PHILADELPHIA – A Delaware County man who sued a Japanese corporation and Home Depot for laceration and amputation injuries he alleges he suffered when operating a circular saw, has voluntarily dismissed his claims.
Kyle Schillinger of Wallingford first filed suit in the Delaware County Court of Common Pleas on Jan. 11 versus Makita Corporation of Anjo, Aichi, Japan, Makita U.S.A., Inc. and Makita Corporation of America of La Mirada, Calif., and The Home Depot, U.S.A., Inc. (doing business as “The Home Depot”), of Atlanta, Ga.
“The Makita defendants market circular saws, including the Makita 5007MG circular saw, as a tool for individuals to use for, among other things, cutting lumber and wood. In 2020, plaintiff Schillinger purchased a Makita 5007MG circular saw from the Home Depot in Broomall, Pennsylvania, which defendant Home Depot, regularly sold at its retail stores,” the suit said.
“On March 24, 2021, plaintiff Schillinger who was employed as a contractor for Tilghman Builders, was performing work constructing a covered porch at 1823 Allen Lane, Abington, Pennsylvania. Plaintiff Schillinger needed to ‘rip cut’ a 6’ piece of framing lumber down to a desired width of 3’. Plaintiff Schillinger was using the subject Makita 5007MG circular saw to perform the above-referenced work.”
The suit added when he started cutting the wood, however, the Makita 5007MG circular saw caused the wood to kick backward.
“As the wood kicked backwards, plaintiff Schillinger instinctively used his left hand to grab the board; at the same time, the saw kicked back into his left hand causing serious laceration injuries, including a near-complete amputation of his second through fifth digits, which required five surgeries thus far. It is believed, and therefore averred, that the Makita defendants’ product that plaintiff Schillinger was using was designed defectively, which defective design caused the significant injuries that plaintiff Schillinger, sustained. It is believed, and therefore averred, that the Makita defendants failed to adequately warn against the negative effects and risks associated with the Makita 5007MG circular saw, including the risks associated with lacerations and amputations,” the suit stated.
“It is believed, and therefore averred, that the Makita defendants omitted, concealed and/or inadequately provided critical safety information and instructions involving the use of the Makita 5007MG circular saw to consumers. It is believed, and therefore averred, that the Makita defendants, knew or should have known, that the use of Makita 5007MG circular saw, as designed, created an increased risk of injury including, but not limited to, laceration and/or amputation.”
The Makita defendants removed the case to the U.S. District Court for the Eastern District of Pennsylvania on Jan. 30.
The defendants filed separate answers to the litigation on Feb. 7 and Feb. 13, which denied the suit’s allegations and each presented 16 affirmative defenses.
“The plaintiff’s complaint fails to set forth a cause of action and/or a claim for relief against the answering defendants. The product in question was improperly maintained and this was the cause of the accident described in the plaintiff’s complaint. The product in question was misused and/or abused. The superseding negligence of parties and/or entities over which answering defendants had no control nor right to control relieves answering defendants of any liability. The liability of answering defendants, if any, is mitigated by the provisions of the Pennsylvania Comparative Negligence Statute. The plaintiff voluntarily assumed the risk. Any and all claims made against answering defendants are barred by the applicable statute of limitations. Any and all claims made against the answering defendants are barred by the Pennsylvania Statute of Repose,” the defenses stated.
“Plaintiff has failed to mitigate his damages. The product was modified by persons or entities other than answering defendants and these modifications caused or contributed to plaintiff’s alleged incident. Plaintiff failed to give timely notice for any alleged breach of warranty and therefore, any such claim is barred. Answering defendants were not in any way negligent and therefore, plaintiff may not recover from answering defendants. The alleged injuries and damages of the plaintiff are not the result of any act or omission of answering defendants nor the result of any breach of duty by answering defendants. Plaintiff’s own negligence caused the injuries/damages. Plaintiff failed to read, follow and heed the warnings and instructions which accompanied the product at the time it was sold. Plaintiff’s conduct was the sole cause of this accident.”
Though counsel for all parties mutually stipulated on May 22 that the case would be remanded to the Delaware County Court of Common Pleas, U.S. District Court for the Eastern District of Pennsylvania Judge Mark A. Kearney opted not to approve the stipulation and kept the case in federal court – due to the damages at issue and not providing evidence with which to vacate its subject matter jurisdiction.
UPDATE
Just over one month later, on June 28, the plaintiff voluntarily dismissed his case.
“In accordance with Federal Rule of Civil Procedure 41(a)(1)(A)(i), kindly enter a voluntarily dismissal of this matter, by the plaintiff,” the plaintiff’s notice stated.
Kearney approved the stipulation the very same day through judicial order.
“Upon reviewing plaintiff’s notice purporting to voluntarily dismiss under Federal Rule of Civil Procedure 41(a)(1)(A)(i) without the signature of all counsel after defendants filed an answer, but finding we may dismiss at plaintiff’s request under Federal Rule of Civil Procedure 41(a)(2), it is ordered: Plaintiff’s claims against all parties are dismissed without prejudice on all claims against all defendants; We deny defendant Makita Corporation’s motion to dismiss as moot and the Clerk of Court shall close this case,” Kearney said.
For counts of negligence, strict liability and breach of warranty, the plaintiff is seeking damages, individually, jointly and/or severally with the other named defendants, in excess of $50,000, together with interest, costs of suit, delay damages and any and all other relief this Court deems necessary, appropriate, and/or just, along with a jury trial.
The plaintiff was represented by Matthew J. Bilker of Eckell Sparks Levy Auerbach Monte Sloane Matthews, in Media.
The defendants were represented by Bradley D. Remick and Christopher J. DiCicco of Marshall Dennehey Warner Coleman & Goggin, in Philadelphia and New York, N.Y.
U.S. District Court for the Eastern District of Pennsylvania 2:23-cv-00369
Delaware County Court of Common Pleas case CV-2023-000240
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com