                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0749n.06
                           Filed: August 25, 2005

                                       No. 04-1699

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


MONICA MILLER,

       Plaintiff-Appellant,

v.                                                    On Appeal from the United
                                                      States District Court for the Eastern
INGERSOLL-RAND COMPANY,                               District of Michigan
a New Jersey corporation, and
INGERSOLL-RAND ZIMMERMAN
HANDLING, an entity of unknown origin,

       Defendants-Appellees.
                                            /

BEFORE:       RYAN, MOORE, and COOK, Circuit Judges.

       RYAN, Circuit Judge.        The district court granted summary judgment in favor of

the defendant, Ingersoll-Rand Company, in this diversity based product liability action

alleging defective design, breach of implied warranty, and negligent failure to warn, and the

plaintiff, Monica Miller, now appeals. For the following reasons, we will affirm.

                                                I.

                                             A.

       Miller is a full-time employee at the Visteon Sterling Axle Plant in Sterling Heights,

Michigan. On March 18, 2001, Miller was working in Department 97, an area at the plant

designated for manufacturing and assembling rear axles for Ford Explorer sport utility

vehicles. Miller and a co-employee, Mohamad Sobh, were working together to remove and
(No. 04-1699)                                 -2-

replace defective sensors on a group of “carriers.” A carrier is a heavy portion of the rear

axle where the components of the axle assembly attach to each other. Sobh operated a

hoist which lifted the carriers, flipped them over, and positioned them in what is called a

“dunnage,” a hard plastic container used to hold the carriers. Once the carrier was secure

in the dunnage, Miller was responsible for removing and replacing the defective sensors.

After the repair was made, Sobh would use the hoist to lift the carrier out of the dunnage,

deposit it elsewhere, and repeat the procedure with another carrier. At one point, Sobh

lowered a carrier into position such that it was not resting properly in the dunnage. As

Miller pushed on the carrier to get it to fall into place, the tip of her right middle finger was

“pinched” and severed.

       The facts surrounding Miller’s injury are in dispute. During her deposition, Miller

could not recall exactly where her finger had been pinched. She remembered placing her

hand on the middle of the carrier immediately before the injury occurred, but could not

recall putting her hand near the hoist itself. Miller nevertheless testified that she “just

kn[e]w it was the hoist” that pinched her finger, because, although she did not see the hoist

move, she was not able to remove her finger until Sobh unclamped the jaws of the hoist.

However, Sobh testified that, at the time of Miller’s injury, he was readying another carrier

to be placed into the dunnage, was not operating the hoist, and was unaware that anything

was amiss until he saw Miller running away. Sobh also testified that he did not unclamp

the jaws of the hoist to help Miller remove her finger.

       Miller alleged that the hoist involved in her injury was manufactured by the

defendant, Ingersoll-Rand. At the time of Miller’s injury, there were over 600 hoists in use

at Visteon. Of these, only four were manufactured by Ingersoll-Rand. Using specifications
(No. 04-1699)                               -3-

provided by Visteon, Ingersoll-Rand had manufactured the four hoists for Visteon to be

used as assembly line components to maneuver carriers to and from test fixtures.

       Several deposition witnesses testified that the hoists manufactured by Ingersoll-

Rand had been modified after they were received by Visteon. Kathryn Baker, an Ingersoll-

Rand employee, testified that she worked directly with Visteon regarding the manufacture

of the four hoists in the Sterling Heights plant. Baker noticed during a visit to the plant in

2000 that the “center of gravity” feature, a safety device used to ensure that the hoist and

its load remained balanced, had been disabled. Upon examining photographs of the hoists,

Baker and another Ingersoll-Rand employee, Benjamin Pauzus, testified that the hoists

appeared to have been modified.

       Ingersoll-Rand also submitted evidence in support of its contention that Miller was

not using the hoist according to its intended purpose. A Sterling Plant Investigation Form

indicates that Miller was misusing the hoist. The report notes that Miller was “improperly

operating equipment” and that “employee took unsafe position.” Robert Shore, a former

independent contractor who worked at Visteon, testified that the hoist should not have been

used as a workbench to make repairs to a sensor. Shore testified that, under normal

procedure, the hoist is used to lower the carrier into a fixture, whereupon the jaws of the

hoist are released and only then may repair work begin. Shore also testified that the hoist

in question was designed such that a single operator should not be able to touch the jaws

of the hoist while being used and that a second “person ain’t supposed to be there.”

