15‐3830‐cv Greenberg v. Larox, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of December, two thousand sixteen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRIAN M. COGAN, District Judge.*

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KIMERLY GREENBERG, Plaintiff‐Appellant,

v. 15‐3830‐cv

LAROX, INCORPORATED, OUTOTEC (USA) INC., as successor in interest to Larox, Incorporated, Defendants‐Appellees.

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* Judge Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation.

FOR PLAINTIFF‐APPELLANT: JOSEPH A. REGAN, Faraci Lange, LLP, Rochester, New York.

FOR DEFENDANTS‐APPELLEES: JOHN P. FREEDENBERG, Goldberg Segalla LLP, Buffalo, New York.

Appeal from the United States District Court for the Western District of

New York (Geraci, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN

PART AND VACATED IN PART, and the case is REMANDED for further

proceedings consistent with this order.

Plaintiff‐appellant Kimerly Greenberg appeals from a judgment of the

district court entered October 26, 2015, dismissing his complaint in this products

liability action. By decision and order entered the same day, the district court granted

summary judgment in favor of defendants‐appellees Larox, Incorporated (ʺLaroxʺ) and

its successor‐in‐interest Outotec (USA), Incorporated on the grounds that Greenberg

had not identified a design defect and Larox had no duty to warn of the danger posed

by using its product with another product. We assume the partiesʹ familiarity with the

underlying facts, procedural history, and issues on appeal.

Larox manufactures pressure filters, which are machines that separate

solids from liquids for use in chemical processing. Laroxʹs pressure filters use

hydraulically powered drive rollers to pull filter cloths through the machines. Laroxʹs

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user manual has step‐by‐step instructions and diagrams for replacing used filter cloths

with new ones. The replacement method described in the instructions and depicted in

the diagrams involves the use of a stand‐alone, external cloth rack, which the manual

specifies is not included in the Larox delivery. Larox makes and sells customized racks

only upon request. The replacement instructions also state, in bold, ʺOld cloth must

keep tight when reeling.ʺ

Greenberg is a former employee of Xerox Corporation (ʺXeroxʺ) who

sustained personal injuries at work while using a cloth rack, designed and

manufactured by Xerox, to replace used filter cloth in a Larox pressure filter. In July

2011, he filed a complaint in New York Supreme Court alleging two claims against

Larox: (1) a design defect in the pressure filter allowed the exiting filter cloth to develop

ʺslack,ʺ or fall loose, which became entangled with the drive roller and caused the hand

crank on the cloth rack to reverse direction and cause him injury, and (2) Larox failed to

warn him of that danger. Defendants removed the case to federal district court on

diversity grounds in October 2011.1

In October 2015, the district court awarded defendants summary

judgment based on its conclusions that Greenberg had not identified a defect in the

pressure filter and that, pursuant to Rastelli v. Goodyear Tire & Rubber Co.,

1 The parties are diverse because Greenberg is domiciled in New York, Larox is a Maryland corporation with a principal place of business in Maryland, and Outotec is a Delaware corporation with a principal place of business in Maryland. Greenberg seeks to recover $500,000 in damages.

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(1992), Larox had no duty to warn Greenberg that the joint use of its pressure filter with

Xeroxʹs cloth rack, a product over which it had no control, could pose a danger.

Greenberg appeals on the grounds that Rastelli does not preclude imposing a duty to

warn in this case and there are genuine disputes of material fact as to the existence of a

defect in Laroxʹs machine, Laroxʹs duty to warn, and the adequacy of the warning in its

user manual.

We review an award of summary judgment de novo and will affirm only if

the record, viewed in favor of the party against whom judgment was entered, shows

there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. Barfield v. N.Y.C. Health & Hosps. Corp.,

(2d Cir. 2008).

