190 F. Supp.2d 194 (2002) | Cited 0 times | D. Massachusetts | March 7, 2002


Kathleen Shuras ("Shuras") and Joseph Shuras brought this suit againstdefendants Integrated Project Services, Inc. ("Integrated"), KuhlmanTechnologies, Inc. ("Kuhlman") and Paul Mueller Company ("Mueller"),alleging 1) negligence, 2) breach of warranty, 3) violation of M.G.L. c.93A, 4) breach of contract and 5) loss of consortium. Shuras seeksdamages for workplace injuries she sustained while calibrating a Muellerwater-for-injection tank ("WFI tank"). The defendants participated,albeit in different roles, in the selection, purchase and sale of the WFItank involved in Shuras' injury. Defendant Kuhlman, in turn, filed asix-count cross-claim against Integrated and Mueller for indemnificationand contribution.

This diversity action is before this Court pursuant to28 U.S.C. § 1332. The plaintiffs are Massachusetts residents anddefendants Integrated, Kuhlman and Paul Mueller are incorporated and havetheir respective principal places of business in Washington, Pennsylvaniaand Missouri.

Currently pending before this Court are motions by Kuhlman and Muellerfor summary judgment.

I. Legal Standard

The role of summary judgment is "to pierce the pleadings and to assessthe proof in order to see whether there is a genuine need for trial."Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quotingGarside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). In casessuch as this one where the moving party does not have the burden of proofat trial, that party nevertheless must offer sufficient evidence tosupport its motion. Celotex v. Catrett, 477 U.S. 317, 325, (1986). Oncethemoving party has satisfied its burden, the burden shifts to the nonmovingparty to set forth specific facts showing that there is a genuine, triableissue. Id. at 324. The Court must view the entire record in the lightmost hospitable to the nonmoving party and indulge all reasonableinferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907(1st Cir. 1993).

II. Factual Background

For the purposes of the summary judgment motion, this Court construesthe record in the light most favorable to the non-moving party. Lohnesv. Level 3 Communications, Inc., 272 F.3d 49, 50 (1st Cir. 2001).

On March 13, 1996, Shuras suffered serious burn injuries after sheattempted to calibrate a 1,000-gallon Mueller WFI tank at the Hopkintonfacility of her employer, Seragen, a biotechnology company. Since 1994,Shuras has been a calibrator at Seragen responsible for ensuring theproper operation of gauges and probes on pharmaceutical equipment such asthe WFI tank.

A. WFI Tank

1. Chart recorder

The WFI tank operates in conjunction with a condensing unit and a puresteam generator to condense clean steam into a 1,000-gallon storage tankto produce pyrogen-free water for pharmaceutical products. A chartrecorder is an optional device sometimes used with the tank to record thetemperature inside the tank through a resistance temperature device("RTD"), a temperature measuring probe. The chart recorder creates apermanent record of the temperature inside the tank, ensuring that thewater temperature never falls below 80o Celsius (176o Fahrenheit).

2. Thermowell

A thermowell is a stainless steel housing that isolates the temperaturemeasuring probe (such as an RTD) from the contents of the WFI tank.Although there are several possible designs for thermowells, two are atissue here: 1) a thermowell that is affixed to the tank to create abarrier between the interior and exterior of the tank so that atemperature measuring probe such as an RTD can be removed even when thetank has hot water inside and 2) a thermowell welded to a cap on the tankin which the RTD sits directly in the contents of the tank which cannotbe removed while the tank is full. In the pharmaceutical industry, thefirst described thermowell is standard.

B. Sales transaction

In September, 1992, Kuhlman, an importer and distributor ofpharmaceutical machinery, contacted Seragen regarding Mueller's productline, including the WFI tank. That contact was made after Integrated, abiotechnology equipment consulting firm, had initially approached Kuhlmanon Seragen's behalf. In its capacity as the exclusive agent anddistributor of many of Mueller products, Kuhlman submitted pricequotations to customers and, in turn, received orders for Mueller.