       To counter this evidence, Miller submitted an affidavit from her proffered expert,

Irving W. Rozian, an engineer, who declared that Miller’s “injury occurred when she was
(No. 04-1699)                                -4-

attempting to position the clamp which was a necessary part of every operation for which

the machine was intended.”

                                              B.

       On October 2, 2002, Miller filed a complaint against Ingersoll-Rand in Macomb

County Circuit Court in Michigan, alleging defective design, breach of implied warranty, and

negligent failure to warn. Thereafter, Ingersoll-Rand removed the case to the United States

District Court for the Eastern District of Michigan. After a period of discovery, Ingersoll-

Rand moved for summary judgment, and later amended its motion. After conducting a

hearing, the district court granted Ingersoll-Rand’s motion in a ruling from the bench. The

court explained that summary judgment was appropriate “particularly because there [was]

no testimony that the machine actually caused any injury.” The court identified other

reasons for granting the motion, noting that the hoist “was sold to . . . a sophisticated user,”

“[t]he machine was not being used for the purpose intended,” the hoist was “altered by the

owner,” and that there was “no evidence of [a] defect.” Miller appealed.

                                              II.

       This court reviews de novo a district court’s decision to grant a motion for summary

judgment. Andersons, Inc. v. Consol, Inc., 348 F.3d 496, 501 (6th Cir. 2003). “When there

is a motion for summary judgment in a diversity case, the provisions of [Federal] Rule [of

Civil Procedure] 56 control its determination. The fact that the Michigan procedure for

summary judgment has different requirements from Rule 56 is immaterial.” Reid v. Sears,

Roebuck & Co., 790 F.2d 453, 459 (6th Cir. 1986) (internal citation omitted). Summary

judgment is appropriate under Rule 56(c) “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there
(No. 04-1699)                                -5-

is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

                                              III.

       We first consider Miller’s claim that the hoist manufactured by Ingersoll-Rand was

defectively designed. In doing so, we need not decide whether the district court erred in

determining that there was no evidence that the hoist caused Miller’s injury. Neither must

we decide whether the district court erred in concluding that Ingersoll-Rand is precluded

from liability due to Miller’s “misuse” of the hoist, Mich. Comp. Laws Ann. § 600.2947(2),

or because Miller’s finger injury was attributable to Visteon’s “alteration” of the hoist, Mich.

Comp. Laws Ann. § 600.2947(1). Rather, we need only address the district court’s

conclusion that Miller failed to present evidence of a design defect because that ruling is

dispositive of Miller’s claim.

       Miller argues that the hoist manufactured by Ingersoll-Rand was defective because

it was designed to carry a part that was heavier than any other part for which an Ingersoll-

Rand hoist had been designed. Miller principally relies on the affidavit of her proffered

expert, Rozian, who opined that: (1) the hoist was not reasonably safe for one or two

users; (2) the hoist should have been equipped with a positive brake; (3) the jaws of the

hoist could not be guided into place without the assistance of a second person; and (4) the

hoist should have been equipped with safety guarding.

       Because jurisdiction in this case is based on diversity of citizenship, the substantive

law of the forum state of Michigan applies. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938). The Michigan Supreme Court has adopted a “pure negligence, risk-utility test” to

determine whether a manufacturer should be held liable for a defectively designed product.
(No. 04-1699)                                -6-

Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 186 (Mich. 1984). Under Michigan tort law, “[a]

manufacturer has a duty to design its product so as to eliminate any unreasonable risk of

foreseeable injury.” Id. To establish that a manufacturer breached its duty to design a

reasonably safe product, a plaintiff must prove that the product was “defective.” Id. at 182.

“[T]he element of defect is established by proofs that the manufacturer failed to do what a

reasonably prudent person would do or did what a reasonably prudent person would not

have done under the circumstances.” Dooms v. Stewart Bolling & Co., 241 N.W.2d 738,

743 (Mich. Ct. App. 1976). Specifically, this entails “a risk-utility balancing test that

considers alternative safer designs and the accompanying risk pared against the risk and

utility of the design chosen.” Gregory v. Cincinnati Inc., 538 N.W.2d 325, 329 (Mich. 1995).

