throbber
Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 1 of 184 PageID #:9087
`
`2506
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`Case No. 08 C 4006
`
`Chicago, Illinois
`August 2, 2012
`1:40 p.m.
`
`))))))))))))
`
`BRANDON STOLLINGS,
`
`Plaintiff,
`
`-vs-
`
`RYOBI TECHNOLOGIES, INC.,
`ONE WORLD TECHNOLOGIES,
`INC., and HOME DEPOT U.S.A.,
`INC.,
`
`Defendants.
`
`VOLUME 9-B
`TRANSCRIPT OF PROCEEDINGS - Trial
`BEFORE THE HONORABLE GARY FEINERMAN
`and a Jury
`
`APPEARANCES:
`
`For the Plaintiff:
`
`BOIES, SCHILLER & FLEXNER, LLP
`BY: MR. GEORGE F. CARPINELLO
`MS. TERESA A. MONROE
`10 North Pearl Street, 4th Floor
`Albany, New York 12207
`(515) 434-0600
`
`SULLIVAN & SULLIVAN, LLP
`BY: MR. RICHARD J. SULLIVAN
`40 Washington Street
`Wellesley, Massachusetts 02481
`(781) 263-9400
`
`Court Reporter:
`
`CHARLES R. ZANDI, CSR, RPR, FCRR
`Official Court Reporter
`United States District Court
`219 South Dearborn Street, Room 1728
`Chicago, Illinois 60604
`Telephone: (312) 435-5387
`email: Charles_zandi@ilnd.uscourts.gov
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 1
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 2 of 184 PageID #:9088
`
`2507
`
`APPEARANCES: (Continued)
`
`For the Defendants:
`
`JOHNSON & BELL, LTD.
`BY: MR. JOHN W. BELL
`MS. ALEXANDRIA L. BELL
`MR. ROBERT R. McNAMARA
`MS. MEGHAN McKENNA SCIORTINO
`33 West Monroe Street
`Suite 2700
`Chicago, Illinois 60603
`(312) 372-0770
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 2
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 3 of 184 PageID #:9089
`
`2508
`
`(Proceedings heard in open court, jury not present:)
`
`THE COURT: Everybody can be seated. Can we bring
`
`out the jury, or do we have to discuss anything?
`
`MR. CARPINELLO: I don't think we need to discuss
`
`anything. We're putting the final touches on our proposed
`
`verdict form.
`
`THE COURT: Okay.
`
`MR. CARPINELLO: Could I have just 60 seconds, Judge?
`
`THE COURT: Sure. And we have our own. And we'll
`
`just exchange drafts --
`
`MR. CARPINELLO: Should I stop?
`
`THE COURT: No, no. I solicited it, and I didn't
`
`know whether I was going to get one. So, we can exchange
`
`drafts and then figure out -- discuss it amongst everybody,
`
`and we'll figure out what makes the most sense.
`
`Can we get the jury? Yeah, go ahead, Dan.
`
`MR. CARPINELLO: This is going to be a little rough.
`
`There may be typos, but I'll distribute to your Honor and my
`
`adversaries, just to get the concept down as to what we're
`
`thinking.
`
`THE COURT: Okay. And does it include special
`
`interrogatories?
`
`MR. CARPINELLO: It -- well, it does. We're
`
`specifically asking whether they find whether the saw was
`
`unreasonably dangerous. I mean, I don't know whether you
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 3
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 4 of 184 PageID #:9090
`Domeny - cross
`
`2509
`
`consider that a special interrogatory or not, but --
`
`THE COURT: I think it is, but maybe the defendants
`
`disagree.
`
`MR. McNAMARA: No, no. We'd object to that, Judge.
`
`It's covered in the instruction anyway.
`
`MR. CARPINELLO: Well, that -- all the more reason to
`
`put it in, because it's consistent with the instruction.
