Products Liability Law Reporter

A Kentucky appellate court held that summary judgment for Home Depot and a scaffold distributor was warranted where the plaintiffs’ expert failed to assert proper circumstantial or direct evidence that the scaffold at issue was defective.

Thomas Stone used a scaffold leased from Home Depot and manufactured and sold to retailers by MTA Distributors, Inc. While painting a two-story foyer in his rental home, Stone fell from the scaffold, suffering injury. He and his wife sued Home Depot U.S.A., Inc., and MTA Distributors, alleging defective design and warnings, breach of implied and express warranties, and negligence. The plaintiffs argued that Home Depot had failed to provide necessary component parts and a safety information booklet containing the manufacturer’s directions for erecting the scaffold and warning of the risk of serious injury or death that could result from improper assembly of the scaffold. Additionally, suit claimed that MTA had failed to provide adequate warnings about the danger of improperly assembling the scaffold and failed to properly inspect it. The defendants filed separate motions for summary judgment, and a trial court granted the motions, excluding the testimony of the plaintiffs’ expert, engineer Stephen Fournier.

On appeal, the plaintiffs argued, in part, that they had produced testimony establishing that the scaffold was defective but that even absent this evidence, a reasonable jury could conclude from circumstantial evidence that the scaffold was unreasonably dangerous.

Affirming, the appellate court noted that the existence of a product defect and causation may be established through adequate circumstantial evidence. To be sufficient, the court said, the circumstantial evidence must permit a jury to find, within a reasonable probability, that a defect in the product or a negligent act was responsible for the plaintiff’s injuries. Here, Fournier opined that Stone’s fall resulted from a scaffold malfunction, specifically that the product’s wooden platform came loose. This opinion is based on an inaccurate history of events, the court found, noting that the expert had never spoken with Stone or his wife, was unaware of the dimensions of the foyer in which the incident occurred, and had not viewed photos of the area. Further, the court said, Fournier admitted that he had no objective evidence to support his conclusion that the scaffold was improperly assembled or that it was assembled with the wrong components. The expert had not talked to Stone’s neighbors, who disassembled the scaffold after the incident. Moreover, the expert had no video record of his own reenactment supposedly showing the scaffold platform falling to the ground.

Consequently, the court concluded that the trial court had not erred in finding the expert’s testimony amounted to mere speculation and was unreliable under applicable evidentiary rules.

Citation: Stone v. Home Depot U.S.A., Inc., 2019 WL 4732558 (Ky. Ct. App. Sept. 27, 2019).