            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 14a0173n.06

                                         No. 13-1417                                    FILED
                                                                                  Mar 03, 2014
                       UNITED STATES COURT OF APPEALS                         DEBORAH S. HUNT, Clerk
                            FOR THE SIXTH CIRCUIT


SANDRA D. PAUL, Personal Representative             )   ON APPEAL FROM THE UNITED
of the Estate of Jay Curtis Paul, Deceased,         )   STATES DISTRICT COURT FOR
                                                    )   THE EASTERN DISTRICT OF
       Plaintiff-Appellant,                         )   MICHIGAN
                                                    )
v.                                                  )
                                                    )
HENRI-LINÉ MACHINE TOOLS, INC.,                     )
                                                    )
       Defendant-Appellee.                          )


Before: BOGGS, NORRIS, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. In this tragic workplace-death case,

Sandra Paul, personal representative of her husband’s estate, appeals the district court’s grant

of summary judgment to Defendant Henri-Liné Machine Tools (HLMT), the manufacturer

and seller of the milling machine her husband was operating when he was mortally injured.

For the reasons stated below, we AFFIRM.

                                               I.

       In February 1999, Lincoln Park Boring, a machining company in Michigan,

contracted HLMT to design, manufacture, and install a custom overhead-gantry milling

machine at a cost of $ 2.5 million. HLMT installed the machine at Lincoln Park Boring in

2001 and trained Lincoln Park Boring’s head machine-tool operator, Frank Shafer, to operate

it. Plaintiff’s decedent, Jay Paul (Paul), began employment at Lincoln Park Boring in 2002

                                               1
and Shafer trained him to operate the machine. Paul was Lincoln Park Boring’s lead

machinist and the day-shift operator of the Henri-Liné machine. Paul had twenty years of

machining experience when this accident occurred on July 30, 2008. Additional pertinent

background is taken from the district court’s order granting summary judgment:

       The overhead gantry milling machine is a large, complex machine with
       computerized numeric controls [CNC] that is designed to cut metal . . . .

                The work area of the machine is a flat, rectangular bed that is
       approximately 50 feet long and 15 feet wide and level with the floor of the
       shop. The work piece remains at rest on the bed of the machine while the
       cutting tool of the machine travels around the stationary piece. An overhead
       gantry milling machine is characterized by a large, metal cross-rail that is
       attached to two vertical columns, which are located on either side of the
       machine bed. This entire assembly (“the gantry”) travels as a unit up and
       down the length of the work area (“the x-axis”). Attached to the crossrail is
       a vertical spindle which houses the cutting tool. This spindle travels back
       and forth along the crossrail, allowing access to the entire width of the bed
       of the machine (“the y-axis”). The spindle also raises and lowers the cutting
       head vertically to different heights above the platform bed (“the z-axis”).
       Thus, through the movement of the gantry and the spindle, the cutting head
       is able to travel in all three dimensions and access any area on or above the
       bed of the machine.

               This machine is used by Lincoln Park Boring to create one-of-a-kind
       machine parts. Every part is a different size and shape and some of them fill
       the entire work space or even extend off the bed. The part that was being
       utilized [sic] at the time of the accident was 14.5 wide by 50 feet long. . . .
       The flexibility to machine different sizes and shapes of metal is a key
       attribute of the overhead gantry milling machine.

              The machine’s operation is controlled from a platform that is
       permanently attached to the gantry in order to provide [the operator] a close
       view of the spindle and the cutting process. Once the machine is
       programmed and the program is started, the machine continues to operate
       even if the operator leaves the control station on the operator’s platform.
       There is no guard or other barrier to prevent the operator from entering the
       work area during its operation.