`
`MR. McNAMARA: No, a special interrogatory is not to
`
`cover the same ground that's covered in the jury instruction.
`
`A special interrogatory is to ask the jury to consider
`
`something -- a specific issue.
`
`Bud I'd like -- I haven't seen it, so I'm probably
`
`prematurely arguing, and I don't want my adversary to get mad
`
`at me, so --
`
`THE COURT: Okay.
`
`MR. CARPINELLO: Have I gotten mad at you before?
`
`MR. McNAMARA: No.
`
`(Jury enters courtroom.)
`
`THE COURT: Everybody can be seated.
`
`Are you ready to resume?
`
`THE WITNESS: Yes, I am.
`
`THE COURT: Go ahead, Mr. Carpinello.
`
`MR. CARPINELLO: Thank you, your Honor.
`
`PETER DOMENY, DEFENDANTS' WITNESS, PREVIOUSLY SWORN.
`
`CROSS-EXAMINATION (Resumed)
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 4
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 5 of 184 PageID #:9091
`Domeny - cross
`
`2510
`
`BY MR. CARPINELLO:
`Q. Mr. Domeny, do you recall when we were going through some
`
`of the list of cases that you've testified in?
`A. Yes.
`Q. And I think you said that a number of the cases were
`
`accidents similar to what occurred here?
`A. Similar to what?
`Q. I thought you said in describing some of the cases, that
`
`you said the accidents were similar to the injury and the
`
`cause of the accident that occurred here?
`A. I believe I said that about the Maloney accident in the
`
`sense that it was a crosscutting event. It was a 2-by-4. It
`
`wasn't a flooring board.
`Q. Do you know if the guard --
`A. Pardon me?
`Q. Do you know if the guard was on or off in that case?
`A. I believe the guard was -- the guard was on.
`Q. And in that case, you also testified, despite that the
`
`guard was on, that again, it was the user's negligence that
`
`caused the injury, correct?
`A. I don't know if it was the user's negligence. It was the
`
`user's methodology, how he was using the saw.
`
`It was a 2-by-4, by the way. It wasn't a long board
`
`which could reach the -- the kickback pawls or the spreader,
`
`so in that respect, it was altogether different situation.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 5
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 6 of 184 PageID #:9092
`Domeny - cross
`
`2511
`
`Q. It was reasonably foreseeable to Ryobi, was it not, that
`
`users of its saws would remove the guard?
`A. Yes, I believe it was foreseeable.
`Q. And it was also reasonably foreseeable to Ryobi that users
`
`of the saw would not use the miter gauge, correct?
`A. Well, again, depends on a cut. In rip cutting, you should
`
`not use a miter gauge; but if you are talking about
`
`crosscutting, yes, it was foreseeable that they would not use
`
`a miter gauge.
`Q. And Mr. Stollings' belief that guiding the wood with his
`
`hand gave him more control than that miter gauge, whether you
`
`agree with it or not, is a common opinion held by many
`
`woodworkers, correct?
`A. No, that is not common. I don't believe anybody can have
`
`an opinion that it's better to guide it by hand than by a
`
`device that is riding in that track. I mean, that is
`
`unreasonable.
`Q. But you were aware, were you not, that many users, whether
`
`you agree with their methodology or not, did use -- do use
`
`their saws with -- freehand rather than with the miter gauge
`
`if they're doing a crosscut?
`A. I agree with one provision. You're proposing many users.
`
`I would disagree with it. Some users, yes, but I wouldn't
`
`characterize it as many.
`Q. Did, to your knowledge, Bosch or Ryobi ever try to
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 6
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 7 of 184 PageID #:9093
`Domeny - cross
`
`2512
`
`quantify the amount of non-use of the guard of the people who
`
`were buying their saws?
`A. No, I don't -- I don't remember any such surveys or
`
`research projects like that. I don't.
`Q. You agree, do you not, that Ryobi and Bosch should design
`
`their saws to be safe for all foreseeable and -- for all
`
`foreseeable uses, correct?
