons, dough coming into the String Line Proofer

does not sit properly on the trays and “hangs” over the side of one

of the many trays that carry dough through the proofer. This

condition can cause dough to fall out of the trays and become

wrapped around the Proofer’s shaft, inhibiting the machine’s

performance. Another frequently occurring problem in the

Proofer are “doubles.” Doubles occur when dough entering the

proofer sticks together with another long piece of dough. Similar

to hangers, doubles can cause dough to fall out of the trays and

become wrapped around the shaft of the Proofer also interrupting

production.

According to Mr. Ferguson and others at Ottenberg, hangers

and doubles were acommon if not daily problem on the Winkler

Proofer since its installation in 1975. Indeed, Mr. Jehle, one of

the Proofer’s designers who oversaw the installation of the

Proofer at Ottenberg for several months, testified that even at the

time of his departure hangers and doubles continued to occur in

the Proofer.

4

In order to correct this persistent problem, Mr. Ferguson and

other bakers at Ottenberg would customarily reach into the side

of the Proofer near its discharge end and retrieve the hanger and

or doubles from the Proofer’s trays. Mr. Ferguson testified that

he had reached up into the proofer hundreds, if not thousands, of

times. If hangers and doubles are not retrieved from the machine,

these dough anomalies will cause serious problems throughout

the Proofer and, in fact, will cause the machine to be shut down.

According to Mr. Ferguson, if the volume of hangers and doubles

through the Proofer was too great, he would stop the machine and

explain to his supervisor the reason that he turned off the

machine. However, if there were just a few hangers or doubles,

then Mr. Ferguson would simply reach in and retrieve them from

the Proofer before they created a problem, as was the custom and

practice among all the bakers at Ottenberg.

On September 25, 1988, Mr. Ferguson was performing his

regular and customary duties as a baker on the Winkler String

Line Proofer. As on each and every occasion prior to September

25, 1988 when Mr. Ferguson worked on the String Line Proofer,

hangers were occurring in the Winkler machine. And, just as he

and other bakers at Ottenberg had done on thousands of earlier

occasions, Mr. Ferguson reached into the proofer through the

side access panel, which was customarily removed by the bakers

and subsequently replaced with a plexiglass door by Ottenberg,

to retrieve hangers in the Winkler machine. Mr. Ferguson, who

had no intention of placing his hand or body in the area of the

shaft and sprocket, reached up and away from the shaft and

sprockets to remove hangers from the proofer, when suddenly,

his arm was grabbed by the unguarded chain and dragged into an

exposed sprocket which chewed into his right bicep causing him

a permanent and disabling injury. Since the date of the injury,

Mr. Ferguson has been unable to continue his vocation as a baker

and is currently employed as a parking attendant.

5

On September 25, 1991, Mr. Ferguson filed aclaim against

Winkler sounding in, arnong other things, strict liability for a

defect in design of the String Line Proofer and loss of consortium

in the United States District Court for the District of Columbia

invoking the court’s diversity jurisdiction. Ajury trial held in the

United States District Court for the District of Columbia before

the Honorable John H. Pratt, resulted in ajury verdict in favor of

Mr. Ferguson on the issue of strict iiavility and compensation in

the amount of $679,173. The jury also awarded Mary Ferguson

$230,000 for loss of consortium.

At the close of testimony, Winkler moved for judgmentas a

matter of law. That motion was denied by Judge Pratt. After the

jury verdict, Winkler renewed its motion renamed as motion for

judgment notwithstanding the jury’s verdict and in the

alternative for a new trial. After having the issues briefed, the

trial court heard oral arguments on Winkler’s motion on March

3, 1995. Again, the trial court denied Winkler’s motion. Thus,

everyone who heard ail of the evidence in this case concluded

that Mr. Ferguson had met his burden of proof in the instant case.

Winkler appealed the trial court’s denial of both its Motion

for Judgment as a Matter of Law, and its renewed Motion for

Judgment as a Matter of Law and in the alternative for a New

Trial to the United States Court of Appeals for the D.C. Circuit.

After oral argument on January 17, 1996, the Court of Appeals

reversed the district court and ordered judgment

notwithstanding the jury’s verdict in favor of Winkler on April 5,

1996. On May 22, 1996, the D.C. Circuit denied Mr. Ferguson’s

Petition for Rehearing and his Suggestion for Rehearing In Banc.

Petitioner, Mr. Ferguson, now seeks the review of this

Court.

6

REASONS FOR GRANTING THE WRIT

I.

CERTIORARI SHOULD BE GRANTED TO RESOLVE

WHETHER THE COURT OF APPEALS FOR THE D.C.

CIRCUIT VIOLATED THE ERIE DOCTRINE BY

FAILING TOAPPLY APPLICABLE PRECEDENT OF THE

DISTRICT OF COLUMBIA COURT OF APPEALS

REGARDING STRICT LIABILITY FOR A DESIGN

DEFECT.

“The concept of a federal general common law lurking. . .

as a ‘brooding omnipresence in the sky,’ was questioned for

sometime before being firmly rejected in Erie R. Co. v.

Thompkins, 82 L. Ed. 1188 (1938).” Salve Regina College v.

Russell, 113 L. Ed. 2d 190, 194 (1991). “Erie mandates that a

federal court sitting in diversity apply the substantive law of the

forum state, absent a federal statutory or constitutional directive

to the contrary.” /d. at 195. Following Erie, this Court made clear

that state law is to be determined in the same manner as a federal

court resolves an evolving issue of federal law “with the aid of

such light as is afforded by the materials for the decision at hand,

and in accordance with applicable principles for determining

state law.” Jd. [citing Meredith v. Winter Haven, 88 L. Ed. 9

(1943)}.

As the Erie doctrine has been extended to the District of

Columbia, the United States Court of Appeals for the D.C.

Circuit sitting in diversity must apply the law of the District of

Columbia Court of Appeals in resolving issues in the instant

case. Joy v. Bell Helicopter Textron, Inc.,999 F.2d 549, 553 (D.C.

Cir. 1993). See also, Pernell v. Southhall Realty, 416 U.S. 363,

368 (1974), (holding “decisions of the District of Columbia

Court of Appeals on matters of local law . . . will be treated by

)

a

7

this Court in a manner similar to the way is which we treat similar

decisions of the highest court of a state on questions of state

law”). Thus, the D. C. Circuit was required to utilize the law of

strict liability in a design defect case as it has been developed in

the District of Columbia by its highest court, the District of

Columbia Court of Appeals.

Mr. Ferguson contends that the D.C. Circuit, in reaching its

decision in the instant case, failed to follow relevant D. C.

precedent regarding strict liability for a design defect and has

misconstrued and misapplied product liability law in the District

of Columbia. In short, D. C. law does not support the holding of

the D. C. Circuit which declared as a matter of law that a

manufacturer may cure an otherwise unreasonably dangerous

design defect simply through a general warning. Should this

Court grant this petition, the Court will most surely prevent

forum shopping by defendants and plaintiffs between D.C.

courts and their federal counterparts. Thus, this Court should

grant certiorari toresolve this conflict between the D.C. Circuit

and the D. C. Court of Appeals.

In Warner Fruehauf v. Boston, 654 A.2d 1272 (D.C. App.