               The competing factors to be weighed under a risk-utility balancing test
       invite the trier of fact to consider the alternatives and risks faced by the
       manufacturer and to determine whether in light of these the manufacturer
       exercised reasonable care in making the design choices it made.

Prentis, 365 N.W.2d at 184. In addition to proving that the manufacturer breached its duty

of care, “a plaintiff must show that the manufacturer’s negligence was the proximate cause

of the plaintiff’s injuries.” Skinner v. Square D Co., 516 N.W.2d 475, 479 (Mich. 1994).

       In Owens v. Allis-Chalmers Corp., 326 N.W.2d 372, 379 (Mich. 1982), the Michigan

Supreme Court explained that a plaintiff’s prima facie case of design defect must include

       data or other factual evidence concerning the magnitude of the risks
       involved, the utility or relative safety of the proposed alternatives, or evidence
       otherwise concerning the “unreasonableness” of risks arising from [the
       allegedly defective design].

       This court has held that Prentis and Owens establish “a test for the prima facie case

in Michigan design defect actions” which requires “proof sufficient for a reasonable jury to

balance the magnitude of the risk versus the feasibility of other design alternatives, or
(No. 04-1699)                                -7-

otherwise to weigh the ‘unreasonableness’ of risks arising from the [design chosen].”

Siminski v. Klein Tools, Inc., 840 F.2d 356, 358 (6th Cir. 1988).

       Having reviewed the pretrial record and the parties’ briefs, we conclude that Miller

failed to establish a prima facie case of a design defect because there is a “lack of evidence

concerning both the magnitude of the risks involved and the reasonableness of the

proposed alternative design[s].”     Owens, 326 N.W.2d at 378-79.           First, there is no

evidence, in Rozian’s affidavit or elsewhere, indicating that the type of injury suffered by

Miller was a likely and foreseeable risk such that the failure to equip the hoist with the

safety devices recommended by Rozian was unreasonable. There was no evidence that

the hoist in question had injured others prior to or after Miller’s injury, or that Visteon

employees had complained about its unsafe operation. Visteon did not find it necessary

to add any safety features to the hoist prior to the accident. There is nothing in the record

to substantiate Rozian’s assertion that the hoist regularly required a second person to

position the jaws by hand. Thus, “[a]lthough from the testimony of plaintiff’s expert one

might infer that . . . [Miller’s injuries] . . . were foreseeable, neither his testimony nor any

other evidence on the record gave any indication how likely such an event might be.” Id.

at 379. Moreover, the mere fact that the hoist was designed to carry a substantially heavier

part, standing alone, gives no indication whether the design of the product was

unreasonably dangerous or likely to cause injury.

       Second, Miller offered no evidence demonstrating that Rozian’s proposed alternative

safety devices would have been effective as a reasonable means of minimizing any

foreseeable risk of danger arising from the hoist’s operation. She offered no evidence as

to whether the proposed alternative designs would have been technically and economically
(No. 04-1699)                               -8-

feasible to Ingersoll-Rand at the time of the incident. For example, there is nothing in

Rozian’s affidavit detailing the costs of adding a positive break and safety guarding, and

there is no indication that the hoist could have been operated effectively and safely with

such safety features attached. Indeed, Visteon’s records indicate that, after Miller’s injury,

Visteon attempted to equip the hoist with protective guarding, but ultimately determined that

“guarding [was] not feasible on the movable hoist ‘ears.’” Thus, the only evidence in the

record indicates that protective guarding was not feasible. Accordingly, because Miller

failed to present sufficient evidence to create a prima facie case of a design defect under

Michigan law, the district court did not err in dismissing her claim.

                                             IV.

       Miller also contends that Ingersoll-Rand is liable under a breach of implied warranty

theory.   “When proceeding under a theory of implied warranty, a design defect is

established by proof that the product is not reasonably safe for the uses intended,

anticipated, or reasonably foreseeable.” Prentis, 365 N.W.2d at 186. Negligent design and

breach of implied warranty are distinct theories of recovery. A claim of negligent design

“generally focuses on the defendant’s conduct, requiring a showing that it was

unreasonable, while warranty generally focuses upon the fitness of the product, irrespective

of the defendant’s conduct.” Id. Nevertheless, “in an action against the manufacturer of

a product based upon an alleged defect in its design, breach of implied warranty and

negligence involve identical evidence and require proof of exactly the same elements.” Id.