`A. Yes, that is the essential principle in risk assessment,
`
`and that's what we striving for.
`Q. And speaking of risk assessment, isn't an essential part
`
`of risk assessment to determine whether the control that is
`
`adopted by the manufacturer is actually working, is being used
`
`by the users?
`A. That would be the part of it. It -- it was not so clearly
`
`stated in the papers prior to year 2000; but in modern risk
`
`assessment, that is an element of investigating that.
`Q. What papers are you talking about?
`A. Well, there are risk assessment standards in Europe, as
`
`well as in United States. I think they were published in the
`
`year 2000. The early versions don't have that. The recent
`
`versions have language addressing evaluation of your guarding
`
`systems.
`Q. So, at least from the year 2000 onward -- well, let me ask
`
`you this question: Was it a -- was it a -- a component of
`
`good engineering practices in the design of products long
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 7
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 8 of 184 PageID #:9094
`Domeny - cross
`
`2513
`
`before 2000 that as part of risk analysis, if there's a hazard
`
`that needs to be controlled, that an essential step of the
`
`analysis, if you designed a control or a guard, that you have
`
`to determine whether there are features of that guard or
`
`control that encourage users not to use the guard or control,
`
`either because it's difficult to use or because it makes use
`
`of the product difficult?
`A. I don't know if I can answer a complex question like that.
`
`Can you break it down to elements?
`Q. Okay. I'm sorry that was complex for you.
`
`You're familiar with standard hazard analysis,
`
`correct?
`A. I don't know which document you're referring to.
`Q. You're familiar with the ANSI standard for hazard
`
`analysis?
`A. Which document number? What are you talking about?
`Q. ANSI BILTR 3-2000.
`A. And what is that?
`Q. The ANSI, American National Standard, risk assessment and
`
`risk reduction guide.
`A. Yes. It is a guide. It is a technical paper. It is not
`
`a standard.
`Q. Okay. And the ANSI guide or standard, whatever word you
`
`want to use, aside, are you aware of whether that was a
`
`cardinal principle of product design long before 2000, that if
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 8
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 9 of 184 PageID #:9095
`Domeny - cross
`
`2514
`
`you have a hazardous product, if you have a hazardous product
`
`and you need to guard or control the hazard, you have to
`
`determine before you sell your product whether the control or
`
`the guard that you put on is designed in such a way as to
`
`encourage its use as opposed to discourage its use?
`A. That is an element of the risk assessment, as I said. But
`
`also has to be recognized that the people who wrote the
`
`standard for guarding system, they go through the risk
`
`assessment, and they go through these evaluations with the
`
`guarding system that is required by the standard, whether that
`
`guarding system is going to be acceptable to the user.
`
`So, those elements of the risk assessment, as I said
`
`yesterday, are built in into the standards already because
`
`that's the part of the STP group and the experts who are
`
`writing the standards in the first place.
`Q. That's what I thought you said yesterday, and I wanted to
`
`clarify it. It's your testimony that if a table saw
`
`manufacturer knows that a large number of people are getting
`
`injured on their saws because they're not using the guard and
`
`they know why they're not using the guard and they know how to
`
`change it, that they don't need to go through that analysis
`
`because they can rely on the UL standard because they're the
`
`experts?
`A. The UL standard is written by the group, the community of
`
`experts, yes. And a product is safe for consumers to use if
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 9
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 10 of 184 PageID #:9096
`Domeny - cross
`
`2515
`
`it meets the UL standard and it is certified saw.
`
`So, yes, it is an acceptable procedure to design a
`
`product to the UL standard. And whether you do additional
`
`work or not, it's not entirely mandated.
`Q. So, you and Mr. Peot and Mr. Gogoll of Black & Decker and
`
`Mr. Rodrigues of Makita all know at that meeting in November
`
`2001 that that guard standard, that design needs to be
`
`changed. Your position is that, "As long as that standard's
`
`in place, I don't need to worry as a manufacturer about
`
`getting saws on the market as soon as possible to change that
`
`guard"?
