PHILADELPHIA – A federal judge has ruled that man who lost a finger on the premises of his business while using a Black & Decker-manufactured polisher, will be permitted to have his expert witness present scientific testimony, defeating a combined summary judgment and Daubert motion from the company.
Anthony DiDonato of Malvern first filed suit in the Chester County Court of Common Pleas on Aug. 7, 2020 versus Black & Decker (U.S.), Inc., of New Britain, Conn.
The case was removed to the U.S. District Court for the Eastern District of Pennsylvania on Sept. 10, 2020.
“Plaintiff’s claims arise out of a May 23, 2018 accident that occurred at his business, Custom Coach, Inc., located in Upper Darby, Pennsylvania. On May 23, 2018, plaintiff was buffing the side hood of a car with a DeWalt Model DW849 Polisher manufactured by Black & Decker, which he purchased in new condition in 2006. While using the polisher, a loose electric cord got caught on the exposed spindle shaft of the polisher and lassoed his right (dominant) ring finger, severing it at the distal interphalangeal joint,” U.S. District Court for the Eastern District of Pennsylvania John M. Younge said.
“At deposition, plaintiff testified that the loose electric cord was 18 to 20 inches long and commonly used in his shop for utility purposes. Plaintiff clearly testified that the electric cord became wrapped around the spindle shaft of the polisher. However, he also admitted that the accident occurred quickly when he looked away from his work after being distracted by someone who was trying to get his attention. Plaintiff admitted that he did not know where the cord was located prior to the accident, or how it got entangled in the polisher spindle.”
In support of his contention that the polisher was defectively designed, and with specific relevance to the pending motions, plaintiff offers the expert testimony of biomechanical and biomedical engineer Andres J. Calderon, Ph.D. – who concurred with DiDonato that the polisher was defectively designed, because it did not have an enclosed or covered spindle shaft.
“He further opined that the polisher’s spindle shaft was not perfectly smooth and rounded; rather, it had flat edges that further contributed to an entanglement hazard. In his expert report, Calderon opined, ‘It is known that rotating shafts, even if they rotate at a slow revolution, can create an entanglement hazard since cables, clothes, ropes and other items that come in contact with a rotating shaft can become entangled.’ In comparing the polisher with other models on the market, Calderon opined that defendant should have recognized this danger and covered the spindle shaft,” Younge stated.
“Calderon compared the polisher to models designed by other manufactures with covered spindle shafts and opined that it would have been both economically and functionally feasible for defendant to have designed the polisher with a covered shaft. Calderon sat for an expert deposition in connection with this matter in which he reaffirmed the opinions expressed in his expert report.”
Meanwhile, Black & Decker filed a motion for summary judgment incorporating a Daubert challenge to preclude Calderon’s expert opinions and testimony of Andres J. Calderon, Ph.D., on June 21.
According to the company, Calderon should be precluded from offering opinions, since the plaintiff’s “design defect claims brought on theories of strict product liability and negligence fail for lack of expert testimony” and an “inability to establish causation” on its own part.
But Younge found the company’s arguments to be “unpersuasive”, and in recounting how Calderon examined, measured and photographed the polisher, and compared it to similar-styled models on the market, had done his due diligence in this regard.
“Defendant attacks the scientific methodology employed by Calderon primarily by arguing that he failed to conduct physical testing on the polisher, either in the field or in a laboratory. Defendant takes specific issue with the fact that Calderon failed to attempt to recreate the accident. The Court finds this argument unpersuasive,” Younge said.
“The fact that Calderon failed to attempt to entangle an electric cord in the spindle shaft of the polisher to recreate the accident does not render his opinions unreliable as defined by the Daubert standard. Calderon’s opinions appear to be based on his practical experience as a certified engineer, and his application of generally accepted principals in engineering to the facts of this case.”
According to Younge, DiDonato has “come forward with sufficient evidence of design defect to survive defendant’s motion for summary judgment”, and denied the company’s summary judgment and Daubert motions.
“Plaintiff’s testimony as to how the accident occurred in conjunction with the opinions offered by Calderon establishes that issues of material fact remain on a ‘risk-utility’ product liability design defect theory. Calderon offers the opinion that reasonably priced, feasible design alternatives could have been employed by defendant to design the polisher with a covered spindle shaft. Therefore, the Court will not enter summary judgment on plaintiff’s product liability claims,” Younge said.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-04425
Chester County Court of Common Pleas case 20-03325
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com