This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1716

 

Yer Thao,

Appellant,

 

vs.

 

St. Jude Medical, Inc.,

Respondent,

 

Simplomatic Manufacturing Company,

Respondent,

 

and

 

Simplomatic Manufacturing Company,

third party plaintiff,

Respondent,

 

vs.

 

Daig Corporation n/k/a St. Jude Medical, Daig Division, Inc.,

third party defendant,

Respondent.

 

Filed July 6, 2004

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. CT 02-015343

 

Thomas A. Klint, William J. Marshall, Randall Fuller, Babcock, Neilson, Mannella, LaFleur & Klint, P.L.L.P., 118 East Main Street, Anoka, MN 55303 (for appellant)

 

Jerome R. Klein, Candlin & Heck, 380 St. Peter Street, #603, St. Paul, MN 55102-1313 (for respondent St. Jude Medical, Inc.)

 

Louis J. Speltz, Mark D. Covin, Carrie L. Hund, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402-3707 (for respondent Simplomatic Manufacturing Company)

 

            Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Yer Thao challenges the district court’s grant of summary judgment to respondents Simplomatic Manufacturing Company and St. Jude Medical, Inc.  Because the district court correctly determined that, as a matter of law, appellant failed to establish a prima facie case of negligence on the part of either respondent, we affirm.

D E C I S I O N

I.

            On appeal from a grant of summary judgment, this court must ask whether there are any genuine issues of material fact and whether the district court correctly applied the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court must “view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A party resisting summary judgment must “do more than rest on mere averments.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

            Appellant first argues that the district court erred in finding that she did not produce sufficient evidence to make a prima facie case that respondent Simplomatic’s original machine design was defective and caused her injury.  To recover against a manufacturer for a design defect, a plaintiff must show that:  “(1) the product was in a defective condition unreasonably dangerous to the user, (2) the defect existed when it left the manufacturer’s control, and (3) the defect was the proximate cause of the injury sustained.”  Drager by Gutzman v. Aluminum Industries Corp., 495 N.W.2d 879, 882 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993). 

            In support of her claim of design defect, appellant submitted the expert affidavit of Lanny Berke.  Berke concluded that the original design of the PLA 63 machine could allow hot liquid plastic to shoot out of the top of the heating cylinder.  But the record here indicates that the PLA 63 machine at issue had been substantially altered between the time it was sold by Simplomatic and the time appellant suffered an injury to her hand.  Appellant’s employer transformed the machine from a manual operation to one that was completely automated.  Moreover, it is undisputed that the modifications made after the machine left Simplomatic’s control changed the position of the operator’s hands with respect to the machine.  Berke’s affidavit does not sufficiently address those modifications and merely asserts that the risk of injury was inherent in the original machine design.  We therefore conclude that the district court properly determined that the expert’s opinion, without further analysis or discussion of its basis, is insufficient to create a prima facie case of design defect. 

            Appellant also argues that she established a prima facie case that Simplomatic failed to warn consumers of the machine’s potential dangers.  To determine whether a manufacturer has a duty to warn users of a potential danger, the court must look at the event causing the injury and to the alleged negligence.  Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn. 1986).  If the connection between the two is “too remote to impose liability as a matter of public policy, the courts then hold there is no duty, and consequently no liability.”  Id.  

            Here, the district court found that, as a matter of law, the connection between any alleged negligence by Simplomatic and the injury to appellant was too remote to justify imposing a duty to warn on Simplomatic.  The original PLA 63 machine was designed in the early 1960s, and the last machine was delivered to appellant’s employer no later than 1988.  Between 1988 and appellant’s injury in 2000, the machine underwent extensive modifications, rendering it almost unrecognizable from the original design.  We agree with the district court that these intervening facts preclude any duty or liability on the part of Simplomatic.  Because appellant failed to produce sufficient evidence to establish a prima facie case of either design defect or failure to warn, and because she failed to raise any genuine issues of material fact through Berke’s affidavit, the district court did not err in granting summary judgment in favor of Simplomatic.

II.

            Appellant also argues that the district court improperly granted summary judgment in favor of St. Jude Medical, Inc.  This court must determine again whether there are any genuine issues of material fact and whether the district court properly applied the law.  French, 460 N.W.2d at 4.  Application of a particular statute is a question of law, which this court reviews de novo.  Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992).

The district court granted summary judgment for St. Jude because it found that St. Jude, the parent company of appellant’s employer, St. Jude Medical, Inc., Daig Division, is appellant’s employer, and thus is protected from her action by the exclusive remedy provision found in the workers’-compensation statutes.  Minn. Stat. § 176.031 (2002).  Appellant argues that St. Jude is not her employer and should face liability for its failure to properly perform a safety review of the Daig facilities upon purchasing the company. 

Minnesota law is not settled and other jurisdictions are split as to whether a parent corporation such as St. Jude, which purchases workers’-compensation insurance for a wholly owned subsidiary, should be considered an employer for workers’-compensation purposes, and be protected against negligence claims by employees.  But even if we were to follow those jurisdictions that allow such claims against parent corporations, as appellant urges us to do, appellant here has failed to present sufficient evidence of negligence by St. Jude to survive summary judgment.  

Appellant contends that St. Jude negligently failed to conduct a full and adequate safety evaluation of the Daig facilities when it purchased them.  But appellant cites no legal authority regarding a purchasing company’s duty to conduct a safety evaluation.  Rather, appellant again relies on its expert, Lanny Berke, who stated that in his experience, a purchasing company should perform a full safety analysis when acquiring the facilities of a subsidiary.  But Berke, who is an engineer, did not provide any evidence, examples, references, or authority for his opinion.  Moreover, Berke did not dispute the affidavit of St. Jude’s accountant, Robert Frenz, which stated that Daig, the subsidiary, maintained total day-to-day control over safety and maintenance in its facilities.  We conclude that Berke’s bare assertion of his opinion is not sufficient to create a prima facie case or a material issue of fact concerning St. Jude’s negligence.  Thus, the district court properly granted summary judgment for St. Jude on this claim.

Affirmed.