1. Design Defect

Under New York products liability law, a product has a design defect if it,

ʺas designed, presented a substantial likelihood of harm and feasibly could have been

designed more safely.ʺ Fane v. Zimmer, Inc.,

(2d Cir. 1991) (citing Voss

v. Black & Decker Mfg. Co.,

(1983)). Courts assess whether, ʺif the

design defect were known at the time of manufacture, a reasonable person would

conclude that the utility of the product did not outweigh the risk inherent in marketing

a product designed in that manner.ʺ

(quoting Voss, 69 N.Y.2d at 108).

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ʺ[W]e may affirm the award of summary judgment on any ground with

adequate support in the record.ʺ CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP,

(2d Cir. 2013) (quoting VKK Corp. v. Natʹl Football League,

, 118

(2d Cir. 2001)). We hold, on the design defect claim, that the district court properly

awarded defendants summary judgment, but not for the reason it articulated. It

granted summary judgment on the basis that Greenberg had ʺonly point[ed] to alleged

defects in the Xerox cloth rack . . . [and] fail[ed] to identify any defect in the Larox

pressure filter itself.ʺ Special App. at 7‐9. The expert report by Greenbergʹs mechanical

engineering expert, however, viewed in the light most favorable to Greenberg, suggests

the ʺcloth changing set‐upʺ was defectively designed so as to allow used cloth exiting

the machine to fall loose and be pulled back into the machine, which could, in turn,

cause a manually‐operated crank ʺdown streamʺ to reverse direction and injure the

crank operator. App. at 626. A reasonable jury could find the defect lay at least in part

with Laroxʹs machine and its manner of pushing out used cloth, rather than with the

hand crank on the cloth rack. Accordingly, the award of summary judgment on the

basis specified by the district court was improper.

Summary judgment on the design defect claim, however, was nonetheless

warranted because Greenberg failed to submit evidence that Larox could have designed

a safer version of its product. It was Greenbergʹs burden to show it was feasible for

Larox to design a safer version of its pressure filter. See Fane,

(describing

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the plaintiffʹs burden to show that the product, ʺas designed, presented a substantial

likelihood of harm and feasibly could have been designed more safelyʺ); Aaron Twerski

& James A. Henderson Jr., Mfr.ʹs Liab. for Defective Prod. Designs: The Triumph of Risk‐

Utility,

, 1062 (2009) (ʺ[I]n the overwhelming majority of

American jurisdictions, claims of defective design reach triers of fact only when the

plaintiff offers plausible proof that her injuries would have been reduced or avoided by

the adoption of a reasonable alternative design.ʺ). The alternative designs proposed by

Greenbergʹs expert apply to the hand crank on the cloth rack, not to the pressure filter.

Because Greenberg did not offer proof of an alternative, safer design for the pressure

filter itself, he could not prevail on his design defect claim. Adamo v. Brown &

Williamson Tobacco Corp.,

, 549‐51 (2008) (affirming reversal of jury verdict,

initially rendered in plaintiffsʹ favor, in design defect case because plaintiffs presented

no evidence that defendants could feasibly have designed safer version of cigarettes);

Felix v. Akzo Nobel Coatings Inc.,

(2d Depʹt 1999) (reversing denial

of summary judgment in design defect action in part because ʺthere was no competent

evidence set forth by the plaintiff that there was an alternative, safer designʺ of a solvent

contained in defendantʹs products).

Accordingly, we affirm the award of summary judgment in this respect.

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2. Failure to Warn

Turning to the failure to warn claim, we conclude the district court erred

in awarding summary judgment on the basis of its determination that, because there

was no evidence that Larox contributed to the defect in Xeroxʹs cloth rack, the Rastelli

decision precluded Greenbergʹs claim.

In Rastelli, the Court of Appeals concluded that a tire manufacturer had no

duty to warn of the danger of using its tires with another companyʹs purportedly

defective tire rims because it had no control over the rimsʹ production, played no role in

placing the rims in the stream of commerce, derived no benefit from their sale, and did

not create or contribute to the alleged defect in the rims. Rastelli, 79 N.Y.2d at 297‐98.