1995), the District of Columbia Court of Appeals adopted strict

liability in tort fora design defect. In sodoing, the D.C. Court of

Appeals adopted the risk-utility test for evaluating the strict

liability of a manufacturer in a design defect case. /d. at 1276-

1277. The D.C. Circuit erred in two critical respects in applying

D. C. law in the instant case. First, the D. C. Circuit all but

ignored the risk-utility balancing test announced by the Warner

Fruehauf court in which a warning is but one consideration for

the jury, and restated D.C. law to read “the critical issue in

products liability cases in the District of Columbia is whether the

warnings made the product safe at the time it left the

manufacturer’s control.” Appendix at 14a. Second, the D.C.

Circuit failed to evaluate the adequacy of the warnings in the

8

instant case under the standards announced by Warner Fruehauf

and its progenitors.

A. TheD.C. Circuit Erred In Failing To Apply The Risk-

Utility Balancing Test In The Instant Case.

The D.C. Circuit’s emphasis on a manufacturer’s warnings

in the strict liability for a design defect context is misplaced. In

Warner Fruehauf, the District of Columbia Court of Appeals did

not designate one consideration of the risk-utility test over

another in adopting that analysis for strict liability in design

defect cases. Though the Warner Fruehauf court did state that

“under a risk-utility analysis, ‘a manufacturer is entitled to

defend a strict liability claim based on defective design by

showing that a warning accompanied the product’ . . . ;” itwent

on to unequivocally declare that “while the adequacy of the

warning is relevant and may even tip the balance in the decision

whether a product is or is not defectively designed, it is not the

sole consideration.” Jd. at 1278 (quoting Carter v. Johns-

Manville, 557 F. Supp. 1317, 1320 (E.D. Tex. 1983)).

In addition to the presence of adequate warnings, other

considerations enumerated by the court in Warner Fruehauf

included (1) the utility of the product to the user; (2) the

likelihood the product will cause injury; (3) the availability ofa

safer substitute product that would serve the same need; (4)

ability of manufacturer to eliminate dangerous character of the

product with limited expense and without loss of usefulness; and

(5) possibility of spreading loss by setting price of product and/

or carrying liability insurance. Warner Fruehauf, 654 A.2d at

1277n. 12 [citing, O’Brien v. Muskin Corp., 463 A.2d 298, 304-

305 (N.J. 1983)]. In adopting the risk-utility test, the D.C. Court

of Appeals chiefly relies on O’Brien and Ziegler v. Kawasaki

Heavy Industries, 539 A.2d 701 (Md. App. 1987).

9

In both O’Brien and Ziegler, the New Jersey and Maryland

courts enumerated the very same factors relied upon by the D.C.

Court of Appeals. These factors were first voiced by a

commentator in 1965. See Wade, Strict Tort Liability of

Manufacturers, 19 Sw.L.J.5, 17 (1965); see also , Wade, On the

Nature of Strict Tort Liability For Products, 44 Miss. L.R.815,

837 (1973). In addressing the impact of warnings on the risk-

utility test, he observed that the “addition of a suitable warning

may Cause an otherwise unsafe product to be characterized as

duly safe. . . Buta warning will not always be sufficient.” Wade,

On the Nature of Strict Tort Liability For Products, 44 Miss. L.

R. at 842. [emphases added]. Professor Wade’s influence on the

New Jersey court in O’Brien was clear when that court

pronounced that “the risk side of the equation may involve,

among other factors, risks that the manufacturer knew or should

have known would be posed by the product, as well as the

adequacy of any warnings.” O’Brien, 463 A.2d at 305 [emphasis

added]. This perfectly coincides with the view of the D. C. Court

of Appeals that warnings are but one factor to be considered ina

design defect case.

The wording and general adequacy of the product’s warning

is to be judged relative to other aspects of the products design.

More aptly stated, “risk-utility [analysis] is not a petrified, but

dynamic process. Whether a particular product falls on the risk-

utility continuum will depend on the facts of eachcase. . . risk-

utility analysis provides the flexibility necessary for an

appropriate adjustment of the interests of the manufacturers,

consumers and the public.” /d. Similarly, Ziegler professed that

“the risk utility test is the only appropriate test to be applied in the

instant case because it allows ‘full consideration of the relative

merits of aproduct design’.” Ziegler, 539A.2d at 706 [citing E.S.

Diggs & T.J. Billmyre, Product Liability in Maryland:

Traditional and Emerging Theories of Recovery and Defense, 16

University of Balt. L. Rev. 1, 16 (1986)] [emphasis added].

10

Drawing on both O’Brien and Ziegler, the Warner Fruehauf

court explained that in applying risk-utility balancing the risk

side of the equation may be comprised of the danger posed by the

product’s defective design, “less the extent to which that danger

might have been reduced by” a warning. Warner Fruehauf,654

A.2d at 1277. While the utility side of the equation could consist

of “commercially feasible design alternatives.” /d.

Clearly, through the direct, unambiguous language of the

D. C. Court of Appeals and in its reliance on the criteria

acknowledged in O’Brien and Ziegler, warnings are but one

aspect of the balancing test to be applied by the trier of fact ina

design defectcase. The aforementioned criteria set forth a list of

criteria which must be considered when evaluating a products

design under arisk-utility analysis.

The D.C. Circuit has carved out arule in strict liability for

design defects which was never voiced by the District of

Columbia’s highest court and is flatly contradicted by the plain

language of Warner Fruehauj. Though it is true that the D.C.

Court of Appeals acknowledged aconflict amongst the states in

their treatment of warnings in arisk-utility analysis in a variety

of factual settings, it did so only after clearly announcing its

opinion that warnings were but one part of arisk-utility analysis.

Warner Fruehauf, 654 A.2d at 1278 n. 16. As explained more

fully in O’Brien and Ziegler, if one is going to examine a

product’s design, one must look at the danger created by the

design, available design alternatives, cost of those alternatives

and the degree, if any, to which a warning goes to eliminate or

limit that danger. Itis purely a question of balancing the various

factors of the risk- utility test.

The instant case was nota failure to warn case, but adesign

defect case. As such, the adequacy of the warning supplied by

Winkler was but one part of the risk-utility analysis

1]

appropriately within the fact-finding province of the jury. See

generally, O’Brien, 463 A.2d at 306 (citing with approval Wade,

On the Nature of Strict Tort Liability for Products, 44 Miss. L.R.

at 838). Inthe District of Columbia, itis well established that “in

cases in which there is a serious risk of injury, the adequacy of

even arelatively clear warning should not be determined as a

matter of law but is a question of fact for the jury.” Payne v. Soft

Sheen Products, Inc.,486A.2d 712,723 (D.C. App. 1985) [citing

Amsterdam, 366 A.2d 1079 (D.C. 1976) [emphasis added].

During its deliberations, the jury in the instant case weighed all

the factors in conducting its risk-utility balancing and

determined that the risk of injury, the cost of designing a safer

product, availability of an alternative design and the adequacy of

the warning in the instant case all indicated that the proofer as

designed by Winkler was unreasonably dangerous.

In Ferguson, the D. C. Circuit professed to simply predict

the direction the law in the District of Columbia would take if the

D.C. Court of Appeals were to decide the instant case in citing to

Maryland precedent, which is often an indicator of the D. C.

trend. However, the D. C. Circuit’s reliance on Simpson v.

