Royce Young v. Pollock Engineering Group, Inc. Pollock Research and Design, Inc. Computech, a Sole Proprietorship and Lewis L. Deland, an Individual

LAY, Circuit Judge,

concurring and dissenting.

I dissent from the majority’s opinion that Pollock maintained no duty to warn Young of dangers associated with the unexpected activation of the die changer. In doing so, I concur with the majority opinion that the district court erred by dismissing Young’s defective design claim under Minnesota law.

FAILURE TO WARN

To prevail against a manufacturer on a failure to warn claim, a plaintiff must prove: (1) that the manufacturer failed to warn of a foreseeable danger associated with the use of its product; and (2) causation. Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn.1986); Drager by Gutzman v. Aluminum Indus. Corp., 495 N.W.2d 879, 888 (Minn.Ct.App.1993). It is a question of law whether the danger resulting from the alleged failure to warn was reasonably foreseeable. Germann, 395 N.W.2d at 924. If the connection between the event causing the damage and the failure to act is too remote to impose liability as a matter of public policy, then the manufacturer maintains no duty to inform of the alleged danger. Id. Similarly, if the danger alleged is “obvious to anyone using the product,” then no duty to warn arises. Mix v. MTD Prods., Inc., 393 N.W.2d 18, 19 (Minn.Ct.App.1986). When assessing the obviousness of the risk of harm, we must determine whether the plaintiff was aware of the specific danger posed by the device. See Indep. Sch. Dist. *793No. 14 v. AMPRO Corp., 361 N.W.2d 138, 143 (Minn.Ct.App.1985) (stating that a duty to warn exists where the danger involved is “different, more serious, and more unexpected” than an obvious risk).

In this case, the facts mandate the conclusion that the relationship between Young’s injury and Pollock’s failure to warn that the die changer might be unexpectedly activated is not too remote to impose liability. Absent a warning, it is foreseeable that Young, as a line employee responsible for the regular operation and replacement of the die changer, might, in a moment of diversion, keep his hand near, next to, or inside the die changer after its deactivation under the belief that the changer was properly turned off. Moreover, there is no record evidence to support the conclusion that the danger of unexpected activation was obvious, or that Young knew of the specific threat that the die changer could be unexpectedly activated.

The district court’s reliance on 29 C.F.R. § 1910.217(c)(l)(i),3 which places the burden on the employer to provide and insure the proper usage of “point of operation guards” and “point of operation devices” to relieve Pollock of its duty to warn that the die changer could be unexpectedly activated, is misplaced. In its analysis, the district court incorrectly concluded that Pollock’s failure to warn of the specific danger of unexpected activation implicates the “external safety devices and controls” referenced in § 1910.217(c)(l)(i). Young v. Pollock Eng’g, No. 02-4377, 2004 WL 1683143, at *4, 2004 U.S. Dist. LEXIS 14378, at * 12 (D.Minn. July 28, 2004). Under § 1910.217(c)(1)®,4 the duty to safeguard points of operation through the use of guards and devices is the responsibility of the employer. Id.

Point of operation guards, for their part, “consist of barriers erected to prevent an operator from placing any part of his body in the danger zone of the press.” Huber v. Niagara Mach. & Tool Works, 430 N.W.2d 465, 468 (Minn.1988) (citing 29 C.F.R. § 1910.217(c)(1)®). By contrast, “[pjoint of operation ‘devices’ protect an operator by forcing [the operator] to manually activate switch controls located away from the danger zone before the press will operate, thus preventing [the operator] from placing parts of his body in the danger zone of the press while it is running.” Id. Given this framework, an oral or written warning indicating that the die changer could be unexpectedly activated is neither a barrier erected to prevent bodily harm nor a device that forces the operator to manually activate switch controls located away from the zone of danger. As a result, Pollock’s duty to warn of the potential for unexpected activation cannot be delegated to Young’s employer under § 1910.217(c)(1)®. As such, Pollock maintained a duty to warn Young of this risk.

CAUSATION

Turning to the issue of causation, genuine issues of material fact exist regarding *794whether Pollock’s failure to warn of the potential for unexpected activation caused Young’s injury. In Minnesota, the question of causation is normally left for the jury. See, e.g., Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 915 (Minn.1983). Only where there is “no room for an honest difference of opinion among reasonable people” may courts take an issue of causation away from the finder of fact. Gum v. Medcalf Orthopaedic Appliance Co., 380 N.W.2d 916, 921 (Minn.Ct.App.1986) (quoting Johnson v. Evanski, 221 Minn. 323, 22 N.W.2d 213, 215 (1946)). This case presents room for honest difference of opinion concerning the cause of Young’s injury.

