Products Liability Law Daily Wrap Up, DESIGN AND MANUFACTURING DEFECTS—INDUSTRIAL AND COMMERCIAL EQUIPMENT—8th Cir.: Worker fails to revive wood chipper injury action on appeal, (Feb 12, 2020)

By Susan Lasser, J.D.

Because the injury-causing winch attachment was not manufactured by the defendant wood chipper maker, summary judgment was upheld. Also, the injured worker failed to show good cause for leave to amend his complaint to assert an agency liability claim against the manufacturer.

Judgment as a matter of law favoring the manufacturer of a wood chipper in an injured worker’s strict liability and negligence action was affirmed by a panel for the U.S. Court of Appeals for the Eighth Circuit, which noted that the worker’s claims concerned a winch attachment to the wood chipper made by a third party and not the wood chipper itself. In addition, the appellate court upheld the trial court’s denial of the worker’s motion to remand the case and denial of the worker’s request to amend his complaint (Ellingsworth v. Vermeer Manufacturing Co., February 10, 2020, Kobes, J.).

A tree service employee (worker) was injured on the job while he was feeding a small tree into a wood chipper manufactured by Vermeer Manufacturing Company (VMC). He was using a winch attached to the chipper when the winch line became entangled in the tree’s branches. As the tree went into the chipper (and with it, the winch line), the rope/line, log-chain, and hook were propelled violently and at high speed, hitting and crushing the worker’s legs. The worker filed suit in Missouri state court against VMC, as well as his supervisor at work. He alleged products liability and failure to warn claims under both strict liability and negligence theories against the manufacturer. VMC, an Iowa citizen, removed the case to federal court asserting diversity jurisdiction. The worker, a Missouri citizen, moved to remand, arguing that there was no complete diversity because the supervisor was also a Missouri citizen. The district court denied the motion, finding that the supervisor had been fraudulently joined because there was no cause of action against him. Subsequently, the worker voluntarily dismissed the supervisor from the case.

Agency liability. Through discovery, it was found that although VMC manufactured the wood chipper, the winch was an after-market component constructed of mostly VMC parts and added by an unknown prior owner. Based on several parts invoices, the worker believed that the winch had been constructed by Vermeer Sales of Oklahoma, a Vermeer dealership. Consequently, the worker amended his complaint to add Vermeer Oklahoma as a defendant. However, Vermeer Oklahoma was defunct and never answered the complaint. The worker voluntarily dismissed Vermeer Oklahoma from the case after he determined that the company essentially was unreachable. The worker than moved to amend his complaint to add a claim for agency liability against VMC to hold it liable for the actions of its dealer. The district court denied the motion because the time to amend the complaint under the scheduling order had passed and the worker failed to show good cause for the delay. Accordingly, the trial court granted summary judgment in favor of VMC on all counts and the worker appealed.

Remand motion. The appellate panel noted that following the district court’s denial of the motion to remand, the worker had voluntarily dismissed the only nondiverse party (i.e., the supervisor) in the case at that point; and when judgment was entered, there was complete diversity among the parties. Thus, the court rejected the worker’s challenge to the trial court’s denial of his remand motion.

Complaint amendment. The worker next contended that the lower court erred when it denied his motion for leave to amend his complaint to add a claim of agency liability against VMC. The appellate panel found that the district court did not abuse its discretion when it denied the motion. Because the worker sought to amend his complaint after the scheduling deadline had passed, he was required to show "good cause," but failed to do so. Good cause may be shown by pointing to a change in the law, newly discovered facts, or another significant changed circumstance that requires amendment of a party’s pleading. In denying the worker’s motion, the district court explained that no new facts supporting an agency liability claim against VMC had emerged at the time that he sought leave to amend. Moreover, the litigation was at an advanced stage and granting the motion would have required the reopening of discovery. Furthermore, the worker admitted that his real reason for pressing the agency claim outside the designated time frame was his realization that he had no other way to hold Vermeer Oklahoma liable for allegedly building and installing the winch. His attempt to amend his complaint was a change in litigation strategy, rather than a factual or legal change, and that was not sufficient to establish good cause. Therefore, the trial court was within its discretion to deny the motion.

Summary judgment. Finally, the Eighth Circuit panel found that there was no genuine issue of material fact to overturn the district court’s grant of summary judgment favoring VMC on the worker’s products liability and failure to warn claims. Both of those claims only concerned the winch attachment to the wood chipper, and not the wood chipper itself. Under Missouri law, both strict liability and negligence versions of these claims require that the defendant have manufactured or sold the product causing the injury. The appellate panel determined that this element was fatal to the worker’s case. The record showed that VMC did not manufacture the winch attachment that had injured the worker. Furthermore, it was uncontested that VMC did not offer after-market winch attachments for sale and that the wood chipper at issue did not have a winch when VMC manufactured it. At best, the evidence indicated that the winch had been constructed by a third party out of mostly VMC parts. However, the worker’s lawsuit was not about the quality of the winch parts. Instead, he alleged that VMC had manufactured the winch itself. Because the record precluded that argument, the appellate panel affirmed the lower court’s grant of summary judgment as correct.

The case is No. 18-3587.

Attorneys: Neil Chanter (Strong-Garner-Bauer P.C.) for Robert Ellingsworth. Jeffrey W. Coffey (Turner, Reid, Duncan, Loomer & Patton, P.C.) for Vermeer Manufacturing Co.

Companies: Vermeer Manufacturing Co.

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