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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Cheryl Prasol,

Plaintiff, Case No. 09-10248

v. Honorable Sean F. Cox

Cattron-Theimeg, Inc., et al.

Defendants.

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OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

Plaintiff Cheryl Prasol brought this product liability action against Defendants for an

injury allegedly caused by the defective design of a crane remote control. Defendants are

Cattron-Theimeg, Inc. (“Cattron”) and other related manufacturers of remote controls for the

operation of overhead cranes. The matter is currently before the Court on Defendants’ Motion

for Summary Judgment. The parties have briefed the issues and the Court heard oral argument

on November 18, 2010. For the following reasons, the Court shall GRANT in part and DENY in

part Defendants’ Motion for Summary Judgment.

BACKGROUND

Plaintiff filed this action on January 22, 2009, alleging two counts: 1) Negligence

Against Defendants; and 2) Strict Liability Against Defendants. Defendants filed their answer to

Plaintiff’s complaint on February 10, 2009 and their Amended Answer on March 2, 2009. 

(Docket Entry Nos. 4, 13).

After the close of discovery, Defendants filed a motion for summary judgment. (Docket
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Entry No. 25). Pursuant to this Court’s practice guidelines, Defendants’ motion and supporting

brief included a separate document entitled Defendants’ Statement of Material Facts Not in

Dispute (Docket Entry No. 25-1). Plaintiff filed her response to Defendants’ Motion for

Summary Judgment, and her supporting brief included “Plaintiff’s Response to Defendants’

Statement of Material Facts.” (Docket Entry No. 29-1). The following material facts are

gleaned from the parties’ statements and the evidence submitted by the parties.

Plaintiff began her employment as a crane operator with Michigan Seamless Tube in

October, 2006. (Docket Entry No. 25-1 at ¶ 2). She had no prior experience as a crane operator

before her employment with Michigan Seamless Tube. Id. at ¶ 3. Plaintiff’s job duties included

wrapping bundles of steel tubes with chains and moving the bundles using an overhead crane. 

(Docket Entry No. 29-1 at 34).

On November 16, 2006, three weeks into her employment, Plaintiff injured her left leg

during the course of her work. (Docket Entry No. 25-1 at ¶ 5). Plaintiff alleges that while lifting

a bundle of steel tubes with a crane, excess chain from the load of steel struck her on the waist

and landed on the crane remote control box, causing the controls to activate and drop the steel

tubes on her legs. (Docket Entry No. 29 at 8). Plaintiff suffered serious leg injuries. (Docket

Entry No. 29 at 3).

Plaintiff’s employer discarded the particular remote control box that Plaintiff was using

at the time of her injury. (Docket Entry No. 25 at ¶ 13). Plaintiff does not remember the

manufacturer of the specific control box she used, but she was able to identify a same or similar

remote control box from a photograph. (Docket Entry No. 25-3 at ¶ 6); (Docket Entry No. 29-2

at 98). She also alleges that the control box used at the time of the injury was manufactured by
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Defendant Vectran, a company that manufactured overhead crane remote controls and was later

acquired by Defendant Cattron. (Docket Entry No. 25 at 5).

STANDARD OF REVIEW

Summary judgment is proper where “there is no genuine issue as to any material fact”

and where the moving party is “entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c)(2). The party seeking summary judgment has the initial burden of informing the district

court of the basis for its motion and identifying those portions of the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, which it believes

demonstrate the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317,

323 (1986). The burden then shifts to the nonmoving party who “must set forth specific facts

showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986) (quoting FED. R. CIV. P. 56(e)). In deciding a motion for summary judgment, a court

must view the evidence and draw all reasonable inferences in favor of the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

ANALYSIS

Plaintiff’s complaint alleges one count of “Negligence Against Defendants” and one

count of “Strict Liability Against Defendants.” (Docket Entry No. 1 at 3, 5). Michigan,

however, has adopted a pure-negligence, risk-utility test for product liability actions based upon

defective designs. Prentis v. Yale Mfg. Co. 421 Mich. 670, 691 (1984). The claim of strict

liability is no longer recognized for actions based on defective design. Thus, the Court

GRANTS Defendants’ Motion for Summary Judgment as it relates to Plaintiff’s Count II, “Strict

Liability Against Defendants.”
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I. Plaintiff Has Proven A Prima Facie Case Of Negligence.

Plaintiff claims that the Vectran remote control unit that she was using on the date of her

injury had a defective design, and that this defective design caused her injuries. First, the Court

shall address Defendants’ contention that Plaintiff has not proven a prima facie case of

negligence. 