                                             2
                This particular machine is frequently operated on a twenty-four hour
       basis. Operators often must exit the platform during operation in order to
       perform such tasks as preparing tools, cleaning the floor, preparing materials
       for the next part, removing metal chips created by the cutting tool, inspecting
       the work piece, verifying that the machine is cutting correctly, or applying
       lubricant to the cut. An air hose with an attachment approximately eighteen
       inches long permitted operators to maintain some distance between
       themselves and the cutting tool when blowing metal chips away from the
       point of the cut.
       ....
                In this case, there were no known witnesses to the accident, and its
       cause is unknown. It was determined that the machine was in automatic
       mode when Jay Curtis Paul left the platform and entered [the] work area.
       The parties have speculated that he may have been blowing metal chips off
       of the work piece at the time of the accident. Apparently, while he was on
       the bed of the machine near the work piece, the cutting tool traveled directly
       over his head and then, in order to continue its programmed cuts, descended,
       cutting into his shoulder. It is not clear why he permitted the cutting tool to
       get so close to him. This particular machine moves at a maximum speed of
       approximately one-half mile per hour, which is considered low-speed. The
       average person walks more than five times faster than the machine’s highest
       speed. Aside from being slow, the machine is also quite visible and noisy
       when it is moving. [The President of Lincoln Park Boring, Richard] Yesue
       testified that (1) Jay Curtis Paul knew that one should never allow himself to
       come between the cutter and the work piece and (2) nobody was able to
       deduce an explanation for the accident that made sense to him. The Plaintiff
       speculates that her husband may have thought that he had programmed a
       pause in the code that would stop the cutting tool at the point directly above
       him.

               On July 30, 2008, the accident was investigated by the Michigan
       Occupational Safety & Health Administration (“MIOSHA”). After its
       investigation, MIOSHA declined to issue a citation to Lincoln Park Boring.
       Although the MIOSHA report indicated that the machine was adequately
       guarded, it also appeared to indicate that the operator should not be able to
       physically interpose himself between the cutting head and the work piece.
       The report did not make any recommendations regarding additional guards
       to place on the machine.

Paul v. Henri-Line Machine Tools, Inc., 938 F. Supp. 2d 691, 694–95 (E.D. Mich. 2013).




                                             3
         In March 2010, Plaintiff filed this action alleging negligence (defective design and

failure to warn and instruct), gross-negligence, and breach-of-warranty claims. HLMT

moved for summary judgment in December 2011. The district court granted HLMT’s

motion in March 2013. Plaintiff timely appealed.

                                               II.

         We review de novo the district court’s grant of summary judgment, determining

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Newell

Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 526 (6th Cir. 2013) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)). Michigan law governs substantive

issues in this diversity suit. See Swix v. Daisy Mfg. Co., Inc., 373 F.3d 678, 681 (6th Cir.

2004).

                            A. DEFECTIVE DESIGN CLAIM

Risk-Utility Balancing Test

         To prove a design defect under Michigan law, a plaintiff must show that the
         product was “not reasonably safe for its foreseeable uses” and that a
         “risk-utility analysis” favored a safer design. Under this approach, a plaintiff
         must show that (1) the product was not reasonably safe when it left the
         control of the manufacturer; and (2) a “feasible alternative production
         practice was available that would have prevented the harm without
         significantly impairing the usefulness or desirability of the product to users.”
         MCL 600.2946(2); see also Gregory [v. Cincinnati Inc., 450 Mich. 1], 11,
         538 N.W.2d at 329 [(1995)]. Plaintiffs may use both direct and
         circumstantial evidence to prove a design defect claim.

Croskey v. BMW of N. Am., Inc., 532 F.3d 511, 515–16 (6th Cir. 2008) (applying Michigan

law). Under Michigan law, whether an alleged design defect is actionable in negligence is

decided under a risk-utility balancing test. See Prentis v. Yale Mfg. Co., 365 N.W.2d 176,

                                                4
185–86 (Mich. 1984) (adopting “a pure negligence, risk-utility test in products liability

actions against manufacturers of products, where liability is predicated upon defective

design.”). A plaintiff establishes a prima facie case of design defect under this balancing

test by demonstrating:

        1) that the severity of the injury was foreseeable by the manufacturer; 2) that
        the likelihood of occurrence of [his] injury was foreseeable by the
        manufacturer at the time of distribution of the product; 3) that there was a
        reasonable alternative design available; 4) that the available alternative
        design was practicable; 5) that the available and practicable reasonable
        alternative design would have reduced the foreseeable risk of harm posed by
        the product; and 6) that omission of the available and practicable reasonable
        alternative design rendered defendant’s product not reasonably safe.

Peck v. Bridgeport Machs., Inc., 237 F.3d 614, 617–18 (6th Cir. 2001) (applying Michigan

law); see also Cacevic v. Simplimatic Eng’g Co., 645 N.W.2d 287, 293 (Mich. Ct. App.

