Tammy Ensley v. Tricam Industries ( 2017 )

FILED
COURT OF APPEALS DIV I
CF
2517 CF_C 25 LI c2: 110
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TAMMY ENSLEY and RAYMOND )
ENSLEY, ) No. 76052-1-1
Respondents, )
) DIVISION ONE
v. )
)
COSTCO WHOLESALE )
CORPORATION, a Washington )
corporation, NEWELL RUBBERMAID, )
INC., a Delaware corporation, ) PUBLISHED OPINION
)
Defendants, ) FILED: December 26, 2017
)
and )
)
TRICAM INDUSTRIES, INC., a )
Minnesota corporation, )
)
Appellant. )
)
BECKER, J. — In this product liability action, a jury found that a construction
defect in plaintiff's stepladder caused her to fall and sustain injury. Testimony by
an expert in injury biomechanics was properly admitted to show that a weakness
in the stepladder's leg caused it to collapse unexpectedly. Evidence that the
stepladder's design conformed to safety standards did not negate evidence that
this particular stepladder was defective in construction. Finding no error in the
trial court's rulings, we affirm the verdict for the plaintiffs.
Tammy and Raymond Ensley, respondents, were working on a project in
their garage on February 27, 2012. Tammy was standing on the second step of
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a stepladder that she had purchased less than a year earlier. She was holding
plastic sheeting while Raymond stapled the sheeting to the wall. Tammy
suddenly fell to the ground and was injured. Tammy testified that the fall was
"instantaneous. 1 face-planted." She did not know exactly what caused her to
fall. According to Tammy and Raymond,the stepladder was positioned on the
flat concrete surface of the garage floor before the fall and Tammy was not
wobbling or otherwise unstable. The ladder was found with one of the front legs
bent inward as shown in the photograph below.
The Ensleys brought this suit against several defendants under
Washington's product liability act, chapter 7.72 RCW. The trial began in August
2016. The only remaining defendant at the end of the case was appellant Tricam
Industries, Inc.
The stepladder was a Rubbermaid TR-3HB model. Tricam designed it
and contracted for its manufacture. The legs were made from a single
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continuous metal tube. Three steps were riveted to the two front legs of the
ladder.
The Ensleys relied on expert testimony that the ladder was defective both
in design and construction. Tricam's trial theory was that the stepladder's leg
could not have snapped or bent under normal use because it met all design
standards. Tricam contends the expert opinion to the contrary should have been
excluded as speculative.
The expert witness who testified in support of the Ensleys' claim was
mechanical engineer Wilson Hayes, a specialist in injury biomechanics. Hayes
explained his methodology for analyzing the accident. He began by asking the
question whether the stepladder broke and caused Tammy to fall, or whether
Tammy fell and caused the stepladder to break. He examined four possible
scenarios. Based on Tammy's location after the fall, the location of the
stepladder after the fall, and the nature of Tammy's injuries, Hayes ruled out
three scenarios that involved Tammy losing her balance and knocking the ladder
over as she fell. Hayes concluded that the only plausible scenario was one in
which one leg of the stepladder broke first and Tammy, in reaction to that event,
fell forward with her feet caught between the platform and the second leg.
Hayes presented his opinion that the stepladder broke because it was
defectively designed and manufactured. He observed that the leg broke where a
hole had been punched so that a rivet could be inserted to attach a step.
Punching holes in the tubular railings was "a design flaw at the outset," he said,
because the holes concentrated the stresses at the point of insertion. In his
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opinion, these stresses could be mitigated if the manufacturing process included
a requirement for grinding down and smoothing the holes punched in the railing,
a process known as deburring. Tricam's manufacturing process did not require
deburring.
Hayes testified that "when you look at something that's as rough as the
inside of that hole, it doesn't look like very good manufacturing practices." Later,
the court (reading a juror's question) asked Hayes,"Does it increase a chance for
cracks to occur if the hole was not deburred?" Hayes responded,"The short
answer to that is yes." Hayes said his conclusion that this particular ladder broke
and caused the fall was not affected by the design standards and tests showing
that TR-3HB stepladders were generally capable of bearing considerable weight
without failure.
Hayes testified that in the final step of his inquiry, he determined there
were feasible and cost-effective design alterations already in use in products
marketed by Tricam that would have eliminated the defect that caused Tammy's
fall.