The Sixth Circuit discussed Michigan’s risk-utility test for design defect claims in Peck v.

Bridgeport Machines, 237 F. 3d 614 (6th Cir. 2001). The court explained: 

[T]o survive a motion for summary judgment, the plaintiff must

produce evidence showing:

(1) that the severity of the injury was foreseeable by the

manufacturer;

(2) that the likelihood of occurrence of [the Plaintiff’s] injury was

foreseeable by the manufacturer at the time of distribution of the

product;

(3) that there was a reasonable alternative design available;

(4) that the available alternative design was practicable;

(5) that the available and practicable reasonable alternative design

would have reduced the foreseeable risk of harm posed by

defendant’s product;

(6) that commission of the available and practicable reasonable

alternative design rendered defendant’s product not reasonably safe.

Id. at 617-18 (citing Hollister v. Dayton, 201 F. 3d 731, 738 (6th Cir. 2000).)

With regard to the first and second requirements, Plaintiff provided the deposition

testimony of Robert Aiken (“Aiken”), a forty-year employee and consulting engineer for

Cattron. Aiken testified that Vectran was a significant supplier of crane remote control boxes to
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the steel industry and other industrial markets. (Docket Entry No. 29-4 at 7). He also testified

that he had been to various work sites and observed operations. Id. at 46. Aiken also stated that

Vectran/Cattron was aware that businesses that utilize the crane remote control boxes also use

chains to secure and move loads with the cranes. Id. Additionally, Plaintiff’s expert engineer,

Dr. J. Kenneth Blundell (“Dr. Blundell”), stated in an affidavit that “[i]t is reasonably anticipated

that an object in an industrial application could fall onto the controls given the exposed nature of

the controls designed by the defendant.” (Docket Entry No. 29-5 at ¶14). Dr. Blundell also

explained, “It goes without saying that the severity of injury from an inadvertent application of

an industrial overhead crane could cause serious injury or death.” Id. at ¶17. The statements

made by Aiken and Dr. Blundell show that Defendants had knowledge of the use its products, as

well as the familiarity of the environments in which these products are used. These statements

also tend to show that the severity and likelihood of injury from the use of Defendants’ crane

remote controls, such as the one endured by Plaintiff in this case, was foreseeable by Defendants.

Plaintiff has also produced evidence with regard to requirements three through six of

Michigan’s risk-utility test. The pertinent paragraphs of Dr. Blundell’s affidavit reads:

6. The Vectran wireless control box has a “handle” that purports

to act as a “guard bar” and is inadequate in design.

7. The design fails to prevent objects from vertically falling on

to the control levers and inadvertently activating the crane.

8. The design of the “guard bar” is therefore inadequate in size

and shape and not reasonably safe.

9. A simple guard that surrounds the controls could have

prevented this from happening.

10. This simple guard could have been utilized by Defendants at

the time the remote control was manufactured.

11. This guard would not compromise the usefulness or

desirability of the product as it changes none of the functions

of the remote.

12. The design utilized by Defendants was defective and
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unreasonably dangerous when it left the control of the

manufacturer.

13. The “guard” was defective and unreasonably dangerous, a

simple guard built around the controls would prevent the

inadvertent activation of the crane and would render the

control box reasonably safe.

14. It is reasonably anticipated that an object in an industrial

application could fall onto the controls given the exposed

nature of the controls designed by the defendant. In

comparison, it is an unlikely event that an object would be

able to contact the controls if surrounded on three sides and

the forth side covered partially by the operator’s hands and

body.

15. It would require only a small amount of material to build the

“shield” as opposed to the “guard bar” and I estimate the cost

to be no more than $5-10 per unit.

Id.

These statements by Dr. Blundell indicate that there was a reasonable alternative design

that was practicable, feasible, and would have made Defendants’ product reasonably safe. Dr.

Blundell’s statements also indicate that the availability of a safer alternative design (the “shield”)

rendered Defendants’ product not reasonably safe. Therefore, Plaintiff has met the six

requirements of Michigan’s risk-utility test for a prima facie case for negligence due to a

defective design, as required by Peck.

II. Plaintiff Does Not Have To Produce The Specific Unit At Issue.

Defendants also contend that the Michigan Product Liability Statute requires Plaintiff to

produce the specific unit that Plaintiff was using at the time of the accident. Defendants’ cite

sections (1) and (2) of the statute, which read:

(1) It shall be admissible as evidence in a product liability action that

the production of the product was in accordance with the generally

recognized and prevailing nongovernmental standards in existence at

the time the specific unit of the product was sold or delivered by

the defendant to the initial purchaser or user.
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(2) In a product liability action brought against a manufacturer or

seller for harm allegedly caused by a production defect, the

manufacturer or seller is not liable unless the plaintiff establishes that

the product was not reasonably safe at the time the specific unit of

the product left the control of the manufacturer or seller and that,

according to generally accepted production practices at the time the

specific unit of the product left the control of the manufacturer

or seller, a practical and technically feasible alternative production

practice was available that would have prevented the harm without

significantly impairing the usefulness or desirability of the product

to users and without creating equal or greater risk of harm to others.