2001). The prima facie case requires “proof sufficient for a reasonable jury to balance the

magnitude of the risk versus the feasibility of other design alternatives, or otherwise to

weigh the unreasonableness of risks arising from the design chosen.” Miller v. Ingersoll-

Rand Co., 148 F. App’x 420, 423 (6th Cir. 2005) (applying Michigan law) (internal

quotation marks and citations omitted).

                                               1.

        Because the district court granted summary judgment on the basis that Plaintiff failed

to establish the second element of the risk-utility balancing test, that is the only issue before

us.

        The district court concluded that Plaintiff presented insufficient evidence to establish

that the likelihood of occurrence of the injury was foreseeable to HLMT at the time it

manufactured the custom overhead-gantry milling machine for Lincoln Park Boring, citing

                                               5
Plaintiff’s experts’ testimony that they were unable to quantify the probability of a similar

accident occurring and Plaintiff’s failure to produce either statistical evidence to demonstrate

the likelihood of an injury, or evidence of similar prior accidents, or evidence that overhead-

gantry milling machines were widely known to cause serious injuries:

       Paul has demonstrated [the first element of the risk-utility balancing test:]
       that an operator injury was foreseeable to Henri-Liné Tools. Evidence was
       produced that an operator must regularly enter the work area while the
       machine is in use. An employee for Henri-Liné Tools testified that at the
       time the Lincoln Boring machine was designed, the Company considered
       implementing safety measures for operators who must venture onto the
       machine bed but it deemed the addition of barriers to be impractical. Paul’s
       experts testified that the need for operator’s [sic] to enter the work area
       created the possibility of injury. Thus, she has produced sufficient factual
       evidence to indicate that the possibility of injury was foreseeable.

                However, she has not produced any statistical evidence to
       demonstrate the [second element—] likelihood of an injury resulting from
       use of the machine. The fact that a machine is dangerous per se is an
       insufficient basis to demonstrate the likelihood of an injury. Gregory v.
       Cincinnati Inc., No. 198382, 1999 WL 33453911 (Mich. Ct. App. Feb. 23,
       1999) (“[E]vidence showing merely that there was a risk of harm is
       insufficient to meet the plaintiff’s burden to show what the risk of harm was
       (e.g., how frequently such incidents occurred, the extent to which the risk can
       be mitigated by adequate training).”) The evidence indicates that this is the
       first serious injury involving an overhead gantry milling machine. Between
       1985 and 2006, Henri-Liné Tool[s] sold more than forty overhead gantry
       milling machines. There has never been a reported incident of a person
       suffering an injury while using one of these machines. Moreover, there are
       no reported incidents involving any overhead gantry milling machine,
       regardless of the manufacturer. Neither party is aware of any serious injuries
       or death caused by an overhead gantry milling machine, and Paul’s experts
       testified that they were not able to quantify the probability of a similar
       accident occurring. On the other hand, Henri-Liné Tools’ expert witness,
       Jack Auflick, testified that the likelihood of this accident occurring was
       minuscule.

               Paul is also unable to produce evidence of similar prior accidents
       involving an overhead gantry milling machine. Such prior accidents must be
       “substantially similar” to the accident at issue. Croskey [v. BMW of N. Am.,
       Inc., 532 F.3d 511,] 518 [(6th Cir. 2008)]. “Substantial similarity means that

                                               6
       the accidents must have occurred under similar circumstances or share the
       same cause.” Id.; see also Anderson v. Whittaker Corp., 894 F.2d 804, 813
       (6th Cir. 1990) (substantial similarity existed where incidents involved same
       model boat, same hull design, same defect, and similar circumstances of
       water intake); Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500 (6th Cir.
       1998) (upholding decision to exclude data related to larger all-terrain
       vehicles in motorbike products liability case). “The plaintiff has the burden
       of showing the substantial similarity between prior accidents and his own.”
       Croskey, 532 F.3d at 518.

               Paul’s expert witness, John Lauhoff, conducted a review of workplace
       accidents, in which he categorized as “similar” any incident that involved a
       rotating shaft, a failure to lockout [sic], or a failure to guard. (Lauhoff Dep.
       127). As a result, he reported incidents which involved a wide variety of
       machine tools, ranging from forklifts and saws to scaffolding. Id. Injuries
       caused by such disparate tools are not relevant to the likelihood of injury
       caused by an overhead gantry milling machine. While accidents involving
       horizontal milling machines come closer to the mark, Paul has not
       established that the interaction between the operator and a horizontal milling
       machine is sufficiently similar to that of an overhead gantry milling machine.