(internal quotation marks and citation omitted). “[T]he only time the distinction between

implied warranty and negligence may have any significance in design defect cases, is in
(No. 04-1699)                                 -9-

determining the liability of a seller who is not also the manufacturer of a product.” Id. at

n.30.

        In this case, the failure of Miller’s design defect claim necessarily dooms her implied

warranty claim. Miller, as we have explained, has failed to present sufficient proof that

Ingersoll-Rand breached its duty to design a reasonably safe product. Further, the hoist

in question was manufactured and sold by Ingersoll-Rand, so that, in this instance, the

breach of warranty and design defect claims “involve identical evidence and require proof

of exactly the same elements.” Id. at 186. “Thus, . . . it is inconceivable that a jury could

determine that [Ingersoll-Rand] had not breached its duty of reasonable care and at the

same time find that the product was not reasonably safe for its reasonably foreseeable

uses.” Id. at 186-87. The district court properly granted summary judgment with respect

to Miller’s breach of warranty claim.

                                               V.

        Finally, we turn to Miller’s claim that Ingersoll-Rand is liable for a negligent failure

to warn. Although Miller’s design defect and implied warranty claims were properly

dismissed, a negligent failure to warn “renders the product defective even if the design

chosen does not render the product defective.” Gregory, 538 N.W.2d at 329. A duty to

warn is imposed on a manufacturer if: (1) the manufacturer had actual or constructive

knowledge of the claimed danger; (2) the manufacturer had no reason to believe those for

whose use the product is supplied will realize its dangerous condition; and (3) the

manufacturer failed to exercise reasonable care to inform users of the product’s dangerous

condition or of the facts which make it likely to be dangerous. Glittenberg v. Doughboy

Recreational Indus., 491 N.W.2d 208, 212-13 (Mich. 1992). A manufacturer has “a duty
(No. 04-1699)                                - 10 -

to warn purchasers or users of dangers associated with the intended use or reasonably

foreseeable misuse of their products.” Id. at 211.

       Apparently, the district court dismissed Miller’s failure to warn claim because it

concluded that Ingersoll-Rand had sold the hoist to a “sophisticated user.” Under Michigan

law, “a manufacturer or seller is not liable in a product liability action for failure to provide

an adequate warning if the product is provided for use by a sophisticated user.” Mich.

Comp. Laws Ann. § 600.2947(4). A sophisticated user is “a person or entity that, by virtue

of training, experience, a profession, or legal obligations, is or is generally expected to be

knowledgeable about a product’s properties, including a potential hazard or adverse effect.”

Mich. Comp. Laws Ann. § 600.2945(j).

       On appeal, Miller has virtually abandoned her negligent failure to warn claim. She

summarily argues in her brief that each of the district court’s “rulings was contrary to the

facts and proof submitted,” a statement which implicitly includes a challenge to the district

court’s finding that the hoist was sold to a sophisticated user. In any event, we find it

unnecessary to address the correctness of the district court’s ruling because, even

assuming that Ingersoll-Rand had a duty to warn and failed to do so, Miller has failed to

present any evidence indicating that such negligence was the proximate cause of her

injury. A plaintiff has the burden of proving that the defendant’s failure to warn was the

proximate cause of his injury, a showing which typically is established by proof “that the

plaintiff would have altered his behavior in response to a warning.” Allen v. Owens-Corning

Fiberglas Corp., 571 N.W.2d 530, 535 (Mich. Ct. App. 1997). In Falkner v. John E. Fetzer,

Inc., 317 N.W.2d 337, 339 (Mich. Ct. App. 1982), the court held that a directed verdict

entered in favor of the defendant was proper because the “plaintiffs failed to present any
(No. 04-1699)                             - 11 -

evidence to show that if a proper warning had been given [the injured plaintiff] would have

taken precautions to prevent the injury,” and thus, did not meet their burden to prove

proximate causation. Similarly, Miller presented no evidence in the district court or on

appeal indicating that she would have altered the course of her behavior in response to a

warning. For this reason, Miller’s negligent failure to warn claim was properly dismissed

by the district court.

                                            VI.

       For the foregoing reasons, the district court’s grant of summary judgment in favor

of Ingersoll-Rand is AFFIRMED.
