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(Riordan, Christopher) (Entered: 04/03/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/424726440/","id":424726440,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67605404/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/438839629/","id":438839629,"tags":[],"absolute_url":"/docket/67605404/45/erwin-v-metalcraft-of-mayville-inc/","date_created":"2025-05-07T15:11:27.186251-07:00","date_modified":"2025-05-09T02:31:22.905386-07:00","sha1":"e5befc9155cb43c67047cdeb2f18eda86837466b","page_count":41,"file_size":331463,"filepath_local":"recap/gov.uscourts.txnd.379028/gov.uscourts.txnd.379028.45.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.txnd.379028/gov.uscourts.txnd.379028.45.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:23-cv-01561-K     Document 45      Filed 03/20/25    Page 1 of 41    PageID 1040\n\n\n\n                  IN THE UNITED STATES DISTRICT COURT\n                  FOR THE NORTHERN DISTRICT OF TEXAS\n                            DALLAS DIVISION\n\n\nKAREN JEAN ERWIN and ALBERT                     \u00a7\nSIDNEY ERWIN, JR.,                              \u00a7\n         Plaintiffs,                            \u00a7\n                                                \u00a7\nv.                                              \u00a7      No. 3:23-CV-1561-K\n                                                \u00a7\nMETALCRAFT OF MAYVILLE, INC.                    \u00a7\nD/B/A SCAG POWER EQUIPMENT,                     \u00a7\nSCAG POWER EQUIPMENT, A                         \u00a7\nDIVISION OF METALCRAFT OF                       \u00a7\nMAYVILLE, INC., and SCAG POWER                  \u00a7\nEQUIPMENT DIVISION.,                            \u00a7\n          Defendant.                            \u00a7\n\n          FINDINGS, CONCLUSIONS, AND RECOMMENDATION\n             OF THE UNITED STATES MAGISTRATE JUDGE\n\n      Pending before the Court is a motion for summary judgment, pursuant to Rule\n\n56(a) of the Federal Rules of Civil Procedure, filed on September 12, 2024, by\n\nDefendant Metalcraft of Mayville, Inc., d/b/a Scag Power Equipment, a division of\n\nMetalcraft of Mayville, Inc., (incorrectly identified as Metalcraft of Mayville, Inc.,\n\nd/b/a Scag Power Equipment; Scag Power Equipment, a Division of Metalcraft of\n\nMayville, Inc. and Scag Equipment Division) (\u201cMetalcraft\u201d). (Dkt. No. 27.)\n\n      The motion was referred to the undersigned United States magistrate judge on\n\nDecember 4, 2024, for hearing, if necessary, and findings and recommendation. (See\n\nDkt. No. 37.) Having considered the motion, the response, the reply, the evidence,\n\nand the applicable law, the undersigned recommends that Defendant\u2019s Motion for\n\nSummary Judgment (Dkt. No. 27) be DENIED.\n\fCase 3:23-cv-01561-K     Document 45        Filed 03/20/25   Page 2 of 41   PageID 1041\n\n\n\n                                   I. BACKGROUND\n\nA.    Procedural Background.\n\n      Plaintiffs Karen Jean Erwin and Albert Sydney Erwin, Jr., wife and husband,\n\nfiled this lawsuit on July 13, 2023, alleging state-law product liability and negligence\n\nclaims against Defendant. (See Dkt. No. 1 (\u201cCompl.\u201d).) Plaintiffs are the owners of\n\na Scag Tiger Cub riding lawnmower which was designed, manufactured, and\n\ndistributed for sale by Scag Power Equipment (\u201cScag\u201d), a division of Metalcraft. (Id.\n\n\u00b6 3.2; see also Def. Br. at 1.) Plaintiffs allege that the Scag Tiger Cub mower \u201cwas\n\ndefectively designed, defectively manufactured, defectively marketed, and\n\nunreasonably dangerous for reasons principally related to its safety and guarding\n\nfeatures.\u201d (Compl \u00b6 4.4.) In addition, Plaintiffs allege Defendant \u201cowed a duty to\n\nPlaintiffs to exercise the reasonable care in the design, manufacture, supply,\n\nassembly, marketing, and use of the Lawnmower to the Plaintiffs and to the public\u201d\n\nand Defendant\u2019s \u201cacts and/or omissions constitute a breach of such duty \u2026 and\n\nwere, therefore, negligent.\u201d (Id. \u00b6 5.2.)\n\n      On September 12, 2024, Defendant filed the present motion for summary\n\njudgment (Dkt. No. 27), a supporting brief (Dkt. No. 28) (\u201cDef. Br.\u201d), and an\n\nappendix (Dkt. No. 29) (\u201cDef. App.\u201d). Thereafter, on October 2, 2024, Plaintiffs\n\nfiled a response (Dkt. No. 30), a supporting brief (Dkt. No. 31) (\u201cPl. Br.\u201d), and an\n\nappendix (Dkt. Nos. 32-34) (\u201cPl. App.\u201d). On October 4, 2024, Defendant filed a\n\nreply (Dkt. No. 35) (\u201cReply\u201d), accompanied by an affidavit (Dkt. No. 36).\n\n\n\n                                             2\n\fCase 3:23-cv-01561-K     Document 45    Filed 03/20/25    Page 3 of 41    PageID 1042\n\n\n\nAccordingly, the motion is ripe and ready for determination. Plaintiffs\u2019 original\n\ncomplaint (Dkt. No 1) (\u201cCompl.\u201d), remains the live complaint in this action.\n\n      In support of its summary judgment motion, Defendant submits an appendix\n\ncontaining evidence described as:\n\n         \u2022 Karen Erwin Deposition Exhibit 1, ERWIN_0001, Picture of Tiger Cub\n           Lawnmower (Def. App. 001);\n\n         \u2022 Karen Erwin Deposition Transcript 04/25/2024 (Def. App. 002-095)\n           ((\u201cK. Erwin Dep.\u201d);\n\n         \u2022 Albert Erwin Deposition Transcript 04/25/2024 (Def. App. 096-125)\n           (\u201cA. Erwin Dep.\u201d);\n\n         \u2022 Karen Erwin Deposition Exhibit 1, ERWIN_0009, Diagram of Tiger\n           Cub Lawnmower (Def. App. 126);\n\n         \u2022 Karen Erwin Deposition Exhibit 2, ERWIN_0044, Picture of warning\n           on Scag Tiger Cub Lawnmower (Def. App. 127); and\n\n         \u2022 Karen Erwin Deposition Exhibit 2, ERWIN_0048, Picture of warning\n           on Scag Tiger Cub Lawnmower (Def. App. 128).\n\n      In opposition to summary judgment, Plaintiffs submit an appendix containing\n\nevidence described as:\n\n         \u2022 Plaintiffs\u2019 First Request for Production and First Interrogatories to\n           Defendant (Pl. App. 001-019);\n\n         \u2022 Defendant\u2019s Response to Plaintiffs\u2019 First Request for Production of\n           Documents (Pl. App. 020-195);\n\n         \u2022 June 13, 2004 correspondence from C. Riordan to C. Ayres including\n           documentation (Pl. App. 196-488);\n\n         \u2022 Deposition transcript of Karen Jean Erwin (Pl. App. 489-525) (\u201cK.\n           Erwin Dep.\u201d);\n\n         \u2022 Deposition transcript of Kevin B. Sevart (Pl. App. 526-648) (\u201cSevart\n           Dep.\u201d);\n\n                                          3\n\fCase 3:23-cv-01561-K    Document 45     Filed 03/20/25     Page 4 of 41   PageID 1043\n\n\n\n         \u2022 Article regarding lawn mower injuries from NIH Webpage (Pl. App.\n           649);\n\n         \u2022 Article regarding lawn mower safety from TDI Webpage (Pl. App. 650-\n           51);\n\n         \u2022 Exemplars of competitor mowers (Pl. App. 652-62);\n\n         \u2022 Scag Homepage (Pl. App. 663);\n\n         \u2022 Scag \u201cAbout Us\u201d Homepage (Pl. App. 664);\n\n         \u2022 Receipt for Scag Lawnmower (Pl. App. 665);\n\n         \u2022 Scag representation regarding mower (Pl. App. 666);\n\n         \u2022 Scag placard on mower (Pl. App. 667);\n\n         \u2022 Affidavit of Christopher S. Ayres (Pl. App. 668-69); and\n\n         \u2022 Scag black chute on mower (Pl. App. 670).\n\n      All evidence presented is cited to the corresponding Def. App. or Pl. App.\n\npage number(s). Deposition testimony is additionally cited to the corresponding\n\ndeposition transcript page number(s) and line number(s).\n\nB.    Factual Background.\n\n      On or about November 21, 2020, Mrs. Erwin was operating the couple\u2019s Scag\n\nTiger Cub lawnmower to mow leaves on the lawn of their home. (Compl. \u00b6 3.4.)\n\nWhile mowing leaves, \u201cdebris/leaves accumulated on the top of the right side/deck\n\nof the [Scag Tiger Cub lawnmower] near her right foot.\u201d (Id. \u00b6 3.5.) Mrs. Erwin\n\n\u201cbrought the Lawnmower to a stop and reached with her right hand to brush away\n\ndebris/leaves.\u201d (Id.) She did not turn off the lawnmower or disengage the blades\n\nbefore reaching her hand in to brush away the leaves. (See Def. Bf. at 8.) Her \u201cright\n\n\n                                          4\n\fCase 3:23-cv-01561-K     Document 45     Filed 03/20/25    Page 5 of 41    PageID 1044\n\n\n\nhand came into contact with the drive belt and then was pulled in a manner that\n\nresulted in the severing of two fingers on her right hand.\u201d (Compl. \u00b6 3.6.)\n\n         Plaintiffs purchased their Scag Tiger Cub lawnmower new in 2010. (Def.\n\nApp. 019, K. Erwin Dep.18:3-6.) Plaintiffs acknowledge that the mower came with\n\nan operator\u2019s manual. (Def. App. 104, A. Erwin Dep. 9:3-5.) Mrs. Erwin does most\n\nof the mowing at Plaintiffs\u2019 residence. (Def. App. 023, K. Erwin Dep. 22:14-15.)\n\nShe testified that the first time she looked at the operator\u2019s manual was a few years\n\nafter the purchase. (Def. App. 031-032, K, Erwin Dep. 30:18-31:11.) She stated she\n\nlooked at the manual to figure out how to adjust the rollbar down to avoid hitting\n\ntrees. (Def. App. 032, K. Erwin Dep. 31:12-18.) She also stated she was aware that\n\nthere was a knob on the lawnmower\u2019s control panel that engaged and disengaged the\n\nlawnmower\u2019s blades; she knew that if you pushed the knob down, \u201cwithin seconds\u201d\n\nthe blades would disengage and stop rotating. (Def. App. 038, K. Erwin Dep. 37:10-\n\n16.) Mrs. Erwin\u2019s \u201cstandard practice\u201d when operating the mower was to disengage\n\nthe blades then turn off the mower, but when she was mowing, the blades were\n\nalways engaged, even when she stopped. (Def. App. 038-39, K. Erwin Dep. 38:25-\n\n39:6.)\n\n         During her deposition, Mrs. Erwin was shown an exhibit containing\n\nphotographs of the Scag Tiger Cub lawnmower involved in the accident. (Def. App.\n\n044-45, K. Erwin Dep. 43:23-44:2.) She confirmed that the photographs depicted the\n\ncondition of the lawnmower prior to her accident, with the exception of the\n\nphotographs showing a cut lawnmower belt. (Id. 045-46, K. Erwin Dep.