United States District Court, S.D. Indiana, Terre Haute Division
RICK M. PARKS, and DEBBIE J. PARKS, Plaintiffs,
FREUD AMERICA, INC., and HOME DEPOT U.S.A., INC., Defendants.
ORDER ON DEFENDANTS' MOTION FOR SUMMARY
J. MCKINNEY, JUDGE, UNITED STATES DISTRICT COURT SOUTHERN
DISTRICT OF INDIANA
Freud America, Inc. (“Freud”) and Home Depot
U.S.A., Inc. (“Home Depot”) (defendants,
collectively, “Defendants”), have moved for
summary judgment on the personal injury claims brought
against them by plaintiffs Rick M. Parks (“Rick”)
and Debbie J. Parks (“Debbie”) (collectively,
“Plaintiffs”). For the reasons stated herein, the
Court GRANTS in part and DENIES in part Defendants'
Motion for Summary Judgment.
FACTUAL & PROCEDURAL BACKGROUND
undisputed facts, for purposes of this motion, and/or the
facts in the light most favorable to Plaintiffs are these:
August 21, 2012, Rick purchased an AvantiPro 7” x
1/16” metal cutoff disc (“AvantiPro disc”)
from the Home Depot located in Wentzville, Missouri. Compl.
¶ 4. On September 15, 2012, prior to using the AvantiPro
disc, Rick completed a physical examination of the disc and
confirmed that there were no chips or chunks anywhere on the
blade. Rick Parks Dep. at 115-16. After he installed the
AvanitPro disc and before making any cuts, Rick turned on the
DeWalt grinder and ran the Avanti Pro disc at high speed for
over a minute to confirm that there were no undetected cracks
or flaws in the disc. Id. at 69. However, Rick was
injured when the disc failed during use. Compl. ¶¶
5 & 6.
liability expert, Dr. Jendrzejewski, opined that the
AvantiPro disc failed as a result of cracks that are shown as
linear indications. Jendrzejewski Dep. at 179. He further
opined that these alleged cracks occurred during the
manufacturing process. Id. at 167, 177. Dr.
Jendrzejewski testified that he identified these alleged
cracks by looking at an X-ray. Id. at 88-89. He
stated that the alleged cracks did not go through the
material on the outside of the AvantiPro disc, such as the
cellulose and black-colored material. Id. Dr.
Jendrzejewski opined that there are multiple things that
could have caused the AvantiPro disc to fall apart, including
improper use and excessive force applied by the user.
Id. at 151-52; 164-65.
Depot is a retail that markets and sells consumer products,
including Avanti-Pro metal cut-off discs. Compl. ¶ 3;
Home Depot's Ans. to Compl. & Affirm. Defenses,
¶ 3; Home Depot's Ans. to Pls.' First Interrogs.
No. 3. Home Depot did not design or manufacture the AvantiPro
disc purchased by Rick. Home Depot's Ans. to Pls.'
First Interrogs. No. 16.
Depot has not received any claims of personal injury related
to the AvantiPro disc, except for Rick's. Home
Depot's Ans. to Pls.' First Interrogs. No. 11. When a
customer claims he was injured by a product, Home Depot
collects additional information from them such as the injury
and the actual incident that led to the injury. Suggs Dep. at
respect to returns, the BEAR Return to Vendor Guide (the
“Guide”) represents Home Depot's standards
and protocols regarding how Home Depot collects return data
through its cashiers; cashiers regularly utilize the Guide
during their training. Suggs Dep. at 11, 18-19; Home
Depot's Ans. to Pls.' First Interrogs. No. 20. The
term “Manufacturer Defect” is one of several
reason codes available to a cashier. BEAR Return to Vendor
Guide at ¶ 00023. According to the Guide, “the
decision on which reason code to assign can be a subjective
one . . . . On customer returns, the benefit of the doubt
goes to defective.” BEAR Return to Vendor Guide at
¶ 00111. Home Depot has a liberal return policy and does
not question the customer's stated reason for a return.
Suggs Fed. R. Ci P. 30(b)(6) Dep. at 32. According to Home
Depot's corporate representative, customer descriptions
are typed into Home Depot's database by the cashier at
the time a customer makes a return and are either verbatim
statements or a short summary, depending on the length. Claus
Dep. at 33; Suggs Dep. at 19. These comments later appear on
the Return to Vendor Report (“RTV Report”).
Depot regularly receives an RTV Report that lists the reason
codes entered by Home Depot cashiers when accepting a return
from a customer. BEAR Return to Vendor Guide at ¶ 00023;
RTV Report, HD00122-24; Home Depot Rule 30(b)(6) Dep. at
17-19. The RTV Report assists Home Depot to identify problems
and safety issues with regard to its products. RTV Report,
HD00122-24; Home Depot Rule 30(b)(6) Dep. at 17-19. Home
Depot admits that recording the information in the RTV Report
is an important task in terms of product safety. Home Depot
Rule 30(b)(6) Dep. at 30. In the year prior to Rick's
injury, Home Depot's RTV Report indicated that more than
100 AvantiPro discs had been returned and the cashier coded
it as “Manufacturer Defect.” RTV Report,
example, the RTV Report listed the following information,
among other entries, regarding consumer returns of the
Return Reason Code
blades came off hit customer
broke during use
broke in half first use
ring blew out the center
broke apart when used
try [sic] to cut with it and broke in half
blade fell apart on customer's first use
blew up on second use
Product Safety Issue
broke while gentleman was using it
RTV Report at HD00122-23.
Depot did not convey the information in the RTV Report
regarding the AvantiPro disc to Freud America. Home Depot
Rule 30(b)(6) Dep. at 35-36.
Jendrzejewski testified that he did not consider the RTV
Report to form his opinion. Jendrzejewski Dep. at 165.
Further, he testified that he had no opinion on whether or
not Home Depot would have had knowledge ...