Paul, 938 F. Supp. 2d at 699–700.

                                             2.

       Plaintiff argues that, contrary to Michigan law, the district court “accepted as

conclusive” the evidence that there were no reports of other serious injuries or death

involving overhead gantry milling machines. Plaintiff is correct that Michigan courts have

long held that negative evidence, i.e., evidence regarding the absence of accidents, is

inadmissible to show an absence of negligence. See Grubaugh v. City of St. Johns, 266

N.W.2d 791, 794 (Mich. Ct. App. 1978) (“[I]t has long been established in Michigan that

evidence of the absence of previous accidents should not be admitted to prove absence of

negligence.”). Here, however, the absence of prior injury or death involving overhead-

gantry milling machines was offered not to show the absence of negligence but to address

the question of the likelihood of occurrence of injury resulting from use of HLMT’s

                                              7
machine; this is proper evidence when performing the risk-utility balancing analysis in a

design-defect product-liability claim. See e.g., Przeradski v. Rexnord, Inc., 326 N.W.2d 541,

544 (Mich. Ct. App. 1982) (holding in a products-liability action that “[t]he admissibility of

the claim-free history of plaintiff’s Model 65 cement mixer may have had a tendency to

make the existence of a design defect less probable than it would be without such evidence,”

and that thus the trial court did not err in allowing the testimony).

       Also without merit is Plaintiff’s contention that the district court accepted

“Defendant’s argument that the only way to analyze ‘likelihood of injury’ from a product

under Michigan’s risk-utility test is to count the number of accidents.” Appellant Br. at 37.

Plaintiff is correct that in Reeves v. Cincinnati, Inc., 439 N.W.2d 326, 339 (Mich. Ct. App.

1989), the Michigan Court of Appeals held that a plaintiff’s failure to present statistical

evidence of accidents does not doom a prima facie case where there is testimony that the

product is in general unsafe and that an alternative design would have prevented the

plaintiff’s accident. Appellant Br. at 37-38. But in Reeves, unlike the instant case, the

plaintiffs’ expert presented evidence that power presses in general were prone to the type

of malfunction that caused the plaintiff’s injury. 439 N.W.2d at 330. The district court in

the instant case cited Reeves and observed that Paul produced no testimony to “indicate that

these machines were widely known to cause serious injuries.” PageID 12750. Plaintiff’s

argument thus fails; the district court did not conclude that the only way to analyze

likelihood of injury was to count accidents.




                                               8
                                             3.

       Plaintiff also asserts that the district court overlooked expert Lauhoff’s matrix-based

risk analysis which, according to Plaintiff, constituted substantial admissible evidence

supporting the proposition that the likelihood of injury from HLMT’s machine is high.

       Plaintiff’s experts, John Lauhoff and Roberta Shea, testified on deposition that they

knew of no serious injury or death involving an Henri-Liné machine or any overhead-gantry

milling machine. PageID 220-23, 228-29, 233-34. Lauhoff’s methodology was to search

Occupational Safety and Health Administration (OSHA) and National Institute for

Occupational safety and Health (NIOSH) databases. Plaintiff explains that:

       Mr. Lauhoff selected incidents involving industrial machinery in the NIOSH
       and OSHA databases that implicated the same hazards as are present on
       Defendant’s machine. These are hazard categories of unguarded rotating
       shafts and unguarded energy sources (failure to lock-out). These are the data
       categories in the government accident databases for industrial machine tool
       incidents that specify the hazards from coming into contact with a rotating
       cutter head. These are the categories of incident reports that Mr. Lauhoff
       searched for and included in his list of similar incidents.
       ....
       Mr. Lauhoff’s expert report identifies 17,455 OSHA inspections of machine
       tools for the period January 1, 1999 to January 1, 2001. During this period
       there were 99 fatalities, 220 injuries and 6,361 guarding deficiencies
       reported. These numbers equate to 36.4% of the inspections that identified
       guarding or lockout issues that if not corrected could result in an injury or
       death, 3.3% of the inspections that identified guarding or lockout issues that
       resulted in an injury, and .015% of the inspections that [] identified guarding
       or lockout issues that resulted in a fatality.