\n                                           5\n\fCase 3:23-cv-01561-K    Document 45     Filed 03/20/25    Page 6 of 41    PageID 1045\n\n\n\n44:25.45:17.) One of the photographs shows the location of a warning on the\n\nlawnmower\u2019s deck, which reads:\n\n      WARNING. ROTATING BLADES AND BELTS. Keep hands,\n      feet, and clothing clear. Keep all guards in place. Shut off engine\n      and disengage blade clutch before servicing. Use caution in directing\n      discharge. Read instruction manual before operating. DO NOT\n      OPERATE UNLESS GRASS CATCHER, MULCHING KIT, OR\n      DISCHARGE CHUTE IS INSTALLED.\n\n(Def. App. 127.) Mrs. Erwin confirmed that this warning was on the Scag Tiger Cub\n\nlawnmower from the date of purchase to the date of her accident. (Def. App. 060, K.\n\nErwin Dep. 59:2-15.)\n\n      On the day of the accident, Mrs. Erwin was almost finished mowing the lot\n\nwest of her house when she noticed that leaves had accumulated on the\n\nlawnmower\u2019s deck and chute. (Def. App. 062, K. Erwin Dep. 61:3-11.) She stopped\n\nthe lawnmower, opened the lawnmower\u2019s control arms, and leaned over to brush the\n\nleaves from the deck when something caught her hand. (Id. 61:12-14.) After her\n\nhand got caught, Mrs. Erwin disengaged the blades and turned off the lawnmower.\n\n(Id. 068, 67:22-25.)\n\n      She testified that she did not disengage the blades prior to brushing leaves\n\nfrom the lawnmower\u2019s deck on the date of the accident because she did not think she\n\nwas in danger; she didn\u2019t think she was close to the belts and pulleys; and she had\n\nnever disengaged the blades to brush leaves from the deck in the past. (Def. App.\n\n056-57, K. Erwin Dep. 55:18-56:5; 067-68, 67: 19-2; 16-18.)\n\n\n\n\n                                          6\n\fCase 3:23-cv-01561-K      Document 45     Filed 03/20/25     Page 7 of 41     PageID 1046\n\n\n\n       Plaintiffs allege that the area of the lawnmower that caused Mrs. Erwin\u2019s\n\ninjuries \u201cwas not protected by safety apparatus or other guard(s) against the\n\nforeseeable risks and danger of operators\u2019 impact with the drive belt under the same\n\nor similar conditions that [Mrs. Erwin] encountered.\u201d (Compl. \u00b6 3.8.) They also\n\nallege that industry standards concerning \u201cnecessary warnings\u201d of \u201cforeseeable\n\ndangers to end-users\u201d were well-known to Defendant, but Defendant failed to use\n\nor incorporate safer alternative designs, even though such designs were known to\n\nDefendant, available in the market, and economically feasible and technologically\n\navailable. (Id. \u00b6 3.9, 3.10.)\n\n                            II. LEGAL STANDARDS\n\n       Summary judgment is proper when \u201cthe pleadings, the discovery and\n\ndisclosure materials on file, and any affidavits show that there is no genuine issue as\n\nto any material fact and that the movant is entitled to judgment as a matter of law.\u201d\n\nFed. R. Civ. P. 56(c)(2). The party seeking summary judgment bears the initial\n\nburden of informing the court of the basis for its motion and identifying those\n\nportions of the pleadings, depositions, answers to interrogatories, admissions on file,\n\nand affidavits, if any, which it believes demonstrate the absence of a genuine issue of\n\nmaterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Technical Automation\n\nServs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 407 (5th Cir. 2012); QBE Ins.\n\nCorp. v. Brown & Mitchell, Inc., 591 F.3d 439, 442 (5th Cir. 2009).\n\n       \u201cA fact is material only if its resolution would affect the outcome of the\n\naction.\u201d Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009); accord\n                                            7\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25    Page 8 of 41     PageID 1047\n\n\n\nPoole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012); Cooper Tire & Rubber Co.\n\nv. Farese, 423 F.3d 446, 454 (5th Cir. 2005). \u201cFactual disputes that are irrelevant or\n\nunnecessary will not be counted.\u2019\u201d Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir.\n\n2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). \u201cAn issue is\n\n\u2018genuine\u2019 if it is real and substantial, as opposed to merely formal, pretended, or a\n\nsham.\u201d Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001)\n\n(emphasis in original). Thus, a genuine issue of material fact exists \u201cif the evidence\n\nis such that a reasonable jury could return a verdict for the nonmoving party.\u201d\n\nAnderson, 477 U.S. at 248; accord Poole, 691 F.3d at 627; Bayle v. Allstate Ins. Co., 615\n\nF.3d 350, 355 (5th Cir. 2010); Wiley, 585 F.3d at 210; EMCASCO Ins. Co. v. Am. Int'l\n\nSpecialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir. 2006). The moving party,\n\nhowever, need not negate the elements of the nonmovant\u2019s case. See Bayle, 615 F.3d\n\nat 355; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citing Little v.\n\nLiquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)); Millennium Petrochemicals, Inc. v.\n\nBrown & Root Holdings, Inc., 390 F.3d 336, 339 (5th Cir. 2004).\n\n       Once a proper motion has been made, the nonmoving party may not rest upon\n\nmere allegations or denials in the pleadings but must present affirmative evidence,\n\nsetting forth specific facts, to demonstrate the existence of a genuine issue for trial.\n\nCelotex Corp., 477 U.S. at 322 n.3 (quoting Fed. R. Civ. P. 56(e)); Anderson, 477 U.S.\n\nat 256; Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703, 706\n\n(5th Cir. 2013); Bayle, 615 F.3d at 355; EMCASCO Ins. Co., 438 F.3d at 523. \u201c[T]he\n\n\n                                             8\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25     Page 9 of 41     PageID 1048\n\n\n\ncourt must review the record \u2018taken as a whole.\u2019\u201d Reeves v. Sanderson Plumbing Prods.,\n\nInc., 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio\n\nCorp., 475 U.S. 574, 587 (1986)); see Riverwood Int\u2019l Corp. v. Emp\u2019rs Ins. of Wausau, 420\n\nF.3d 378, 382 (5th Cir. 2005). All the evidence must be construed in the light most\n\nfavorable to the nonmoving party, and the court will not weigh the evidence or\n\nevaluate its credibility. Reeves, 530 U.S. at 150; Downhole Navigator, LLC v. Nautilus\n\nIns. Co., 686 F.3d 325, 328 (5th Cir. 2012); EEOC v. Chevron Phillips Chem. Co., LP,\n\n570 F.3d 606, 615 (5th Cir. 2009). The evidence of the nonmovant is to be believed,\n\nwith all justifiable inferences drawn and all reasonable doubts resolved in its favor.\n\nGroh v. Ramirez, 540 U.S. 551, 562 (2004) (citing Anderson, 477 U.S. at 255); Cotroneo\n\nv. Shaw Env't & Infrastructure, Inc., 639 F.3d 186, 192 (5th Cir. 2011), cert. denied, 133\n\nS. Ct. 22 (2012); Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578\n\nF.3d 255, 258 (5th Cir. 2009). The evidence is construed \u201c\u2018in favor of the\n\nnonmoving party, but only where there is an actual controversy, that is, when both\n\nparties have submitted evidence of contradictory facts.\u2019\u201d Spring St. Partners-IV, L.P. v.\n\nLam, 730 F.3d 427, 435 (5th Cir. 2013) (quoting Boudreaux, 402 F.3d at 540).\n\n       Furthermore, \u201conly reasonable inferences in favor of the nonmoving party can\n\nbe drawn from the evidence.\u201d Mills v. Warner-Lambert Co., 581 F. Supp. 2d 772, 779\n\n(E.D. Tex. 2008) (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S.\n\n451, 469 n.14 (1992)); accord Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172\n\n(5th Cir. 2012). \u201cIf the [nonmoving party's] theory is . . . senseless, no reasonable\n\n\n                                             9\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25     Page 10 of 41     PageID 1049\n\n\n\n jury could find in its favor, and summary judgment should be granted.\u201d Eastman\n\n Kodak Co., 504 U.S. at 468-69; accord Shelter Mut. Ins. Co. v. Simmons, 543 F. Supp. 2d\n\n 582, 584-85 (S.D. Miss.), aff\u2019d, 293 Fed.Appx. 273 (5th Cir. 2008). The nonmovant's\n\n burden is not satisfied by \u201c\u2018some metaphysical doubt as to the material facts,\u2019 by\n\n \u2018conclusory allegations,\u2019 by \u2018unsubstantiated assertions,\u2019\u201d by speculation, by the mere\n\n existence of some alleged factual dispute, or \u201cby only a \u2018scintilla\u2019 of evidence.\u201d Little,\n\n 37 F.3d at 1075 (quoting Lujan v. Nat'l Wildlife Fed\u2019n, 497 U.S. 871, 888 (1990);\n\n Matsushita Elec. Indus. Co., 475 U.S. at 586; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir.\n\n 1994); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994)); accord Stauffer\n\n v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014); Thibodeaux v. Vamos Oil & Gas Co., 487\n\n F.3d 288, 294-95 (5th Cir. 2007). \u201cUnsubstantiated assertions, improbable\n\n inferences, and unsupported speculation are not sufficient to defeat a motion for\n\n summary judgment.\u201d Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003);\n\n accord Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir. 2012); RSR Corp.\n\n v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010); see Hockman v. Westward\n\n Commc\u2019ns, LLC, 407 F.3d 317, 332 (5th Cir. 2004).\n\n        Summary judgment is mandated if the nonmovant fails to make a showing\n\n sufficient to establish the existence of an element essential to its case on which it\n\n bears the burden of proof at trial. Nebraska v. Wyoming, 507 U.S. 584, 590 (1993);\n\n Celotex Corp., 477 U.S. at 322; EMCASCO Ins. Co., 438 F.3d at 523; Cutrera v. Bd. of\n\n Supervisors of La. State Univ., 429 F.3d 108, 110 (5th Cir. 2005); Patrick v. Ridge, 394\n\n\n                                             10\n\fCase 3:23-cv-01561-K      Document 45       Filed 03/20/25     Page 11 of 41     PageID 1050\n\n\n\n F.3d 311, 315 (5th Cir. 2004). \u201c[W]here the nonmoving party fails to establish the\n\n existence of an element essential to that party's case, and on which that party will\n\n bear the burden of proof at trial, no genuine issue of material fact can exist.\u201d Apache\n\n Corp. v. W&T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010) (internal quotations\n\n omitted). \u201cIn such a situation, there can be \u2018no genuine issue as to any material fact,\u2019\n\n since a complete failure of proof concerning an essential element of the nonmoving\n\n party's case necessarily renders all other facts immaterial.\u201d Celotex Corp., 477 U.S. at\n\n 322-23.\n\n                                      III. ANALYSIS\n\n        Plaintiffs seek to hold Defendant strictly liable for Mrs. Erwin\u2019s injuries.