Borum v. Werner Co et al

Filing 61

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 06/06/12. (CVA)

FILED
2012 Jun-06 PM 03:24
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BARRY BORUM,
Plaintiff,
vs.
WERNER CO., and LOWE’S
HOME CENTERS, INC.,
Defendants.

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Civil Action Number
5:11-cv-997-AKK

MEMORANDUM OPINION
Before the court is Defendants Werner Co. (DE) and Lowe’s Home Centers,
Inc.’s (“Lowe’s”) (collectively “Defendants”) motion to exclude the expert
testimony of Dr. Houssam Toutanji (“Dr. Toutanji”), doc. 19, Werner Co. (DE)’s
motion for summary judgment, doc. 20, Lowe’s motion for summary judgment,
doc. 21, Plaintiff Barry Borum’s (“Borum”) motion for leave to file an amended
complaint, doc. 40, Defendants’ joint motion to strike the affidavit of Borum, doc.
51, and Defendants’ joint motion to strike the supplemental affidavit of Dr.
Toutanji, doc. 52. For the reasons stated more fully below, the motion to exclude
the expert testimony of Dr. Toutanji is due to be GRANTED, Werner’s motion for
summary judgment is due to be GRANTED, Lowe’s motion for summary
judgment is due to be GRANTED, Borum’s motion for leave to file an amended
complaint is due to be DENIED, and the Defendants’ motions to strike are due to

Page 1 of 41

be GRANTED in part and DENIED in part. Accordingly, consistent with this
memorandum opinion, the court will enter a separate order dismissing this case.
I.

FACTUAL AND PROCEDURAL HISTORY

This action arises from a February 15, 2009 accident where Borum fell off a
ladder and suffered serious bodily injury. See doc. 1-1, at 6. In 1997, shortly after
moving to Cullman, Alabama and buying a house, Borum allegedly purchased the
ladder at issue, a Model 7410 Type IA fiberglass ladder manufactured in
November 1986 by R.D. Werner Co., Inc, see doc. 1-1, at 4; doc. 20-2, at 4; doc.
48-5, at 11, from a Lowe’s located in Cullman, doc. 21-3, at 15; doc. 48-6, at 2.
Prior to the incident here, Borum used the ladder approximately twelve times a
year and stored it in his basement or sun room. Doc. 21-3, at 16; doc. 48-6, at 7.
On the day of the incident, Borum transported the ladder to a rented
warehouse in order to install a two-post asymmetrical car lift that he planned to
use for antique car restoration. Doc. 21-3, at 18. Around 1:00 p.m., Borum
climbed the ladder approximately six feet to insert a quarter-inch nut and bolt
above his head. Doc. 21-3, at 17, 32; doc. 48-6, at 8. The ladder then “shot across
the room,” and Borum fell forward to the ground. Doc. 21-3, at 33. Borum
“vaguely remember[s] being tangled up in the ladder with [his] legs . . . when [he]
woke up.” Id. at 34. After losing and regaining consciousness, Borum eventually
called 911. Due to the severity of his injuries, the emergency responders decided
to transport Borum to a trauma intensive care unit at the University of Alabama at
Birmingham hospital. Id. at 34-36.
Page 2 of 41

As it relates to the ladder’s manufacturer, R.D. Werner Co., Inc. changed its
name to Werner Co. in 1994. Doc. 47-6, at 39; doc. 48-5, at 4. In 2006, Werner
Holding Co. (DE), Inc., Werner Holding Co. (PA), Inc., Werner Co., and WIP
Technologies, Inc. filed for Chapter 11 bankruptcy in the United States
Bankruptcy Court for the District of Delaware, Case No. 06-10578 (KJC). See
doc. 20-4; doc. 47, at 5-6; doc. 48-5, at 4. Moreover, on April 25, 2007, the
Bankruptcy Court approved the sale of these debtors’ assets to New Werner
Holdings Co. (DE), LLC. Doc. 20-4, at 2. This “Approved Sale Order” discussed
the “New” Werner Co.’s purchase of the “Old” Werner Co.’s assets and liabilities,
and specifically required the “New” Werner Co. to fulfill all obligations arising
under sales agreements with Lowe’s Companies, Inc. and its subsidiaries. See
doc. 20-4.
On February 15, 2011, Borum filed suit against Werner Co. (DE), a wholly
owned subsidiary of the “New” Werner Co., doc. 3, at 1, Lowe’s Home Centers,
Inc., a wholly owned subsidiary of Lowe’s Companies, Inc., doc. 2, at 1, and
unnamed fictitious parties in the Circuit Court of Cullman County, Alabama. Doc.
1-1, at 3. Defendants timely removed to this court on March 17, 2011, pursuant to
28 U.S.C. §§ 1332, 1441, and 1446. Doc. 1. On April 25, 2011, this court entered
a Scheduling Order that set an expert report deadline for Borum on August 1, 2011
and for Defendants on September 30, 2011. Doc. 9, at 3. The Scheduling Order
also set deadlines of October 31, 2011 for any supplemental disclosures and
discovery under Fed. R. Civ. P. 26(e), and November 30, 2011 for the completion
Page 3 of 41

