throbber
Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 1 of 184 PageID #:9087
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`2506
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`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
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`SD3 Exhibit 2013 – Page 1
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`

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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 2 of 184 PageID #:9088
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`2507
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`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
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`SD3 Exhibit 2013 – Page 2
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 3 of 184 PageID #:9089
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`2508
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`(Proceedings heard in open court, jury not present:)
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`THE COURT: Everybody can be seated. Can we bring
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`out the jury, or do we have to discuss anything?
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`MR. CARPINELLO: I don't think we need to discuss
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`anything. We're putting the final touches on our proposed
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`verdict form.
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`THE COURT: Okay.
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`MR. CARPINELLO: Could I have just 60 seconds, Judge?
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`THE COURT: Sure. And we have our own. And we'll
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`just exchange drafts --
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`MR. CARPINELLO: Should I stop?
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`THE COURT: No, no. I solicited it, and I didn't
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`know whether I was going to get one. So, we can exchange
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`drafts and then figure out -- discuss it amongst everybody,
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`and we'll figure out what makes the most sense.
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`Can we get the jury? Yeah, go ahead, Dan.
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`MR. CARPINELLO: This is going to be a little rough.
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`There may be typos, but I'll distribute to your Honor and my
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`adversaries, just to get the concept down as to what we're
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`thinking.
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`THE COURT: Okay. And does it include special
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`interrogatories?
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`MR. CARPINELLO: It -- well, it does. We're
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`specifically asking whether they find whether the saw was
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`unreasonably dangerous. I mean, I don't know whether you
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`SD3 Exhibit 2013 – Page 3
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`

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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 4 of 184 PageID #:9090
`Domeny - cross
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`2509
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`consider that a special interrogatory or not, but --
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`THE COURT: I think it is, but maybe the defendants
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`disagree.
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`MR. McNAMARA: No, no. We'd object to that, Judge.
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`It's covered in the instruction anyway.
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`MR. CARPINELLO: Well, that -- all the more reason to
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`put it in, because it's consistent with the instruction.
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`MR. McNAMARA: No, a special interrogatory is not to
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`cover the same ground that's covered in the jury instruction.
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`A special interrogatory is to ask the jury to consider
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`something -- a specific issue.
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`Bud I'd like -- I haven't seen it, so I'm probably
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`prematurely arguing, and I don't want my adversary to get mad
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`at me, so --
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`THE COURT: Okay.
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`MR. CARPINELLO: Have I gotten mad at you before?
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`MR. McNAMARA: No.
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`(Jury enters courtroom.)
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`THE COURT: Everybody can be seated.
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`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)
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`SD3 Exhibit 2013 – Page 4
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 5 of 184 PageID #:9091
`Domeny - cross
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`2510
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`BY MR. CARPINELLO:
`Q. Mr. Domeny, do you recall when we were going through some
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`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
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`accidents similar to what occurred here?
`A. Similar to what?
`Q. I thought you said in describing some of the cases, that
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`you said the accidents were similar to the injury and the
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`cause of the accident that occurred here?
`A. I believe I said that about the Maloney accident in the
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`sense that it was a crosscutting event. It was a 2-by-4. It
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`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
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`guard was on, that again, it was the user's negligence that
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`caused the injury, correct?
`A. I don't know if it was the user's negligence. It was the
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`user's methodology, how he was using the saw.
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`It was a 2-by-4, by the way. It wasn't a long board
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`which could reach the -- the kickback pawls or the spreader,
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`so in that respect, it was altogether different situation.
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`SD3 Exhibit 2013 – Page 5
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 6 of 184 PageID #:9092
`Domeny - cross
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`2511
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`Q. It was reasonably foreseeable to Ryobi, was it not, that
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`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
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`of the saw would not use the miter gauge, correct?
`A. Well, again, depends on a cut. In rip cutting, you should
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`not use a miter gauge; but if you are talking about
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`crosscutting, yes, it was foreseeable that they would not use
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`a miter gauge.