`A. What I am saying to the jury that a manufacturer such as
`
`Ryobi who has one and only one customer, and that is the Home
`
`Depot, and that customer demands UL certification, that
`
`manufacturer cannot design a product that would not meet UL
`
`certification.
`
`And the UL certification on the issue of
`
`incorporating the riving knife was not -- consensus has not
`
`been reached until December 9th, 2004.
`Q. And you heard Mr. Stimitz say, did you not, that there was
`
`absolutely no reason why you or Mr. Peot or all of you
`
`together couldn't have gone to the CPSC -- I'm sorry, to UL in
`
`1998 or 1988, for that matter, and said, "We should change
`
`that guard." There was nothing stopping you, was there?
`A. There was nothing stopping us from technical -- technology
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 10
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 11 of 184 PageID #:9097
`Domeny - cross
`
`2516
`
`point of view. The materials, the plastics for a guard, the
`
`steel, and the manufacturing technology was available.
`
`There was no knowledge in the community of the
`
`manufacturers in '80s, as you implied, neither in the
`
`community of the UL engineers, to raise a flag that such a
`
`drastic redesign is necessary.
`Q. I thought you testified yesterday that you became aware of
`
`the benefits and the need for a riving knife in the 1980s.
`
`Didn't you testify to that?
`A. No, I don't think I said that. I said I done that in --
`
`in 1990s, mid half and second half. It wasn't the riving
`
`knife that I was advocating, but the rise-and-fall spreader on
`
`the Bosch 4000.
`
`So, no, as far as the riving knife, that's not true.
`
`The riving knife came into the picture as of 1999, 2001, in
`
`that time frame.
`Q. So, until November 2000 -- or 1999, 2001, you were not
`
`aware that people were not using the three-in-one guard; is
`
`that what you're saying?
`A. That's not what I said, sir.
`Q. Well, I want -- is that what -- so, you were aware prior
`
`to that that people were not using the three-in-one guard?
`A. I believe I testified this morning that there are some
`
`people who were not using the three-in-one guarding system. I
`
`said that this morning.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 11
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 12 of 184 PageID #:9098
`Domeny - cross
`
`2517
`
`Q. And you didn't know how many because you and Ryobi never
`
`went out as part of your hazard analysis to find out whether
`
`the control or guard that this -- that the guide says you
`
`should examine, you never went out to see whether it was
`
`actually fulfilling the function, did you?
`A. As I said earlier, in 1990s, the whole PTI community at
`
`large, the whole group on average was aware of 60, 70
`
`accidents.
`
`And from my perspective, the Skil was relatively
`
`minor player. We didn't have more than 10 percent of the
`
`market share. So, with small population of Skil saws on the
`
`market, I wasn't aware of it, so of course I didn't do
`
`anything drastic because there was no red flag that there was
`
`something wrong.
`Q. Well, what was the red flag? Tell me what the red flag
`
`was. When was the red flag launched so that everybody knew
`
`there was a problem?
`A. I know you're going to repeat "red flag" for the rest of
`
`the afternoon.
`
`The issue here is we have heard from CPSC in 1998,
`
`1999 that there are number of accidents, and the CPSC would
`
`desire to change the guarding requirements.
`Q. So, the red flag was the CPSC numbers that you denigrated
`
`for 20 minutes on your direct testimony, is that right? The
`
`NEISS data that you said was completely unrealistic, because
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 12
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 13 of 184 PageID #:9099
`Domeny - cross
`
`2518
`
`they said 30,000, and we said what, over 10 years, 700. So,
`
`those numbers were garbage, right?