The present case, by all appearances, involves an ordinary salestransaction among sophisticated business entities. Kuhlman providedMueller's price quotation and a conditional purchase order to Seragen onDecember 30, 1992. Approximately two weeks later, Kuhlman sent an orderconfirmation to Seragen indicating that Seragen had purchased, interalia, a WFI tank with a temperature indicator and a second thermowell for$59,280. Kuhlman's confirmation notice reflected anadditional $2,000 for the temperature indicator and the second thermowellbecause they were not standard features with the tank but the noticeneither specified the kind of thermowell nor its location.

On January 22, 1993, Mueller issued an invoice to Seragen for the tankthat, among other things, confirmed the sales price and the order of "oneadditional thermowell". Mueller issued a final invoice to Seragen withthe same terms as the invoice and Seragen paid the purchase pricedirectly to Mueller. Kuhlman received a sales commission of $6,069.

Mueller promptly shipped the WFI tank to Seragen and Integrated andKuhlman installed it in June and July 1993. On September 3, 1993, aKuhlman employee "started up" the tank and, as part of his duties,trained Seragen personnel and configured and calibrated the chartcontroller and temperature control.

C. The Accident

For more than 30 months, until March, 1996, the WFI sat idle becauseSeragen was awaiting approval from the Food and Drug Administration forsome of its product line. Although Kuhlman and Seragen had calibratedthe tank while it was idle and empty, no Seragen employee had attemptedto calibrate the tank while it was full of water.

Shuras made the first attempt by a Seragen employee to calibrate thetank while it was full on March 6, 1996 during the InstallationQualification protocol for the tank. Moises Sabio ("Sabio") a validationengineer in the Calibration Department at Seragen in charge of theprotocol, supervised the calibration. In preparing for the InstallationQualification, Sabio referred to the WFI owner's manual and thepurchase documents, including the quote for the tank. Based upon thosereferences, Sabio advised Shuras that it was safe to calibrate the tankwhile it was full of hot water and still in operation because heunderstood that the RTD was located at the second thermowell.

Relying upon Sabio's instruction that there was a second thermowellaffixed to the tank where the RTD was located, Shuras unscrewed theclamps securing the probe to the tank, causing the tank to expel scaldinghot water onto her, burning her lower abdominal and upper leg region.Shuras brings the instant lawsuit to recover for those injuries.

III. Discussion

A. Negligent Design

An action for negligent design "begins with the allegation that thedefendant has breached a duty and that this breach of duty has causedactual harm." Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 15 (1stCir. 2001) (hereinafter "Saunatec"). It is well established that amanufacturer has a duty to design products with reasonable care and isheld to the standard of "an ordinary reasonably prudent designer in likecircumstances." Fahey v. Rockwell Graphic Sys., Inc.,20 Mass. App. Ct. 642, 647 (1985) (overruled on other grounds in Allenv. Chance, 398 Mass. 32, 33-34 (1986)).

A manufacturer must design a product to eliminate avoidable dangers,placing a duty upon it to assess both the manner and the environment inwhich consumers will use the product. Id. In that regard, the focus innegligent design cases is "not on how the product is meant to function,but on whether the product is designed with reasonable care to eliminateavoidable dangers." Uloth v. City Tank Corp., 376 Mass. 874, 878 (Mass.1978). Avoidable dangers "include reasonably foreseeable carelessness bymachine users". DeMedeiros v. Koehring, 709 F.2d 734, 739 (1st Cir.1983); McIssac v. Didriksen Fishing Co., 809 F.2d 129 (1st Cir. 1987).As a policy matter, manufacturers have an affirmative duty to recognizeand cure design defects because they can more efficiently do so thanordinary users. Saunatec, 241 F.3d at 15.