of all discovery. Id. at 1, 3. Moreover, the court allowed Borum until May 15,
2011 to join additional parties and to amend the pleadings. Id. at 3. Finally, the
court set a deadline of January 13, 2012 for dispositive motions. Id. at 4.
Defendants submitted separate summary judgment motions on January 12,
2012, see doc. 20 (Werner Co.); doc. 21 (Lowe’s), and filed a joint motion on the
same day to exclude the expert report and testimony of Borum’s expert, Dr.
Toutanji, doc. 19. In response, on January 13, 2012, Borum filed a motion to
amend and modify the court’s April 25, 2011 Scheduling Order. Doc. 22. As
grounds for this motion, Borum stated that he needed to amend his original
complaint “for the purpose of conformity of the identity in addition of fictitious
parties without adding or substantially modifying existence[sic] claims contained
in the original Complaint.” Id. at 1-2. Borum also sought a reopening of
discovery to depose experts, treating physicians, and corporate representatives and
to identify “indispensable party Defendants.” Id. at 3-7. Although Borum filed
this motion almost 45 days after the discovery deadline, the court granted Borum’s
motion but specifically stated “to the extent that Plaintiff seeks to amend to add
separate and unrelated corporate entities, the court will deny any motion Plaintiff
files to add such an entity or entities. However, to the extent Plaintiff is seeking to
amend to add the proper corporate entity of the current Defendants . . . the court
will consider such a motion.” Doc. 23, at 2. Accordingly, the court reopened
discovery for this limited purpose until February 17, 2012, and also allowed
Borum until February 21, 2012 to seek leave to amend his original complaint. Id.
Page 4 of 41

at 3. Borum timely moved to amend his complaint on February 21, 2012, doc. 40.
Moreover, after the court granted certain extensions, Borum responded to
Defendants’ motions for summary judgment and motion to exclude the expert
testimony of Dr. Toutanji on March 20, 2012, docs. 47, 48, 49. In support of these
opposition briefs, Borum submitted a personal affidavit and a supplemental expert
affidavit by Dr. Toutanji. See doc. 48-3; doc. 48-6. Defendants filed reply briefs,
docs. 53, 54, 55, and moved to strike Borum’s affidavit and Dr. Toutanji’s
supplemental report, docs. 51, 52. All outstanding motions, see docs. 19, 20, 21,
40, 51, 52, are fully briefed, see docs. 42, 44, 47, 48, 49, 53, 54, 55, 56, 57, 58, 59,
60, and ripe for review.
II.

STANDARD OF REVIEW

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” To
support a summary judgment motion, the parties must cite to “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations, admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56(c). Moreover, “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
Page 5 of 41

(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation
marks omitted). A dispute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the
evidence and all reasonable inferences arising from it in the light most favorable to
the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970);
see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party’s favor). However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover,
“[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for
that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 252).
III.
A.

ANALYSIS

Borum’s Motion for Leave to File Amended Complaint
Before addressing the merits of Defendants’ summary judgment motions,

Page 6 of 41

the court must first discuss Borum’s motion for leave to file an amended
complaint. Doc. 40. Borum filed the motion after the expiration of various
discovery deadlines and one day after Defendants timely filed their summary
judgment motions.1 Doc. 22. The court granted, in part, Borum’s motion on
January 18, 2012, and expressly ordered that “to the extent that Plaintiff seeks to
amend to add separate and unrelated corporate entities, the court will deny any
motion Plaintiff files to add such an entity or entities. However, to the extent
Plaintiff is seeking to amend to add the proper corporate entity of the current
Defendants, . . . the court will consider such motion.” Doc. 23. One February 21,
2012, Borum moved to amend his complaint for four primary reasons—(1) to
change party name “Lowe’s Home Centers, Inc.” to “Lowe’s Companies, Inc., a
North Carolina Corporation and it’s wholly owned subsidiaries,” see doc. 1-1, at
3; doc. 40-1, at 1; (2) to change party name “Werner Co., a Delaware Corporation
or Business Entity, being the Successor in interest of Werner Co., Inc., which was
formerly a Pennsylvania Corporation; and with both previous entities being the
Successors in interest of R.D. Werner Co., Inc.” to “Werner Co. (D.E.) Inc., a
Delaware Corporation, and being a wholly-owned subsidiary of New Werner
Holding Company (D.E.) LLC, a Delaware Limited Liability Company in the
Capacity of Indemnitor of Lowe’s Companies, Inc. and Lowe’s wholly owned
subsidiaries,” id.; (3) to add more specific factual allegations regarding the
1

The court’s original scheduling order allowed Borum until May 15, 2011 to join
additional parties and to amend the pleadings. Doc. 9, at 3.
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negligent and wanton failure to warn claim, doc. 1-1, at 9; doc. 40-1, at 13-14; and
(4) to add a “breach of implied warranty of merchantability” claim, doc. 1-1, at 1011; doc. 40-1, at 16-18. Each proposed amendment either fails to comport with
the court’s order entered on January 18, 2012, see doc. 23, or is untimely; as such,
Borum’s motion to amend is due to be DENIED.
i.