`Q. And Mr. Stollings' belief that guiding the wood with his
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`hand gave him more control than that miter gauge, whether you
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`agree with it or not, is a common opinion held by many
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`woodworkers, correct?
`A. No, that is not common. I don't believe anybody can have
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`an opinion that it's better to guide it by hand than by a
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`device that is riding in that track. I mean, that is
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`unreasonable.
`Q. But you were aware, were you not, that many users, whether
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`you agree with their methodology or not, did use -- do use
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`their saws with -- freehand rather than with the miter gauge
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`if they're doing a crosscut?
`A. I agree with one provision. You're proposing many users.
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`I would disagree with it. Some users, yes, but I wouldn't
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`characterize it as many.
`Q. Did, to your knowledge, Bosch or Ryobi ever try to
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`SD3 Exhibit 2013 – Page 6
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`

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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 7 of 184 PageID #:9093
`Domeny - cross
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`2512
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`quantify the amount of non-use of the guard of the people who
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`were buying their saws?
`A. No, I don't -- I don't remember any such surveys or
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`research projects like that. I don't.
`Q. You agree, do you not, that Ryobi and Bosch should design
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`their saws to be safe for all foreseeable and -- for all
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`foreseeable uses, correct?
`A. Yes, that is the essential principle in risk assessment,
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`and that's what we striving for.
`Q. And speaking of risk assessment, isn't an essential part
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`of risk assessment to determine whether the control that is
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`adopted by the manufacturer is actually working, is being used
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`by the users?
`A. That would be the part of it. It -- it was not so clearly
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`stated in the papers prior to year 2000; but in modern risk
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`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
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`well as in United States. I think they were published in the
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`year 2000. The early versions don't have that. The recent
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`versions have language addressing evaluation of your guarding
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`systems.
`Q. So, at least from the year 2000 onward -- well, let me ask
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`you this question: Was it a -- was it a -- a component of
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`good engineering practices in the design of products long
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`SD3 Exhibit 2013 – Page 7
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 8 of 184 PageID #:9094
`Domeny - cross
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`2513
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`before 2000 that as part of risk analysis, if there's a hazard
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`that needs to be controlled, that an essential step of the
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`analysis, if you designed a control or a guard, that you have
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`to determine whether there are features of that guard or
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`control that encourage users not to use the guard or control,
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`either because it's difficult to use or because it makes use
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`of the product difficult?
`A. I don't know if I can answer a complex question like that.
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`Can you break it down to elements?
`Q. Okay. I'm sorry that was complex for you.
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`You're familiar with standard hazard analysis,
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`correct?
`A. I don't know which document you're referring to.
`Q. You're familiar with the ANSI standard for hazard
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`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
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`risk reduction guide.
`A. Yes. It is a guide. It is a technical paper. It is not
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`a standard.
`Q. Okay. And the ANSI guide or standard, whatever word you
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`want to use, aside, are you aware of whether that was a
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`cardinal principle of product design long before 2000, that if
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`SD3 Exhibit 2013 – Page 8
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 9 of 184 PageID #:9095
`Domeny - cross
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`2514
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`you have a hazardous product, if you have a hazardous product
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`and you need to guard or control the hazard, you have to
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`determine before you sell your product whether the control or
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`the guard that you put on is designed in such a way as to
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`encourage its use as opposed to discourage its use?
`A. That is an element of the risk assessment, as I said. But
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`also has to be recognized that the people who wrote the
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`standard for guarding system, they go through the risk
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`assessment, and they go through these evaluations with the
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`guarding system that is required by the standard, whether that
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`guarding system is going to be acceptable to the user.
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`So, those elements of the risk assessment, as I said
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`yesterday, are built in into the standards already because
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`that's the part of the STP group and the experts who are
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`writing the standards in the first place.
