Opinion
No. CV 07-5011713S
December 7, 2009
MEMORANDUM OF DECISION
The Plaintiff, Yelba Acevedo, purchased a piece of exercise equipment called an "Easy Shaper" from the Defendant Sports Authority in September of 2005. The equipment had been supplied to Sports Authority by the Defendant Fitness Quest, Inc. The Plaintiff has brought this action under Connecticut's Product Liability Act claiming that she was injured as a result of a defect in the equipment, namely that certain spring clips designed to fasten rubber resistance bands to the equipment and thus provide resistance for the Plaintiff's exercises, were inadequate for the task and that the equipment should have used either a "clevis pin with detent" or a "clevis pin with a bridge clip" instead. The Plaintiff claims that on June 16, 2005, while she was in the midst of exercising on the Easy Shaper, one of the clips dislodged, resulting in a loss of tension that caused her to lurch forward, striking her nose, and to fall to the floor. She alleges that she broke her nose and sustained other painful injuries as a result the defective design of the Easy Shaper.
The Defendants do not dispute that they are "Product Sellers" within the meeting of Connecticut's Product Liability Act, Gen. Stats. § 52-272m et seq., and that they therefore bear responsibility if a plaintiff is injured as the result of a defective product which they have sold. "A product may be defective due to a flaw in the manufacturing process, a design defect or because of inadequate warnings or instructions." Vitanza v. Upjohn Co., 257 Conn. 365, 373-74 (2001). In this case, the Plaintiff does not allege a manufacturing defect. Moreover, although "[t]he absence of adequate warnings or directions may render a product defective and unreasonably dangerous, even if the product has no manufacturing or design defects." Koonce v. Quaker Safety Products Mfg. Co., 798 F.2d 700, 716, (5th Cir. 1986), the Plaintiff has conceded, as reported by her expert, Engineer Michael Miller, that she was aware that the spring clips needed to fit snugly and that, whether or not the user's manual or accompanying video specifically explained this, she was fully cognizant of it. Her claim, then, is solely that the use of spring clips, instead of either variant on the use of clevis pins as recommended by Miller, was the cause of her injury.
See transcript of Miller's deposition testimony, p 50.
In Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199 (1997), our Supreme Court stated that "[p]roducts liability law has thus evolved to hold manufacturers strictly liable for unreasonably dangerous products that cause injury to ultimate users. Nevertheless, strict tort liability does not transform manufacturers into insurers, nor does it impose absolute liability . . . [F]rom the Plaintiff's point of view the most beneficial aspect of the rule is that it relieves him of proving specific acts of negligence and protects him from the defenses of notice of breach, disclaimer, and of privity in the implied warranty concepts of sales and contracts . . . Strict tort liability merely relieves the Plaintiff from proving that the manufacturer was negligent and allows the Plaintiff to establish instead the defective condition of the product as the principal basis of liability." (Citations omitted; internal quotation marks omitted.)
This case was originally claimed for a trial by jury, but the parties agreed in writing to withdraw their case from the jury docket and to try it to the Court before the undersigned. The parties have further agreed to waive any right to appeal and to be bound by this Court's decision, subject to any side agreements that they may have, the parameters of which (if any) are unknown to the court. Pursuant to this understanding, judgment will enter in accordance with this decision thirty days from the date of filing unless the action has been withdrawn prior to that date.
Before trial began, the Defendant filed two Motions in Limine which the Court must address. The first challenges the Plaintiff's claim of a loss of $1,920.00 in earnings as a result of her injuries, which loss is not documented in any written form. The Plaintiff claims that she was self-employed as a daycare provider and received payments from the State of Connecticut amounting to $120.00 per child per week, but that she lost two weeks of such payments in the wake of the accident. She did not produce paystubs or any other documentation of her earnings immediately before or after this claimed wage loss, and the Defendant argues that she should be precluded from claiming lost wages.
This Court disagrees. Although " . . . it is . . . reasonable to expect that a party would produce factual evidence which supports a claim which without such favorable evidence, is based solely upon the claimant's own testimony . . ." Grabowski v. Fruehauf Trailer Corp., 2 Conn.App. 167, 174 (1984), the absence of such documentation affects only the weight to be accorded to her claim and not the admissibility of it. The first Motion in Limine is therefore denied.
The Defendants also filed a second Motion In Limine challenging the proposed testimony of the Plaintiff's expert, Michael Miller, an engineer. In this motion, the Defendants essentially argue that because Miller failed to conduct any test on the equipment, provide any calculations or attempt to replicate the accident himself, his testimony lacks a scientific basis and should be excluded.
The Court deferred ruling on this motion until it had heard all of Miller's testimony and reviewed the transcript of his deposition, which was submitted as part of a packet of exhibits by the Plaintiff. Having done so, the court now denies this Motion in Limine as well. "[T]he trial court has wide discretion in ruling on the admissibility of expert testimony . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues." (Internal quotation marks omitted.) State v. Henry, 72 Conn.App. 640, cert. denied 262 Conn. 917 (2002). Section 7-2 of the Connecticut Code of Evidence provides that "[a] witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue."
The court finds that Miller possesses those qualifications. Miller's testimony focused on the nature of the fastening devices (in this case, spring clips) used to secure resistance bands to the body of the equipment. Although additional testing might (or might not) have strengthened his testimony, the absence of such evidence goes to the weight to be given to his testimony, and the Court concludes that Miller's testimony should not be excluded as a matter of law.