Indemnification by Werner Entity

Borum contends that, through reopened discovery, he found that the newly
named “Werner entity assumed liability” of certain “bankrupted Werner entities to
provide the Lowe’s entity a warranty to hold harmless and indemnify Lowe’s
against any product defects and product liability claims.” Doc. 40, at 2 (emphasis
added).2 As such, Borum attempts to amend his suit to allege claims against
Werner Co. (D.E.) Inc., a wholly owned subsidiary of New Werner Holding Co.
(D.E.) LLC, “in the capacity of indemnitor of Lowe’s Companies, Inc. and Lowe’s
wholly owned subsidiaries.” Id. at 1 (emphasis added). Moreover, in the
proposed amended complaint, Borum alleges that, in June 2006, the manufacturer
of the ladder in question—“R.D. Werner Co.,” subsequently, “WERNER Co.
(“PA) Inc.,” and finally “Werner Company (DE) Inc.”—filed for bankruptcy in the
United States Bankruptcy Court for the District of Delaware. Doc. 40-1, at 3-4.
The bankruptcy court approved an “Asset Purchase Agreement” whereby,
2

The court also notes Borum’s statement in opposition to Werner Co. (DE)’s motion for
summary judgment that “Werner assumed any and all defense of Lowe’s, pursuant to an
Indemnification Agreement; and stands to assume liability for any and all money judgments
rendered against Lowe’s.” Doc. 47, at 3.
Page 8 of 41

according to Borum:
[T]he debtor’s[sic] . . . sold all of its assets to a group of major
creditors. As part of the assets sold, or by Agreement, the buyercreditors acquired the trade name of the debtors and are still
commonly referred to as “Werner Co.’s.” To facilitate the Asset
Purchase Agreement the buyer-creditors formed New Werner Holding
Co. (DE), LLC, a Delaware limited liability company; and Werner,
Co. (DE) Inc., became a wholly-owned subsidiary of New Werner
Holding Co. (DE), LLC. . . .
The Asset Purchase Agreement contained a provision whereby the
buyer-creditors would assume certain obligations. An obligation
assumed, and specifically referenced in the order of the bankrupt[cy]
court approving the Asset Purchase Agreement; and Assumption of
Liabilities, was “Seller Agreements” existing between the sellerdebtors (Werner Co.) and Lowe’s Companies, Inc. and its whollyowned subsidiaries.
In 1996, Werner Co. entered into a Lowe’s Master Standard Buying
Agreement with Lowe’s Company, Inc., requiring Werner to warrant
any and all products it sold to Lowe’s to be free from any and all
defects; and to hold harmless and indemnify Lowe’s against claims
for personal injuries caused by defects, flaws, or failures in Werner
products . . . .
Id. at 4-5 (emphasis added).
Stated simply, Borum’s proposed amended complaint now solely seeks
redress against the “proper” Werner entity as the indemnitor to the Lowe’s
entity—rather than any direct claim of liability against the Werner entity.3 See
3

Werner Co. (DE) also asserts that “[t]here is no entity named ‘Werner Co. (D.E.) Inc.[’],
nor is there an entity ‘New Werner Holding Company (D.E.) LLC,’” doc. 42, at 2; rather, the
“proper” Werner entities are listed in the Initial Corporate Disclosures—Werner Co. (DE), a
wholly owned subsidiary of New Werner Holding Co., Inc. Id. (citing doc. 3, at 1). The court
finds it unnecessary to resolve this issue. Borum attempts to amend the substantive nature of his
Page 9 of 41

doc. 40-1, at 12, 16, 18; doc. 44, at 8-9. See also Stone Bldg. Co. v. Star Elec.
Contractors, Inc., 796 So. 2d 1076, 1090 (Ala. 2000) (“‘Indemnity against losses
does not cover losses for which the indemnitee is not liable to a third person.’”)
(quoting 41 Am. Jur. 2d Indemnity § 46 (1995)). This proposed amendment
substantively alters Borum’s claims against the “proper” Werner entity; and
therefore, goes well beyond merely adding “the proper corporate identity of the
current Defendants.” See doc. 23, at 2. See also doc. 1-1, at 7-12 (original
complaint alleging each claim jointly against all named Defendants).4
ii.

Lowe’s Home Centers, Inc.