Young was not informed by Pollock of the possibility that the die changer might be unexpectedly activated even though he was the worker assigned to regularly operate, change, and replace the device. A jury might reasonably infer that Young would have exercised greater caution with the die changer, especially considering his frequent contact with the device, if he was informed of the possibility that the changer could be suddenly activated.5

The district court, however, found that Young did not establish causation because a failure to warn “is not the proximate cause of injury if the user is aware of the danger posed by the device at. issue.” Young, 2004 WL 1683143 at *4, 2004 U.S. Dist. LEXIS 14378, at *13 (citing Holowaty v. McDonald’s Corp., 10 F.Supp.2d 1078, 1085 (D.Minn.1998)). However, this analysis fails because, once again, there is no record evidence to demonstrate that Young knew the die changer could be unexpectedly activated, or that he was warned of the possibility for unexpected activation.

The district court concluded, noting that the “effect of a warning on [Young’s] conduct is particularly questionable in light of the fact that he had performed this task many times without incident ....” Id. 1998 WL 407131 at 4, 2004 U.S. Dist. LEXIS 14378 at *14. Yet the determination as to how Young may have acted if warned that the die changer could be unexpectedly activated is the very type of fact-intensive inquiry best left for a jury. Therefore, the district court erred when it found there was no genuine issue of material fact on the issue of causation.

SOPHISTICATED INTERMEDIARY DEFENSE

Pollock asserts that even if it maintained a duty to warn Young, this duty was relieved by Alexandria Extrusion Company’s (“AEC”) status as a sophisticated intermediary. Courts typically apply the sophisticated intermediary defense when: (1) the employer maintained full knowledge of the range of dangers equal to that of the manufacturer; or (2) the manufacturer made the employer knowledgeable by providing adequate warnings and safety instructions to the employer. Gray v. Badger Mining Corp., 676 N.W.2d 268, 277-78 (Minn.2004). When applicable, the sophisticated intermediary defense permits a manufacturer or distributor to discharge its duty to warn of foreseeable dangers related to the use of its product if the manufacturer or *795distributor exercised reasonable care in relying upon the intermediary to give a warning to the end user. See id. at 278.

Young notes, however, that no Minnesota court has extended the sophisticated intermediary defense to employer/employee relationships and, as a result, the defense has been implicitly restricted in Minnesota. See id. (noting that some courts, including the Fifth Circuit and a federal district court in Minnesota, “have been reluctant to extend the rationale of the sophisticated user defense to sophisticated intermediaries”).

Given the current state of the law, I agree. The Minnesota Supreme Court’s recent reluctance to define the full applicability or scope of the sophisticated intermediary defense, id. at 278-79, coupled with the infrequency with which the defense is applied by other jurisdictions in the employer/employee context, suggests that the sophisticated intermediary defense does not apply to this case.

Even if the defense was applicable, Pollock has failed to show that it exercised reasonable care in relying upon the AEC to give a warning to end users. Pollock is able to reference no record evidence that Pollock actually warned AEC of the danger for unexpected activation, or that it acted in a manner reasonably calculated to assure that AEC might be made aware of the danger that the die changer could be unexpectedly activated. See id. at 278 (stating that, when determining if the supplier exercised reasonable care, courts look to “whether the supplier acted in a manner reasonably calculated to assure [ ] that the necessary information would be passed on to the ultimate handlers of the product”).

Young’s resulting injury was a foreseeable consequence of Pollock’s failure to warn about the risk of, and potential for, unexpected activation. Moreover, causation was certainly a jury question and should not be ruled upon under summary judgment. Accordingly, I would reverse on both the failure to warn and defective design claims and remand for trial.

. The district court also cited industry-wide safety standards promulgated by the American National Standards Institute ("ANSI”) to relieve Pollock of its duty to warn that the die' changer could be unexpectedly activated. However, no Minnesota case has employed ANSI standards to define the scope of a product manufacturer’s duty to warn of foreseeable dangers associated with the use of its product. See Westbrook v. Marshalltown Mfg. Co., 473 N.W.2d 352, 358 (Minn.Ct.App.1991) (noting that the trial court, correctly, "did not substitute ANSI and OSHA standards for case law duty analysis”).

. At least one Minnesota case has applied 29 C.F.R. § 1910.217(c)(l)(i) in the context of a manufacturer's duty to warn of foreseeable dangers associated with the use of a component product. See Huber v. Niagara Mach. & Tool Works, 430 N.W.2d 465, 468 (Minn.1988).

. Many jurisdictions have adopted the principle that if a plaintiff is not warned of a particular risk, a rebuttable presumption arises that a proper warning would have been heeded, thereby establishing causation. See, e.g., Golonka v. Gen. Motors Corp., 204 Ariz. 575, 65 P.3d 956, 967-72 (2003); Coward v. Owens-Coming Fiberglas Corp., 729 A.2d 614, 621-22 (1999); Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710, 716-21 (1993); House v. Armour of America, Inc., 929 P.2d 340, 347 (Utah 1996). But see Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 925 (8th Cir.2004) (stating that, in its view, the court did not think Minnesota “would adopt the rebuttable presumption” in the case presented).