Standard Container Co., 527 A.2d 1337, 1341 (Md. App. 1987)

is misplaced. While Simpson, a Maryland case, does state that a

seller may cure an unreasonably dangerous product through

warnings; itis important to note that Simpson was decided before

the Maryland Court of Appea!s undertook the issue of strict

liability fora design defect. When it finally did one year later in

Ziegler v. Kawasaki Heavy Industries, acase relied upon by the

D.C. Court of Appeals in Warner Fruehauf, and then again in

Klein v. Sears, Roebuck and Co., 608 A.2d 1276 (Md. App.

1991), the Maryland court adopted the risk-utility test over the

consumer expectations test to determine whether a given product

design was or was not defective. As noted above, the Maryland

Court of Special Appeals in Ziegler and Klein adopted the very

same criteria and balancing test set out by the District of

Columbia Court of Appeals in Warner Fruehauf.

12

Remarkably, in Klein, acase similar in many respects to the

instant case, the Maryland Court of Special Appeals specifically

distinguished that case from Simpson and its austere holding,

relying instead on Ziegler. In Klein, plaintiff sought to recover

in strict liability for injuries sustained from a power saw which

plaintiff alleged was unreasonably dangerous by virtue of its

defective design. The defendant in Klein contended that the tool

was accompanied by abundant warnings which under Simpson

cured its design defect. The Klein court observed, however, that

the defendant’s reliance on Simpson was misplaced because in

Klein there was an issue of material fact regarding the

sufficiency of the saw’s warnings which should have gone to the

jury as part of its risk-utility analysis. Klein, 608 A.2d at 1282.

The Klein court held that the lack of specificity in the warnings

and dispute as to the adequacy of the warnings made it possible

for reasonable minds to differ as to “whether the existence of

such a warning, if heeded, would make the saw safe for its

intended use.” /d. at 1282-1283. Thus, the adequacy of the

warning is just another factor to be weighed by the jury in

applying its risk-utility analysis to the product’s design. As such,

Maryland law lends no support to the D. C. Circuit’s

prognostication and, in fact, echoes the sentiments of the Warner

Fruehauf court when it declared that “the adequacy of the

warningis. . .notthe sole consideration.” Warner Fruehauf, 654

A.2d at 1278 (quoting Carter, 557 F. Supp. at 1320).

Clearly, Maryland’s rejection of the consumer expectation

test in Ziegler and Klein, its endorsement of the risk-utility

analysis, and its embracing all of the factors discussed above,

brilliantly illuminate the direction of Maryland, just as starkly as

Warner Fruehauf's reliance on Carter, O’Brien and Ziegler

makes plain the trend in the D. C. Court of Appeals. That

direction is one toward careful case by case, or warning by

warning - product by product analysis of each and every

consideration that gives rise to a product designs’ safety. While

Pe eee

13

such an analysis would of necessity include a careful review of

the adequacy of the product’s warning, it would not do so to the

exclusion of each and every other factor described above.

Therefore, if the courts in Maryland are to be the true indicator of

a trend in the courts in the District of Columbia then all

indications clearly point to a trend toward a careful balancing of

each and every element of a product’s design.

Moreover, the D. C. Circuit points to Warner Fruehauf's

citation of § 402A of the Restatement Second of Torts, and finds

that Maryland and D. C. law supports its contention that the D.C.

Court of Appeals will adopt comment j to § 402A which states

that an unreasonably dangerous product accompanied by a

warning is cured of its defect. Appendix at 13a. Atno point has

the District of Columbia ever adopted comment jto the § 402A of

the Restatement. The D. C. Circuit’s prediction ignores much of

the precedent relied upon by the D. C. Court of Appeals in

reaching its decision in Warner Fruehauf. As discussed above,

the D.C. Circuit ignored the Warner Fruehauf court's reliance on

Carter, Ziegler and O’Brien, the latter two of which heavily

relied on the writings of Professor Wade in this area.

Additionally, the D. C. Circuit failed to note that the D. C. Court

of Appeals adopted the risk-utility test set out in American Law

of Products Liability at § 28:11-15. Section 28:15 states in part

the trier of fact need only reasonably

conclude, after balancing factors relevant in

each particular case, that ... its risks

outweighed its benefits, and as such the

product should not have been marketed as

designed. In this regard, the risk side of the

equation may involve, among other factors,

risks that the manufacturer knew or should

have known would be posed by the product as

well as the adequacy of any warnings.

14

Am. Law Prod. Liab. §28:15 [citing, inter alia, O’Brien, 463

A.2d 298] [emphasis added]. In keeping with all the

aforementioned precedent relied upon in Warner Fruehauf, the

District of Columbia Court of Appeals clearly stated “{a]

warning is only one of a product’s many design attributes that

weigh in the balance of dangers against utility to determine

whether a product is unreasonably dangerous.” Warner

Fruehauf,654A.2d at 1278 (citing Carter, 557 F. Supp. at 1320).

As such, the D.C. Circuit failed to apply principles set forth

by this Court in Erie and its progeny. Therefore, Petitioner

respectfully requests that this Court grant his petition toresolve

this conflict between the D. C. Circuit Court of Appeals and the

District of Columbia.

B. The D. C. Circuit Erred In Failing To Evaluate The

Adequacy Of Winkler’s Warnings Under D. C. Law.

In determining the adequacy of a warning in strict liability

for a product defect, the D.C. Court of Appeals held that one must

consider the location of the warning, whether the warning as

stated conveys to the reader the precise nature of the defect and

whether the warning as stated conveys to the user the precise

nature of the danger arising from the defect. Warner Fruehauf,

654 A.2d at 1275. Generally, in the District of Columbia the

adequacy of a warning should not be decided as a matter of law,

but is a question of fact forthe jury. Payne, 486A.2d at 723.

In Warner Fruehauf, the D.C. Court of Appeals adopted the

analysis it utilized in evaluating the adequacy of warnings in

failure to warn cases for design defect cases. There can be no

question that utilizing D. C. law the D. C. Circuit should have

asked the following question: did Winkler ’s warning warn of the

specific danger caused by the precise design defect in the

Proofer which injured Mr. Ferguson? Based on its decision in

15

Ferguson, itis clear that the D. C. Circuit did not. Noreading of

the warning alleged to have been on the machine by Winkler or

the Ottenberg’s operation manual explicitly identify the defect

in the discharge end of the proofer, (i.e. the lack of adequate

guarding or an interlocking device) or the danger arising

therefrom.

In fact, the D. C. Circuit has adopted a rationale regarding

the adequacy of warnings which the D. C. Court of Appeals

specifically rejected. In Warner Fruehauf, the plaintiff was

injured when a lift gate manufactured by defendant on the back

of a Pepco truck failed and crashed down on plaintiff seriously

injuring him. Inits decision the D.C. Court of Appeals analyzed

two warnings which were in evidence. There the court held both

warning decals inadequate as a matter of law. As to one of the

warnings, there was no evidence that the plaintiff saw the decal

and the other, the court held, contained only a “vague” warning

of general dangers associated with lift gates. Warner Fruehauf,

654A.2d at 1278. Thus, the court held that both decals failed to

warn of the precise danger arising from the specific defect. The

facts in the instant case are remarkably similar.