`Q. That's what I thought you said yesterday, and I wanted to
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`clarify it. It's your testimony that if a table saw
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`manufacturer knows that a large number of people are getting
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`injured on their saws because they're not using the guard and
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`they know why they're not using the guard and they know how to
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`change it, that they don't need to go through that analysis
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`because they can rely on the UL standard because they're the
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`experts?
`A. The UL standard is written by the group, the community of
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`experts, yes. And a product is safe for consumers to use if
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`SD3 Exhibit 2013 – Page 9
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 10 of 184 PageID #:9096
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`2515
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`it meets the UL standard and it is certified saw.
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`So, yes, it is an acceptable procedure to design a
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`product to the UL standard. And whether you do additional
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`work or not, it's not entirely mandated.
`Q. So, you and Mr. Peot and Mr. Gogoll of Black & Decker and
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`Mr. Rodrigues of Makita all know at that meeting in November
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`2001 that that guard standard, that design needs to be
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`changed. Your position is that, "As long as that standard's
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`in place, I don't need to worry as a manufacturer about
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`getting saws on the market as soon as possible to change that
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`guard"?
`A. What I am saying to the jury that a manufacturer such as
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`Ryobi who has one and only one customer, and that is the Home
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`Depot, and that customer demands UL certification, that
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`manufacturer cannot design a product that would not meet UL
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`certification.
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`And the UL certification on the issue of
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`incorporating the riving knife was not -- consensus has not
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`been reached until December 9th, 2004.
`Q. And you heard Mr. Stimitz say, did you not, that there was
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`absolutely no reason why you or Mr. Peot or all of you
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`together couldn't have gone to the CPSC -- I'm sorry, to UL in
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`1998 or 1988, for that matter, and said, "We should change
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`that guard." There was nothing stopping you, was there?
`A. There was nothing stopping us from technical -- technology
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`SD3 Exhibit 2013 – Page 10
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 11 of 184 PageID #:9097
`Domeny - cross
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`2516
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`point of view. The materials, the plastics for a guard, the
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`steel, and the manufacturing technology was available.
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`There was no knowledge in the community of the
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`manufacturers in '80s, as you implied, neither in the
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`community of the UL engineers, to raise a flag that such a
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`drastic redesign is necessary.
`Q. I thought you testified yesterday that you became aware of
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`the benefits and the need for a riving knife in the 1980s.
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`Didn't you testify to that?
`A. No, I don't think I said that. I said I done that in --
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`in 1990s, mid half and second half. It wasn't the riving
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`knife that I was advocating, but the rise-and-fall spreader on
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`the Bosch 4000.
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`So, no, as far as the riving knife, that's not true.
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`The riving knife came into the picture as of 1999, 2001, in
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`that time frame.
`Q. So, until November 2000 -- or 1999, 2001, you were not
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`aware that people were not using the three-in-one guard; is
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`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
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`to that that people were not using the three-in-one guard?
`A. I believe I testified this morning that there are some
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`people who were not using the three-in-one guarding system. I
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`said that this morning.
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`SD3 Exhibit 2013 – Page 11
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 12 of 184 PageID #:9098
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`2517
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`Q. And you didn't know how many because you and Ryobi never
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`went out as part of your hazard analysis to find out whether
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`the control or guard that this -- that the guide says you
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`should examine, you never went out to see whether it was
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`actually fulfilling the function, did you?
`A. As I said earlier, in 1990s, the whole PTI community at
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`large, the whole group on average was aware of 60, 70
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`accidents.
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`And from my perspective, the Skil was relatively
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`minor player. We didn't have more than 10 percent of the
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`market share. So, with small population of Skil saws on the
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`market, I wasn't aware of it, so of course I didn't do
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`anything drastic because there was no red flag that there was
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`something wrong.
`Q. Well, what was the red flag? Tell me what the red flag
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`was. When was the red flag launched so that everybody knew
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`there was a problem?
`A. I know you're going to repeat "red flag" for the rest of
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`the afternoon.