\n\n Plaintiffs claim that the Tiger Cub model lawnmower (hereinafter, the\n\n \u201cLawnmower\u201d) was \u201cdefectively designed and lacked adequate warnings regarding\n\n the risk of injury due to its alleged design defects. (See Compl. \u00b6\u00b6 4.1-4.6.) Plaintiffs\n\n also assert claims for negligence (see id. \u00b6\u00b6 5.2-5.3) and gross negligence (see id. \u00b6 6.4).\n\n        Plaintiffs allege that this Court has jurisdiction based on diversity of\n\n citizenship, pursuant to 28 U.S.C. \u00a71332(a), because Plaintiffs are citizens of Texas\n\n and Defendant is a citizen of Wisconsin, and the amount in controversy exceeds\n\n $75,000.00, exclusive of interest and costs. (See Compl. \u00b6\u00b6 1.1, 1.2, 1.4, 2.1.)\n\n Federal district courts possess diversity jurisdiction over civil cases in which the\n\n amount in controversy exceeds $75,000 and there is complete diversity among the\n\n parties. 28 U.S.C. \u00a7 1332(a). Diversity of citizenship exists between the parties only\n\n\n\n                                              11\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25    Page 12 of 41     PageID 1051\n\n\n\n if each plaintiff has a different citizenship from each defendant. Getty Oil Corp. v.\n\n Insurance Co. of North America, 841 F.2d 1254, 1258 (5th Cir. 1988).\n\n       A federal court has an independent duty, at any level of the proceedings, to\n\n determine whether it properly has subject matter jurisdiction over a case, Ruhgras AG\n\n v. Marathon Oil Co., 526 U.S. 574, 583 (1999), and \u201cmay raise subject matter\n\n jurisdiction sua sponte,\u201d McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir.\n\n 2005). Defendant does not contest that Plaintiffs are Texas citizens and admits that\n\n it is a Wisconsin corporation. (See, e.g., Def. Br. at 3.) Accordingly, the undersigned\n\n finds that diversity of citizenship has been sufficiently established, and there is no\n\n reason for the Court to sua ponte further question its jurisdiction.\n\n       Defendant moves for summary judgment on all claims, arguing that the\n\n Lawnmower is not unreasonably dangerous as designed; Defendant had no duty to\n\n warn users about the danger associated with the Lawnmower\u2019s moving belts as the\n\n danger is open and obvious; and it cannot be found negligent with regard to design\n\n because the Lawnmower is not unreasonably dangerous based on the way it was\n\n designed.\n\n       The undersigned finds that there is a genuine dispute as to material facts\n\n relating to Plaintiffs\u2019 design-defect claim based on whether the lack of a guard made\n\n the Scag Tiger Cub mower unreasonably dangerous and the availability of a safer\n\n alternative so as to prevent a user from coming into contact with the belts and pulleys\n\n while the Lawnmower was in operation. The undersigned also finds there is a triable\n\n question of fact as to whether the warning on the lawnmower\u2019s deck provided\n                                             12\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25    Page 13 of 41     PageID 1052\n\n\n\n sufficient notice of risk of injury in light of the controverted evidence concerning\n\n whether the risk was \u201copen and obvious.\u201d Because Plaintiffs\u2019 product liability claims\n\n survive summary judgment, so do their negligence claims.\n\n A.    Product Liability\n\n       1. Applicable Law: Design Defect\n\n       \u201cThe duty to design a safe product is \u2018an obligation imposed by law.\u2019\u201d Am.\n\n Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997) (quoting McKisson v. Sales\n\n Affiliates, Inc., 416 S.W.2d 787, 789 (Tex. 1967)); accord Robins v. Kroger Co., 982\n\n S.W.2d 156, 161 (Tex. App.\u2014Houston [1st Dist.] 1998, pet. denied). \u201cA design\n\n defect renders a product unreasonably dangerous as designed, taking into\n\n consideration the utility of the product and the risk involved in its use.\u201d Brockert v.\n\n Wyeth Pharms., Inc., 287 S.W.3d 760, 769 (Tex. App.\u2014Houston [14th Dist.] 2009, no\n\n pet.) (citing Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999)).\n\n       To prevail on a design defect claim under Texas law, plaintiffs must prove\n\n three elements: (1) the product was defectively designed so as to render it\n\n unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was\n\n a producing cause of the injury for which the plaintiff seeks recovery. Timpte Indus.\n\n Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009); Hernandez v. Tokai Corp., 2 S.W.3d 251,\n\n 256-57 (Tex. 1999); see Tex. Civ. Prac. & Rem. Code \u00a7 82.005(a).\n\n       Texas courts employ a risk-utility analysis to determine whether a product has\n\n a design defect that renders it unreasonably dangerous. See Flock v. Scripto-Tokai\n\n Corp., 319 F.3d 231, 239 (5th Cir. 2003); Hernandez, 2 S.W.3d at 254-56, 258;\n\n                                             13\n\fCase 3:23-cv-01561-K     Document 45      Filed 03/20/25    Page 14 of 41      PageID 1053\n\n\n\n Sanchez, 997 S.W.2d at 588; Zavala v. Burlington N. Santa Fe Corp., 355 S.W.3d 359,\n\n 369-70 (Tex. App\u2014El Paso 2011, no pet.); see also Grinnell, 951 S.W.2d at 426 n.1;\n\n Honda of Am. Mfg., Inc. v. Norman, 104 S.W.3d 600, 604 (Tex. App.\u2014Houston [1st\n\n Dist.] 2003, pet. denied). \u201cThe objective is to hold manufacturers of products\n\n designed with excessive risks accountable, but at the same time, to protect\n\n manufacturers of products that are \u2018safe enough.\u2019\u201d Robins, 982 S.W.2d at 161\n\n (citations omitted). Under the risk-utility analysis, the court must consider:\n\n       (1) the utility of the product to the user and to the public as a whole weighed\n           against the gravity and likelihood of injury from its use;\n\n       (2) the availability of a substitute product which would meet the same need\n           and not be unsafe or unreasonably expensive;\n\n       (3) the manufacturer's ability to eliminate the unsafe character of the product\n           without seriously impairing its usefulness or significantly increasing its\n           costs;\n\n       (4) the user's anticipated awareness of the dangers inherent in the product and\n           their avoidability because of the general public knowledge of the obvious\n           condition of the product, or of the existence of suitable warnings or\n           instructions, and\n\n       (5) the expectations of the ordinary consumer.\n\n Grinnell, 951 S.W.2d at 432; see also Timpte Indus., 286 S.W.3d at 311-12; Genie Indus.,\n\n Inc. v. Matak, 462 S.W.3d 1, 8 (Tex. 2015).\n\n       Whether a product is unreasonably dangerous in light of its risk and utility is\n\n generally a question of fact for the jury, but a court may decide it as a matter of law\n\n \u201cif reasonable minds cannot differ on the risk-utility analysis considerations.\u201d\n\n Hernandez, 2 S.W.3d at 260\u201361; see also Genie Indus., 462 S.W.3d at 10 (stating that\n\n risk\u2013utility \u201cbalancing is for the jury unless the evidence allows but one reasonable\n                                            14\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25     Page 15 of 41     PageID 1054\n\n\n\n conclusion\u201d); Timpte Indus., 286 S.W.3d at 312 (\u201cAlthough whether a product is\n\n defective is generally a question of fact, in the appropriate case, it may be determined\n\n as a matter of law.\u201d).\n\n        Under Texas law, \u201cliability for a design defect may attach even if the defect is\n\n apparent.\u201d Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 383 (Tex. 1995). \u201cThe fact that\n\n a product user is or should be aware of the existence and avoidability of dangers\n\n inherent in a product\u2019s use that are obvious, commonly known, or warned against, is\n\n an important consideration in determining whether the product is unreasonably\n\n dangerous\u2014and may even be decisive in a particular case\u2014but in general, the\n\n obviousness of danger \u201cin and of itself is not an absolute bar . . . to liability for a\n\n defective design.\u201d Hernandez, 2 S.W.3d at 258; see also Timpte Indus., 286 S.W.3d at\n\n 312.\n\n        The second element in a design-defect claim requires the existence of a \u201csafer\n\n alternative design.\u201d \u201cSafer alternative design\u201d is statutorily defined as \u201ca product\n\n design other than the one actually used that in reasonable probability: (1) would have\n\n prevented or significantly reduced the risk of the claimant\u2019s personal injury . . .\n\n without substantially impairing the product\u2019s utility; and (2) was economically and\n\n technologically feasible at the time the product left the control of the manufacturer or\n\n seller by the application of existing or reasonably achievable scientific knowledge.\u201d\n\n Tex. Civ. Prac. & Rem. Code \u00a7 82.005(b). \u201cThis design need not be actually built\n\n and tested; a plaintiff must show only that the alternative design was \u2018capable of\n\n\n\n                                             15\n\fCase 3:23-cv-01561-K       Document 45      Filed 03/20/25      Page 16 of 41     PageID 1055\n\n\n\n being developed.\u2019\u201d Genie Indus., 462 S.W.3d at 7 (quoting Gen. Motors Corp. v.\n\n Sanchez, 997 S.W.2d 584, 592 (Tex. 1999)).\n\n        \u201cThe focus on a design defect claim . . . is whether there was a reasonable\n\n alternative design that, at a reasonable cost, would have reduced a foreseeable risk of\n\n harm.\u201d Timpte, 286 S.W.3d at 314. Absent evidence of a safer alternative, a product\n\n is not unreasonably dangerous as a matter of law. Caterpillar, Inc., 911 S.W.2d at\n\n 384. Nevertheless, the reasonableness of an alternative design is generally a question\n\n of fact for the jury. See Timpte, 286 S.W.3d at 311; accord Torkie-Tork v. Wyeth, 739 F.\n\n Supp. 2d 895, 900 (E.D. Va. 2010).\n\n        The third element refers to a \u201cproducing cause.\u201d A \u201cproducing cause\u201d is\n\n something that is a substantial and but-for cause of the event at issue. Ford Motor Co.\n\n v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007).\n\n        2. Applicable Law: Marketing Defect (Failure to Warn)\n\n        Failure to warn and marketing defect are essentially the same in the Fifth\n\n Circuit. See, e.g., In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig.,\n\n 888 F. 3d 753, 772 (5th Cir. 2018); Bryant v. Giacomini, S.p.A., 391 F. Supp. 2d 495,\n\n 503 (N.D. Tex. 2005) (\u201cIn a marketing defect (\u2018failure-to-warn\u2019) case, the claimant\n\n must show that the warning was defective, and that the defect was the producing\n\n cause of the injury.