Tricam countered with testimony by mechanical engineer Mack Quan that
the steel rails made the stepladder "inherently strong." Quan rejected Hayes'
opinion that the leg of the ladder bent under Tammy's weight while it was in a
stable position with all of its feet on the ground. In his opinion, that scenario for
the fall was "physically impossible." Instead, the ladder must have already tipped
before the toe bent inward. Quan discussed extensive testing that had been
done on other stepladders of the same model. According to Quan, the tests
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demonstrated that this model of stepladder met national design standards and
was capable of bearing loads exceeding Tammy's weight without failing, even
after the railings were intentionally punched with holes that were not smoothed
down. Quan had also tested the unbroken leg of the Ensleys' stepladder and
said that the ladder "had all the qualities it needs to be a safe type 3 stepstool."
Quan conceded in cross-examination, however, that the rivet hole where the
other leg broke would not be identical to the rivet holes punched out on the
unbroken leg. "They're never going to be identical."
At several points in the proceedings, Tricam asked the court to rule that
Hayes'testimony was too speculative to support a finding of a construction
defect. The trial judge rejected this argument before, during, and after the trial.
When denying Tricam's motion for a directed verdict, the judge commented that it
was unusual to see two experts "so diametrically opposed, and yet so qualified."
The court gave the pattern jury instructions on construction and design
defects,6 Washington Practice: Washington Pattern Jury Instructions: Civil
110.01 and 110.02(6th ed. 2012). The jury returned a verdict finding that the
stepladder "was not reasonably safe in construction at the time the product left
the Defendant's control." The jury did not find that the ladder was defectively
designed. The jury awarded $435,461 in damages. Tricam seeks a new trial.
In Washington, ER 702 governs admissibility of expert testimony.
Once the court is satisfied with a witness' expertise, the test for
admissibility is whether the testimony "will assist the trier of fact to
understand the evidence or to determine a fact in issue." ER 702;
5A K. Tegland, Wash. Prac. § 291 (1982); State v. Petrich, 101
Wash. 2d 566, 575,683 P.2d 173(1984). The court should also
consider whether the issue is of such a nature that an expert could
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No. 76052-1-1/6
express "a reasonable probability rather than mere conjecture or
speculation." 5A K. Tegland, at 36. In addition, when ruling on
somewhat speculative testimony, the court should keep in mind the
danger that the jury may be overly impressed with a witness
possessing the aura of an expert. United States v. Fosher, 590
F.2d 381 (1st Cir. 1979).
Davidson v. Mun. of Metro. Seattle, 43 Wash. App. 569, 571-72, 719 P.2d 569,
review denied, 106 Wash. 2d 1009 (1986). Trial courts have broad discretion in
determining the admissibility of expert testimony. Davidson, 43 Wash. App. at 575.
The jury instruction[1]stated two tests for finding a construction defect.
The Ensleys could prove a construction defect by showing (1) that the ladder
"deviated in some material way from the design specifications or performance
1 A manufacturer has a duty to supply products that are
reasonably safe in construction.
There are two tests for determining whether a product is not
reasonably safe in construction. The plaintiff may prove that the
product was not reasonably safe in construction using either of
these two tests.
The first test is whether, when the product left the control of
the manufacturer, the product deviated in some material way from
the design specifications or performance standards of the
manufacturer, or deviated in some material way from otherwise
identical units in the same product line.
The second test is whether the product is unsafe to an
extent beyond that which would be contemplated by the ordinary
user. In determining what an ordinary user would reasonably,
expect, you should consider the following:
a. the relative cost of the product;
b. the seriousness of the potential harm from the claimed
defect;
c. the cost and feasibility of eliminating or minimizing the
risk; and
d. such other factors as the nature of the product and the
claimed defect indicate are appropriate.
If you find that the product was not reasonably safe in
construction and this was a proximate cause of the plaintiffs injury
and damage, then the manufacturer is subject to liability.
Clerk's Papers at 35 (instruction 12).
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No. 76052-1-1/7
standards of the manufacturer, or deviated in some material way from otherwise
identical units in the same product line" or(2) that it was unsafe beyond what an
ordinary user would reasonably expect.
The jury heard the deposition testimony of Dennis Simpson, a Tricam
witness who designed the stepladder and oversaw its production. Simpson
maintained that the manufacturing process for this model was intended to
produce "identical" holes for each rail and each ladder. But Simpson admitted
there was no requirement for deburring and "in most cases" deburring did not
take place. And he could not say that the holes. in the Ensley stepladder were
checked during the manufacturing process to ensure they were identical.
Hayes'testimony about irregularities in the holes, together with Simpson's
testimony that Tricam intended for the holes to be identical and Quan's testimony
that rivet holes are "never going to be identical," allowed the jury to find the
stepladder deviated from its intended design.
