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Mariscal v. Graco, Inc.

United States District Court, N.D. California

June 26, 2014

GRACO, INC., Defendant

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For Joshua Mariscal, Plaintiff: Steven Robert Enochian, LEAD ATTORNEY, Low McKinley Baleria & Salenko, LLP, Walnut Creek, CA.

For Graco, Inc., Defendant: Roger Brian Irion, LEAD ATTORNEY, Law Offices of Brian Irion, Redwood City, CA; Carol R Washington, Nicole M Siemens, PRO HAC VICE, Randall J. Pattee, Lindquist and Vennum LLP, Minneapolis, MN.

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THELTON E. HENDERSON, United States District Judge.

This matter came before the Court on June 16, 2014, on the motion of Defendant Graco, Inc. (" Defendant" ) for summary judgment. After carefully considering the written and oral arguments of the parties, and the relevant law, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for the reasons discussed below.


In this product liability case, Plaintiff Joshua Mariscal (" Plaintiff" ) alleges that he was injured on July 29, 2012, while attempting to clean and repair a used, Graco Magnum X7 Airless Paint Sprayer

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(the " Sprayer" ), which he had been given by his brother-in-law. See Mariscal Dep. (" Tr." ) 22:6-10; 26:5-8, Docket No. 41-2. The Sprayer was manufactured by Defendant in July 2008. See Rivord Decl. ¶ 9, Docket No. 41-10. The used Sprayer was " tattered," and the filter on the bottom was full of dried paint. See Tr. 26:5-8. On July 28, 2012, Plaintiff turned on the Sprayer, heard the motor labor, and concluded that the Sprayer was clogged because it appeared to draw water but nothing came out of the spray gun. See id. at 32:15-24. Plaintiff purchased a new filter and installed it on the Sprayer on the morning of July 29, 2012. See id. at 38:19-23. Plaintiff also cleaned the two intake hoses, the hose that connects the Sprayer to the gun, and cleaned the gun itself. See id. at 48: 2-9. While cleaning the hose, he used compressed air and wore eye glasses. See id. at 50:19-51:24. Plaintiff then connected the Sprayer to a bucket of water, activated the Sprayer, turned up the pressure, and attempted to spray, but the gun did not spray. See id. at 48:12-17; 55:10-14.

Plaintiff downloaded from Defendant's website the Operation Manual for the Sprayer, and referenced these instructions immediately before the accident. See id. at 60:7-61:4. Plaintiff testified that he did not read the " entire" manual, and when asked if he read the " first few pages," which contain warnings, he answered " probably not." Id. at 71:6-16. Nonetheless, when asked whether he read the " Personal Protective Equipment" warning subsection of the Operation Manual, which appears in these first few pages, Plaintiff answered " Umm, probably not in its entirety, but yes, I . . . I always go through the safety warnings." Id. at 81:5-11. This section states: " Wear appropriate protective equipment when in the work area to prevent serious injury, including eye injury . . ." Id. at 81:12-16; see also Docket No. 41-3 at 5 (Operation Manual reviewed at deposition); see also Operation Manual (" Operation Manual" ) at 5, Rivord Decl. Ex 4, Docket No. 41-14 (" You must wear appropriate protective equipment when operating, servicing, or when in the operating area of the equipment to help protect you from serious injury, including eye injury, inhalation of toxic fumes, burns, and hearing loss. This equipment includes but is not limited to: * Protective eye wear. . . ." ).[1]

The Warning section instructs the user that " [t]he following warnings are for the setup, use, grounding, maintenance and repair of the equipment. The exclamation point symbol alerts you to a general warning and the hazard symbol refers to procedure-specific risks. Refer back to these warnings. Additional, product-specific warnings may be found throughout the body of this manual where applicable." Operation Manual at 3 (emphasis added). Plaintiff testified that he specifically referenced the section of the Operation Manual entitled " Pressure Relief Procedure," see Tr. 75:4-14, which contains hazard symbols that correspond to the specific danger of " skin injection" hazard and general warning, but does not include the hazard symbol that corresponds to the need to wear personal protective equipment, including eye wear. See Operation Manual at 9-10.

Once Plaintiff determined that the Sprayer would not function properly after cleaning the filter and hose, he again consulted

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the Pressure Relief Procedure section of the Operation Manual, see Tr. 64:12-64:2, and decided to attempt additional cleaning. Following the steps set forth in the pressure relief procedure, Plaintiff (1) turned off the power switch and unplugged the power cord; (2) turned the prime/spray valve to prime to relieve pressure; (3) triggered the gun to relieve pressure, but nothing came out. See id. at 75:10-24. Plaintiff does not recall whether he engaged the trigger lock or whether the Sprayer he used had a trigger lock, which is the fourth step of the procedure, but this fact does not appear to be material. See id. at 75:10-15. Plaintiff then proceeded to the final step of the instructions, which states: " If you suspect the spray tip or hose is clogged or that pressure has not been fully relieved after following the steps above, VERY SLOWLY loosen tip guard retaining nut or hose end coupling to relieve pressure gradually, then loosen completely. Clear hose or tip obstruction. Read Unclogging Spray Tip, page 13." See Operation Manual at 9 (capitalization in original); Tr. 76:25-77:8. Plaintiff testified that he believed the hose was clogged, and that the system was not under pressure at this time. See Tr. 79:6-22. Plaintiff testified that there was nothing to indicate that the Sprayer was under pressure; the Sprayer contained " no gauge, no kind of symptoms" to indicate pressurization. Id. at 80:4-13. Plaintiff then loosened the hose end coupling very slowly. See id. at 77:9-11; 78:9-13. As he loosened it, an " explosion" occurred, sending debris into his eyes and causing lasting injury; his face was approximately 30 inches from the coupling at the time. Id. at 63:8-16; 89:1-90:6. Plaintiff was not wearing eyeglasses at the time of the accident. See id. at 71:2-5. He avers that he did not know the Sprayer was pressurized at this time, and that had he known, he would not have tried to disconnect the gun from the hose. See Mariscal Decl. ¶ 4, Docket No. 42-2. He further avers that had there been a hazard warning symbol advising him to wear protective glasses in the Pressure Relief Procedure section of the Operation Manual, he would have followed the warning. See id. ¶ 5.