\u201d)\n\n        \u201cGenerally, a manufacturer has a duty to warn if it knows or should know of\n\n the potential harm to a user because of the nature of its product.\u201d Grinnell, 951\n\n S.W.2d at 426. \u201cA product may be unreasonably dangerous if a manufacturer fails\n                                              16\n\fCase 3:23-cv-01561-K         Document 45   Filed 03/20/25    Page 17 of 41     PageID 1056\n\n\n\n to warn of a foreseeable risk arising from the use of the product, and the lack of\n\n adequate warnings or instructions renders an otherwise adequate product\n\n unreasonably dangerous.\u201d McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403, 427\n\n (5th Cir. 2001) (quoting Coleman v. Cintas Sales Corp., 40 S.W.3d 544, 549-50 (Tex.\n\n App.\u2014San Antonio 2001, no writ)). \u201cThe aim of a marketing defect claim is to\n\n impose liability where the failure to warn itself caused a product to be unreasonably\n\n dangerous.\u201d Cofresi v. Medtronic, Inc., 450 F. Supp. 3d 759, 767 (W.D. Tex. 2020)\n\n (original emphasis) (citing Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W.3d 513 (Tex.\n\n App.\u2014Fort Worth 2007, no pet.)).\n\n        When a warning is required, a defendant\u2019s failure to warn of a product's\n\n potential risks is considered a \u201cmarketing defect\u201d under Texas law. Caterpillar, Inc. v.\n\n Shears, 911 S.W.2d 379, 382 (Tex. 1995); Lucas v. Tex. Indus., Inc., 696 S.W.2d 372,\n\n 377 (Tex. 1984). The existence of a duty to warn is a question of law. Gen. Motors\n\n Corp. v. Saenz, 873 S.W.2d 353, 356 (Tex. 1993). In circumstances where a warning\n\n is required but not given, or given inadequately, a \u201cplaintiff must show both that the\n\n warning was defective and that it was the producing cause of the plaintiff's injury.\u201d\n\n Wyeth-Ayerst Labs. Co. v. Medrano, 28 S.W.3d 87, 94 (Tex. App.\u2014Texarkana 2000, no\n\n pet.) (citation omitted).\n\n        To establish a strict products liability marketing defect claim, a plaintiff must\n\n prove the following elements:\n\n        (1) a risk of harm that is inherent in the product or that may arise from the\n            intended or reasonably anticipated use of the product must exist;\n\n                                            17\n\fCase 3:23-cv-01561-K     Document 45     Filed 03/20/25    Page 18 of 41    PageID 1057\n\n\n\n       (2) the product supplier must actually know or reasonably foresee the risk of\n           harm at the time the product is marketed;\n\n       (3) the product must possess a marketing defect;\n\n       (4) the absence of the warning and/or instructions must render the product\n           unreasonably dangerous to the ultimate user or consumer of the product;\n           and\n\n       (5) the failure to warn and/or instruct must constitute a causative nexus in the\n           product user's injury.\n\n Emerson Elec. Co. v. Johnson, 601 S.W.3d 813, 824 (Tex. App.\u2014Fort Worth 2018),\n\n aff\u2019d, 627 S.W.3d 197 (Tex. 2021).\n\n       3. Applicable Law: Expert Testimony\n\n       \u201c[E]xpert testimony is generally encouraged if not required to establish a\n\n products liability claim.\u201d Id. at 42. \u201cExpert testimony is required when an issue\n\n involves matters beyond jurors\u2019 common understanding.\u201d Mack Trucks, Inc. v. Tamez,\n\n 206 S.W.3d 572, 583 (Tex. 2006). \u201cIn some cases, expert testimony may not be\n\n required. Whether expert testimony is required depends on whether the issue\n\n involves matters beyond \u2018the general experience and common understanding of\n\n laypersons.\u2019\u201d Driskill v. Ford Motor Co., 269 S.W.3d 199, 204 (Tex. App.\u2014Texarkana\n\n 2008, no pet.) (quoting Tamez, 206 S.W.3d at 583). \u201cProof other than expert\n\n testimony will support a jury finding only when the jurors\u2019 common understanding\n\n and experience will allow them to make that finding with reasonable probability.\u201d\n\n Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 348 (Tex. 2015). \u201cWhether\n\n expert testimony is necessary to prove a matter or theory is a question of law.\u201d\n\n Tamez, 206 S.W.3d at 583.\n\n                                           18\n\fCase 3:23-cv-01561-K         Document 45        Filed 03/20/25       Page 19 of 41      PageID 1058\n\n\n\n        Expert testimony is often required to show that a safer alternative design\n\n existed. Norman v. Grove Cranes U.S., L.L.C., No. 17-20631, 2018 WL 4339817, at\n\n *3\u20134 (5th Cir. Sept. 10, 2018) (unpublished) (\u201c[N]umerous intermediate Texas courts\n\n and federal district courts have granted judgments in favor of defendants where no\n\n admissible expert testimony was offered to prove the existence of a safer alternative\n\n design.\u201d).\n\n B.     Defendant\u2019s Evidentiary Objections\n\n        In its reply brief, Defendant advances objections to certain items of evidence\n\n proffered by Plaintiffs in their response brief and appendix. 1 Defendant argues that\n\n the evidence is either not authenticated, inadmissible, or irrelevant. (See Reply at 2-\n\n 7, 17-19.) First, Defendant objects to photos of various competitor lawnmowers\n\n presented in Plaintiffs\u2019 response brief and their appendix. (See Reply at 2-5) (citing\n\n Pl. Br. at 5-6; Pl. App. 652-62).) Defendant contends that these photographs are\n\n inadmissible because they were not properly authenticated. (See id. at 4-5.)\n\n        Next, Defendant objects to screenshots from the Scag website. (See Def. Br.\n\n at 5-6) (citing Pl. Br. at 1-2; Pl. App 663-64).) The screenshots are essentially\n\n\n\n        1\n          Objections to evidence offered in support of, or in opposition to, motions for\n summary judgment are considered in conjunction with the actual motion for summary\n judgment as opposed to a separate motion to strike. See Cutting Underwater Techs. USA, Inc.\n v. Eni U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012) (\u201cUnder the now-applicable Rule\n 56(c)(2) . . . it is no longer necessary for a party to file [a motion to strike]; instead, the party\n may simply object to the material.\u201d); Smith v. Palafox, 728 Fed. App\u2019x 270, 275 (5th Cir.\n 2018) (citing Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017)\n (\u201c[T]he new rule allows a party to object \u2018that the material cited to support or dispute a fact\n cannot be presented in a form that would be admissible as evidence.\u2019\u201d)).\n\n                                                  19\n\fCase 3:23-cv-01561-K     Document 45      Filed 03/20/25     Page 20 of 41    PageID 1059\n\n\n\n advertising statements from the website\u2019s \u201cHome\u201d and \u201cAbout Us\u201d pages. The\n\n \u201cHome\u201d page describes Scag and its mowers as \u201cSimply the Best.\u201d (See Pl. App.\n\n 663.) The \u201cAbout Us\u201d page proclaims: \u201c[Scag\u2019s] innovation and attention to quality\n\n is known and respected throughout the industry. If you are looking for the highest-\n\n quality, best-built, best-cutting lawn mower or debris/turf management equipment\n\n proudly made in the USA, look no further.\u201d (Pl. App. 664.) Defendant contends\n\n that this evidence is irrelevant because Plaintiffs have not established that the\n\n statements on the website were made at or around the time Plaintiffs purchased their\n\n lawnmower. (See Def. Br. at 5-6.)\n\n       Finally, Defendant challenges evidence proffered by Plaintiffs to argue that the\n\n Lawnmower is unreasonably dangerous. (See Reply at 17-19.) Plaintiffs\u2019 evidence in\n\n that regard includes an abstract of an article from the American Journal of\n\n Emergency Medicine, titled \u201cLawnmower injuries presenting to the emergency\n\n department: 2005-2015\u201d (the \u201cAJEM Abstract\u201d) (Pl. App. 649), and a riding\n\n lawnmower safety fact sheet posted on the website of the Texas Department of\n\n Insurance (the \u201cSafety Fact Sheet\u201d) (Pl. App. 650-51).\n\n       The Federal Rules of Evidence \u201capply to proceedings before[ ] United States\n\n District Courts.\u201d Fed. R. Evid. 1101(a). When federal courts exercise diversity\n\n jurisdiction over state-law claims, the court applies state substantive law, but federal\n\n procedural law. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). Accordingly, the\n\n Federal Rules of Evidence govern the admissibility of evidence in diversity cases.\n\n Certain Underwriters at Lloyds London v. W. 82nd Storage Zone, LLC, No. 5:20-CV-044-\n                                            20\n\fCase 3:23-cv-01561-K     Document 45      Filed 03/20/25     Page 21 of 41    PageID 1060\n\n\n\n H, 2021 WL 12300170, at *5 (N.D. Tex. May 20, 2021) (citing Phillips Oil Co. v. OKC\n\n Corp., 812 F.2d 265, 280 (5th Cir. 1987) (\u201cWe note first that in a diversity case, the\n\n Federal Rules of Evidence govern the admissibility of evidence.\u201d); Reed v. Gen. Motors\n\n Corp., 773 F.2d 660, 663 (5th Cir. 1985) (\u201cThe Federal Rules of Evidence, rather than\n\n state rules, therefore govern the admissibility of evidence in diversity cases, including\n\n questions of the admissibility of evidence of insurance.\u201d); Johnson v. William C. Ellis &\n\n Sons Iron Works, Inc., 609 F.2d 820, 821 (5th Cir. 1980) (\u201cEven in diversity cases, the\n\n Federal Rules of Evidence govern the admissibility of evidence in the federal\n\n courts.\u201d).\n\n        \u201cThe essential prerequisite of admissibility is relevance.\u201d Miciotto v. Hobby\n\n Lobby Stores, Inc., No. 21-30456, 2022 WL 3210686, at *4 (5th Cir. Aug. 9, 2022)\n\n (citing United States v. Hall, 653 F.2d 1002, 1005 (5th Cir. 1981)). \u201cEvidence is\n\n relevant if: (a) it has any tendency to make a fact more or less probable than it would\n\n be without the evidence; and (b) the fact is of consequence in determining the\n\n action.\u201d Fed. R. Evid. 401. \u201cIrrelevant evidence is not admissible.\u201d Fed. R. Evid.\n\n 402.