United States District Court, D. Oregon
ERIC D. VIRSHBO, MELANIE E. ROSE, MacMillan Scholz & Marks, PC, Portland, OR, Attorneys for Plaintiff.
JEFFREY S. EDEN, JORDAN R. SILK, Schwabe Williamson & Wyatt, PC, Portland, OR, Attorneys for Defendant.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendant's Motion (#17) for Summary Judgment. The Court concludes the record is sufficiently developed such that oral argument would not be helpful. For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's Motion.
The following facts are undisputed unless otherwise noted.
In June 2000 Defendant Ingersoll-Rand manufactured the "DD-16 Serial Number 164566 Asphalt Compactor" (the drum roller). Initially the drum roller was put into service as part of a fleet of rental equipment in San Diego, California, during which time the drum roller was used for a total of 157 service hours by an unknown number of renters.
On August 20, 2004, the drum roller was transferred to an unidentified dealer in Portland, Oregon.
On October 13, 2004, the Yamhill County Public Works Department purchased the drum roller from the dealer. The record reflects the drum roller had accrued a total of 774 service hours at the time of the incident at issue in this matter.
In 2006 the Yamhill County Public Works Department hired Plaintiff Terry Lane as a utility worker. The record reflects Plaintiff used the drum roller for at least 105 hours from April 2006 through October 2010. Each time Plaintiff operated the drum roller he used "the grab handle on the pedestal" to climb onto the drum roller. Plaintiff stated at deposition he did not notice at any of those times that "the handle was loose or unstable in any way."
On June 23, 2011, Plaintiff was injured when he attempted to climb onto the drum machine:
I had grabbed the handle, um, stepped into the stirrup to get on, and then pulled myself up. I remember falling backwards and, um, with the handle still in my hand. Uh, and I jabbed this leg into the ground - it was really, it was pretty hard and I just - as soon as it happened I said ouch or something.
Decl. of Jordan Silk, Ex. C at 8. Plaintiff's coworkers took him to the hospital.
Yamhill County employees at the scene took six photographs of the drum roller and the drum-roller handle immediately following the incident. Later on June 23, 2011, a Yamhill County maintenance worker, Daniel May, repaired the handle by rewelding it to the drum roller. The parties do not dispute the rewelding eliminated all evidence of the condition of the drum roller when it failed other than the six photographs.
At some point after the incident Plaintiff sought and received workers' compensation benefits.
On June 21, 2013, Liberty Northwest Insurance Company commenced an action in Multnomah County Circuit Court in Lane's name and against Defendant pursuant to Oregon Revised Statute § 656.591, which permits a workers' compensation "paying agency" to bring an action in the employee's name, and asserted three claims for relief: (1) products liability, (2) breach of implied warranty, and (3) negligence related to the design and manufacture of the drum roller.
On August 21, 2013, Defendant removed the matter to this Court on the basis of diversity jurisdiction.
On June 30, 2014, Defendant filed a Motion for Summary Judgment as to all of Plaintiff's claims. The Court took the matter under advisement on August 7, 2014.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Washington Mut. Ins. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed.R.Civ.P. 56(a). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Id. "This burden is not a light one.... The non-moving party must do more than show there is some metaphysical doubt' as to the material facts at issue." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citation omitted).
A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues." Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir. 2004)(citation omitted). A "mere disagreement or bald assertion" that a genuine dispute as to a material fact exists "will not preclude the grant of summary judgment." Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989)). When the nonmoving party's claims are factually implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.
Defendant moves for summary judgment on the ground that the record lacks sufficient evidence for any reasonable juror to conclude that Defendant defectively manufactured or designed the handle of the drum roller. In the alternative, Defendant asserts even if the record permits an inference of the existence of a defect in the handle, Yamhill County's repair of the handle significantly prejudiced Defendant's ability to defend this action. Defendant, therefore, contends the Court should grant summary judgment in favor of Defendant as a sanction for spoilage of the evidence.
I. Competing expert evidence to which there is no objection.
Defendant relies on the opinions of its experts, John T. Myers III and Frank Martinelli, to support its Motion for Summary Judgment. Plaintiff relies on the opinion of his expert, Keith Cronath, to support his position. Neither party objects to the qualifications of the experts.
On March 28, 2014, Myers rendered an expert opinion as to the effect of the June 23, 2011, repair of the drum-roller handle on Defendant's ability to evaluate the cause of the incident. After Myers examined the photographs of the handle taken after the incident but before the repair; the documentation of Yamhill County's purchase of the drum roller; and the documentation of the use of the roller by Yamhill County, including operator inspection reports, repair work orders, and an operator parts manual, Myers opined the presence of "a single bright zone" of fresh metal with "[t]he balance of the surface show[ing] evidence of rust on the surface of the sheet metal material and the edge of the weld" as seen in the photographs "suggest[s] some progressive failure occurred at the edge of the weld." Silk Decl., Ex. J at ...