`A. I didn't say that those numbers are garbage. It is hard
`
`to reconcile for a manufacturer a situation when you are aware
`
`of 60, 70 accidents, and the CPSC, according to Dr. Gass, says
`
`50,000. So, the ratio between 60 to 50,000 is almost thousand
`
`to one. So, that implies that out of thousand people who get
`
`injured, only one lets you know? That doesn't sound
`
`reasonable.
`Q. Well, I'm trying to figure out, sir, was it a red flag or
`
`wasn't it? Because this morning, you said the NEISS data is
`
`unreliable. And now I'm saying -- because I asked you, didn't
`
`you know in the '90s? And you said no, the red flag hadn't
`
`gone up yet. So, I'm saying what's the red flag? And now
`
`you're telling me the red flag was the NEISS data.
`
`So, is the NEISS data the red flag? Yes or no?
`A. Can we change it to black flag?
`Q. No, you're stuck with red flag. I wrote it down.
`A. I saw that, yes.
`Q. Was the NEISS data the red flag?
`A. I'm answer. I'm sorry.
`
`The -- okay. Now I lost it. Sorry. Could you
`
`repeat that?
`Q. Yes. Was the NEISS data the red flag?
`A. NEISS data was a information that the power tool industry
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 13
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 14 of 184 PageID #:9100
`Domeny - cross
`
`2519
`
`was -- table saw industry was not aware of the magnitude of
`
`the guard non-usage, okay, and the number of injuries of --
`
`forget the guard non-usage. We were not aware of the number
`
`of injuries that according to the CPSC is happening in this
`
`country.
`
`The issue as far as is it a red flag or not, every
`
`manufacturer is concerned with any accident because accidents
`
`are not the best PR propaganda for you. It's not the best PR
`
`relation for you. Accidents happen, and you don't like to see
`
`that. When accidents happen, it usually costs money for a
`
`company, so even one or two accident is something that is not
`
`desirable.
`
`You know, so, the issue is: Can the system be
`
`changed, and what can be done? Does it have -- does it
`
`require a total rewrite of the standards or not?
`
`And that information did not become available until
`
`the CPSC brought that information to our attention.
`Q. Well, in fact, the information was available to you, if
`
`you even asked, a decade earlier, wasn't it? The CPSC had
`
`data about the number of injuries on table saws as being over
`
`20,000 a year in 1990, didn't it?
`A. As I have learned in retrospect, yes.
`Q. And did you -- did you ever ask them for that data? Did
`
`you know that?
`A. No.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 14
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 15 of 184 PageID #:9101
`Domeny - cross
`
`2520
`
`Q. When did you learn that?
`A. I have probably learned that in late '90s.
`Q. And do you know when Ryobi asked CPSC for the data?
`A. No, I don't know.
`Q. In fact, they never did, did they?
`A. I don't know, I said.
`Q. Well, you heard Mr. Peot testify that it was a red -- he
`
`didn't use the word "red flag," but you heard him testify that
`
`this was -- when he heard this -- when he heard these
`
`numbers -- when he heard these numbers, he was surprised,
`
`right? You heard that testimony?
`A. Yes. He personally was surprised, and so was I.
`Q. But if he had asked the Consumer Product Safety Commission
`
`in 1990, he would have gotten the numbers, right? You want to
`
`look at the numbers?
`A. No, I don't.
`Q. Do you want me to show you the numbers?
`A. I know them. I've seen them.
`Q. What are the numbers?
`A. As you said, it varies from year to year. It varies from
`
`20-some thousand to 30-some thousand.
`Q. Okay. From the 1980s. Those numbers are from the 1980s,
`
`right?
`A. Late '80s, not early '80s.
`Q. Right, from '85 to '88, correct?
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 15
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 16 of 184 PageID #:9102
`Domeny - cross
`
`2521
`
`A. I don't know. You didn't give me the document.
`Q. But you didn't ask for them, and Mr. Peot didn't ask for
`
`them. And to your knowledge, no one at Ryobi asked for them,
`
`isn't that right?