As it relates to the “proper” Lowe’s corporate entity, Borum’s proposed

claims against the Werner entity; an untimely amendment. See doc. 23. Some Werner entity
may ultimately need to indemnity Lowe’s—however, the proper Werner entity to do so is not a
question presently before this court.
4

Moreover, the court has significant doubts that this “indemnification” theory of recovery
against the Werner entity is procedurally proper. Without support in the Federal Rules of Civil
Procedure or relevant case law, Borum makes the conclusory statement that “a plaintiff with
knowledge of indemnity can likewise implead an indemnitor.” Doc. 40, at 2. However, as it
relates to impleading third parties, Fed. R. Civ. P. 14(a) provides: “A defending party may, as
third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it
for all or part of the claim against it.” Id. (emphasis added). Furthermore, Fed. R. Civ. P.
14(b)—titled “[w]hen a plaintiff may bring in a third party”—states: “When a claim is asserted
against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to
do so.” Id. (emphasis added). Borum is neither a “defending party” nor is “a claim [] asserted
against Borum;” therefore, the Federal Rules of Procedure explicitly prohibit Borum from
impleading the Werner entity as the Lowe’s indemnitor. Lowe’s may subsequently choose to
seek indemnification from a Werner entity; however, Borum cannot force Lowe’s to do so. And,
in that regard, Borum suffers no prejudice from this decision because indemnification from
Werner to Lowe’s is only needed if Borum can recover from Lowe’s. Significantly, if Lowe’s is
liable to Borum, it cannot avoid paying a judgment by claiming that Borum should have filed a
claim against the Lowe’s indemnitor.
Page 10 of 41

amendment seeks relief against “Lowe’s Companies, Inc., a North Carolina
Corporation and it’s wholly owned subsidiaries.” Doc. 40-1, at 1. However,
“Lowe’s Home Centers, Inc.,” the original named defendant, is a wholly owned
subsidiary of Lowe’s Companies, Inc. See doc. 2, at 1. Moreover, Borum has
known that Lowe’s Companies, Inc. is the parent corporation since Lowe’s Home
Centers, Inc. filed its Corporate Disclosures on March 17, 2011. Id. Accordingly,
the proposed amendment changing the Lowe’s entity is untimely and fails to
satisfy the criteria established in this court’s January 18, 2012 order. See doc. 23.
Perhaps most importantly, Borum neglects to establish the need to include Lowe’s
Companies, Inc. and all other wholly owned subsidiaries in addition to Lowe’s
Home Centers, Inc. In other words, as Lowe’s Home Centers, Inc. is a wholly
owned subsidiary of Lowe’s Companies, Inc., Borum attempts to add new partydefendants rather than merely amend to name the proper corporate entity.
iii.

Failure to Warn Claim

Borum’s original complaint alleged a claim for negligent and wanton failure
to warn, and, specifically, “Defendants . . . knew or should have known that the
defective ladder could create danger when used in its customary manner.
Defendants . . . owe a duty to exercise reasonable diligence to make such dangers
known to persons likely to be injured by such products.” Doc. 1-1, at 9. The
proposed amended complaint provides more specific allegations regarding
inadequate warnings for the fiberglass ladder’s care, use, maintenance,
transportation, storage, and durability limitation. See doc. 40-1, at 12-16.
Page 11 of 41

However, the original complaint adequately provided a short and plain statement
of the facts regarding a negligent or wanton warning claim that encompassed the
additional facts in the proposed amended complaint. See Fed. R. Civ. P. 8(b).
Thus, in addressing the merits of Borum’s negligent or wanton failure to warn
claim, the court will consider the specific warnings asserted by Borum in his
summary judgment briefing, see doc. 48, and, accordingly, the court finds no need
for Borum to amend his original complaint on these grounds.
iv.

Breach of Implied Warranty of Merchantability

Finally, Borum may not amend to assert an additional claim against Lowe’s
and Werner. Borum contends that “[t]he amendment clarifies ‘Claim Three’ of the
original complaint to make it clear this claim includes both of Alabama’s Uniform
Commercial Code implied warranties of goods sold, i.e. merchantability and
fitness for a particular purpose. Borum asserts this claim was poorly crafted in the
original Complaint.” Doc. 40, at 3. The court disagrees because the original
complaint unambiguously alleged that Defendants breached the “implied warranty
for fitness of a particular purpose” only. See doc. 1-1, at 10.5 The implied
5

Specifically, the original complaint states:

