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Parks v. Freud America, Inc.

United States District Court, S.D. Indiana, Terre Haute Division

November 22, 2016

RICK M. PARKS, and DEBBIE J. PARKS, Plaintiffs,
v.
FREUD AMERICA, INC., and HOME DEPOT U.S.A., INC., Defendants.

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          L ARRY J. MCKINNEY, JUDGE, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

         Defendants 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.

         I. FACTUAL & PROCEDURAL BACKGROUND

         The undisputed facts, for purposes of this motion, and/or the facts in the light most favorable to Plaintiffs are these:

         On 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.

         Plaintiffs' liability expert, Dr. Jendrzejewski, opined that the AvantiPro disc failed as a result of cracks that are shown as linear indications.[1] 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.

         Home 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.

         Home 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 49-50, 72.

         With 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”). Id.

         Home 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, HD00122-24.

         For example, the RTV Report listed the following information, among other entries, regarding consumer returns of the AvantiPro disc:

Return Comment

Return Reason Code

blades came off hit customer

Manufacturer Defect

broke during use

Manufacturer Defect

broke in half first use

Manufacturer Defect

ring blew out the center

Manufacturer Defect

broke apart when used

Manufacturer Defect

try [sic] to cut with it and broke in half

Manufacturer Defect

blade fell apart on customer's first use

Manufacturer Defect

blew up on second use

Product Safety Issue

broke while gentleman was using it

Manufacturer Defect

RTV Report at HD00122-23.

         Home 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.

         Dr. 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 ...


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