\n\n        A party seeking summary judgment may rely on any form of evidence listed in\n\n Rule 56(c). See Celotex Corp., 477 U.S. at 324. To qualify as competent summary\n\n judgment evidence, documents must be authenticated and must be capable of being\n\n presented in admissible form at trial. See Fed. R. Civ. P. 56(c); see also King v. Dogan,\n\n 31 F.3d 344, 346 (5th Cir. 1994). While a document cited as summary judgment\n\n\n\n                                            21\n\fCase 3:23-cv-01561-K      Document 45     Filed 03/20/25     Page 22 of 41     PageID 1061\n\n\n\n evidence is most commonly authenticated by affidavit, any method of authentication\n\n available under the Federal Rules of Evidence will suffice. See Sport Supply Grp., Inc.\n\n v. Savage, No. 3:10-CV-913-O, 2011 WL 13234197, at *5 (N.D. Tex. Dec. 22, 2011)\n\n (citing Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007)).\n\n       1. The undersigned need not resolve Defendant\u2019s objections to screenshots\n          from the Scag website.\n\n       Because the undersigned has not found it necessary to consider these contested\n\n screenshots for purposes of this summary judgment opinion, Defendant\u2019s objections\n\n need not be resolved. See BB Energy LP v. Devon Energy Prod. Co. LP, No. CIV.A.\n\n 3:07-CV-0723-, 2008 WL 2164583, at *3 (N.D. Tex. May 23, 2008) (\u201cThe Court\n\n does not need to evaluate the admissibility of evidence that is not necessary to its\n\n summary judgment ruling.\u201d); see also Liszt v. Karen Kane, Inc., No. Civ. A. 3:97-CV-\n\n 3200-L, 2001 WL 739076, at *4 (N.D. Tex. June 26, 2001) (\u201cOften, challenged\n\n items of evidence will not affect the court's determination of the issues, and a\n\n resolution of the admissibility will be unnecessary.\u201d).\n\n       2. Defendant\u2019s objections to the AEJM Abstract and the Safety Fact Sheet\n          are overruled.\n\n       As noted above, under Texas law, \u201c[a] product is unreasonably dangerous\n\n when its risk outweighs its utility.\u201d Genie Indus., Inc., 462 S.W.3d at 6. Plaintiffs\n\n proffer the AJEM Abstract and the Safety Fact Sheet to show that \u201c[r]isks of serious\n\n injury and death [from using lawnmowers] are prevalent.\u201d (Pl. Br. at 9.) The data\n\n analyzed in the AJEM Abstract was taken from the Consumer Product Safety\n\n Commission\u2019s (\u201cCPSC\u201d) National Electronic Injury Surveillance System for the\n\n                                            22\n\fCase 3:23-cv-01561-K     Document 45      Filed 03/20/25    Page 23 of 41     PageID 1062\n\n\n\n years 2005 to 2015. (See Pl. App. 649.) The Safety Fact Sheet similarly cites\n\n estimates from the CPSC regarding deaths and injuries specifically related to riding\n\n lawnmowers. (See Pl. App. 650-51.)\n\n       As an initial matter, the information reflected in the AJEM Abstract and the\n\n Safety Fact Sheet is relevant evidence regarding whether the Lawnmower was\n\n unreasonably dangerous as designed. See Fed. R. Evid. 401. As to admissibility,\n\n Defendant contends that the AJEM Abstract and the Safety Fact Sheet are\n\n inadmissible because Plaintiffs failed to provide \u201cadequate predicate.\u201d (See Reply at\n\n 17.) Relying on Texas law, Defendant argues that, to qualify as probative evidence\n\n in Texas courts \u201c[e]vidence of other accidents, near accidents, or related similar\n\n events,\u201d an adequate predicate must first be established. (Id. (citing In re H.E.B.\n\n Grocery Co., 375 S.W.3d 497, 502-03 (Tex. App.\u2014Houston[14th Dist.] 2012, orig.\n\n proceeding); Henry v. Mrs. Baird\u2019s Bakeries, 475 S.W.2d 288, 294 (Tex. Civ. App.\u2014\n\n Fort Worth 1971, writ ref\u2019d n.r.e.)).) Defendant\u2019s argument lacks merit for two\n\n reasons.\n\n       First, the cases cited by Defendant are inapposite, and therefore unpersuasive,\n\n as they both involve admissibility of evidence of similar accidents in slip-and-fall\n\n personal injury cases. See In re H.E.B. Grocery Co., 375 S.W.3d 497; Henry, 475\n\n S.W.2d 288. More importantly, however, the Federal Rules of Evidence, rather than\n\n state rules, govern the admissibility of evidence in diversity cases, as discussed above.\n\n See, e.g., Reed, 773 F.2d at 663. Furthermore, Defendant does not argue, nor does the\n\n undersigned find any reason to conclude, that Texas procedural law, rather than the\n                                            23\n\fCase 3:23-cv-01561-K      Document 45       Filed 03/20/25     Page 24 of 41    PageID 1063\n\n\n\n Federal Rules of Evidence, is applicable here because a state law causes a \u201cdirect\n\n collision\u201d with a federal rule. See Rivera v. Autotransportes Fronterizos, M.G., S.A. De\n\n C.V., No. 7:21-CV-00428, 2022 WL 3069290, at *3 (S.D. Tex. Aug. 3, 2022) (citing\n\n All Plaintiffs v. All Defendants, 645 F.3d 329, 333 (5th Cir. 2011)).\n\n        In any event, the undersigned elects to take judicial notice of the AJEM\n\n Abstract and the Safety Fact Sheet pursuant to Federal Rule of Evidence 201.\n\n Federal Rule of Evidence 201 allows courts to take judicial notice of a fact that \u201cis\n\n not subject to reasonable dispute because it is generally known within the trial court's\n\n territorial jurisdiction\u201d or because it \u201ccan be accurately and readily determined from\n\n sources whose accuracy cannot reasonably be questioned.\u201d Fed. R. Evid. 201(a)-(c).\n\n As noted above, both the AEJM Abstract and the Safety Fact Sheet rely on data\n\n from the CPSC. 2 (See Pl. App. 649, 650-51.) In addition, the AJEM Abstract is\n\n published on the website of the National Center for Biotechnology Information\n\n (\u201cNCBI\u201d), a division of the National Library of Medicine (\u201cNLM\u201d) at the National\n\n Institutes of Health (\u201cNIH\u201d). 3 The undersigned finds that CPSC and\n\n NIH/NLM/NCBI are government entities whose accuracy cannot reasonably be\n\n questioned. See Jaso v. The Coca Cola Co., 435 F. App\u2019x 346, 354 n.5 (5th Cir. Aug. 1,\n\n 2011) (noting that the Court of Appeals has, \u201cin the past, taken judicial notice of\n\n\n        2\n          CPSC is an independent federal regulatory agency formed in 1972 with a mission to\n protect the public against unreasonable risks of injury or death from consumer products\n through education, safety standards activities, regulation, and enforcement. See CPSC\n website, https://www.cpsc.gov/About-CPSC (last visited Mar. 6, 2025).\n        3\n         The NCMI website also provides a link to the full text of the article. See\n https://www.sciencedirect.com/science/article/abs/pii/S0735675718300317?via%3Dihub.\n                                              24\n\fCase 3:23-cv-01561-K     Document 45      Filed 03/20/25     Page 25 of 41    PageID 1064\n\n\n\n information posted on a government website, see, e.g., Kitty Hawk Aircargo, Inc. v.\n\n Chao, 418 F.3d 453, 457 (5th Cir. 2005)\u201d); see also Coleman v. Dretke, 409 F.3d 665,\n\n 667 (5th Cir.2005) (Fifth Circuit taking judicial notice of Texas agency's website);\n\n Hall v. Witron Integrated Logistics, Inc., No. 4:21-CV-477, 2023 WL 4269760, at *5\n\n (E.D. Tex. June 29, 2023) (taking judicial notice of OSHA report of injuries from\n\n unguarded or inadequately guarded machinery and finding it created a genuine issue\n\n of material fact regarding whether the product was unreasonably dangerous as\n\n designed).\n\n       Furthermore, the undersigned has independently reviewed the websites\n\n containing the evidence at issue and verified that the information conforms with the\n\n information presented in Plaintiffs\u2019 appendix. (Compare Pl. App. 650-51 with\n\n https://www.tdi.texas.gov/tips/safety/lawnmower.html; compare Pl. App. 649 with\n\n https://pubmed.ncbi.nlm.nih.gov/29395756/.) Accordingly, Defendant\u2019s\n\n objections to the AJEM Abstract and the Safety Fact Sheet are overruled.\n\n       3. Defendant\u2019s objections to Plaintiffs\u2019 photographs of competitor products\n          are overruled.\n\n       Plaintiffs include \u201cexemplar photos\u201d of various competitor lawnmowers on\n\n pages 5 and 6 of their response brief (Pl. Br. at 5-6) and pages 652 to 662 of their\n\n appendix (Pl. App. 652-62). Plaintiffs allege that Defendant\u2019s failure to place a guard\n\n around the belts and pulleys on the Tiger Cub mower \u201ccould cause extreme risk of\n\n injury \u2013 as happened with Ms. Erwin.\u201d (Pl. Br. at 5.) Plaintiffs also allege that\n\n these exemplar photos from competitors show that \u201c[o]ther manufacturers/sellers\n\n\n                                            25\n\fCase 3:23-cv-01561-K     Document 45      Filed 03/20/25     Page 26 of 41     PageID 1065\n\n\n\n design their belts and pulleys to be fully enclosed or encapsulated, so as to NOT\n\n allow users to come in contact with the belts and pulleys.\u201d (Id. at 6.) Defendant\n\n contends that these photographs are inadmissible because they were not properly\n\n authenticated. (See Reply at 4-5 (citing Pl. Br. at 5-6; Pl. App. 652-62).)\n\n       Plaintiffs aver that the photos were produced by their expert, Kevin B. Sevart,\n\n and authenticated by the affidavit of Plaintiffs\u2019 counsel, Christopher S. Ayres. (See\n\n Pl. Br. at 6; Pl. App. 668-69.) In paragraph 3 of his affidavit, Ayres avers \u201c[he] is\n\n familiar with the documents attached in the Appendix filed by Plaintiffs. The\n\n records are kept by Ayres Law Office P.C. in the regular course of business, and it\n\n was the regular course of business of Ayers Law Office P.C. for any employee or\n\n representative of Ayres Law Office, with knowledge of the `act, event, condition,\n\n opinion, or diagnosis, that was recorded, to make this record or to transmit the\n\n information to be included in this record. The record was made at or near the time\n\n or reasonably soon after the act, event, or condition that was recorded. The records\n\n are duplicates of the original and nothing has been removed or deleted from the\n\n original files before making these copies.\u201d (Pl. App. 668-669.)\n\n       The record reflects that Sevart testified at a deposition on September 19, 2024.\n\n (See Pl. App. 526-648.) Questioning throughout the deposition, including\n\n questioning by Defendant\u2019s counsel, frequently referred to Sevart\u2019s report and\n\n\n\n\n                                            26\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25     Page 27 of 41     PageID 1066\n\n\n\n accompanying appendices, which include the photographs at issue. 4 (See, e.g., id.\n\n 528, 530, 540, 548, 552, 558, 561, 571, 602.) Sevart\u2019s report, however, was not\n\n marked as a deposition exhibit (see id. 528), nor has either party proffered Sevart\u2019s\n\n report as summary judgment evidence.