Rejecting the guidance provided by Warner Fruehauf, the

D.C. Circuit has deemed adequate a vague admonition, present

in the Ottenberg’s manual, which cautions workers not to reach

into moving machinery. However, such a “warning” is no more

than a general warning of the dangers associated with any piece

of moving equipment and, just as in Warner Fruehauf where a

general warning of the dangers of lift gates was held inadequate,

despite the plaintiff’s 22 years of experience in working with lift

gates, Winkler’s general vague notice to users of its Proofer to

avoid reaching into moving equipment is inadequate.

Further, in East Penn Mfg. Co. v. Pineda, 578 A.2d 1113,

1119(D.C. App. 1990), a strict liability for failure to warn case,

16

the D. C. Court of Appeals held that a warning ona battery was

inadequate to warn someone of considerable experience and

expertise of the precise dangers which arose from the specific

defects in the battery. Specifically, despite plaintiff’s age and

experience the court held “[a]I] this told, this testimony fails to

prove as a matter of law that Pineda had nothing to learn froma

properly detailed warning.” Jd.

In the instant case, the jury heard abundant evidence of

significant probative value as to safer design alternatives suchas

inexpensive microswitches which automatically shut-off the

machine when a panel is removed or opened, and inexpensive

guarding to shield exposed sprockets and chains in the Proofer

which were available to Winkler at the time of the Proofer’s sale

to Ottenberg; evidence regarding Mr. Ferguson’s experience as

a baker; evidence that the Proofer’s designer was present at

Ottenberg for eight months, a period when dough problems and

corrective measures taken by bakers were occurring; and

evidence of Winkler’s “warnings” regarding the Proofer. After

evaluating all of the evidence the jury unanimously concluded

that Winkler’s proofer was, in fact, defectively designed and the

proximate cause of Mr. Ferguson’s injury. Inthe instant case, the

D.C. Circuit rejected the precedent of the D.C. Court of Appeals

and failed to inquire whether or not the warning proffered by

Winkler warned of the specific danger which arose from the

precise defect in the machine which caused Mr. Ferguson’s

injury.

Like the defendant in Warner Fruehauf, Winkler’s warnings

were insufficient as a matter of law in the District of Columbia

because they failed to warn the user of the specific defect in the

proofer. The only item in evidence sharing any resemblance with

a proper warning was a decal located on the discharge end of the

proofer. This warning is inadequate under D. C. law for two

reasons. First, the location of the decal was on the discharge end

17

of the proofer an area not visible to the user. In order for a

warning to be adequate it must be somewhere the user might see

it. The jury in the instant case heard testimony that Mr. Ferguson

and other bakers did not stand at the discharge end of the proofer

but walked up and down the line on the side of the proofer while

the machine was running. Second, the warning admonishes

people to avoid areas with moving parts inside the machine while

itisrunning. Asignificant factual dispute arose surrounding Mr.

Ferguson’s conduct in the proofer on the day of his injury. After

hearing all the evidence, the jury unanimously concluded that

Mr. Ferguson reached up and away from the dangerously

unguarded sprockets and gears at the bottom of the proofer, an

area Mr. Ferguson never intended to encounter, inside the panel

where he reached. Thus, the warning was ineffective because it

was notin a location where Mr. Ferguson was likely to see itand,

even if it was, it did not warn of the specific danger arising from

the precise defect which caused Mr. Ferguson severe injury.

Clearly under Warner Fruehauf, this warning is insufficient to

impart knowledge of the specific defect to Mr. Ferguson and is

therefore inadequate to avoid liability under a risk-utility

analysis.

Moreover, the D.C. Circuit considered other texts received

into evidence as adequate warnings in the instant case. Appendix

at 14a. Both the language buried in Winkler’s Operations and

Parts Manual and the language contained in Ottenberg’s Plant

Safety Rules utterly fail a Warner Fruehauf analysis for

adequacy of warnings. While stating that Winkler was entitled to

rely on Ottenberg to pass on to its employees warnings contained

in its users manual, the D. C. Circuit failed to apply any type of

scrutiny or analysis to that warning which is mandated under D.

C. law. See Warner Fruehauf,654A.2d at 1274; East Penn. Mfg.

Co., 578 A.2d at 1122; and Payne, 486 A.2d at 723. Ifthe D.C.

Circuit had applied the appropriate analysis, it would have

discovered, as did the jury and the district court before it, that

18

Winkler’s so-called warnings were wholly and remarkably

inadequate.

The language in Winkler’s Manual is addressed solely to the

cleaning and maintenance of the machine, activities in which Mr.

Ferguson was not engaged at the time of his accident. Thus, the

Court's assertion that Winkler was entitled to rely on Ottenberg

to pass On the warning is without merit because Winkler would

have been “passing on” an inadequate warning. Furthermore,

neither the language in the Winkler Manual or the Ottenberg’s

Safety Rules was calculated to warn the operators of the proofer

of any danger from specific defects in the proofer’s design. It

bears repeating that under D.C. law an adequate warning should

have warned Mr. Ferguson that unguarded chains and sprockets

existed in the machine which could cause him serious injury.

The D. C. Circuit's assertions that Winkler had repeatedly

warned Mr. Ferguson of the dangers in the Proofer are

unsupported by the record and the law in the District of

Columbia. Thus, Petitioner respectfully requests that this Court

grant his petition to resolve the significant discrepancies

between D. C. law and the findings of the D. C. Circuit Court of

Appeals.

19

Il.

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER THE COURT OF APPEALS

FOR THE D.C. CIRCUIT UTILIZED THE WRONG

STANDARD OF REVIEW IN FAILING TO RESOLVEALL

FACTUAL DISPUTES IN THE LIGHT MOST

FAVORABLE TO THE NON-MOVANTAND FAILING TO

DRAW ALL REASONABLE INFERENCES IN A LIGHT

MOST FAVORABLE TO THE NON-MOVANT.

In reviewing the trial court’s decision on a motion for

judgment as a matter of law, or a motion for judgment

notwithstanding the jury’s verdict, the court of appeals will

review the evidence de nove to determine whether the prevailing

party proffered sufficient evidence upon which the jury could

base its verdict. Bennett Enterprise, Inc. v. Domino's Pizza, Inc.,

45 F.3d 493, 497 (D.C. Cir. 1995). “The Court of Appeals like the

trial court must view the evidence in the light most favorable to

the prevailing party, and the jury's verdict must stand unless the

evidence, together with all inferences that can reasonably be

drawn therefrom, is so one sided that reasonable people could not

disagree on the verdict.” Jd. (citing, Mackey v. United States, 8

F.3d 826, 829 (D.C. Cir. 1993)]. Importantly, however, the

Mackey court goes on to state that not only must the court of

appeals view the evidence in a light most favorable to the

prevailing party and resolve all conflicts in favor of same, but “it

must not substitute its judgment for that of the jury and cannot

assess witnesses credibility or weigh the evidence.” Mackey, 8

F.3d at 829. Clearly, Mackey respectfully points out proper

deference to a jury, the trier of fact, which has heard a case from

start to finish.

The D. C. Circuit merely paid lip service to the well

established principles announced in Bennett, Mackey and many

20

others. Thus, Mr. Ferguson takes issue with the revisionist zeal

with which the D.C. Circuit rewrote the facts in the instant case.