An alternative production practice is practical and feasible only if the

technical, medical, or scientific knowledge relating to production of

the product, at the time the specific unit of the product left the

control of the manufacturer or seller, was developed, available, and

capable of use in the production of the product and was economically

feasible for use by the manufacturer. Technical, medical, or scientific

knowledge is not economically feasible for use by the manufacturer

if use of that knowledge in production of the product would

significantly compromise the product's usefulness or desirability.

M.C.L. § 600.2946 (2000) (emphasis added).

Defendants’ interpretation of the statute is misplaced. The statute does not state that a

plaintiff in a product liability suit is required to identify a specific unit. Rather, the statute

references “the time the specific unit of the product left the control of the manufacturer.” Id.

(emphasis added). A plaintiff can identify a period of time in which a specific product was

manufactured without requiring the plaintiff to produce the actual, specific unit. In the absence

of the specific product at issue, a Michigan products liability plaintiff can show liability through

expert testimony and circumstantial evidence. See Drooger v. Carlisle Tire & Wheel Co., 2006

WL 1008719 at *5 (W.D. Mich. 2006).

III. Plaintiff’s Claim Is Not Purely Speculation And Conjecture.

Next, Defendants challenge Plaintiff’s allegation that a defective design by Vectran is the
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cause of Plaintiff’s accident. Defendants contend that this conclusion is pure speculation and

conjecture, and therefore summary judgment is appropriate. (Docket Entry No. 25 at 16). In

support, Defendants cite Skinner v. Square Deal Co., in the which the court explained:

[It is not] sufficient to submit a causation theory that, while factually

supported, is, at best, just as possible as another theory. Rather, the

plaintiff must present substantial evidence from which a jury may

conclude that more likely than not, but for the defendant's conduct,

the plaintiff's injuries would not have occurred.... The plaintiff must

introduce evidence which affords a reasonable basis for the

conclusion that it is more likely than not that the conduct of the

defendant was a cause in fact of the result. A mere possibility of such

causation is not enough; and when the matter remains one of pure

speculation or conjecture, or the probabilities are at best evenly

balanced, it becomes the duty of the court to direct a verdict for the

defendant.

445 Mich. 153, 164-65 (1994).

The Skinner court also stated, however, that “the plaintiff is not required to produce

evidence that positively eliminates every other potential cause. Rather, the plaintiff's evidence is

sufficient if it ‘establishes a logical sequence of cause and effect, notwithstanding the existence

of other plausible theories, although other plausible theories may also have evidentiary

support.’” Id. at 159-60.

Plaintiff in this case has established a logical sequence of cause and effect from which the

jury can conclude that, more likely than not, Plaintiff’s injuries were caused by a defect in the

remote control box design. Plaintiff has testified that she had two hands on the controls, she was

struck by a chain, she let go of the remote control box, and the chain landed on her remote

control box, causing it to activate the controls of the crane. (Docket Entry No. 29-3 at 2). As a

result, the crane dropped the load of steel tubes on the Plaintiff. Defendants, on the other hand,
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suggest alternative scenarios. Defendants suggest that when the chain struck Plaintiff, her hands

may have unintentionally activated the controls, or alternatively, she may have dropped the load 

because she was an inexperienced crane operator. (Docket Entry No. 25 at 10). While

Defendants’ scenarios are plausible, in viewing the evidence and drawing all reasonable

inferences in favor of the nonmoving party, Plaintiff’s theory of the cause-in-fact of the injury is

more than just conjecture.

IV. Plaintiff Has Provided Evidence That Vectran Manufactured The Remote Control

Box At Issue.

Defendants also contend that M.C.L. § 600.5805(13) bars Plaintiff from presuming that

Vectran manufactured the remote control box that Plaintiff used at the time of the accident

because it was likely manufactured sometime between 1985 and 1995. (Docket Entry No. 29-4

at 26). The statute states that “[t]he period of limitations is 3 years for a products liability action. 

However, in the case of a product that has been in use for not less than 10 years, the plaintiff, in

proving a prima facie case, shall be required to do so without benefit of any presumption.” 