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`The issue here is we have heard from CPSC in 1998,
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`1999 that there are number of accidents, and the CPSC would
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`desire to change the guarding requirements.
`Q. So, the red flag was the CPSC numbers that you denigrated
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`for 20 minutes on your direct testimony, is that right? The
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`NEISS data that you said was completely unrealistic, because
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`SD3 Exhibit 2013 – Page 12
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 13 of 184 PageID #:9099
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`they said 30,000, and we said what, over 10 years, 700. So,
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`those numbers were garbage, right?
`A. I didn't say that those numbers are garbage. It is hard
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`to reconcile for a manufacturer a situation when you are aware
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`of 60, 70 accidents, and the CPSC, according to Dr. Gass, says
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`50,000. So, the ratio between 60 to 50,000 is almost thousand
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`to one. So, that implies that out of thousand people who get
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`injured, only one lets you know? That doesn't sound
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`reasonable.
`Q. Well, I'm trying to figure out, sir, was it a red flag or
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`wasn't it? Because this morning, you said the NEISS data is
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`unreliable. And now I'm saying -- because I asked you, didn't
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`you know in the '90s? And you said no, the red flag hadn't
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`gone up yet. So, I'm saying what's the red flag? And now
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`you're telling me the red flag was the NEISS data.
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`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.
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`The -- okay. Now I lost it. Sorry. Could you
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`repeat that?
`Q. Yes. Was the NEISS data the red flag?
`A. NEISS data was a information that the power tool industry
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`SD3 Exhibit 2013 – Page 13
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 14 of 184 PageID #:9100
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`was -- table saw industry was not aware of the magnitude of
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`the guard non-usage, okay, and the number of injuries of --
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`forget the guard non-usage. We were not aware of the number
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`of injuries that according to the CPSC is happening in this
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`country.
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`The issue as far as is it a red flag or not, every
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`manufacturer is concerned with any accident because accidents
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`are not the best PR propaganda for you. It's not the best PR
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`relation for you. Accidents happen, and you don't like to see
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`that. When accidents happen, it usually costs money for a
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`company, so even one or two accident is something that is not
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`desirable.
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`You know, so, the issue is: Can the system be
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`changed, and what can be done? Does it have -- does it
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`require a total rewrite of the standards or not?
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`And that information did not become available until
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`the CPSC brought that information to our attention.
`Q. Well, in fact, the information was available to you, if
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`you even asked, a decade earlier, wasn't it? The CPSC had
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`data about the number of injuries on table saws as being over
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`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
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`you know that?
`A. No.
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`SD3 Exhibit 2013 – Page 14
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`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 15 of 184 PageID #:9101
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`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
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`didn't use the word "red flag," but you heard him testify that
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`this was -- when he heard this -- when he heard these
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`numbers -- when he heard these numbers, he was surprised,
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`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
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`in 1990, he would have gotten the numbers, right? You want to
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`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?
`
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`SD3 Exhibit 2013 – Page 15
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`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 16 of 184 PageID #:9102
`Domeny - cross
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`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.
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`He's arguing with the witness over this.
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`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,
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`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
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`standard require three elements of the guarding system to be
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`SD3 Exhibit 2013 – Page 16
`
`

`
`Case: 1:08-cv-04006 Document #: 395 Filed: 11/16/12 Page 17 of 184 PageID #:9103
`Domeny - cross
`
`2522
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`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
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`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
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`SD3 Exhibit 2013 – 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
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`design.
`
`The fact is that when you look into these accidents
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`that you've been made aware of and you look at them and you
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`study them and you find that the root cause of the accident is
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`not the design of the product but a particular behavior and
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`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
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`SD3 Exhibit 2013 – 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
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`SD3 Exhibit 2013 – 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
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`SD3 Exhibit 2013 – 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
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`SD3 Exhibit 2013 – 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.
`
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`SD3 Exhibit 2013 – 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?
`
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`SD3 Exhibit 2013 – 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

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