It cannot be overstated to this Court that each and every factual

aspect of this case was hotly contested by both Mr. Ferguson and

Winkler. Inthe D. C. Circuit's opinion, the court resolved each

material factual dispute, of which there were many, in favor of

Winkler, who had the burden of demonstrating that no

reasonable person could have rendered the decision of the jury in

the instant case. For example, the Court's opinion notes that

“[o]n both older and newer designs [of the proofer], Winkler

included the same safety mechanism: an emergency shut off

button that, when pressed, would stop the line.” Appendix at 6a.

It was undisputed at trial that the emergency shut-off button to

which the court refers was absolutely useless to Mr. Ferguson on

the day of his accident as both Mr. Ferguson and Mr. Jehle, the

aforementioned designer of the Proofer, agreed that he could not

have reached the emergency shut-off button from the position on

the Proofer where he was injured.

Had the D. C. Circuit resolved all evidentiary disputes in

favor of Mr. Ferguson, the D. C. Circuit could not possibly have

reached the conclusions espoused in its decision. The opinion of

the D.C. Circuitis replete with errors of fact which there can be

no doubt are the result of applying the wrong standard to its

inquiry. The decision of the D. C. Circuit makes plain that the

court erred in failing to view the evidence in a light most

favorable to Mr. Ferguson, failing to draw reasonable inferences

in his favor, and failing toresolve all factual disputes in his favor.

Below are but a few examples of the D. C. Circuit’s errant

rendition of material facts in the instant case.

In the D.C. Circuit’s opinion, the court states that

“Ottenberg grew frustrated with the occasional “double”. . .and

hanger.” Appendix at 6a. [emphases added]. This statement

ignores the abundant evidence of Mssrs. Mobley, Heath, Van

21

Vugt and Ferguson who testified that hangers and doubles were

a constant, daily problem on the Proofer. According to Mr.

Ferguson and others at Ottenberg, hangers and doubles were

frequent events on the Winkler proofer since its installation in

1975 when bakers firstbegan to remove these dough anomalies

by hand through the panel at the discharge end of the proofer.

It is undisputed that Mr. Jehle, Winkler’s employee, was

present at Ottenberg for up to eight months overseeing the

installation of the Proofer. This undisputed fact is contrary to the

D. C. Circuit’s assertion that “Ferguson has not shown

significantly probative evidence that the design of the proofer

contemplated workers reaching into the moving machinery as

part of its normal operations.” Appendix at | la. The only

reasonable inference to be drawn from Mr. Jehle’s presence at

Ottenberg for up to eight months and the testimony of

Ottenberg’s workers that hangers and doubles were persistent

problems from the date of the Proofer’s installation, is that not

only was it foreseeable that workers, such as Mr. Ferguson,

would reach into the machine, but that Winkler knew this was the

practice which bakers needed to employ to maintain normal

operation of the Proofer.

Similarly, this evidence contradicts the D. C. Circuit's

assertion that “Ferguson also has not shown significantly

probative evidence that Winkler should have reasonably

foreseen either that workers would remove the panel or that some

employer, like Ottenberg, would permanently remove the panel

in order to encourage workers to reach into the proofer.”

Appendix at 12a. Winkler | id not yet released control of its

product when these problems and solutions employed by

Ottenberg were occurring. Itis preposterous to suggest that Mr.

Jehle’s presence during the early portion of the Proofer’s

operation did not impart on Winkler the foreseeability necessary

to support the jury’s inference in this regard. All reasonable

22

inferences drawn in favor of Mr. Ferguson demonstrate that

Winkler knew and had actual knowledge of the bakers’ practice

and custom before they left Ottenberg and before it left Winkler’s

control. The only possible explanation for the D. C. Circuit's

failure to draw this inference is that the D. C. Circuit failed to

apply the appropriate standard in its review of this case and

improperly invaded the province of the jury.

In Ferguson, the D.C. Circuit also asserted that “[e]ven the

presence of doubles or hangers would not demand working with

the dough in the moving proofer, as neither posed an immediate

threat to the continued operation of the proofer.” Appendix at

lla. Mr. Ferguson’s testimony and that of others revealed that if

these hangers and doubles were not removed from the proofer

they would wrap around the shaft and cause the machine to stop.

If there was a dispute amongst the witnesses at trial, which there

certainly was, as to the frequency of these dough problems or

their impact on the Proofer’s ability to function, then the D.C.

Circuit should have resolved such disputes in Mr. Ferguson’s

favor. It did not. According to Mr. Ferguson, if the volume of

hangers through the proofer was great, he would stop the

machine in order to prevent the dough from becoming wrapped

around the Proofer’s shaft. Similarly, Mr. Ferguson and others

testified that they manually removed dough anomalies from the

proofer because if they did not the dough would gum up the

works and cause the machine to be shut down. It cannot be

argued that such a problem would not have posed a threat to the

continued operation of the Proofer.

Another instance where the D.C. Circuit improperly

invaded the province of the jury and failed to resolve any

question in favor of Mr. Ferguson involved the existence or non-

existence of atool with which bakers would remove dough from

the shaft. At trial a factual dispute arose as to the existence of a

tool to remove dough anomalies from the proofer rather than the

23

manual method testified to by all the bakers at Ottenberg. Mr.

Ferguson testified that the tool referred to above is utilized to

clean the shaft of dough that has become wrapped around it when

the machine is stopped. The tool was not utilized by Ottenberg’s

bakers to remove hangers and doubles from the Winkler

machine. The record vividly demonstrated that the custom and

practice of all the bakers at Ottenberg was to manually reach into

the machine and remove the hangers and doubles. This directly

contradicts the D.C. Circuit’s assertion that “this door permitted

workers to reach into the interior of the proofer and salvage

hangers or separate doubles, either by hand or by use of along rod

designed for these purposes.” Appendix at 6a. The long rod

discussed by the D. C. Circuit was hotly contested at trial and any

such contest should have been resolved by the court in Mr.

Ferguson’s favor.

Also in this statement the Ferguson court implies that prior

to the addition of the plexiglass doors by Ottenberg, workers did

not reach into the machine while it was running toremove dough

anomalies. This is unsupported by the record which indicated

that workers removed the steel access panel, which was later

replaced by Ottenberg with a plexiglass door, to get at the dough

anomalies that persisted in the Proofer. In fact, there is evidence

which shows that this practice was in use while Winkler’s

representative was present at Ottenberg. See discussion, supra

at 20-21.

As the above examples reveal, the D. C. Circuit has

improperly abused its discretion and invaded the province of the

jury on material questions of fact vital to the instant case. Thus,

Petitioner requests this Court grant his petition to resolve the

problems created in the D. C. Circuit’s refusal to give due

deference to the jury’s findings of fact.

24

CONCLUSION

In the spirit of federalism that defines and exemplifies the

deference to state law by federal courts sitting in diversity, this

Court, as the highest Court in the land, should grant this Petition

for a Writ of Certiorari to reaffirm the mandate first expressed in

Erie that federal courts sitiing pursuant to their diversity

jurisdiction respectfully, carefully and thoughtfully apply the

law of the appropriate state developed painstakingly over many

years by the state’s highest court. Recognizing the importance

of uniformity in decision and to discourage forum shopping

among state and federal courts, this Court has steadfastly applied

the Erie doctrine requiring federal courts sitting in diversity to

apply unwaveringly applicable state law. Petitioner seeks a writ

of certiorari and the opportunity toredress the errors of the D.C.