Plaintiff sued Defendant in California Superior Court, in the County of Alameda, on April 30, 2013. Plaintiff alleged one cause of action for product liability, which contained three counts: (1) breach of implied warranty; (2) negligence; and (3) strict liability. On June 6, 2013, Defendant removed the case to this Court. Defendant answered the complaint, and moved for summary judgment on all claims on May 12, 2014.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).[2] Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is " genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The Court may not weigh the evidence and must view the evidence in the light most favorable to the nonmoving party. Id. at 255. The Court's inquiry is " whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is

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so one-sided that one party must prevail as a matter of law." Id. at 251-52.

A party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that " demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof at trial, it must " affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). However, on an issue for which its opponents will have the burden of proof at trial, the moving party can prevail merely by " pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If the moving party meets its initial burden, the opposing party must set out specific facts that establish a genuine dispute for trial to defeat the motion. Fed.R.Civ.P. 56(c)(1); Anderson, 477 U.S. at 256.

A court need consider only the materials cited by the parties. Fed.R.Civ.P. 56(c)(3). A district court has no independent duty " to scour the record in search of a genuine issue of triable fact" and may " rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotation marks omitted); see also Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (same).


Defendant moves for summary judgment on Plaintiff's claims for breach of warranty, strict liability for design defect and failure to warn, as well as negligence under theories of design defect and failure to warn. For the reasons discussed below, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for summary judgment.

I. Evidentiary Objections

As a preliminary matter, Defendant objects to evidence Plaintiff submitted concurrently with his opposition briefing. See Objections, Docket No. 43. Specifically, Defendant objects to, and seeks to exclude from evidence, the May 22, 2014 Declaration of David Rondinone (the " Second Expert Opinion" ), see Docket No. 42-1, as it states new expert opinions that should have been previously disclosed in Rondinone's Rule 26(a) expert disclosure (the " First Expert Opinion" ), see Docket No. 41-7. Defendant also seeks to exclude the May 27, 2014 Declaration of Joshua Mariscal (" Mariscal Declaration" ), see Docket No. 42-2, on the grounds that it contains self-serving statements that contradict his deposition testimony. On June 9, 2014, the Court ordered Plaintiff to respond to Defendant's evidentiary objection. On June 11, 2014, Plaintiff responded, asserting that the Second Expert Opinion merely restated opinions that were earlier disclosed. Moreover, Plaintiff argued that Defendant was on notice of Plaintiff's asserted defect and theory of the case from the First Expert Opinion, and that any deficiencies in that prior disclosure were waived by Defendant's failure to object or depose him. Plaintiff also argued that the Mariscal Declaration was not a sham declaration, and was therefore fully admissible.

A. The Second Expert Opinion

The Court excludes the Second Expert Opinion as an untimely and improper expert disclosure. Rule 26 requires that a

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party's expert witness disclose, in a written report, " a complete statement of all opinions the witness will express" at trial, and the basis and reasons for them. Fed.R.Civ.P. 26(a)(2)(B)(i). Rule 26 further provides that these disclosures be made at the times directed by the court. See Fed.R.Civ.P. 26(a)(2)(D). Rule 37, in turn, provides that if a party fails to provide the information required by Rule 26(a), " the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless." Fed.R.Civ.P. 37(c)(1); see also Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (" Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed." ).

Here, the last day for Plaintiff to disclose the identity of any expert to be used at trial was March 3, 2014, and the last day to comply with the written report requirements of Rule 26(a)(2)(B) by providing a report containing the expert's complete opinion was March 17, 2014. See Sept. 10, 2013 Pretrial Order at 2, Docket No. 32. The Pretrial Order explicitly states that " [f]ailure to comply with these deadlines will prevent a witness from testifying as an expert." Id. The last day Plaintiff could serve a rebuttal report was May 17, 2014, and the close of all discovery, except for depositions of expert witnesses, was April 21, 2014. See id. at 1.

Rondinone provided his First Expert Opinion via his Rule 26 expert disclosure on March 25, 2014. The Second Expert Opinion, dated May 22, 2014, and submitted in support of Plaintiff's summary judgment opposition briefing on May 27, 2014, was therefore untimely.[3] Moreover, the Second Expert Opinion did not merely revisit opinions previously stated, but it included new previously undisclosed opinions.

Comparing the First and Second Expert Opinions is instructive. Rondinone disclosed the following ...

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