`
`MR. BELL: Your Honor, let me just object. He's
`
`asked this question repeatedly, and he's gotten an answer.
`
`He's arguing with the witness over this.
`
`MR. CARPINELLO: It's cross-examination, your Honor.
`
`I'll move on.
`
`THE COURT: Yeah, I'll sustain the objection. You
`
`should move on.
`
`BY MR. CARPINELLO:
`Q. So, do I understand your testimony that even though at
`
`some point in time you became aware of all of these injuries,
`
`it's your position that the standard prevented Ryobi and
`
`prevented Bosch from making their saws safer? Is that your
`
`testimony?
`A. No, sir. We were always striving to make saws safer.
`Q. Well, you've been here the entire trial, right? And
`
`you've heard Mr. Peot testify, and you've testified that this
`
`guard, which people were taking off the saws for the reasons
`
`we've talked about, could not be changed because the standard
`
`would not allow it. Isn't that your testimony?
`A. My testimony is what it was, and that's the fact that the
`
`standard require three elements of the guarding system to be
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 16
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 17 of 184 PageID #:9103
`Domeny - cross
`
`2522
`
`combined. "A complete guarding shall be consisting of." And
`
`the word "shall," if it is used in a standard, it is a
`
`directive. There is no ifs and buts about it. It shall
`
`consist of these things.
`Q. And Mr. Stimitz said, but if a manufacturer came along and
`
`said, "We have a better design. We think it's safer," he
`
`said, "We would consider it, and we could do a Significant
`
`Interpretation." Did you hear that testimony?
`A. Yes. And we have covered that in this morning, and I said
`
`yes, it would go under the SI, and it would have to go to the
`
`technical panels. We already talked about it this morning.
`Q. So, I just wanted to be clear, sir, that what the standard
`
`said was not a barrier to Ryobi or Bosch going to UL in 1985,
`
`in 1990, in 1995, in 1996, in 1997, or any year prior to the
`
`day this saw was made in August 2006 and going to UL and
`
`saying, "This guard is not being used. We think there should
`
`be a safer guard and riving knife," isn't that correct?
`A. That is not entirely correct.
`Q. What is incorrect?
`A. That there was a knowledge that this guard is not being
`
`used to the magnitudes as you are implying. We knew that some
`
`people taking them off; but we did not know how many, and we
`
`did not know how many injuries in global are being created by
`
`this situation.
`
`The fact of the matter is that it doesn't matter
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 17
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 18 of 184 PageID #:9104
`Domeny - cross
`
`2523
`
`whether we talking about table saws or whether we talking
`
`about cars or blenders. Accidents are happening. The mere
`
`fact that an accident happens is not an indication of improper
`
`design.
`
`The fact is that when you look into these accidents
`
`that you've been made aware of and you look at them and you
`
`study them and you find that the root cause of the accident is
`
`not the design of the product but a particular behavior and
`
`usage and disregard of using the safety devices that were
`
`provided, that is the root cause, then why would under those
`
`circumstances you would start changing the design?
`Q. How many accidents have to occur before you decide the
`
`guard's defective?
`A. I know -- well, I know in past I said that even one
`
`accident is of concern to you, because whenever accident
`
`happens, as I said five, 10 minutes ago, it is something that
`
`is not a good PR event.
`
`A situation -- this question is somewhat different
`
`because you are asking how many accidents do you have to have
`
`in order -- before you find that the guard is defective. That
`
`is a different issue. It's not one or two. It's a -- number
`
`of accidents don't have such a merit on it on this decision as
`
`a review of the design in the first place.
`
`So, when you have a collection of experts who are
`
`analyzing this situation, and if they come to the conclusion
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 18
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 19 of 184 PageID #:9105
`Domeny - cross
`
`2524
`
`that the product or the guarding system is inadequate, that is
`
`the time that a change has to be made.