Said Defendants . . . at the time of the sale of the defective ladder to Plaintiff,
knew, or had reason to know, that Plaintiff was purchasing the ladder to perform
tasks that could not be reached by Plaintiff from a ground level, and that this
particular purpose would be performed by the end-use of the described ladder
herein.
Plaintiff, in purchasing the ladder, relied upon said Defendants’ . . . skill or
judgment to select or furnish suitable goods for the intended particular purpose.
Page 12 of 41

warranty of merchantability is a separate and distinct claim from the implied
warranty for fitness of a particular purpose. Compare Ala. Code § 7-2-314
(implied warranty of merchantability) with Ala. Code § 7-2-315 (establishing that,
unlike the warranty of merchantability, the implied warranty of fitness for a
particular purpose also requires that the “seller at the time of contracting has
reason to know any particular purpose for which the goods are required”). Thus,
while a plaintiff could potentially bring both warranty claims where “the purpose
for which the product is purchased is the same as the purpose for which it is
generally sold,” Vinyard v. Duck, 180 So. 2d 522, 524-25 (Ala. 1965); Bagley v.
Mazda Motor Corp., 864 So. 2d 301, 314-15 (Ala. 2003), here, Borum failed to
timely do so. Again, on April 25, 2011, this court entered a scheduling order
whereby “Plaintiff is allowed until May 15, 2011, to join additional parties and to
amend pleadings.” Doc. 9, at 3. The court then extended this amendment
deadline to allow Borum the opportunity to “add the proper corporate entity of the
current Defendants.” Doc. 23. On the other hand, nothing prevented Borum from
amending his complaint to add an implied warranty of merchantability claim
against Defendants before the expiration of the original May 15, 2011 amendment
deadline. And indeed, Borum offers no explanation as to why he waited over nine
months to raise this issue.

Doc. 1-1, at 10-11.
Page 13 of 41

In sum, Borum’s proposed amendments are either untimely or unnecessary,
and accordingly, the court DENIES the motion to amend.
B.

Werner Co. (DE)’s Motion for Summary Judgment
Borum asserts three claims against Werner Co. (DE)—(1) design defect

under the Alabama Extended Manufacturers’ Liability Doctrine (“AEMLD”); (2)
negligent and wanton failure to warn; and (3) breach of the implied warranty for
fitness of a particular purpose. See doc. 1-1. However, for the reasons stated
below, each claim fails because Werner Co. (DE) never sold the ladder at issue.
It is undisputed that the ladder at issue is a Model 7410 Type IA fiberglass
ladder manufactured in November 1986 by R.D. Werner Co., Inc, see doc. 1-1, at
4; doc. 20-2, at 4; doc. 48-5, at 11, and that, in 1994, R.D. Werner Co., Inc.
changed its name to Werner Co., doc. 47-6, at 39; doc. 48-5, at 4. It is also
undisputed that, in 2006, Werner Holding Co. (DE), Inc., Werner Holding Co.
(PA), Inc., Werner Co.—also referred to as “Old” Werner Co. or “Old Ladder
Co.”6—and WIP Technologies, Inc. (collectively “Debtors”) filed for Chapter 11
bankruptcy in the United States Bankruptcy Court for the District of Delaware,
Case No. 06-10578 (KJC). See doc. 20-4; doc. 47, at 5-6; doc. 48-5, at 4.
Moreover, on April 25, 2007, the Bankruptcy Court approved the sale of Debtors’
assets to New Werner Holdings Co. (DE), LLC (“Buyer”). Doc. 20-4, at 2. The
6

Werner Co. (DE) provides that “[d]uring the course of the bankruptcy proceedings, the
“Old” Werner Co. changed its official name to the Old Ladder Co. in order to eliminate any
confusion during the expected liquidation of the company’s assets, including its trade name.”
Doc. 20-2, at 3.
Page 14 of 41

Bankruptcy Court’s “Sale Order” explicitly provided that:
Buyer is not assuming nor shall it or any affiliate of Buyer be in any
way liable or responsible, as a successor or otherwise, for . . . any
liabilities calculable by reference to the Debtors or their operations of
the Purchased Assets or relating to continuing or other conditions
existing in or prior to the Closing Date, which liabilities, debts, and
obligations are hereby extinguished insofar as they may give rise to
liability, successor or otherwise, against Buyer or any affiliate of they
Buyer.
Doc. 20-4, at 13-14. The Sale Order also stated, “Upon Closing the Sale, all
creditors, employees and equityholders of the Debtors are permanently and forever
barred, restrained and enjoined from . . . (b) asserting any claims or enforcing
remedies under any theory of successor liability, de facto merger, substantial
continuity or similar theory.” Id. at 20.7 Moreover, the March 20, 2007 “Asset
Purchase Agreement” between Werner Holding Co. (DE), Inc. (and its affiliates)
and New Werner Holding Co. (DE), LLC similarly provided in the “Customer
Product Liability” section that “Buyer will assume any Liability of Sellers to any
customer of any Seller that is not listed on Schedule 2.3(d) [Lowe’s Companies,