\n\n        Sevart testified that some of the photographs included in Appendix A of his\n\n report were provided by Thomas Berry, another engineer with whom Sevart shares\n\n office space. (See id. 537, 566-67.) Sevart testified that he provided the photos as\n\n \u201cexamples of guards that[,] essentially[,] the finger probe couldn\u2019t get anywhere in\n\n the vicinity of the nip point.\u201d (Id. 595.) Plaintiffs contend that these photographs\n\n showing the use of alternative designs by competitors provide \u201cat least some\n\n evidence supporting the jury's finding of product defect.\u201d (Pl. Br. at 11 (quoting\n\n Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 337 (Tex. 1998)).)\n\n        Defendant objects to the photographs because Ayres failed to state that he is\n\n familiar with the lawnmowers depicted in the photographs; failed to assert that the\n\n photographs were accurate representations of the lawnmowers, or that he actually\n\n observed the lawnmowers depicted in the photographs. (See Reply at 5.) Defendant\n\n similarly complains that Sevart failed to testify that he was familiar with the\n\n\n\n\n        4\n          The affidavit of Christopher P. Riordan, provided in support of Defendant's Reply\n to Plaintiffs' Response to Defendant's Motion for Summary Judgment, states that Riordan\n \u201creviewed the June 14, 2023 report of Plaintiffs' expert, Kevin B. Sevart and the Appendices\n that accompany the report, including Appendix A.\u201d (See Dkt. No. 36 (\u201cRiordan Aff.\u201d) \u00b6 2).)\n Riordan states the photographs at issue are from Appendix A of Sevart\u2019s June 14, 2023\n report. (Id. \u00b6 4.)\n\n                                             27\n\fCase 3:23-cv-01561-K      Document 45     Filed 03/20/25     Page 28 of 41     PageID 1067\n\n\n\n lawnmowers depicted in the photographs, or that the photographs were accurate\n\n representations of the lawnmowers. (See id.)\n\n       \u201cTo satisfy the requirement of authenticating or identifying an item of\n\n evidence, the proponent must produce evidence sufficient to support a finding that\n\n the item is what the proponent claims it is.\u201d Fed. R. Evid. 901(a). A party can\n\n choose to satisfy this requirement by submitting \u201c[t]estimony that an item is what it\n\n is claimed,\u201d either through a supporting declaration or affidavit. Fed. R. Evid.\n\n 901(b). But there are other ways that a proponent can satisfy the authentication\n\n requirement. For instance, a document may be authenticated by considering the\n\n appearance, contents, substance, or other distinctive characteristics of the item, taken\n\n together with all the circumstances. Id. 901(b)(4). Under Federal Rule of Evidence\n\n 902, some evidence may also be self-authenticating. Id. 902.\n\n       As the Fifth Circuit has explained, \u201c[a] proponent \u2018may authenticate a\n\n document with circumstantial evidence, \u2018including the document\u2019s own distinctive\n\n characteristics and the circumstances, surrounding its discovery.\u2019\u201d In re McLain, 516\n\n F.3d 301, 308 (5th Cir. 2008) (quoting United States v. Arce, 997 F.2d 1123, 1128 (5th\n\n Cir. 1993)); see also Fed. R. Evid. 901(b) (\u201cThe following are examples only\u2014not a\n\n complete list\u2014of evidence that satisfies the [authentication] requirement: . . .\n\n (4) Distinctive Characteristics and the Like. The appearance, contents, substance,\n\n internal patterns, or other distinctive characteristics of the item, taken together with\n\n all the circumstances.\u201d). \u201cAuthentication is not a heavy burden.\u201d Mockingbird Dental\n\n Grp., P.C. v. Carnegie, No. 4:15-cv-404-A, 2015 WL 3824488, at *1 (N.D. Tex. June\n                                            28\n\fCase 3:23-cv-01561-K       Document 45     Filed 03/20/25    Page 29 of 41       PageID 1068\n\n\n\n 19, 2015). \u201c[C]ircumstantial evidence or testimony by a knowledgeable witness can\n\n be sufficient.\u201d Thompson v. Bank of Am. Nat. Ass\u2019n, 783 F.3d 1022, 1027 (5th Cir.\n\n 2015).\n\n          The undersigned concludes that Plaintiffs satisfy the authentication\n\n requirement to support a finding that these photographs are what Plaintiffs claim\n\n them to be. In addition to Ayres\u2019s affidavit (Pl. App. 668-69), wherein he states\n\n (among other things) that the records were exchanged in discovery, the photographs\n\n are authenticated with other \u201ccircumstantial evidence,\u201d including \u201cthe circumstances\n\n surrounding its discovery.\u201d In re McLain, 516 F.3d at 308 (internal quotation marks\n\n omitted). As discussed above, Sevart\u2019s deposition frequently referred to Sevart\u2019s\n\n report, which included the photographs at issue in an appendix. (See, e.g., Pl. App.\n\n 528, 530, 540, 548, 552, 558, 561, 571, 602.) And although Sevart\u2019s report has not\n\n been submitted as summary judgment evidence by either party, Riordan\u2019s affidavit\n\n states that he \u201creviewed the June 14, 2023 report of Plaintiffs\u2019 expert, Kevin B. Sevart\n\n and the Appendices that accompany the report, including Appendix A,\u201d and the\n\n photographs at issue are from Appendix A of Sevart\u2019s report. (See Riordan Aff. \u00b6\u00b6 2,\n\n 4.)\n\n          Riordan goes on to explain how each photograph is identified in Appendix A\n\n of Sevart\u2019s report, including the model name and number of the lawnmowers\n\n depicted in each photograph. (Id. \u00b6 5-9.) Riordan\u2019s affidavit, therefore, provides\n\n additional basis for authentication of the disputed photographs. Furthermore, Sevart\n\n presumably could be expected to testify at trial as to the contents of his report,\n                                             29\n\fCase 3:23-cv-01561-K      Document 45     Filed 03/20/25     Page 30 of 41     PageID 1069\n\n\n\n including the photographs, and the weight of that evidence can best be determined by\n\n a jury. Because there is sufficient evidence to satisfy the authentication requirement,\n\n Defendant\u2019s objection to these photographs is overruled.\n\n C.    Plaintiffs\u2019 Product Liability Claims\n\n       Plaintiffs assert two product liability theories: design defect and marketing\n\n defect. Having considered Defendant\u2019s challenges to each claim, the undersigned\n\n finds that Plaintiffs demonstrate genuine issues of fact for both claims, and these\n\n claims should proceed to trial.\n\n       1. Genuine issues of material fact exist regarding a finding of design\n          defect.\n\n       As discussed above, to prevail on a design defect claim under Texas law,\n\n plaintiffs must prove (1) the design was unreasonably dangerous; (2) a safer\n\n alternative design existed; and (3) the defect was a producing cause or proximate\n\n cause of the incident in question. Timpte Indus., 286 S.W.3d at 311; Hernandez, 2\n\n S.W.3d at 256-57.\n\n       To determine whether a product is unreasonably dangerous, courts generally\n\n apply a risk-utility analysis, which includes five factors. See supra Section III.A.1.\n\n (citing Grinnell, 951 S.W.2d at 432). Typically, the question of whether a product is\n\n unreasonably dangerous is a fact question for the jury to decide, although there are\n\n limited circumstances in which this may be determined as a matter of law. Emerson\n\n Electric Co. v. Johnson, 627 S.W.3d 197, 205 (Tex. 2021) (\u201c[T]he jury must balance\n\n this evidence to decide whether the product is or is not unreasonably dangerous; we\n\n\n                                            30\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25    Page 31 of 41    PageID 1070\n\n\n\n do not disturb that balance unless the evidence allows but one reasonable\n\n conclusion.\u201d) (internal citation and quotation marks omitted); see also Timpte Indus.,\n\n 286 S.W.3d at 312; see also Nelson v. Sunbeam Products, Inc., 579 F. Supp. 3d 857, 866\n\n (E.D. Tex. 2022).\n\n        Defendant argues that whether the Lawnmower is unreasonably dangerous\n\n rests on a determination of the fourth factor of the risk-utility analysis\u2014the fact that\n\n the risk of the alleged defect is open and obvious. (See Def. Br. at 11-13.) Defendant\n\n contends that because the Lawnmower contained suitable warnings and because\n\n Mrs. Erwin was aware of the danger and had the ability to avoid the danger, the\n\n Lawnmower cannot be unreasonably dangerous as a matter of law. (See id.) The\n\n undersigned find this argument unpersuasive. \u201c[T]he fact that the alleged defect is\n\n open and obvious, although an important consideration, is generally not\n\n determinative in Texas.\u201d Timpte Indus., 286 S.W.3d at 314 (citing Hernanadez, 2\n\n S.W.3d at 258).\n\n        Furthermore, the five factors of the risk-utility analysis must be viewed\n\n holistically. See Goodner v. Hyundai Motor Co., 650 F.3d 1034, 1041\u201342 (5th Cir.\n\n 2011) (citing Grinnell, 951 S.W.2d at 432). Viewing the summary judgment record\n\n and the factors in their totality, the undersigned finds that whether the Scag Tiger\n\n Cub lawnmower was unreasonably dangerous presents a genuine dispute as to a\n\n material fact that must be resolved by a jury. The following facts are sufficient to\n\n conclude there is a fact issue in this case.\n\n\n\n                                                31\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25     Page 32 of 41     PageID 1071\n\n\n\n        First, the gravity and likelihood of injury is supported by the AEJM Abstract\n\n and the Safety Fact Sheet, as well as the testimony of Mrs. Erwin and Plaintiffs\u2019\n\n expert, Kevin Sevart. The AJEM Abstract reported that there were an estimated\n\n 934,394 lawnmower injuries treated in the United States during this period, an\n\n average of 84,944 injuries per year; and 22 percent of those injuries were comprised\n\n of hand and finger injuries. (See Pl. App. 649.) The abstract concludes by stating,\n\n \u201c[l]awn mowers continue to account for a large number of injuries every year in the\n\n United States;\u201d there was no decrease in injuries from 2005 to 2015, and\n\n \u201c[p]reventative measures should take into account the epidemiology if these\n\n injuries.\u201d (Id.) The Safety Fact Sheet reported that over 35,000 injuries and nearly\n\n 100 deaths related to riding lawnmowers occur each year in the United States. 