Appellant Br. at 45, 49-50.

       Of the thousands of OSHA inspection reports Lauhoff identified as pertinent to this

incident, none involved overhead-gantry milling machines, one involved a fatality of an

operator of a CNC vertical milling machine, one involved a fatality of an operator of a


                                             9
horizontal milling machine, and one involved a fatality of a maintenance machinist trainee

entangled in a revolving shaft of a vertical boring mill. PageID 2283, 2284, 2286, 8484.

Lauhoff’s report does not state whether these machines were multi-axis versus single-axis,

or high-speed versus low-speed. When asked on deposition how many of the incident

reports involved multi-axis versus single axis machines, Lauhoff responded that he did not

know. When asked how many were high-speed versus low-speed machines, he answered

that he did not know. PageID 8481-82. When asked whether he knew the probability of an

accident such as Paul’s happening, Lauhoff responded, “no.” PageID 8490. When asked

“[H]ave you determined the probability of such an accident on an overhead gantry milling

machine similar to this with the same safety measures that exist on this machine?” Lauhoff

responded, “No, I haven’t.” PageID 219. Plaintiff’s expert Roberta Shea similarly testified

that she did not make any determination regarding the likelihood of occurrence of an injury.

PageID 244-45.

                                             4.

       After Lauhoff and Shea were deposed and various motions in limine were filed,

Lauhoff prepared an addendum to his report “to demonstrate an objective method of

determining risk assessment in an industrial environment,” referencing ANSI B-11.TR3-

2000, a document titled: Risk Assessment and Risk Reduction-A Guide to Estimate,

Evaluate and Reduce Risks Associated with Machine Tools. Lauhoff’s addendum presented

several methods of evaluating the severity of harm and probability of occurrence of harm,

and concluded:




                                            10
      Conclusion

      When performing a risk assessment one must look at the hazards that are
      presented for various operations of the equipment for which the risk
      assessment is being conducted. To do this properly it is not sufficient to look
      at the machine in whole. Each task must be studied separately. To say an
      injury has never occurred on a particular machine is misleading as the
      machine could present many different hazards, with each hazard having an
      abundant history of injuries and fatalities. Two examples of such hazards are
      pinch points and rotating shafts. It is uncontested that being caught in a
      pinch point area or entangled in a rotating shaft can result in a very serious
      injury, or death.

      In my risk assessments I considered two major factors:

      Severity of harm: This addresses the degree of injury that could occur.
      Probability of occurrence of harm: This is estimated by taking into
      account the frequency, duration and extent of exposure, training and
      awareness, hazard presentation and human factors.

      Human factors include but are not limited to:
      Errors resulting from omitting steps, adding steps or performing steps out of
      sequence.
      Effects of accumulated exposure (e.g., repetitive operation, noise, chemical
      exposure)
      Risk assessment is not performed simply by estimating the likelihood that a
      particular error event will occur. Probability of occurrence is only one factor
      used to assess risk. The probability of a mishap must be balanced against
      severity of the consequences. Mathematical calculations of the probability
      of occurrence are not reliable because they are based on assumptions of
      unknowns. Instead, the probability of a mishap is judged on a simple scale
      such as whether the exposure is frequent, likely, possible, rare or unlikely.
      The risk assessments detailed in this report are standard techniques and
      procedures commonly used by industrial safety professionals to assess risk.
      Taking into consideration the severity of the harm and the probability of
      occurrence of harm, my opinion is that the risk from the Henri Line machine
      is at the critical or high level for each of the risk assessment methods detailed
      above. In my opinion the hazards from this machine are critical and require
      immediate, positive action to decrease the risk of harm to people exposed to
      the machine.

PageID 548-55.




