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Veilleux v. Genie Industries

United States District Court, D. Maine

June 4, 2014



JOHN C. NIVISON, Magistrate Judge.

The matter is before the Court on Plaintiffs' Motion to Exclude Expert Testimony (ECF No. 40). Through this motion, Plaintiffs seek an order excluding the opinion testimony of Defendant's designated expert, Richard Curtin, to the extent that Mr. Curtin intends to testify as to the adequacy of the warning that Defendant placed on its EasyUp 15 lift, including whether a different warning would have prevented the incident about which Plaintiffs complain. After consideration of the parties' arguments, as explained below, the Court denies the motion.


Plaintiffs allege that Defendant's EasyUp 15 (EU-15 or EU-15M) lift, a form of aerial work platform, was defective. A user of the EU-15 can stand on and raise the platform to access overhead work projects. When the EU-15 is in its fully lowered position, the lift platform and guardrail (the "basket") remains several feet above the floor and one must climb up to enter the basket.

The EU-15's basket is hinged and locks into an upright position by means of two pins. When the basket is at its lowest height, in its upright position, the EU-15 is too tall to be moved through doorways. To move the lift through a doorway, therefore, the user must disengage the two pins securing the basket, which is hinged at its base to permit it to come down. Plaintiff Donald Veilleux was allegedly injured when, as he was in the process of disengaging the pins in order to lower the basket, the basket swung down and its guardrail struck him on the head. Plaintiffs maintain that the EU-15 has a defective design, and that Defendant provided an inadequate warning about the danger that resulted from the design.[1]

Richard M. Curtin is a 1983 graduate of Western Washington University in Bellingham, Washington, where he majored in industrial design. Following graduation, Mr. Curtin worked for Genie Industries for approximately 20 years. Currently, he is employed by Terex Corporation, which purchased Genie Industries in 2003. Throughout his nearly 30 years with these companies, Mr. Curtin's responsibilities have included product design and safety for aerial work platforms, including the EU-15 model at issue in this case. (Declaration of Richard M. Curtin ¶¶ 1-8.) Mr. Curtin has participated in the design and testing of more than 80 aerial work platforms, and has been responsible for "the design, content, and/or approval of hundreds of warnings for various types of aerial work platforms and other industrial machines." ( Id. ¶ 9.)

In this work, Mr. Curtin has become familiar with and has gained substantial practical experience applying the American National Standards Institute (ANSI) standard Z35.1-1972. ( Id. ¶ 10.) Mr. Curtin has been selected to participate in committee work for ANSI, the Canadian Standards Association, and other organizations regarding aerial platform design and safety. ( Id. ¶¶ 11-19.) Mr. Curtin has also served as a representative of the Elevating Work Platforms committee for the United States Technical Advisory Group since 1998, on which committee he assisted in the creation and publication of "several standards, including standards that apply directly to instructions and warnings." ( Id. ¶ 18.)

Mr. Curtin was involved in the design of the EU-15 in 1984. As part of this work, he was responsible for the design and assessment of the warnings and user instructions, including the visibility and legibility of the warning in question. ( Id. ¶¶ 22-23, 26-27.) Based on his experience and training, he "professionally determined that the warning was adequate to convey the information needed for safe operation and that it was consistent with industry practice at that time." ( Id. ¶ 28.) He is prepared to testify in accordance with that determination, and further testify that the incident about which Plaintiffs complain would not have occurred if Plaintiff Donald Veilleux would have followed the warning. ( Id. ¶ 35.) Mr. Curtin bases his opinions on:

1. Inspection, use, and assessment of the subject model lift and subject warning during the design process;
2. Knowledge of and experience with the relevant ANSI warnings standard and assessment of the subject warning's compliance with it;
3. Post-accident inspection of the accident lift;
4. Genie's experience with the EU-15M and EU-16M models;[2] and
5. Review of Mr. Veilleux's deposition transcript, including his admission that he did not read the warning, ...

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