Even when the manufacturer designs a product that creates a risk offoreseeable harm, however, the cornerstone of a court's inquiry isreasonableness, not perfection. Marchant v. Dayton Tire & Rubber Co.,836 F.2d 695, 698 (1st Cir. 1988). Several factors guide thatdetermination by the finder of fact: 1) the severity of the danger posedby the design, 2) the likelihood that such a danger would occur, 3) thefeasibility and the cost of alternative designs and 4) the consequencesof the alternative design. Back v. Wickes Corp., 375 Mass. 633, 642-43(1978). A court's conclusion that "a defendant has negligently designeda product is tantamount to a finding that the product is unfit forordinary use." Saunatec, 241 F.3d at 16; Hayes v. Ariens Co.,391 Mass. 407, 409 (1984) (overruled on other grounds in Vassallo v.Baxter Healthcare Corp., 428 Mass. 1 (1998)).

B. Implied Warranty of Merchantability

By analogy, under the implied warranty of merchantability, amanufacturer guarantees that its products are "fit for the ordinarypurposes for which such goods are used." Allen, 398 Mass. at 33-34;M.G.L. c. 106 § 2-314(2)(c)). Although there is significant overlapbetween the inquiries of a court with respect to negligence and warrantyclaims, the emphasis in the latter is on the product. Wasylow v. Glock,Inc., 975 F. Supp. 370, 377 (D. Mass. 1996). As in a negligent designcase, the manufacturer must anticipate the environment and manner inwhich consumers will use its products, including foreseeable misuses. Tosustain her burden, a plaintiff must show that "at the time of [her]injury [s]he was using the product in a manner that the defendant, selleror manufacturer reasonably could have foreseen." Saunatec, 241 F.3d at16.

Although ostensibly broad in scope, liability under either theory isnot without bounds. The touchstone of a negligent design or warrantyanalysis is foreseeability. A manufacturer must anticipate and designfor both intended and reasonably foreseeable uses of its products,placing a duty upon it to ensure that its "product will withstand, in areasonably safe manner, foreseeable misuse incident to or arising out ofthe product's intended use." Id. at 16 (citing Venezia v. Miller BrewingCo., 626 F.2d 188, 190 (1st Cir. 1980) (internal quotations omitted)).

C. Kuhlman's Alleged Liability

Although Massachusetts law imposes different duties upon manufacturersand sellers, Shuras makes few tangible distinctions between Mueller andKuhlman in her pleadings. Restatement (Second) Torts § 402 (notingin Comments that "[t]here is a clear distinction between the liability ofa manufacturer and that of a seller of goods made by another . . .).Kuhlman contends that plaintiff's negligent design claims against it mustfail because it is undisputed that it neither assumed a role in thedesign and manufacture of the tank nor owed a duty to the plaintiff withrespect to the tank design. Kuhlman functioned as a sales representativeinvolved in product promotion and customer relations, ensuring that theadministrative end of the transaction went smoothly from the time of saleto delivery.

Kuhlman's limited role does not, however, shield it from liability. Ina negligence or a warranty action, Kuhlman, as the seller of the tank, isliable if it knew or had reason to know of the dangerous condition thatcaused Shuras' injury. Id.; Enrich v. Windmere Corp., 416 Mass. 83, 86(1993); Fernandes v. Union Bookbinding Co., 400 Mass. 27, 32 (1987). Asthe term is used in the Restatement, "reason to know" is a term of art.It imposes no duty on the seller to ascertain unknown facts that it"should know." Restatement (Second) Torts §§ 401 and 402. Rather, aseller may be liable only if, because it possesses more relevantinformation about a product's design and its concomitant hazards, it isin a better position than a buyer to know that the product is dangerouslydefective.

Shuras offers no evidence to suggest that Kuhlman knew or had reason toknow of any defects in the tank. Although Kuhlman, a major agent ofMueller, was allegedly aware that Seragen would have to calibrate thetank regularly and that there were certain hazards inherent in its use,those facts alone do not suggest that Kuhlman understood the technicalfacets of the tank or the attendant risks so as to make it liable in anegligence or warranty action. Notwithstanding Shuras' arguments to thecontrary, Kuhlman's involvement in the "start-up" of the tank neithersuggests that it knew of the putative defects in the tank nor that itshould be subject to the same level of liability as the manufacturer.