The Court heard testimony from Miller, Michael Clark, Executive Vice President of Fitness Quest, Inc., and the Plaintiff herself, all of whom were called as witnesses by the Plaintiff. The defendant called no additional witnesses.
The Plaintiff testified that she purchased the Easy Shaper in September of 2005 at Sports Authority as a result of having seen it in a commercial (or infomercial) on television. She used it without incident approximately 18 or 20 times from the date of purchase until the date of the incident in question, June 16, 2006. On that date, she was performing a pushup type exercise when she suddenly heard a pop, felt an "explosion," and lurched forward, striking her nose on the Easy Shaper's handle and falling to the ground. She quickly noticed that she was in pain, that there was considerable blood on the machine, on herself, and on the floor, that one of the spring clips was on the floor and that the resistance band which it had been holding had dislodged from the pin affixing it to the machine.
The Plaintiff was taken to Yale New Haven Hospital by ambulance and was diagnosed with a fracture of her nose. She also sustained numerous bruises about her body. The injury itself, the treatment and the recovery process were all painful, and there is some possibility (albeit not established with reasonable medical probability) of additional surgery. The nose injury continues to bother her when she breathes and when she eats, and she now finds it more difficult to exercise as she quickly gets short of breath. The condition of her nose has made her uncomfortable by both in terms of pain and her feeling that the injury has left a deformity, although this court, upon examining the nose, did not detect any deformity or other cosmetic deficiency.
Michael Miller, the Plaintiff's expert, acknowledged that he relied primarily on the Plaintiff's explanation of the events that led to her injury in reaching his conclusion that one of the spring clips had popped off during the exercise, resulting in the dislodging of a resistance band, which thereby caused her to lurch forward, strike her nose and fall off the machine. He did nothing to try to replicate the incident, however, either on the machine owned by the Plaintiff (which still had bloodstains on it) or on an identical but clean machine introduced into evidence by the Defendant, nor did he conduct any experiments to try to simulate the conditions described by the Plaintiff. He nonetheless concluded that the use of spring clips, instead of inexpensive but safer clevis pins, either with "detent" or "bridge clips," was the cause of the Plaintiff's injuries.
The Defendants' position is that, assuming that the Plaintiff was indeed injured while using the Easy Shaper (and the Defendants have offered no reason to believe that she was not), the Plaintiff has not shown by a preponderance of the evidence that her injuries were caused by a defective product, and this court agrees. First, there is no question but that the accident happened in a split second, while the Plaintiff was concentrating on her exercise and was not anticipating that anything was about to go wrong. She was not paying much attention to the condition of the machine itself, and particularly the status of the spring clips, immediately before she was injured. Although she reported, in rapid succession, a pop, an explosion, the finding of one of the spring clips on the floor and the realization that she had severely injured herself, the precise sequence of these events has not been established with reasonable probability. From the evidence presented, it is at least as likely that the Plaintiff slipped and fell off the machine, dislodging one of the spring clips and the resistance band in the process. The court's examination of both of the machines placed in evidence reveals that if the clips are placed carefully on the pins behind the resistance bands, they fit snugly and are dislodged only with a deliberate effort to do so. If they are placed at the very tips of the pins so that they are not holding the bands snugly against the equipment's frame, they are more readily dislodged, but it still requires a concerted effort to do so.
Michael Clark, Fitness Quest's executive vice president, testified that some 600,000 Easy Shapers have been sold and that Fitness Quest has not received a single complaint based on one of the resistance bands coming off the machine. While the absence of prior complaints is hardly dispositive, that fact, combined with the apparent snugness with which the resistance bands are held against the body of the machine when the spring clips are properly fastened, suggests either that the cause of the accident was not a clip that dislodged prior to the Plaintiff's fall, or that the dislodging of the clip was the result of the Plaintiff's failure to fasten it tightly. The court has little doubt that the Plaintiff firmly believes that the accident happened in the manner and sequence which she described, but based on the facts previously recounted, the court concludes that the she is more likely than not simply mistaken in this belief.
As for Miller's contention that the substitution of relatively inexpensive clevis pins, either with detent or bridge clips, would be a safer alternative than spring clips, the court concludes that he is probably right. The mere fact that there is a better way to do something, however, does not mean that the product is defective in its design because it did not use such a method. Moreover, the court views it as significant that Miller himself did not test the equipment and concludes that the absence of such testing has seriously eroded the impact of his testimony.
In sum, the court finds that while the use of pins of either of the sorts described by Miller would improve the overall safety of the product, it remains unproven that it was the use of the clips that caused the Plaintiff to fall and be injured. In the court's examination of the two versions of the Easy Shaper placed into evidence, one by the Plaintiff and one by the Defendants, the court found it impossible to dislodge the clips with ordinary use if the clips were securely fastened at the outset of the exercise. Even if the clips were deliberately placed near the very ends of the pins, it still took a prolonged and deliberate effort to dislodge one, and even when a clip was finally dislodged, the resistance band itself did not immediately pull free. The court therefore concludes that the Plaintiff has not proved that she was caused to fall because of any defect in the equipment. The chance that the pin popped off and the band pulled free after the Plaintiff slipped and fell off the machine, for whatever reasons, is at least as likely as that these events occurred before the fall.
Because the Plaintiff has not established by a fair preponderance of the evidence that her injury was caused by a defective product, judgment will enter in favor of the Defendants thirty days from the date of the filing of this Memorandum of Decision.