7

Borum correctly points out that the Bankruptcy Court’s Sale Order also contains a
provision stating, “For the avoidance of doubt, upon the assignment of the Lowe’s Agreements to
the Buyer, the Buyer will be required to perform all obligations under the Lowe’s Agreements,
including, but not limited to, the provision of any customer programs or indemnity obligations, if
such obligations are set forth in or arise out of the Lowe’s Agreements.” Doc. 20-4, at 16.
Assuming, without deciding, that the “New” Werner Co. assumed the preexisting indemnity
obligations to Lowe’s Companies, Inc. and its subsidiaries, the “New” Werner Co. is only liable
to Lowe’s to the extent that a third party recovers against Lowe’s in accordance with the
provisions of the indemnity agreement. See supra. Moreover, there is some dispute regarding
the proper name of this “New” Werner Co. entity that “assumed” these indemnity obligations to
Lowe’s. See doc. 47, at 4; doc. 44; doc. 42. Resolution of this issue is not necessary in resolving
the current dispute before the court.
Page 15 of 41

Inc. not listed on this Schedule], but only to the extent that such Liability is or
becomes an allowed administrative expense claim of Sellers’ estates pursuant to
Section 503(b) of the Bankruptcy Code.” Doc. 48-8, at 4. There is no evidence or
assertion that Borum’s product liability claims against Werner Co. (DE), a wholly
owned subsidiary of the “New” Werner Co., see doc. 3, at 1, are allowed
administrative expense claims of the bankrupt “Old” Werner Co. See 11 U.S.C. §
503(b).
Thus, as “Old” Werner Co. manufactured and sold the ladder here, and
Werner Co. (DE) assumed no liability as a wholly owned subsidiary of the
successor company New Werner Holding Co. (DE), LLC, Borum’s claims fail as a
matter of law. Liability for design defect under the AEMLD requires a plaintiff to
prove “‘[1] that an injury was caused by one who sold a product in a defective
condition that made the product unreasonably dangerous to the ultimate user or
consumer; [2] that the seller was engaged in the business of selling such a product;
and [3] that the product was expected to, and did, reach the user without
substantial change in the condition in which it was sold.’” Tillman v. R.J. Reynolds
Tobacco Co., 871 So. 2d 28, 31 (Ala. 2003) (quoting Bell v. T.R. Miller Mill Co.,
768 So. 2d 957 (Ala. 2000) (alterations in original)). See also Turner v. Azalea
Box Co., 508 So. 2d 253, 254 (Ala. 1987). Borum fails to demonstrate that
Werner Co. (DE) sold the ladder in question or retains any successor liability for
“Old” Werner Co., the entity that purportedly manufactured and sold the ladder.
Therefore, summary judgment is warranted on this claim. See Celotex, 477 U.S. at
Page 16 of 41

322 (summary judgment warranted “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial”).
Similarly, under Alabama law, a plaintiff may only assert a failure to warn
claim against “‘one who supplies directly or through a third person a chattel for
another to use . . . .’” Abney v. Crosman Corp., 919 So. 2d 289, 293 (Ala. 2005)
(quoting Restatement (Second) of Torts § 388 (1965) and providing that the
Alabama Supreme Court has adopted this language from the Restatement). The
“Old” Werner Co.—as opposed to Werner Co. (DE)—manufactured and supplied
the ladder here, and Werner Co. (DE) retains no successor liability for claims
against “Old” Werner Co. See doc. 20-4. Therefore, summary judgment is also
warranted on the failure to warn claim.
Finally, to prevail on a claim for breach of the implied warranty for fitness
of a particular purpose, plaintiff must establish that “the seller at the time of
contracting ha[d] reason to know any particular purpose for which the goods are
required and that the buyer [relied] on the seller’s skill or judgment to select or
furnish suitable goods . . . .” Ala. Code § 7-2-315. See also Gordon v. Pfizer,
Inc., No. CV-06-RRA-703-E, 2006 WL 2337002, at *8 (N.D. Ala. May 22, 2006)
(holding that plaintiff “cannot maintain an action for breach of warranty against
Pollard who . . . is not a seller and thus, cannot be liable as a warrantor of a
product”). Again, there is no evidence that Werner Co. (DE) sold the ladder here,
and Werner Co. (DE) faces no successor liability if “Old” Werner Co. had
Page 17 of 41

breached the implied warranty for fitness of a particular purpose—an accusation
for which the court finds no evidentiary support. Accordingly, this claim also
fails.
In opposition, Borum maintains that the “Hold Harmless & Indemnity
Policy . . . coupled with Paragraph 15 of the Order of the Bankruptcy Court . . .
clearly shows Werner is not entitled to summary judgment because it is the
specific indemnitor of Lowe’s, of any claims, damages, liabilities or suits for
personal injury or death caused by defects, flaws or failures in Werner’s products.”
Doc. 47, at 8. See also doc. 20-4; doc. 47-3, at 18. However, the court agrees
with Werner Co. (DE) that the “agreement to indemnity is not relevant” for
purposes of this summary judgment motion. Doc. 55, at 3. Thus, to reiterate, any
potential indemnification from a “New” Werner Co. entity to a Lowe’s entity
presupposes Lowe’s liability to Borum. Furthermore, Lowe’s maintains the right
to indemnification, not Borum. See supra. Accordingly, the court next addresses
the merits of Borum’s claims against Lowe’s.
C.