Hayes' testimony also supported a finding that the stepladder was unsafe
to an extent beyond that contemplated by an ordinary user. Hayes opined that
the leg broke while Tammy Ensley was engaging in normal use of the product,
exposing her to serious injury. An ordinary user would not expect this result,
especially in light of Hayes' testimony that minimizing the risk was feasible and
cost effective.
In considering the question of what caused the fall, the jury was entitled to
accept Hayes' approach rather than Quan's. One of the strengths of Hayes'
opinion was the accident reconstruction methodology by which he determined
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the stepladder broke before Tammy fell, not after. Tricam did not present a fall
reconstruction analysis and therefore was unable to rebut this foundational
conclusion by Hayes.
In challenging Hayes' testimony, Tricam relies on three federal cases in
which the courts excluded expert testimony that stepladders from which the
plaintiffs fell were defective: Maricco v. Meco Corp., No. 03-71719, 2004 WL
6081574(E.D. Mich. Sept. 3, 2004)(court order); Heer v. Costco Wholesale
Corp., 589 Fed. Appx. 854(10th Cir. 2014); Mvkolaitis v. Home Depot U.S.A.,
Inc., No. 13-1868 MLC, 2015 WL 4078111 (D.N.J. July 6, 2015)(unpublished).
The step stool in Heer was the same model as in the present case,
designed and manufactured by Tricam. Heer, 589 Fed. Appx. at 856. In both
Maricco and Heer, the expert proposed to testify that punching rivet holes in the
tubular steel legs created stresses or weakness stresses in the tubular steel legs
that ultimately caused the ladder to fail. Heer, 589 Fed. Appx. at 857; Maricco, at
*1, *4.
In Maricco, the expert witness based his opinion entirely on his visual
observation of the plaintiffs' step stool and his inspection and dissection of an
exemplar step stool. The witness had "scant basis for his opinion on the
important question of why this failure occurred." Maricco, at *5-*7. In Heer, the
expert's report lacked "any discussion of tests, calculations, or industry
standards, or the application of engineering principles" supporting the theory that
a defect caused the plaintiff to fall, so that the court was left with only the expert's
conclusory opinion that the step stool was defective. Heer, 589 Fed. Appx. at
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857, 861. In Mykolaitis, the opinion was judged to be unreliable because the
expert witness kept changing his theories. The court concluded that his
explanation for the fall was "likely-this-but-could-be-that" and that he held no
opinion "to a reasonable degree of scientific certainty." Mvkolaitis, at *9.
Tricam contends the opinion offered by Hayes, like the opinions offered in
the three federal cases, was impermissibly speculative and consequently did not
provide substantial evidence to sustain the jury's finding that the stepladder
contained a construction defect. Tricam also cites Davidson. In that case, a
plaintiffs verdict was reversed on the basis that one of the expert witnesses—an
accident reconstructionist—reached his opinion "by drawing inferences from facts
not in evidence or by assuming facts actually conflicting with eyewitness
testimony." Davidson, 43 Wash. App. at 575. Tricam contends Hayes ignored and
contradicted uncontested data about the stepladder's strength.
Contrary to Tricam's assertion, Hayes did not ignore test results
demonstrating that the stepladder conformed to applicable standards, normally
performed well, and was capable of bearing weight exceeding Tammy's weight
even when riddled with several unsmoothed holes. Hayes reviewed these test
results and other case-specific testimony when preparing to testify. He explained
to jurors that the tests were not relevant to his methodology of accident
reconstruction and did not affect his ultimate conclusions. He noted that one
"limitation" concerning the data discussed by Quan was "we can't test the leg of
the Ensley stepstool that fractured. It's already fractured, it's already done. So
we can't test it. We can't test the hole." He was aware that some stepladders
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riddled with unsmoothed holes had functioned properly in testing, but he
explained that those test results did not conclusively demonstrate that the
Ensleys'stepladder was free of a construction defect.
Unlike the expert opinions challenged in Mykolaitis, Heer, Maricco, and
Davidson, Hayes' testimony was not speculative, conclusory, or uncertain. His
opinions were supported by the Ensleys' testimony about the circumstances of
the accident and were stated to a reasonable degree of scientific certainty.
Hayes employed a scientifically accepted methodology (accident reconstruction)
and engaged in demonstrably thorough analysis. He gave fact-based opinion
testimony helpful in understanding how an individual stepladder could fail during
normal use even if its design met industry standards. The court did not err in
admitting his testimony and allowing the jury to consider the construction defect
claim.
Affirmed.
WE CONCUR:
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