5 (See\n\n Pl. App. 650-51.) Although the fact sheet reports that \u201c[t]hese accidents are mostly\n\n due to loss of stability and operators thrown from or falling under the equipment,\u201d it\n\n also warns against reaching around or beneath a running mower and advises\n\n operators to shut off the engine before removing debris. (Id.)\n\n        Sevart testified that \u201cserious injuries [have been] a constant through the\n\n history of mowers.\u201d (Pl. App. 626, Sevart Dep. 101:13-14.) He also testified that\n\n \u201cpeople don\u2019t generally recognize how close a hazard may be in reaching in [ ] areas\n\n [and] just didn\u2019t realize how close a hazard was to, say, the edge of the deck or\n\n\n\n        The undersigned notes that, based on a comparison of the AJEM Abstract data (Pl.\n        5\n\n App. 650-71) with the Safety Fact Sheet data (Pl. App. 649), injuries resulting from riding\n lawnmowers reflect approximately 41 percent of all lawn mower injuries.\n                                             32\n\fCase 3:23-cv-01561-K     Document 45      Filed 03/20/25     Page 33 of 41    PageID 1072\n\n\n\n something like that. They just don\u2019t have that understanding.\u201d (Pl. App. at 627-28,\n\n Sevart Dep. 102:23-103:5.) Sevart further testified: \u201cI think people generally\n\n understand that they need to leave the guards on the machine and that\u2019s the function\n\n of the guard, is, you know, actually provide protection.\u201d (Pl. App. 628, Sevart Dep.\n\n 103:22-24). \u201cWhen you provide a guard[,] it needs to actually be [ ] effective as you\n\n anticipate people will rely upon [them].\u201d (Pl. App. 629, Sevart Dep. 104:11-13.)\n\n       Mrs. Erwin testified that while mowing on the day of her injury, leaves began\n\n to accumulate on the deck or chute of the mower by her feet, which had happened\n\n before, and she reached down to brush the leaves off the decking, as she had done\n\n before without incident. (Pl. App. 501-02, K. Erwin Dep. 48:19-50:14.) She had\n\n never before come in contact with the belts or pulleys when she brushed the leaves\n\n off while riding without turning the mower off (id. 502, K. Erwin Dep. 52:2-22), and\n\n although she knew it was dangerous to get her hand near the moving belts, \u201c[she]\n\n didn\u2019t think [she] was in danger\u201d because \u201c[she] didn\u2019t think [she] was close to the\n\n belt and pulleys\u201d (id. 503, K. Erwin Dep. 55:18-57:4).\n\n       Based on the foregoing, whether the utility of the Scag Tiger Cub lawnmower,\n\n outweighs the gravity and likelihood of injury from use or foreseeable misuse is a fact\n\n question for the jury. See Hernandez, 2 S.W.3d at 257 (citations omitted) (noting\n\n Texas law that foreseeable misuse gives rise to claims for design defect); see also\n\n Martinez, 977 S.W.2d at 337 (noting that \u201cit is not at all unusual for a person to fail to\n\n follow basic warnings and instructions,\u201d and even if plaintiff was injured only by\n\n\n\n                                            33\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25     Page 34 of 41     PageID 1073\n\n\n\n \u201c[i]gnoring . . . his own good sense,\u201d this does not remove the balancing process\n\n from the jury) (internal citations omitted).\n\n        Second, Sevart testified that he provided photos of competitor lawnmowers to\n\n demonstrate that it is \u201cessentially industry practice [ ] to provide guards that extend\n\n well beyond the actual pulley and nip point.\u201d (Id. 597, Sevart Dep. 72:3-9.) He also\n\n opined that the existing shield on the Scag Tiger Cub mower \u201ccould be extended to\n\n prevent the finger probe (id. 595-96, Sevart Dep. 70:19-20; 71:8-13), and the\n\n additional cost would be \u201cpennies\u201d (id. 598, Sevart Dep. 73:18-21), when \u201cspread out\n\n over [ ] a number of mowers\u201d (id. 599, Sevart Dep. 74:7-9). Sevart further testified\n\n that the existing sheet metal \u201ccould just essentially be extended\u201d to guard the belt\n\n and pulley. (Id. 620, Sevart Dep. 95:15-18.)\n\n        Based on the basic simplicity of Sevart\u2019s suggestion\u2014simply extending the\n\n sheet metal on the guard\u2014the undersigned cannot say as a matter of law that\n\n Plaintiffs have not established a factual issue as to the existence of a safer alternative\n\n design. While Defendant may contest whether the alternative design suggested by\n\n Plaintiffs\u2019 expert was economically and technologically feasible, or that it would\n\n substantially reduce risk of the type injury suffered by Mrs. Erwin, ultimately that is\n\n for the factfinder to determine.\n\n        Next, although Defendant argues that the danger was both open and obvious,\n\n as well as adequately warned against by way of the warning on the Lawnmower\u2019s\n\n deck (see Def. Br.13-15; Def. App. 127), testimony from Mrs. Erwin and Sevart\n\n support a finding that this, too, is a factual dispute. Mrs. Erwin testified that she did\n                                             34\n\fCase 3:23-cv-01561-K       Document 45       Filed 03/20/25      Page 35 of 41      PageID 1074\n\n\n\n not believe she was putting herself at risk because she had never before come in\n\n contact with the belts or pulleys when she brushed the leaves off while riding without\n\n turning the mower off. (Id. 502, K. Erwin Dep. 50:6-10, 52:2-22.) She had taken the\n\n same action for over ten years (id.) and even \u201cseveral\u201d times on the same day she was\n\n injured (id. 505 K. Erwin Dep.63:2-4). She did not believe she was in danger because\n\n \u201c[she] didn\u2019t think [she] was close to the belt and pulleys.\u201d (Id. 503, K. Erwin Dep.\n\n 55:18-57:4.)\n\n        Sevart similarly testified that users do not recognize how close a hazard may\n\n be to the edge of the deck. (See Pl. App. at 627-28, Sevart Dep. 102:23-103:5.) He\n\n also testified that because users generally understand the function of the guard on a\n\n lawnmower, when a guard is provided, \u201cit needs to actually be [ ] effective as you\n\n anticipate people will rely upon [them].\u201d (Pl. App. 628-29, Sevart Dep. 103:22-\n\n 104:11-13.)\n\n        As noted previously, the fact that a product user is or should be aware of the\n\n existence and avoidability of dangers that are obvious, commonly known, or warned\n\n against, in general, this fact \u201cin and of itself is not an absolute bar . . . to liability for a\n\n defective design.\u201d Hernandez, 2 S.W.3d at 258; see also Timpte Indus., 286 S.W.3d at\n\n 312; Martinez, 977 S.W.2d at 337. Therefore, this presents another factual dispute\n\n that should be resolved by a jury.\n\n        Because the facts here do not present the exceptional case in allowing for\n\n \u201conly one reasonable conclusion\u201d regarding whether the product was unreasonably\n\n dangerous as designed, the undersigned finds that there exist genuine issues of\n                                               35\n\fCase 3:23-cv-01561-K      Document 45    Filed 03/20/25    Page 36 of 41    PageID 1075\n\n\n\n material fact, such that the evidence must be balanced by a jury. Genie Indus., 462\n\n S.W.3d at 10\n\n       2. Genuine issues of material fact exist regarding a finding of marketing\n          defect.\n\n       In a marketing defect (\u201cfailure-to-warn\u201d) case, the plaintiff must show that the\n\n warning was defective and that the defect was the producing cause of the injury.\n\n Saenz, 873 S.W.2d at 359. \u201cGenerally, a manufacturer has a duty to warn if it knows\n\n or should know of the potential harm to a user because of the nature of its product.\u201d\n\n Am. Tobacco Co., 951 S.W.2d at 426. \u201cA marketing defect is proven when the\n\n evidence shows that a defendant fails to warn of a product\u2019s potential dangers, when\n\n warnings are required, and that the lack of adequate warning or instructions renders\n\n an otherwise adequate product unreasonably dangerous.\u201d Smith v. Robin America,\n\n 773 F. Supp. 2d 708, 714 (S.D. Tex. 2011) (internal citations omitted); see also Smith\n\n v. Aqua\u2013Flo, Inc., 23 S.W.3d 473, 480 (Tex. App.\u2014Houston [1st Dist.] 2000, pet.\n\n denied).\n\n       Defendant\u2019s only argument in opposition to Plaintiffs\u2019 marketing defect theory\n\n is there was no duty to warn because the danger is open and obvious. (See Def. Br. at\n\n 16-17.) For many of the reasons discussed above, see supra Section III.C.1., the\n\n undersigned disagrees.\n\n       Mrs. Erwin testified that leaves accumulated on the mower decking; she swept\n\n them away with her hand \u201cseveral\u201d times that day, just as she had done for years\n\n without incident; and although she knew it was dangerous to get your hand close to\n\n\n                                           36\n\fCase 3:23-cv-01561-K     Document 45      Filed 03/20/25    Page 37 of 41    PageID 1076\n\n\n\n the belts and pulleys while they were running, she proceeded to brush the leaves off\n\n the Lawnmower deck and the discharge chute because she did not think she was\n\n close to the belt and pulleys. (See Pl. App. 503, K. Erwin Dep. 56:10-57:4.) She also\n\n testified that over the number of years she used the Lawnmower and brushed leaves\n\n from the deck while the belts and pulleys were moving, she never got her fingers\n\n close enough to get \u201cnicked or cut or caught,\u201d and because of this, she never thought\n\n about the risk of getting her fingers caught. (See id. 57:11-20.) Mrs. Erwin testified\n\n she still has no idea exactly how her fingers became caught in the pulley and the belt.\n\n (Id. at 507, K. Erwin Dep. 73:11-14.)\n\n       Sevart testified that Mrs. Erwin\u2019s awareness of running belts or even a placard\n\n was insufficient. \u201c[T]he warning [is] just not capable of doing the job because . . .\n\n people sometimes don\u2019t follow instruction\u201d or they \u201cforget or just have instinctual\n\n responses.\u201d (Pl. App. 577, Sevart Dep. 53:8-14.) Defendant\u2019s counsel questioned\n\n Sevart about whether the risk was open and obvious: \u201cIt\u2019s certainly an open and\n\n obvious hazard. I mean, you see belts running in this machine, correct?\u201d (Pl. App.\n\n 580, Sevart Dep. 55:15-17.) Sevart responded: \u201cYou can see belts. You can\u2019t\n\n necessarily see a nip point.\u201d (Id. 55:18-19.) Thus, whether the danger was open and\n\n obvious, or whether the actual danger (the nip point) was hidden, is a factual dispute\n\n that should be decided by a jury.