`
`It is somewhat -- it is related to the number of
`
`accidents, but not governed by the number of accidents.
`Q. How many? 10 a year? 100 a year? A thousand a year?
`
`10,000 a year? 20,000 a year? How about 30,000 a year?
`A. I already said it does not depend on the number.
`Q. And even if every single one of the accidents is because
`
`somebody does something wrong, are you saying that Ryobi had
`
`no responsibility to fix the guard if they could have
`
`eliminated those accidents in the situations where people were
`
`doing something wrong and they knew they were doing it wrong?
`A. I don't know what you're asking. I already answered that
`
`if people are not using the guarding systems provided, it
`
`is -- they have to look into the mirror and accept the fact
`
`that, "I was not using the safety devices provided."
`
`If -- if you have a car and it has a brake that was
`
`provided but you are not maintaining it and you go on a
`
`highway without the brake, it's likely that you're going to
`
`have an accident.
`Q. Well, that's an interesting analogy. Let's take that
`
`analogy. Let's say the manufacturer puts a brake on, and the
`
`manufacturer finds that if they -- if the consumer doesn't go
`
`and get the brake tuned up every 10,000 miles, the brake will
`
`fail at 50,000 miles and -- completely, around 50, 60,000
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 19
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 20 of 184 PageID #:9106
`Domeny - cross
`
`2525
`
`miles, it will fail.
`
`Now, is it an excuse for the manufacturer to say,
`
`"Well, that's misuse, because if they -- I wrote it in the
`
`manual. It's in the manual you should go every 10,000 miles"?
`
`But they could have fixed it at little or no cost so that even
`
`if the consumer did not read the manual or did not take it in
`
`at 10,000 miles, the car wouldn't catastrophically -- the
`
`brake wouldn't catastrophically fail at 50,000, and instead
`
`what would happen is a little red light would go on the dash
`
`indicating brake light.
`
`Are you saying that the manufacturer would not have
`
`the obligation to make that change at little or no cost
`
`because the driver of the car failed to get the test at
`
`10,000 miles?
`A. I think we have a wonderful visual example here. I don't
`
`need the red light --
`Q. I'd like you to answer my example.
`
`MR. BELL: Let him answer the question.
`
`MR. CARPINELLO: Your Honor, I'd like him to answer
`
`my question.
`
`THE COURT: Counsel, again, you've got to address the
`
`Court and not each other.
`
`MR. BELL: Objection, your Honor. He's asking a
`
`question. The witness is attempting to answer, and he doesn't
`
`want to hear the answer.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 20
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 21 of 184 PageID #:9107
`Domeny - cross
`
`2526
`
`THE COURT: Okay. We'll hear the witness's answer,
`
`and then I'll see whether -- and then I'll see if there's an
`
`objection to the answer on the ground that it was not
`
`responsive.
`
`Go ahead, Mr. Domeny.
`
`BY THE WITNESS:
`A. I think we have a wonderful example that a red light is
`
`not necessary on that benchtop table saw. We have a visual
`
`aid right in front of us. The guard is either there. I
`
`either see it or I don't see it. I don't need a red light.
`
`BY MR. CARPINELLO:
`Q. So now answer my question. Would the manufacturer, in
`
`your opinion, be at fault in that example?
`
`MR. BELL: Objection, your Honor.
`
`THE COURT: Grounds?
`
`MR. BELL: Fault is what we're doing in this
`
`courtroom. That's a jury's determination.
`
`THE COURT: Overruled.
`
`BY MR. CARPINELLO:
`Q. Would the manufacturer be at fault in that situation?
`A. By not providing the light on the table saw?
`Q. No, no. I'll give you the example again. I guess you've
`
`forgotten it.
`
`You gave the example of brakes. Okay? And I gave
`
`you the example of a car whose brakes would fail
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 21
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 22 of 184 PageID #:9108
`Domeny - cross
`
`2527
`
`catastrophically if the user did not get them maintained,
`
`checked, maintained every 10,000 miles. And the manufacturer
`
`not only knew that, but knew there were 30,000 people going
`
`off cliffs a year because they were not following the manual
`
`and getting their brakes checked.