Circuit in the instant case. Every now and again, itis necessary

for this Court to remind us that there is indeed no federal common

law.

Respectfully submitted,

JAMES M. HANNY

Counsel of Record

MICHELLE A. PARFITT

MICHAEL E. GALLANT

ASHCRAFT & GEREL

Attorneys for Petitioners

2000 L Street, N.W., #400

Washington, D.C. 20036

(202) 783-6400

la

APPENDIX A — ORDERS OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT FILED MAY 22, 1996

UNITED STATES COURT OFAPPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 95-7100 September Term, 1995

USDC CV 91-2397

Bennie Ferguson, Mary Ferguson,

Appellees,

v.

F.R. Winkler GMBH & Co. KG,

Appellant

BEFORE: Edwards, Chief Judge, Wald, Silberman,

Buckley, Williams, Ginsburg, Sentelle,

Henderson, Randolph, Rogers, and Tatel,

Circuit Judges

ORDER

Upon consideration of Appellees’ Suggestion for Rehearing

In Banc, and the absence of arequest by any member of the court

for a vote, itis

ORDERED that the suggestion be denied.

Per Curiam

2a

Appendix A

FOR THE COURT:

Mark J. Langer, Clerk

BY: s/ RobertA. Bonner

Robert A. Bonner

Deputy Clerk

3a

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 95-7100 September Term, 1995

USDC CV 91-2397

Bennie Ferguson, Mary Ferguson,

Appellees,

v.

F.R. Winkler GMBH & Co. KG,

Appellant

BEFORE: Williams, Ginsburg and Sentelle,

Circuit Judges

ORDER

Upon consideration of appellees’ petition for rehearing

filed May 3, 1996, itis

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: s/ RobertA. Bonner

RobertA. Bonner

Deputy Clerk

4a

APPENDIX B — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT DECIDED APRILS, 1996

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 1996 Decided April 5, 1996

No. 95-7100

BENNIE FERGUSON AND MARY FERGUSON,

Appellees

Vv.

F.R. WINKLER GMBH & CO. KG,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 91cv02397)

Ronald G. DeWald argued the cause for appellant, with

whom Leonard L. Lipshultz was on the briefs.

James M. Hanny argued the cause for appellees, with whom

Michelle A. Parfitt was on the brief.

Before: Williams, Ginsburg and Sentelle, Circuit Judges.

Sentelle, Circuit Judge: In this products-liability action,

plaintiff Bennie Ferguson claimed that defendant F.R. Winkler

Sa

Appendix B

GMBH & Co. KG (“Winkler”) was strictly liable for an injury

allegedly caused by a design defect in bakery equipment that

Winkler manufactured. Winkler moved for judgmentas a matter

of law both at the close of the evidence and after the jury’s verdict

against Winkler. The district court denied these motions as well

as a motion fora new trial. Winkler now asks us to reverse any of

these denials. Because the evidence presented does not

adequately demonstrate that the equipment was unreasonably

dangerous when it left Winkler’s control, we do reverse the

district court’s denial of Winkler’s motion for judgment as a

matter of law and Cirect the district court to enter judgment for

Winklez.

BACKGROUND

Appellant Winkler designs and manufactures various

equipment for baking production lines. One component of this

equipment, and the focus of this litigation, is the string-line

proofer, which transports shaped pieces of dough from one step

of the production process to another. According to Winkler’s

design of the proofer, the pieces of dough rest on trays attached

toa moving chain, which, along with the gears and gear sprockets

that drive the chain, are enclosed within a large metal duct.

Removable panels along the duct permit limited access to the

internal machinery for maintenance purposes.

Winkler has manufactured proofers with at least two

different types of panels. The older proofer design had panels

that were bolted onto the duct, and could only be removed and

reinstalled through use of tools. Upon learning that maintenance

workers did not always bolt these panels back onto the proofer

when they were finished working, however, Winkler replaced

these bolted panels with panels that could be removed and

6a

Appendix B

reinstalled by hand. On both the older and newer designs,

Winkler included the same safety mechanism: an emergency

shut-off button that, when pressed, would stop the line. In the

proofer’s operations manual, Winkler cautioned users to shut

down the line prior to reaching inside the proofer to clean it.

Winkler also made a practice of placing a similar warning on the

machine itself.

Ottenberg Bakery, a mass producer of baked goods,

received the newer model of the Winkler proofer, complete with

operations manual and warning sign, in 1975. In using the

proofer, Ottenberg grew frustrated with the occasional

“double”—two dough pieces that were not fully separated ona

single tray—and “hanger”—a piece that did not rest entirely on

one of the moving trays—that would appear within the proofer.

Not only did the presence of doubles and hangers decrease the

number of sellable goods, but too many of the latter would

periodically clog the line, as dough would accrete to the

machinery with which it came in contact. Although workers

could stop the line in order to remove the dough before it could

jam the proofer, any such delay reduced the productivity of the

bakery.

In an attempt to limit the effects of these “dough anomalies,”

Ottenberg replaced an exterior panel at one end of the proofer

with a hinged, plexiglass door. This door permitted workers to

reach into the interior of the proofer and salvage hangers or

separate doubles, either by hand or by use of along rod designed

for these purposes. Ottenberg did not add any safety mechanism

that would automatically stop the line when the door was opened,

and workers became accustomed to reaching into the moving

proofer because Ottenberg discouraged shutdowns of the line.

PA = ET” Rite bi te LiKE DBE Sinn arabes aisonie ls

Ta

Appendix B

Appellee Bennie Ferguson, an employee of Ottenberg since

1971, had worked with the proofer since Ottenberg received it in

1975. On September 25, 1988, he opened the plexiglass door

installed by Ottenberg and reached into the proofer toclear some

pieces of dough, as he had done many times before. This time,

however, his arm became caught in the moving machinery within

the proofer. The accident permanently disabled Ferguson’s

upper arm.

Ferguson sued a number of parties, including Winkler,

Winkler International Corporation, Winkler USA, and Bakers

Equipment Wholesalers, Inc. He completed trial only with

Winkler, whom he claimed was strictly liable for the defective

design of the proofer and for failing to warn Ferguson adequately

of the dangers of reaching into the moving proofer. After the

district court denied various efforts by Winkler to take the

verdict away from the jury, the jury awarded Ferguson $679,173

for the design defect and awarded Ferguson’s wife $230,000 for

her loss of consortium. Winkler then renewed its motions for

judgment as a matter of law and for a new trial, but the district

court denied each after oral argument.

Winkler now appeals the denial of its motion for judgment

as a matter of law, claiming that Ferguson assumed the risk when

he reached into the moving proofer, that the proofer, as shipped

by Winkler, did not suffer a design defect, that any unreasonable

danger resulted from Ottenberg’s alterations to the proofer, and

that Ferguson did not need additional warning from Winkler as

he was fully aware of the danger involved in the moving

equipment. Winkler also revives its motion for a new trial,

contending that the judge should have given a more specific

instruction regarding Ottenberg’s modifications of the proofer.