M.C.L. § 600.5805(13). The statute is vague as to exactly what type of “presumption” the

plaintiff is barred from applying. 

In order to give meaning to the statute, Defendants cite a wrongful death case, Johnson v.

Austin, in which the Michigan Supreme Court generally explained that courts may grant a

plaintiff the benefit of a presumption when a plaintiff cannot produce evidence of a presumed

fact and the presumption is necessary to avoid an impasse. 406 Mich. 420 (1979). In Johnson,

the plaintiff was killed in a hit-and-run incident, and the plaintiff’s family brought a wrongful

death suit against the Secretary of State because the negligent driver could not be identified. Id.
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at 430. It was clear that the plaintiff was struck by an automobile, but there were no witnesses to

the accident. The Court explained that the fact that the defendant fled the scene, despite his

statutory duty to remain, gives rise to a presumption of negligence on the part of the defendant. 

Id. at 433. 

Defendants claim that Plaintiff is not entitled to such a presumption of negligence on the

part of the Defendants because of § 600.5805(13). Johnson, however, can be distinguished from

this case. In Johnson, the plaintiff could not provide any evidence of the negligence of the

unidentified driver. In this case the Plaintiff has provided evidence that Vectran manufactured

the remote control box used by Plaintiff. First, unlike in Johnson, Plaintiff is available to testify

and has testified that the remote control box that she used was the same or is similar to the

Vectran remote control box shown in the images attached to Defendants’ motion for summary

judgment. (Docket Entry No. 29-2; Docket Entry. No. 25-3 at ¶ 6). Second, Defendants’ own

consulting engineer, Robert Aiken, testified that it is “[m]ore likely than not a commercial

product made by a competitive --competitor to Vectran would not run that crane.” (Docket

Entry No. 29-2 at 31). In fact, the Johnson court explained, “If contrary evidence is offered, the

trier is free from the compulsion of the presumption and weighs all the evidence, including the

evidence of the basic fact. The trier is free to infer the existence of the ultimate fact, but the law

does not require it.” Johnson, 406 Mich. at 441.

V. It Is Irrelevant That The Safety Guard Worked As Intended.

Defendants’ fifth argument is that summary judgment is proper because the safety guard

across the top of the control box performed as it was intended. Defendants contend that the

chain landed on the safety guard and not on the controls. Despite Plaintiff’s testimony to the
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contrary, Defendants also argue it was the Plaintiff who activated the crane when she was struck

by the chain. However, whether the safety guard performed as it was supposed to is irrelevant. 

The performance of the original design is not one of the requirements necessary to establish a

prima facie case for a design defect claim, as outlined in Peck. See Peck, 237 F. 3d 614 (6th Cir.

2001). As noted in part I, supra, Plaintiff has fulfilled the six requirements for Michigan’s riskutility test for design defect claims.

VI. The Court Should Disregard A Portion of Plaintiff’s Affidavit For The Purposes Of

Summary Judgment Review.

Defendants also allege that the Court should reject Plaintiff’s affidavit as evidence when

reviewing Defendants’ motion for summary judgment because it was filed after Defendants’

motion for summary judgment and contradicts her earlier deposition testimony. See Reid v.

Sears Roebeck & Co., 790 F. 2d 453 (1986). Only paragraph nine of the affidavit contradicts

Plaintiff’s deposition testimony. Paragraph nine states that Plaintiff immediately took her hands

off the remote when she was struck by the chain. (Docket Entry No. 29-3 at ¶ 9). A number of

times during her deposition, however, Plaintiff stated that she did not remember anything

immediately after being struck by the chain. (Docket Entry No. 29-2 at 87-89). These two

statements are contradictory. The remainder of Plaintiff’s affidavit does not contradict her

deposition testimony. Rather, it merely expresses her theory as to what must have logically

happened, based upon the circumstances. Therefore, the Court should disregard only the portion

of Plaintiff’s affidavit that contradicts her deposition testimony. Notwithstanding this omission

from Plaintiff’s affidavit, Plaintiff has still sufficiently alleged a prima facie case for negligence

based upon Michigan’s risk-utility test.
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CONCLUSION

For the reasons stated above, the Court GRANTS in part and DENIES in part

Defendants’ Motion for Summary Judgment. The motion is GRANTED as it relates to

Plaintiff’s Count II, “Strict Liability Against Defendants” and is DENIED as it relates to

Plaintiff’s Count I, “Negligence Against Defendants.” Plaintiff has made a prima facie case for a

defective design negligence claim.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: December 2, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record on

December 2, 2010, by electronic and/or ordinary mail.

S/Jennifer Hernandez 

Case Manager