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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 949

## Text

‘ 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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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. ....

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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).

15a
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1341%3A1. Public record. Not legal advice.