Lowe’s Home Centers, Inc.’s Motion for Summary Judgment
Before addressing each specific claim, the court must analyze Lowe’s

overarching contention that “Borum fails to prove he purchased the ladder from
Lowe’s.” Doc. 21-1, at 2. Borum testified that, in 1997, he purchased the ladder
in question from a Lowe’s store located in Cullman, Alabama. Doc. 21-3, at 15.
More specifically, Borum provided:
Q. Where did you buy the ladder?
Page 18 of 41

A. I bought it when I moved here from Lowe’s.
Q. And when was that?
A. ’97
Q. Okay. And which Lowe’s did you buy it at?
A. I think -- there’s one here in Cullman. That would be the one.
Q. Okay.
A. As far as I recall.
Q. All right.
A. I don’t -Q. Do you have any -A. I don’t know why I’d go anywhere else.
Q. Well, I mean -A. I don’t know why I’d go anywhere but Lowe’s to buy it because
that’s the only place I remember that was here that sold ladders.
Id. In opposition to summary judgment, Borum also submitted an affidavit stating
that:
After twelve years from the time I bought it (ladder) I searched but
could not locate a sales receipt or credit card receipt. I could not
remember the exact date or month I bought it, but I know it was 1 1/2
to 2 years after I bought the house in April of 1995. I went to Lowe’s
because I know they regularly sell new ladders to homeowners and
contractors. The selection for a buyer is great at Lowe’s. I cannot
remember the specific amount I paid for it, but I know it was over a
hundred dollars. I just cannot remember the specifics. I am certain I
bought the ladder in Cullman to do the work and the only place I have
Page 19 of 41

bought a ladder in Cullman is at Lowe’s.
Doc. 48-6, at 3.8
Conversely, Lowe’s submitted an affidavit of Dale King (“King”), the
Werner Co. (DE) corporate representative, stating that:
This model [7410 Type IA] is a ladder that is considered to be a
heavy duty ladder and one that was not typically stocked by retailers
such as Lowe’s, Inc., but most commonly was an item that had to be
ordered specially . . . . A search of the available records of “Old
Ladder Co.” for the time period at issue reveal that only one ladder of
this type, Model 7410, was the subject of a special order and that was
a special order by Cullman High School and was made through the
retailer Sears, Roebuck & Co.
Doc. 21-4, at 3. Moreover, King testified, as it relates to this search, that “[t]here
was a computer search that was done at my request . . . . I requested any special
order 7410s that were sent to Alabama for the years 1996 to 1999 and this [the
Cullman High School order] is the only one that showed up.” Doc. 48-5, at 27.

8

As it relates to this portion of Borum’s affidavit, Lowe’s motion to strike the testimony
as a “sham” is due to be DENIED. See doc. 51. “When a party has given clear answers to
unambiguous questions which negate the existence of any genuine issue of material fact, that
party cannot thereafter create such an issue with an affidavit that merely contradicts, without
explanation, previously given clear testimony.” Van T. Junkins and Assocs., Inc. v. U.S. Indus.,
Inc., 736 F.2d 656, 658 (11th Cir. 1984); see also Tippens v. Celotex Corp., 805 F.2d 949, 954
(11th Cir. 1986) (“Variations in a witness’s testimony and any failure of memory throughout the
course of discovery create an issue of credibility as to which part of the testimony should be
given the greatest weight if credited at all . . . . [E]very discrepancy contained in an affidavit does
not justify a district court’s refusal to give credence to such evidence.”) (alteration in original,
citation omitted). Put simply, the court finds Borum’s deposition testimony and affidavit
testimony sufficiently consistent—he thinks he purchased the ladder at Lowe’s.

Page 20 of 41

Furthermore, King provides:
Q. But you’re making a supposition that [the Borum ladder is] a
custom order; aren’t you?
A. Well, I have to because I know it’s not a stocked item for Lowe’s.
Q. How do you know that?
A. Because I worked with Lowe’s in that time frame. That’s not part
of their product mix . . . . Lowe’s carried a 200 pound ten-foot
fiberglass ladder called an FIA 10. And that was what was part of
Lowe’s product mix. The 7410 would not have been part of their
product mix so for them to get it it would have had to have been a
custom order.
Id. Finally, King expresses doubt that Borum purchased the 1986 manufactured
ladder new in 1997—“I don’t think it was sold as a new ladder at that point . . . .
[W]hen I hear the testimony of Mr. Borum and he basically says the ladder was
just stored at his house. And when I take a look at the ladder and I see how much
transit damage, it sure looks like it was used as a commercial ladder for a long
period of time.” Id. at 65.
Both parties agree that, for Borum to prevail against Lowe’s, he must prove
by a preponderance of the evidence that he purchased the ladder in question from
Lowe’s. See doc. 21-1, at 7; doc. 48, at 15. See also Turner, 508 So. 2d at 254
(“In an AEMLD action, the plaintiff must prove that the defendant manufactured
and/or sold the allegedly defective product.”); Abney, 919 So. 2d at 293 (liability
for a failure to warn claim limited to those who “suppl[y] [chattel] directly or
through a third person”); Ala. Code § 7-2-315 (implied warranty applies only to
Page 21 of 41