The court determined that, under the circumstances of the case, a manufacturer of a

sound product has no duty to warn about another manufacturerʹs defective product

even if the two products can be compatibly used.

at 297‐98.

The Court of Appeals recently held that, ʺ[c]onsistent with [its] decision in

Rastelli,ʺ a product manufacturer has ʺa duty to warn of the danger arising from the

known and reasonably foreseeable use of its product in combination with a third‐party

product which, as a matter of design, mechanics or economic necessity, is necessary to

enable the manufacturerʹs product to function as intended.ʺ Matter of N.Y.C. Asbestos

Litig.,

(2016). The court clarified that its rule accounted for the

concern driving the Rastelli analysis ‐‐ that it would be unfair for a manufacturer to

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avoid the minimal cost of issuing warnings when it knew about, and expected its

customers to be exposed to, the dangers arising from the combined use of its product

with another product.

at 793‐94.

ʺ[T]he existence and scope of a duty to warn are generally fact‐specific,ʺ

and ʺit is incumbent on the court . . . to decide whether an applicable legal duty existsʺ

by ʺdecid[ing] whether there is any proof in the record that might support the

recognition of a duty to warn owed by the manufacturer to the injured party.ʺ

(internal alterations, quotation marks, and ellipses omitted).

After reviewing the record in Greenbergʹs favor, we conclude that

summary judgment was unwarranted because genuine issues of material fact exist as to

whether Larox had a duty to warn about the danger arising from the combined use of

its pressure filter with Xeroxʹs cloth rack. First, the parties dispute whether the cloth

rack was ʺnecessaryʺ to the process of replacing used cloths in the machine within the

meaning of the standard set forth in N.Y.C. Asbestos,

. On the one hand,

there is evidence that (1) the section in the Larox manual on replacing filter cloths

depicted and referred to an external cloth rack and (2) a Larox representative attended a

Xerox training on replacing filter cloths in its pressure filter and showed Xerox

employees how to use Xeroxʹs cloth rack to change out the cloth. Such evidence

suggests that the cloth rack was necessary to the operation and intended use of Laroxʹs

machine. On the other hand, defendants offer the testimony of a Larox representative

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declaring that the ʺ[v]ery widely used method for replacing the clothʺ involved neither

a hand crank nor a cloth rack. App. at 143. Such testimony suggests that the cloth rack

was not necessary to the operation and intended use of the pressure filter. This factual

dispute on the issue of necessity precludes summary judgment.

Second, the factual dispute over Laroxʹs contribution to the danger arising

from the joint use of its pressure filter with a cloth rack bears on the issue of whether it

knew about, and could reasonably foresee, this danger of malfunction and injury; the

resolution of these disputes affects whether Larox had a duty to warn at all. There is

evidence that the Larox manual depicted and referred to an external cloth rack and

instructed users, ʺOld cloth must keep tight when reeling.ʺ The Xerox employee who

built Xeroxʹs cloth rack and created Xeroxʹs procedure for replacing filter cloths did so

by relying, in part, on the Larox manual and its depictions of a cloth rack. A Larox

representative trained Xerox employees in using the cloth rack with its pressure filter.

A reasonable jury could conclude from these and other facts that (1) Larox knew and

reasonably could foresee that Xerox employees would use its pressure filter and the

cloth rack together, and that the combined use of the products could give rise to the

danger of filter cloths coming loose during the cranking of the cloth rack, (2) as noted

above, Xeroxʹs cloth rack was necessary, as a matter of design, mechanics, or economic

necessity, for the pressure filter to function as intended, and thus (3) Larox had a duty

to warn. See

.

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Because factual issues exist as to whether Larox had a duty to warn, the

district court erred in granting summary judgment dismissing this claim.

* * *

Accordingly, we AFFIRM the judgment of the district court to the extent it

granted summary judgment on the design defect claim, and we VACATE the judgment

to the extent it dismissed on the failure to warn claim. We REMAND for further

proceedings consistent with this order.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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