`
`But the manufacturer could have changed the brakes so
`
`that if you did not get it tested at 10,000 miles, A, it would
`
`not catastrophically fail; and B, you would get a warning
`
`light.
`
`If the manufacturer knowingly, knowingly, knowing
`
`30,000 people a year were going into serious accidents because
`
`they had catastrophic brake failure, would the manufacturer be
`
`at fault?
`A. The -- Ryobi has done exactly the same thing.
`Q. Non-responsive, sir. I want you to answer my
`
`hypothetical. You are an expert, and I'm asking you to answer
`
`my hypothetical.
`
`MR. McNAMARA: Judge, I think there has been a
`
`procedure established that he gets a chance to answer; and
`
`then if it's not responsive, he moves to strike.
`
`MR. CARPINELLO: He's already had a shot at that.
`
`MR. McNAMARA: I think the judge makes that
`
`determination.
`
`THE COURT: Mr. Domeny, you can answer the question.
`
`Go ahead.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 22
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 23 of 184 PageID #:9109
`Domeny - cross
`
`2528
`
`BY THE WITNESS:
`A. Ryobi has -- because what your proposition in your
`
`question is that a manufacturer has an obligation to design an
`
`absolute failsafe where something catastrophic cannot happen,
`
`or as an alternative to provide a warning.
`
`A system that cannot absolutely prevent catastrophic
`
`outcome with a table saw is not known today. Okay? As far as
`
`the guarding system, all of that, you cannot build one.
`
`As far as the warnings aspect -- because we either
`
`design it such that it cannot fail catastrophically, or as an
`
`alternative, we're going to warn you. Well, there are
`
`warnings on that saw. There was a manual. There was a
`
`warning on the front of the thing. Yes, there wasn't a red
`
`light, but everything else as far as warnings communicating
`
`the message to you that you should do these things properly
`
`because something bad is going to happen, that has been given.
`
`That warning was provided.
`
`BY MR. CARPINELLO:
`Q. Mr. Domeny, would you answer my question, please? Would
`
`the manufacturer in my hypothetical be at fault?
`A. Which manufacturers, the car or the Ryobi?
`Q. The car.
`A. I don't know enough about the cars to tell you.
`Q. You don't know whether the manufacturer would be at fault
`
`under those facts?
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`SD3 Exhibit 2019 – Page 23
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 24 of 184 PageID #:9110
`Domeny - cross
`
`2529
`
`A. Well, apparently not, because I don't know about any
`
`situation where a car would be -- would have to be recalled
`
`because there was some kind of a catastrophic failure. I
`
`mean, the warning lights are there. Manufacturer provides a
`
`warning light on it. Every brake eventually wears out, and it
`
`has to be serviced.
`
`So, I don't know what's different -- I never heard
`
`about any car manufacturers designing their brakes in a way as
`
`you describe it that it would be held at fault.
`Q. And hazards analysis -- you talk about the warnings.
`
`Hazard analysis, standard hazard analysis says if you -- if
`
`your control is not working and you go out and find out
`
`whether your control is working and it's not working, you have
`
`to fix it if you can, and that the last resort is a warning.
`
`Isn't that standard hazard analysis?
`A. The standard hazard analysis is recognize the hazard,
`
`guard, and warn.
`Q. Properly guard. And if the guard you designed is not
`
`working, you have to redesign it, correct?
`A. That is your interpretation and Mr. Holt's interpretation
`
`of the standard. And as I said, that interpretation came in
`
`after 2000. I don't know in which year. It is not in the
`
`original EN standards or the 2000 printing.
`Q. Do you disagree with me, sir, that the ANSI standards
`
`provide that as part of risk ass

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket