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Butts v. OMG, Inc.

United States Court of Appeals for the Sixth Circuit

May 4, 2015, Filed

File Name: 15a0324n.06

Case No. 14-3962

Opinion

 [*261]  McKEAGUE, Circuit Judge. Thomas Butts, an experienced roofer, lost two fingers while replacing an adhesive cartridge in an industrial caulking gun. Even though this type of injury never happened before, Butts sued [**2]  the retailer and manufacturers, claiming that they defectively designed the product and failed to warn about its potential dangerousness. His wife and children brought derivative claims for loss of consortium. The district court granted summary judgment to the defendants, concluding that Butts's injuries resulted from an unforeseeable risk of using the product. We agree and thus affirm.

The defendants in this action are the manufacturers and retailers of an industrial caulking gun unit. One defendant, Elastomeric Roofing Systems, manufactures the industrial-strength adhesive (known as OlyBond 500) exclusively for another defendant, OMG, Inc. and OMG Roofing, Inc. (together, OMG). OMG then sells OlyBond as a "private label" product. A third defendant, Albion Engineering Company, manufactures the caulking gun designed to dispense OlyBond. The caulking gun is known as the SpotShot Manual Stand-Up Applicator.

Together, the unit is used to fasten insulation board to roofing substrates. To do so, two inert chemical components in OlyBond react to form an adhesive when combined at a one-to-one ratio. So each OlyBond cartridge has two adjoining cylinders, one for each chemical. When the user [**3]  squeezes the SpotShot's trigger, it slowly propels a horizontal, metal transfer bar connected to two pistons, one for each cylinder. The pistons move at an even rate and press the two chemicals into a mixing nozzle. The fully formed adhesive exits through the nozzle's mouth. After emptying a cartridge, the user presses a release button behind the caulking gun's trigger and unlocks a metal plunger connected to the transfer bar. (The interested reader can view this process on YouTube, at https://www.youtube.com/watch?v=ecJ0U_OdNy4.)

Butts suffered his injury while using one of these units during a roofing job. The accident occurred around noon on a sunny, eighty-to ninety-degree day in June 2010. After expelling roughly half the contents of a cartridge, Butts ran out of insulation board. Before he stepped away to retrieve more insulation board, Butts worried about the mixed adhesive dripping on the roof while he was absent. So he depressed the release button, pulled the plunger back about an inch, and left the SpotShot in the shade with the nozzle leaning upward at an angle somewhere between forty-five and ninety degrees.

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612 Fed. Appx. 260 *; 2015 U.S. App. LEXIS 7592 **; 2015 FED App. 0324N (6th Cir.); CCH Prod. Liab. Rep. P19,611; 2015 WL 2055996

THOMAS W. BUTTS, JR.; HOLLY BUTTS; THOMAS AND HOLLY BUTTS, minor by and through her next friends, lawful parents and natural guardians, obo Kaitlyn Butts; THOMAS AND HOLLY BUTTS, minor by through her next friends, lawful parents and natural guardians, obo Carly Butts; THOMAS AND HOLLY BUTTS, minor by through her next friends, lawful parents and natural guardians, obo Kaylee Butts, Plaintiffs-Appellants, v. OMG, INC.; OMG ROOFING, INC.; ALBION ENGINEERING COMPANY; ELASTOMERIC ROOFING SYSTEMS, INC., Defendants-Appellees.

Notice: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

Prior History:  [**1] ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO.

Butts v. OMG, Inc., 2014 U.S. Dist. LEXIS 127380 (S.D. Ohio, Sept. 11, 2014)

CORE TERMS

foreseeable, manufacturer, blowback, tests, fingers, summary judgment, risk of harm, gun, genuine dispute, design-defect, conditions, cartridge, adhesive, nozzle, reasonably foreseeable, foreseeable risk, district court, caulking, happened, Roofing, pressed, warning

Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Torts, Products Liability, Types of Defects, Design Defects, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Appropriateness, Evidentiary Considerations, Scintilla Rule, Marketing & Warning Defects