Finally, the plaintiff presents no convincing argument that Kuhlman wasa knowledgeable seller with an elevated duty to take reasonableprecautions against potential hazards such as internal inspection of thetank. Everett v. Bucky Warren, Inc., 376 Mass. 280, 287-88 (1978);Feliciano v. Andersen Corp., 1995 WL 1146822 (1995); Coyne v. John S.Tilley Co., Inc., 368 Mass. 230, 241 (1975). Because Kuhlman assumed norole in the transaction that would bear upon the design or manufacture ofthe tank, there can be no inference that it could have foreseen the harmto Shuras so as to impose on it liability for a faulty design or afailure to warn.

D. Mueller's Alleged Liability

The theory upon which Shuras advances her negligent design case iscoextensive with her claim of breach of the implied warranty ofmerchantability. She would impose liability on the manufacturer forfailing to act, i.e., by not installing a second thermowell, Muellerfailed to design a WFI tank with reasonable care so as to eliminateforeseeable risks such as the release of scalding water during thecalibration process. Shuras alleges that the defendant, consequently,placed into the stream of commerce a dangerous and defective product.

Shuras argues that an injury of the kind she suffered from use of theWFI tank was foreseeable to Mueller because it was aware that Seragenwould need to calibrate the tank regularly and should have anticipatedthat a Seragen employee might attempt to do so while the tank containedwater. According to Shuras, the addition of a thermowell was not only areasonable design modification but also ostensibly within thecontemplation of the parties because it was noted in Seragen's purchaseorder. By implication, Shuras argues that Seragen paid extraconsideration for the second thermowell because it was a necessary andreasonable design alternative.

In response, Mueller argues that the design of the tank was notdefective but rather that Shuras, under the direction of Sabio,calibrated the tank improperly. Asan initial matter, Mueller notes that Seragen, Shuras' employer, did notcomplain that the tank was defective or otherwise dangerous. Moreover,Mueller asserts that it is common knowledge in the pharmaceuticalindustry that the method of tank calibration depends upon the location ofthe temperature probe. Sabio, allegedly a sophisticated calibrationengineer, and Shuras, an experienced calibration technician, were awarethat the location of the temperature probe had an impact on the propercalibration procedure. Mueller suggests that, given the knowledge andexperience of Shuras and other Seragen personnel, the misuse of the WFItank by Shuras was not foreseeable.

Mueller bases its argument upon a rather narrow reading of"foreseeability" and "misuse", terms of art with an attendant distinctlegal meaning. "Unforeseeable misuse concerns the question whether thedefendant could have reasonably foreseen that the plaintiff would misusethe product in the way he did." Saunatec, 241 F.3d at 18 (quoting Allen,398 Mass. at 36 n. 2) (internal quotations omitted). In order to justifythe misuse defense, the defendant must show that Shuras' purported misuseof the tank was unforeseeable. Id. Assuming all reasonable inferences infavor of the plaintiff, there is a genuine issue of material fact as towhether Mueller, the designer and manufacturer of the tank, could haveforeseen that a Seragen employee would calibrate a tank without thesecond thermowell as she did.

In further support of her case, Shuras posits that this action alsoshould survive summary judgment because a reasonable design alternativewas available to Mueller. Where the plaintiff can show that there was areasonable alternative to the challenged design in a negligence orwarranty claim, "there is a case for the jury." Uloth, 376 Mass. at 881;see also DeMedeiros, 709 F.2d at 738-39 (holding that a jury questionexists in a warranty action if plaintiff offers evidence that certainsafety devices would reduce the risk of injury from employees'"foreseeable lapses"). Consequently, Shuras' argument that the design ofthe tank was defective and resulted in a breach of warranty because areasonable design modification, the second thermowell, was readilyavailable puts this case beyond the reach of summary judgment withrespect to Mueller.

E. Failure to Warn as Negligence and Breach of Warranty

Shuras contends that Mueller is also liable to her because it failed towarn Seragen and its employees about the risks associated with use of itstank and provided ambiguous design plans for the WFI tank.