                                             11
       Notwithstanding that Lauhoff’s addendum itself states that the probability of

occurrence of harm is estimated by taking into account the frequency, duration and extent

of exposure, training and awareness, and the presentation of the hazard, Lauhoff did not

determine or calculate how often operators of the overhead gantry are exposed to the cutting

tool, PageID 8432, Lauhoff dep. at 115, and his reports make no mention of the extent of

operator training, PageID 8441, Lauhoff dep. at 152-53, or that the presentation of the

hazard, the cutting tool, was obvious and slow moving. PageID 8439, 8440, Lauhoff dep.

at 144, 148; PageID 8376, Shea dep. at 100. Nor did Lauhoff’s reports mention that at the

time of the accident the cutting tool was running as Paul had programmed it to. Thus, even

if Plaintiff is correct that the risk-evaluation matrix is one of several acceptable methods to

satisfy the second element of Michigan’s risk-utility balancing test, Lauhoff’s analysis is

incomplete and thus flawed in light of these deficits.

                                               5.

       Plaintiff’s last argument relative to her defective-design claim is that the district court

should have excluded as inadmissible the opinion on probability of HLMT’s Human Factors

expert because he is unqualified to make any such calculation and employed unreliable

methods. Plaintiff cites no authority supporting that Human Reliability Analysis is not

generally accepted and used to determine the probability of an incident in several contexts.

And, it was Plaintiff’s burden to show the likelihood of occurrence of the type of accident

precipitating the need for a safety device. Reeves, 439 N.W.2d at 329. Even if the district

court abused its discretion in admitting Auflick’s opinion that the likelihood of a similar




                                              12
accident occurring was miniscule, Plaintiff still would have failed to present sufficient

evidence to establish a prima facie case of design defect.

        The district court properly granted summary judgment on Plaintiff’s design-defect

claim for failure to establish a prima facie case. See Reeves, 439 N.W.2d at 329; Cacevic,

645 N.W.2d at 293.

                           B. FAILURE TO WARN CLAIM

        Plaintiff also argues that the district court improperly dismissed her claim that

HLMT failed to warn that its machine was defectively designed and failed to conform to

industry standards for guarding and safety assessment. Plaintiff asserts that the defect “is

the absence of appropriate safeguarding devices, and the failure of [HLMT] to either assess

the risk of its design or to inform its users that it had not performed the risk analysis.”

Appellant Br. at 55.

       A negligent failure to warn renders a product defective even if the design
       chosen does not render the product defective. Gregory v. Cincinnati Inc.,
       450 Mich. 1, 11, 538 N.W.2d 325, 329 (1995). To establish a prima facie
       case of failure to warn, a plaintiff must prove: (1) the defendant owed a duty
       to the plaintiff; (2) the defendant breached that duty; (3) the defendant’s
       breach was a proximate cause of the plaintiff’s injuries; and (4) the plaintiff
       suffered damages. Id. A manufacturer has a duty to warn if it has actual or
       constructive knowledge of a danger, which is not obvious to users, and the
       manufacturer failed to use reasonable care in informing users of the danger
       or the facts tending to make the condition dangerous. See also MCL
       600.2948(2) (statute provides in pertinent part that “[a] defendant is not liable
       for failure to warn of a material risk that is or should be obvious to a
       reasonably prudent product user or a material risk that is or should be a
       matter of common knowledge to persons in the same or similar position as
       the person upon whose injury or death the claim is based in a product liability
       action.”)

Croskey, 532 F.3d at 516 n.2.




                                              13
       Under Mich. Comp. Laws § 600.2947(4), “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.” 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. An employee who
       does not have actual knowledge of the product’s potential hazard or adverse
       effect that caused the injury is not a sophisticated user.

Mich. Comp. Laws § 600.2945(j).

                                              1.

       Plaintiff’s contention that HLMT failed to perform a risk assessment and failed to

warn that it failed to perform a risk assessment of the overhead gantry is belied by the

record. See PageID 11115-16, Jette dep. R. 86-2; PageID 11103-05, Def.’s Reply Br. in

support of Mo. in Limine; PageID 12741-42. Louis Jetté, who oversaw the design and

manufacture of HLMT’s machine, testified that HLMT evaluated potentially installing

fences or protective panels, but those were not feasible because Lincoln Park Boring did not

know exactly what parts it was going to make. PageID 11115. HLMT also evaluated

whether there was some way of keeping the operator on the operator’s platform, i.e., away

from the machine bed, while the machine was operating. Jetté testified that operators “are

not only operating the machine, they have all kinds of other duties to do, like preparing tools,

cleaning the floor, preparing materials for the next part, so they have to walk away from the

platform.” Testimony of employees of Lincoln Boring is in accord. Jetté added that when

the machine is in automatic cycle, operators leave to go to the restroom, take breaks . . . “so

it was not practical to keep the operator on the platform.” PageID 11116. Jetté testified that


                                              14
HLMT’s training of the machine operators guarded against hazards that exist when the

operator is on the machine bed. PageID 11121. In addition, Plaintiff’s expert Lauhoff

acknowledged on deposition that many overhead-gantry milling machines on the market in

2000 and 2001 had no guarding. PageID 8411.