\n\n       Finally, there is factual question regarding the adequacy of the warning\n\n placard placed on the Lawnmower\u2019s deck. (See Def. App. 127; Pl. App. 667.) To\n\n recap, the warning reads:\n                                            37\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25    Page 38 of 41     PageID 1077\n\n\n\n       WARNING. ROTATING BLADES AND BELTS. Keep hands,\n       feet, and clothing clear. Keep all guards in place. Shut off engine\n       and disengage blade clutch before servicing. Use caution in directing\n       discharge. Read instruction manual before operating. DO NOT\n       OPERATE UNLESS GRASS CATCHER, MULCHING KIT, OR\n       DISCHARGE CHUTE IS INSTALLED.\n\n (Id.) Defendant points out that Mrs. Erwin testified that the warning placard was on\n\n the Lawnmower from the date of purchase to the date of her accident, that she was\n\n aware of the warning, and that she understood its meaning\u2014that Defendant wanted\n\n her to keep her hands, feet, and clothing clear of the rotating blades and belts. (See\n\n Def. Br. at 19 (citing App. 060-061; K. Erwin Dep., 59:16-18; 59:25; 60:9).)\n\n       But Sevart testified that the warning placard is ineffective for various reasons.\n\n First, he testified that the warning is ineffective because the placard does not actually\n\n face the operator as the mower is driven; rather the placard faces sideways or upside\n\n down. (See Pl. App. at 613-14, Sevart Dep. 88:13-89:15.) According to Sevart, to\n\n the extent possible, the warning should be oriented so that it is constantly visible to\n\n the operator. (See id. 89:12-15.) Sevart further testified that the position of the\n\n warning placard, below the operator\u2019s feet, also inhibited the warning\u2019s effectiveness.\n\n (See id. 89:8-9.) And, in some cases, the warning would not be visible to the operator\n\n at all. Sevart testified that it was \u201creasonably foreseeable\u201d for debris to accumulate\n\n on the platform underneath the operator\u2019s feet which could obscure the warning so\n\n that it may be partly visible or not visible at all. (See Pl. App. at 617-19, Sevart Dep.\n\n 93:20-94:8.)\n\n\n\n\n                                             38\n\fCase 3:23-cv-01561-K     Document 45      Filed 03/20/25    Page 39 of 41     PageID 1078\n\n\n\n       Finally, Plaintiffs point out potential deficiencies in the language used in the\n\n warning. (See Pl. Br. at 24.) For example, the warning instructs users that they need\n\n to \u201cshut off engine and disengage blade clutch before servicing.\u201d (See Pl. App. 667.)\n\n It is not clear that this warning also applies to normal use, such as reaching down to\n\n clear debris, as Mrs. Erwin did when she was injured.\n\n       Accordingly, the undersigned finds that there is a genuine issue of material\n\n fact regarding whether the risk of danger posed by the moving belts was open and\n\n obvious such that Defendant had no duty to warn, as well as a genuine issue of\n\n material fact regarding whether the warning provided was sufficient.\n\n D.    Plaintiffs\u2019 Negligence Claims\n\n       To recover on a negligence claim arising out of a product defect, the plaintiff\n\n must prove each of the following elements: (1) the defendant failed to exercise\n\n ordinary care in the design, manufacturing, or marketing of the product; and (2) the\n\n defendant's breach proximately caused the plaintiff\u2019s injuries. See Gonzales v.\n\n Caterpillar Tractor Co., 571 S.W.2d 867, 871 (Tex. 1978). Plaintiffs sufficiently plead\n\n the elements of a negligence claim in their complaint. (See Compl. \u00b6 5.2.)\n\n       \u201cTexas courts have explained that where \u2018the allegations and evidence are\n\n directed to whether the product is unreasonably dangerous and no other potentially\n\n negligent conduct is alleged or the subject of evidence, the negligence theories are\n\n subsumed by the strict liability theories asserted.\u201d Romo v. Ford Motor Co., 798 F.\n\n Supp. 2d 798, 807\u201308 (S.D. Tex. 2011) (quoting Kallassy v. Cirrus Design Corp., No.\n\n CIV.A. 3:04-CV-0727N, 2006 WL 1489248, at *1 (N.D. Tex. May 30, 2006), aff\u2019d,\n\n                                            39\n\fCase 3:23-cv-01561-K      Document 45      Filed 03/20/25     Page 40 of 41    PageID 1079\n\n\n\n 265 F. App'x 165 (5th Cir. 2008) (internal citations omitted)); see also Garrett v.\n\n Hamilton Standard Controls, Inc., 850 F.2d 253, 257 (5th Cir. 1988).\n\n        Although Plaintiffs\u2019 product liability and negligence are predicated on the\n\n same claim, allegations, and evidence\u2014that the defective design and marketing of\n\n the Scag Tiger Cub lawnmower was the proximate or producing cause of Mrs.\n\n Erwin\u2019s injury\u2014because this case is at the summary judgment stage, the undersigned\n\n concludes that Plaintiffs\u2019 negligence claims should proceed to trial along with their\n\n product liability claims. See Tamez v. Mack Trucks, Inc., 100 S.W.3d 549 (Tex. App.\u2014\n\n Corpus Christi 2003) (finding that plaintiff was not precluded from bringing multiple\n\n theories of recovery at the pre-trial stage), rev\u2019d on other grounds, 206 S.W.3d 572 (Tex.\n\n 2006); see also Madden v. Wyeth, No. 3-03-CV-0167-BD, 2005 WL 2278081, at *2\n\n (N.D. Tex. Sept. 14, 2005) (unpublished). This also applies to Plaintiffs\u2019 gross\n\n negligence claims under Tex. Civ. Prac. & Rem. Code \u00a7 41.001(11). (See Compl. \u00b6\n\n 6.4.) The degree of risk arising from Defendant\u2019s conduct and whether the harm to\n\n Mrs. Erwin resulted from Defendant\u2019s conscious indifference are fact issues that\n\n must be resolved by a jury. See General Motors Corp. v. Sanchez, 997 S.W.2d 584, 596\n\n (Tex.1999).\n\n                              IV. RECOMMENDATION\n\n       Because Plaintiffs have produced adequate evidence to raise a fact issue with\n\n respect to their strict product liability and negligence claims, Defendant\u2019s Motion for\n\n\n\n\n                                             40\n\fCase 3:23-cv-01561-K     Document 45     Filed 03/20/25     Page 41 of 41    PageID 1080\n\n\n\n Summary Judgment (Dkt. No. 27) should be DENIED, and Plaintiffs\u2019 claims should\n\n proceed to trial.\n\n        SO RECOMMENDED on March 20, 2025.\n\n\n\n\n                                         __________________________\n                                         BRIAN McKAY\n                                         UNITED STATES MAGISTRATE JUDGE\n\n\n\n\n                          NOTICE OF RIGHT TO OBJECT\n\n        A copy of these findings, conclusions, and recommendation will be served on\n all parties in the manner provided by law. Any party who objects to any part of this\n report and recommendation must file specific written objections within 14 days after\n being served with a copy. See 28 U.S.C. \u00a7 636(b)(1); Fed. R. Civ. P. 72(b). To be\n specific, an objection must identify the finding or recommendation to which\n objection is made, state the basis for the objection, and indicate the place in the\n magistrate judge\u2019s report and recommendation where the disputed determination is\n found. An objection that merely incorporates by reference or refers to the briefing\n before the magistrate judge is not specific. Failure to file specific written objections\n will bar the aggrieved party from appealing the factual findings and legal conclusions\n of the magistrate judge that are accepted or adopted by the district court, except upon\n grounds of plain error. See Douglass v. United Services Automobile Ass\u2019n, 79 F.3d 1415,\n 1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. \u00a7 636(b)(1)\n (extending the time to file objections to 14 days).\n\n\n\n\n                                           41\n\f","ocr_status":2,"date_upload":"2025-05-08T13:07:36.201977-07:00","document_number":"45","attachment_number":null,"pacer_doc_id":"177017555050","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-05-07T15:11:27.171632-07:00","date_modified":"2025-05-08T13:07:08.299767-07:00","date_filed":"2025-03-20","time_filed":null,"entry_number":45,"recap_sequence_number":"2025-03-20.001","pacer_sequence_number":118,"description":"FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Because Plaintiffs have produced adequate evidence to raise a fact issue with respect to their strict product liability and negligence claims, Defendant's 27 Motion for Summary Judgment should be DENIED, and Plaintiffs' claims should proceed to trial. (Ordered by US Magistrate Judge Brian McKay on 3/20/2025) (twd) (Entered: 03/20/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/424726439/","id":424726439,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67605404/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/438839628/","id":438839628,"tags":[],"absolute_url":"/docket/67605404/44/erwin-v-metalcraft-of-mayville-inc/","date_created":"2025-05-07T15:11:27.155825-07:00","date_modified":"2025-05-08T13:07:08.279630-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"44","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-05-07T15:11:27.141054-07:00","date_modified":"2025-05-08T13:07:08.264364-07:00","date_filed":"2025-02-04","time_filed":null,"entry_number":44,"recap_sequence_number":"2025-02-04.001","pacer_sequence_number":null,"description":"ELECTRONIC ORDER Resetting Trial Date. The Court sua sponte RESETS the trial of this matter and continues the related pretrial deadlines.The Court sets this matter for JURY trial on the Court's three-week docket beginning December 1, 2025. Any potential conflicts with this trial setting must be called to the attention of the Court in writing within ten (10) days from the date of this Order.The parties shall file their pretrial materials, as outlined in Paragraph 12 of the Scheduling Order, by November 10, 2025. Doc. No. 13 at 3. The parties shall make the disclosures required by Fed. R. Civ. P. 26(a)(3)(A)-(B) by October 1, 2025, and, within 14 days thereafter, serve and file a list of any objections as outlined in Paragraph 10 of the Scheduling Order. Id. The parties are reminded that they remain bound to comply with Paragraphs 14 through 20 of the Scheduling Order, which includes the requirement to meet face-to-face at least 14 days before the trial setting and to file a joint report with the Court. Doc. No. 13 at 5-6. 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