Appendix B

DISCUSSION

We review the denial of a motion for judgment as a matter of

law de novo. See McFarlane v. Caterpillar, Inc., 974 F.2d 176,

178 (D.C. Cir. 1992). We will reverse the district court only if

“reasonable men could not disagree” that the verdict was

incorrect. McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d

637, 641 (D.C. Cir. 1988) (quoting Carter v. Duncan-Huggins,

Lid., 727 F.2d 1225, 1227 (D.C. Cir. 1984)). Even though we

resolve evidentiary disputes in favor of Ferguson whenever

reasonable, see id., the evidence on which the verdict relied must

have been “more than merely colorable,” but “significantly

probative ifthe. . . verdict is to stand.” McFarlane, 974 F.2d at

179 (quoting Siegel v. Mazda Motor Corp., 878 F.2d 435, 437

(D.C. Cir. 1989)).

To determine whether the evidence presented was

sufficiently probative to sustain a verdict arising within our

diversity jurisdiction, we look to the law of the locality in which

the district court that rendered the judgment sits. See Joy v. Bell

Helicopter Textron, Inc., 999 F.2d 549, 553 (D.C. Cir. 1993)

(noting that we have extended the Erie doctrine to the District of

Columbia). According to the law of the District of Columbia, a

manufacturer cannot be liable for a design defect unless the

plaintiff proves that the product that caused the injury was sold

in “an unreasonably dangerous condition.” Warner Fruehauf

Trailer Co. v. Boston, 654 A.2d 1272, 1276 (D.C.App. 1995).

The evidence, even taken in the light most favorable to Ferguson,

demonstrates that Winkler not only limited potential dangers of

the proofer through the design of the machine, but also

extensively and explicitly warned persons not to misuse the

proofer in a manner that might expose them to any remaining

risk. Because Ferguson did not adequately demonstrate that the

tet, One ee nineties tncentincans laste etiam sities

9a

Appendix B

proofer was unreasonably dangerous when sold, we hold that the

district court should have granted Winkler’s motion for

judgment as a matter of law.

A. Did the proofer have an unreasonably dangerous design

defect?

This past year, the D.C. Court of Appeals reviewed its first

design-defect claim based ona theory of strict liability in tort. Jd.

Warner Fruehauf adopted a four-step test for determining

whether a seller should be strictly liable:

1) the seller [must have been] engaged in the business of

selling the product that caused the harm;

2) the product [must have been] sold in a defective

condition unreasonably dangerous to the consumer or user;

3) the product [must have been] one which the seller

expected to and did reach the . . .consumer or user without

any substantial change from the condition in which it was

sold; and

4) the defect [must have been] a direct and proximate cause

of the plaintiff's injuries.

Id. Warner Fruehauf further analyzed what constituted an

unreasonably dangerous defect through a form of the commonly

used “risk-utility balancing test,” which looks to “ ‘the risks,

costs and benefits of the product in question and alternative

designs’ ” and compares “ ‘the magnitude of the danger from the

product [to] the costs of avoiding the danger.’ ” Jd. at 1276

(quoting Hull v. Eaton Corp., 825 F.2d 448, 453 (D.C. Cir.

10a

Appendix B

1987)). Implicit in this analysis is that acourt should weigh only

those risks of a product against which a manufacturer has some

duty to guard a worker, including those risks that emerge from

the normal use of the product or objectively foreseeable misuse

of the product. See, e.g., Payne v. Soft Sheen Products, Inc., 486

A.2d 712, 726 (D.C.App. 1985); Higgins v. EJ. DuPont de

Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988) (weighing,

under Maryland law, only risks incurred from normal use and

“the incidental and attendant consequences that accompany

normal use” (quoting Payne, 486A.2d at 726)); cf. Young v. Up-

Right Scaffolds, Inc., 637 F.2d 810,814 (D.C. Cir. 1980) (finding

no threshold duty to warn if risk is not reasonably foreseeable).

Ferguson’s evidence as to whether the proofer was

unreasonably dangerous focused entirely on the alleged risks

that the proofer posed to individuals who reached inside it while

it was running. In order to prevail against Winkler, then, it was

not enough that Ferguson established a risk of injury from

reaching inside the moving proofer; he must also have shown a

reasonably foreseeable likelihood that workers would reach

inside the moving proofer either during normal operations or as

part of some misuse that was reasonably foreseeable at the time

the proofer left Winkler’s control. See McNeal, 836 F.2d at 646;

Young, 637 F.2d at 815.

1. Was there an unreasonable risk of injury from reaching

into the moving proofer as designed and sold by Winkler?

Although there is some reason to think that any risk of injury

from reaching into the proofer was slight, Ferguson advanced

substantial evidence that a chain guard or an automatic safety

interlock may indeed have further reduced the risk of injury to

persons who reach inside the operating proofer. For purposes of

lla

Appendix B

our inquiry, then, we will assume that the lack of either in

Winkler’s design somewhat increased the risk of injury to

persons reaching inside the moving proofer as compared to

possible alternate designs.

2. Was there an unreasonable risk that workers, during

normal operations, would reach inside the moving proofer

as designed and sold by Winkler?

Ferguson has not shown significantly probative evidence

that the design of the proofer contemplated workers reaching

into the moving machinery as part of its normal operations. The

proofer merely transported dough from one stage of production

to another—a process that was completely mechanized. Neither

the old nor new design of the proofer offered any means of

unimpeded access to the moving line. Even the presence of

doubles or hangers would not demand working with the dough in

the moving proofer, as neither posed an immediate threat to the

continued operation of the machine.

In addition, Winkler repeatedly warned individuals not to

reach into the moving proofer at any time. The proofer, as

originally installed by Winkler, displayed a large warning sign

that read, in part, “Warning: Before cleaning or servicing or

removing protective ... covers, disconnect electric power to

machine. .. .” (Emphasis added.) Although paint had hidden

this warning by the day of the accident, there is no dispute that a

Winkler employee placed such a warning on the proofer when

installing the proofer at Ottenberg. A warning with a similar

focus was included in the Operations Manual for the proofer that

Winkler provided Ottenberg. These extensive warnings from

Winkler that explicitly counseled workers against reaching into

the moving proofer at any time confirm that Winkler did not

12a

Appendix B

intend workers to reach into the moving proofer as part of its

normal operations.

3. Was there an unreasonable risk that a worker would

reach inside the moving proofer as part of some misuse that

could have been reasonably foreseen by Winkler when it

designed and sold the proofer?

Ferguson also has not shown significantly probative

evidence that Winkler should have reasonably foreseen either

that workers would routinely remove a panel to manipulate the

dough without stopping the line or that some employer, like

Ottenberg, would permanently remove a panel in order to

encourage workers to reach into the proofer. While evidence at

trial did indicate that at least two bakeries have now replaced one

of the panels on the proofer with a plexiglass door, Winkler had

no cause to expect a bakery might adopt such a dangerous

modification of the proofer at the time it delivered this proofer to

Ottenberg. Certainly, in fashioning the more easily removable

panels for the proofer, Winkler did not know of any line worker

or bakery that had removed the exterior panels in order to allow

access to the moving line; it was only aware of maintenance

workers who occasionally neglected to re-install the protective

panels. The new panels, which allowed line workers to re-install

the panels without the need for tools, thus addressed the sole

problem that seemed to arise from the old design. In addition, the

evidence strongly suggests that a reasonable observer would not

have expected knowledgeable workers to misuse the proofer and

risk injury by removing an exterior panel and then reaching

inside the moving proofer. That Ottenberg altered the proofer by

replacing a panel with a hinged plexiglass door in order to

encourage workers to reach into the proofer confirms that there

was little risk of workers routinely reaching into the moving

proofer as Winkler had designed it.