                                            2.

       In any event, the record is clear that Lincoln Park Boring hired only highly

experienced machine operators. Before working for Lincoln Park Boring, Paul had years of

experience operating large milling machines and Computerized Numeric Control (CNC)

machines, including those with Fanuc controllers like HLMT’s machine. PageID 319.

Lincoln Park Boring’s head machine-tool operator, Frank Shafer, trained Paul in operating

HLMT’s machine for five to ten days, after which Paul operated it for six years, without

incident.

       Plaintiff’s experts did not dispute that Paul and Lincoln Park Boring were aware of

the potential for serious injury or death if the machine operator came in contact with the

machine tool.1 Nor did they dispute that the average person seeing the machine would

understand that coming into contact with the tool would cause harm. See Green v. AP



       1
        The machine’s maintenance manual, which Paul read as part of training,
        stated:
             All persons assigned to work on the Promill 252 LS 4=2 must
             read and understand the relevant sections, and in particular the
             references to safety and hazards, before carrying out any work
             on or with the machine.
             ....
             Even when used strictly according to instructions, when
             working on or with the spindle inherent danger to life and limb
             of the user . . . still exists. [PageID 397, 399.]

                                           15
Prods., 717 N.W.2d 855, 861–62 (Mich. 2006) (Mich. Comp. Laws § 600.2948(2) does not

require that a warning address possible injuries that might occur where the facts of record

require the conclusion that the risk of serious harm from the asserted condition is open and

obvious.); PageID 11105-06.

         Because no genuine issue of fact remained whether Lincoln Park Boring and Paul

were sophisticated users, the district court properly dismissed Plaintiff’s failure-to-warn

claim.

                        C. BREACH OF IMPLIED WARRANTY

         Where the defendant in a design-defect suit is both the seller and manufacturer, as

in the instant case, claims of negligence and breach of warranty are for all intents and

purposes identical. Hollister v. Dayton Hudson Corp., 201 F.3d 731, 736 (6th Cir. 2000)

(applying Michigan law). This is because

         a plaintiff alleging breach of implied warranty on the part of a seller must
         show that the purchased product was defective. That showing, in turn,
         requires proof that the product’s manufacturer acted negligently, typically by
         omitting a safety feature or in failing to give warning of a latent danger. A
         suit for breach of implied warranty against a seller who is also the
         manufacturer will therefore require the same showing of negligence on the
         defendant’s part as an ordinary products liability suit against a manufacturer.

Id. at 737 (citing Prentis, 365 N.W.2d at 186).

         Plaintiff’s response to HLMT’s motion for summary judgment argued only that

“[i]mplied warranty claims do not require the plaintiff to specify the type of defect alleged:

the mere showing that something went wrong consistent with the existence of a defect is

sufficient.” PageID 1217. The district court properly dismissed this claim for the same

reasons that the product design defect claim failed. Prentis, 365 N.W.2d at 186–87. Finally,


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to the extent that the implied warranty claim was based on a failure to warn, HLMT was

entitled to rely on Lincoln Park Boring, the purchaser and a sophisticated user, to warn Paul

of the dangers associated with the overhead gantry. Rasmussen v. Louisville Ladder Co.,

536 N.W.2d 221, 223 (Mich. Ct. App. 1995), rejected on other grounds, Meagher v. Wayne

State Univ., 565 N.W.2d 401, 409 (Mich. Ct. App. 1997).

         The district court did not address the gross negligence claim in light of its dismissal

of the remaining claims. PageID12754. We find no error. Plaintiff failed to present proof

of conduct “so reckless as to demonstrate a substantial lack of concern for whether an injury

results,” as required under Mich. Comp. Laws § 600.2945(d).

                                              III.

         We AFFIRM the district court’s grant of summary judgment to Henri-Liné Machine

Tools.




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