It is well settled that a manufacturer has duty to warn users offoreseeable latent dangers associated with ordinary uses of itsproducts. See, e.g., Fiorentino v. A.E. Stanley Manufacturing Co.,11 Mass. App. Ct. 428, 433 (1981) (collecting cases). Indeed, amanufacturer may be liable if its product functions perfectly but itfails to warn about the product's inherent dangers. Laaperi v. Sears,Roebuck, & Co., Inc., 787 F.2d 726, 729 (1st Cir. 1986).

Failure to warn of dangers stemming from foreseeable uses or misuses ofa product is, by deduction, evidence of liability. Instructions on theuse of a product does not discharge a manufacturer's duty to warn.Rather, the strength of the warning "must be commensurate with thedangers involved." Fiorentino, 11 Mass. App.Ct at 434.

Shuras contends that Mueller's failure to provide warnings on thehazards of improper calibration of the tank was negligent. It isundisputed that neither Kuhlman nor Mueller provided Seragen or any ofits employees with, inter alia, 1) a label, 2) a warning or 3) othernotice attached to the tank that it lacked a second thermowell or wasotherwise dangerous when calibrated. Shuras contends that the failure toprovide such warnings was crucial because not only did Seragen request andpay for a second thermowell but also the design plans provided by Muellerambiguously designated the location of the thermowell. Because of thosealleged causes of confusion, Mueller was in a superior position to knowabout the tank's design and its consequent dangers.

Shuras also asserts that the gravity of the potential harm associatedwith calibration of the tank created a duty to warn Seragen employeesthat there was no thermowell for the RTD or that it was dangerous tocalibrate the tank when it was full of water. According to Shuras, itwas not evident merely by looking at the tank that it did not contain asecond thermowell. She notes that OSHA requires that warnings be placedon equipment such as the WFI tank when a significant risk of injuryexists. After Shuras' accident, Seragen posted the appropriate warningson the tank on its own initiative.

Mueller, for its part, alleges that the pharmaceutical industry isquite sophisticated and that lengthy warnings are simply not necessarybecause individuals working with the tank are knowledgeable about theequipment. Shuras, an experienced calibration technician, waspurportedly aware of the dangers associated with calibrating a WFI tankand her injury resulted from a combination of Sabio's negligence and herown. Indeed, a manufacturer has no duty to warn of "product-connecteddangers that are obvious or to give warnings to someone who already knowsof the product's hazardous propensities." Id. at 436.

Although a knowledgeable user cannot recover if he understood thedanger, "past experience with a product . . . will not necessarily alertusers of all dangers associated with it." See, e.g. id.; Everett, 376Mass. at 289-90 (finding that the issue of contributory negligence in adesign negligence case is usually a jury question). The duty to warn, inany event, is defined by the sophistication of the average purchaser ofthe product in question and "[w]hether a particular warning measures upto this standard is almost always an issue to be resolved by a jury."Laaperi, 787 F.2d at 731-632 (quoting MacDonald v. Ortho PharmaceuticalCorp., 394 Mass. 131 (1985), cert denied 474 U.S. 920 (1985)).

While it is true that Shuras and Seragen were knowledgeable users, theywere evidently not aware of the full scope of the tank's hazards.Allocation of fault is not a precise science because "the absence ofnegligence and the existence of contributory negligence, are sometimesbut two ends of the same stick." Gadowski v. Union Oil Co. of Boston,326 F.2d 524, 525 (1st Cir. 1964). However, it is axiomatic that if suchfactual issues remain, they are properly resolved by a jury. See 11Moore's Federal Practice § 56.11[5][b] ("Much jury activity isdevoted not to determining physical facts but to construing them,"including whether given conduct constitutes negligence or contributorynegligence.]