13a

Appendix B

Even assuming that the original design of the proofer did not

sufficiently deter improper and dangerous conduct, Ferguson

still has not shown that the proofer was unreasonably dangerous.

Although the D.C. courts have never explicitly announced that

adequate warnings may cure a design defect, see Warner

Fruehauf Trailer Co., 654 A.2d at 1278 & n.16, they have

declared that a manufacturer “ ‘is entitled to defend a strict

liability claim based on defective design by showing that a

warning accompanied the product that reduced its dangers.’ ” Jd.

at 1278 (quoting Carter v. Johns-Manville, 557 F.Supp. 1317,

1320(E.D.Tex. 1983)). Much relevant precedent confirms that

the presence of warnings may transform an otherwise

unreasonably dangerous design, even as compared to other

designs, into a safe one. For example, the Maryland courts,

which have often served as an aid in interpreting the

products-liability law of the District of Columbia, see Hull, 825

F.2d at 453-54, have noted that adequate warnings may save a

designer from strict liability for alleged design defects. See

Simpson v. Standard Container Co., 527 A.2d 1337, 1341

(Md.App.), cert. denied, 533 A.2d 1308 (1987). Similarly, we

have noted that the “presence of warnings can cure [even an]

unreasonable danger.” See Leachman v. Beech Aircraft Corp.,

694 F.2d 1301, 1306 (D.C. Cir. 1982). Acomment to Section

402A of the Restatement (Second) of Torts, from which the

District of Columbia derived its version of strict liability for

design defects, see Warner Fruehauf Trailer Co., 654 A.2d at

1274, also specifies that “[w]here warning is given, the seller

may reasonably assume that it will be read and heeded; anda

product bearing such a warning, which is safe for use if it is

followed, is not in defective condition, nor is it unreasonably

dangerous.” Restatement (Second) of Torts § 402A cmt. j

(1965).

l4a

Appendix B

In this case, Winkier’s obvious and repeated warnings

would have, if heeded, eliminated the risk of the injury that

Ferguson suffered. As noted, the proofer, as installed, posed no

risk unless some person reached inside the machine while it was

operating. In its operations manual, Winkler informed users to

work with the internal machinery only when the proofer was not

running and could not be accidentally activated. Winkler could

rely on Ottenberg to pass this information on to its workers, see

Cotton v. Buckeye Gas Products Co., 840 F.2d 935, 939 (D.C.

Cir. 1988), which Ottenberg did. See Ottenberg’s Bakery, Inc.,

Company Rules and Regulations 9 (1987) (admonishing

employees to “not reach into equipment that is in motion”). As

a final precaution, Winkler, when it installed the proofer at

Ottenberg, even puta large sign on the machine itself that warned

any individual to not even open the machine while the proofer

was running. Although this warning was subsequently obscured,

the critical issue in a products-liability case in the District of

Columbia is whether the warnings made the product safe at the

time it left the manufacturer’s control. See, e.g., Warner

Fruehauf Trailer Co., 654 A.2d at 1274, 1276 (holding that the

dangerousness of the risks should be assessed at the time the

product was sold). As the warning on the proofer was in place at

that time, Winkler “ha[s] a right to rely on [this] warning,” as

well as its other warnings, “to insulate it from becoming a virtual

insurer against all injuries arising from its product.” Higgins,

863 F.2d at 1168. Because Winkler repeatedly warned workers

not to expose themselves to the only risk involved in using the

proofer, no reasonable juror could find either that

knowledgeable workers might reach into the moving proofer or

that the proofer, as designed and sold by Winkler, was

unreasonably dangerous. See id. at 1167-68; cf. McNeal, 836

F.2d at 646 (D.C. Cir. 1988) (finding that lack of warnings or

instructions as to safe use made misuse reasonably foreseeable

and the manufacturer liable).

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Appendix B

B. Other Grounds

Because the design of the proofer was not unreasonably

dangerous, we do not need to comment on how the alterations

made by Ottenberg affected Winkler’s liability. Nordo we need

to comment on whether Ferguson assumed the risk when he

placed his hand within the moving proofer or whether the district

court erred when it did not instruct the jury as to Ottenberg’s

modifications as Winkler had requested.

We need comment on the “failure to warn” claim only to

reject it. Amanufacturer suffers liability for a failure to warn in

the District of Columbia only if its warning about a product is not

adequate to inform the intended user, who demonstrates the level

of sophistication common for such users, of particular

circumstances or conduct that will likely result in injury from the

product. See Payne, 486A.2d at 723. Noreasonable party could

disagree that Ferguson, who had worked for Ottenberg’s since

1971 and had worked with the proofer since it had been installed,

knew of the danger in reaching into the moving proofer “by

virtue of his profession and experience.” East Penn Mfg. Co. v.

Pineda, 578 A.2d 1113, 1120(D.C.App. 1990). Even assuming

that there was “a risk of harm reasonably foreseeable to the

product supplier giv[ing] rise to a duty to warn,” see id. at 1119,

the extensive warnings offered by Winkler ensure that Winkler

satisfied any duty to warn it may have had. Thus, we must reverse

the district court on this ground as well.

CONCLUSION

Although the D.C. Court of Appeals has recognized that a

“finding of unreasonable danger most often turns on the absence

of asafety device that was available at the time of manufacture,”

16a

Appendix B

the lack of asafety mechanism, even ones available at the time of

design, does not suffice to establish liability. Westinghouse Elec.

Corp. v. Nutt, 407 A.2d 606, 611 (D.C.App. 1979). “It is one

thing to show that the [manufacturer] might have designed a

safer product; quite another to show that the product [it] did

design was unreasonably dangerous.” Jd. (quoting Weakley v.

Fishbach & Moore, Inc., 515 F.2d 1260, 1267 (Sth Cir. 1975)).

Ferguson did not make the critical latter showing.

Although a judgment as a maiter of law is not common, one

is far more likely to issue in favor of parties who do not bear the

ultimate burden of proof on an essential issue. Cf. Warner

Fruehauf, 654 A.2d at 1279 (noting that directed verdicts are

granted only “sparingly” in favor of the party with the burden of

proof). Because Ferguson did not adequately demonstrate either

that the proofer was unreasonably dangerous when it left

Winkler’s control or that Winkler failed to warn an experienced

user adequately, he cannot prevail as a matter of law. We must

reverse the district court’s ruling to the contrary.

Itis so ordered.

17a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

COLUMBIA DATED MARCH7, 1995

Civil Action No. 91-2397

BENNIE FERGUSON, etal.,

Plaintiffs,

v.

WINKLER INTERNATIONAL CORP.,

Defendant.

ORDER

Before the Court is defendant’s Post Trial Motion for

Judgmentas a Matter of Law, or in the Alternative, Motion fora

New Trial. Upon consideration of said motion, plaintiffs’

opposition thereto, and the arguments of counsel made at the

March 3, 1995 motions hearing, itis, this 7th day of March, 1995

hereby

ORDERED that defendant’s motion is denied; and itis

ORDERED that the jury verdict returned on July 26, 1994,

in this matter be affirmed.

s/ John H. Pratt

JOHN H. PRATT

United States District Judge