F. Causation

To survive summary judgment, the plaintiff must offer some proof thatMueller's alleged negligent design or failure to warn was the proximatecause of her injury.In that regard, plaintiff's expertise is relevant if, as a sophisticateduser, she already was aware of the danger. See, e.g., Laaperi, 787 F.2dat 732. If she was so aware, there would be an insufficient causal nexusbetween the negligent failure to warn and plaintiff's injury. Id.

Mueller has offered evidence indicating that Shuras and Sabiounderstood the danger yet took inadequate precautions. It is alleged,for example, that Shuras initially attributed her injuries to Sabio'snegligence. Shuras, for her part, has offered expert testimonyexplaining that neither she nor Sabio knew of the danger attendant tocalibrating the tank because of a lack of information in the purchasingdocuments or on the design plans and a lack of warnings about calibrationprocedures on the tank or in the instruction manual. Mindful of thesefactual disputes, it cannot be concluded that, as a matter of law, thealleged multiple failures of the defendant Mueller to warn were not aproximate cause of the plaintiff's injuries. Accordingly, defendantMueller's Motion for Summary Judgment will be denied with respect toCounts I and II of the Complaint.

G. Liability Under Chapter 93A

Shuras bases her Chapter 93A claim on the defendants' alleged breach ofwarranty. Similarly, that claim against Mueller survives summaryjudgment. Because Kuhlman is not liable under a warranty theory,however, any claims against it pursuant to Chapter 93A must fail.Wasylow, 975 F. Supp. at 382.

H. Breach of Contract

In order for a third party to recover under a theory of breach ofcontract, she must demonstrate that she was an intended rather than anincidental beneficiary of that contract. See, e.g., Rae v. Air-Speed,Inc., 386 Mass. 187, 194-95 (1982); Harvard Law School Coalition forCivil Rights v. Presidents and Fellows of Harvard College, 413 Mass. 66,71 (1992). Under Massachusetts law, the standard for determining whethera third-party is an intended or incidental beneficiary comports withSection 302 of the Restatement which provides:

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Restatement (Second) of Contracts § 302 (1981); Miller v. Mooney, 431 Mass. 57, 62 (2000) (expressly adopting the rule of the Restatement (Second) of Contracts § 302 (1981)).

Because Shuras makes no claim that the addition of the second thermowellwould satisfy an obligation owed to her by Seragen, the only basis forcontractual relief must lie under Section 302(1)(b).

Pursuant to Subsection 302(1)(b), the contract and the circumstantialsetting must demonstrate that the promisee (Seragen) intended to conferthe benefit of the contract on the beneficiary (Shuras). Under thatsection, "the requisite manifestation of the parties' intent may beevinced in the context, as well as the text, of thecontract." Public Serv. Co. of New Hampshire v. Hudson Light and PowerCo., 938 F.2d 338, 341 (1st Cir. 1991). For example, where the contractrequires performance that will directly confer a benefit on thethird-party such as direct payments, courts have found the requisiteindicia of intent. Id. at 343-45; Choate, Hall & Stewart v. SCA Serv.,Inc., 378 Mass. 535 (1979). As the First Circuit Court of Appeals hasnoted, Massachusetts courts do not confer intended beneficiary statuswhen a contract's terms "do not provide for the benefits of performanceto flow directly to the third-party." Public Service, 938 F.2d at 343(emphasis added).

Plaintiff's contract claim, as a matter of law, fails because neitherthe text nor the context of the contract demonstrate an intention toconfer upon her a third-party beneficiary status. Without doubt, Shuraswould have benefitted had there been a second thermowell on the tank butthe execution of the contract was not contingent upon extending thatbenefit to her. Shuras is no more than an incidental beneficiary and sheenjoys no right under Massachusetts law to enforce the contract inquestion. Spinner v. Nutt, 417 Mass. 549, 555-56 (1994).


For the reasons set forth in the Memorandum above, the motion forsummary judgment of defendant Kuhlman Technologies, Inc. (Docket No. 39)is ALLOWED and the motion for summary judgment of defendant Paul MuellerCompany (Docket No. 34) is, with respect to Count IV, ALLOWED, and, withrespect to Counts I, II and III, DENIED.

So ordered.

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