“seller” of goods). Generally, “‘evidence which affords nothing more than mere
speculation, conjecture, or guess is wholly insufficient to warrant submission of
the case to the jury.’” Turner, 508 So. 2d at 254 (quoting Roberts v. Carroll, 377
So. 2d 944, 946 (Ala. 1979)). See also Lee v. Celotex Corp., 764 F.2d 1489, 1492
(11th Cir. 1985). In other words, while “[a]ll reasonable inferences arising from
the undisputed facts should be made in favor of the nonmovant . . . an inference
based on speculation and conjecture is not reasonable.” Chapman v. Am.
Cyanamid Co., 861 F.2d 1515, 1518 (11th Cir. 1988).
Here, Borum testified, with personal knowledge, that he purchased the
Werner ladder from Lowe’s, but Borum offers no documentation or other evidence
supporting this claim. Similarly, Lowe’s offers the testimony of Werner Co.
(DE)’s corporate representative that, in 1997, when Borum purportedly purchased
the ladder, the 7410 Type IA Werner model “is a ladder that is considered to be a
heavy duty ladder and one that was not typically stocked by retailers such as
Lowe’s, Inc., but most commonly was an item that had to be ordered specially.”
Doc. 21-4, at 3 (emphasis added). The Werner Co. (DE) representative clarified at
deposition that, in 1997, the 7410 model was, unequivocally, not part of Lowe’s
“product mix.” Doc. 48-5, at 27. However, Lowe’s also offers no documentation
or other evidence supporting this assertion made by Werner Co. (DE)’s
representative—as opposed to its own corporate representative. Accordingly, the
court is left with conflicting testimony by two witnesses claiming personal
knowledge of the facts at issue. Therefore, although the objective evidence
Page 22 of 41

weighs heavily against Borum’s assertion that he purchased a ladder manufactured
in 1986 “new” in 1997 from Lowe’s, taking this testimonial evidence in the light
most favorable to Borum, the court finds that Borum’s deposition and affidavit
testimony sufficiently prevents summary judgment on these grounds. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(“[P]urpose of summary judgment is to pierce the pleadings and to assess the proof
in order to see whether there is a genuine need for trial.”) (quotation marks and
citation omitted); Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986)
(“Issues concerning the credibility of witnesses and weight of the evidence are
questions of fact which require resolution by the trier of fact”).9 As the court
DENIES Lowe’s summary judgment motion on these grounds, it must now
address each specific claim alleged against Lowe’s.
i.

AEMLD Design Defect

As previously stated, “[t]o establish liability under the AEMLD, a plaintiff
9

Indeed, the court also finds the Eleventh Circuit asbestos exposure cases instructive.
See, e.g., Lee v. Celotex Corp., 764 F.2d 1489 (11th Cir. 1985); Tippens v. Celotex, 805 F.2d 949
(11th Cir. 1986). In these cases, the court focused on whether plaintiff presented sufficient
evidence, to survive summary judgment, of exposure to the specific defendant’s asbestos
containing product. With regard to satisfying this standard, plaintiff “recalled specifically the
names of the products, their descriptions, the job sites where he used them, and the procedure for
applying these products.” Lee, 764 F.2d at 1491. Conversely, the court granted summary
judgment where plaintiff “failed to show that the asbestos-containing joint treatment products
manufactured by National Gypsum were or could have been used in the manner [plaintiff]
testified that he used ‘Gold Bond cement.’” Id. at 1492. Here, Borum specifically testified that
he purchased the ladder from a Lowe’s in Cullman, Alabama and why he went to Lowe’s for the
ladder. Although there is some evidence to the contrary, the court cannot determine, based on
this evidence at the summary judgment phase, that Borum’s testimony is implausible or
unreasonable.
Page 23 of 41

must show ‘[1] that an injury was caused by one who sold a product in a defective
condition that made the product unreasonably dangerous to the ultimate user or
consumer; [2] that the seller was engaged in the business of selling such a product;
and [3] that the product was expected to, and did, reach the user without
substantial change in the condition in which it was sold.’” Tillman, 871 So. 2d at
31 (quoting Bell v. T.R. Miller Mill Co., 768 So. 2d 953, 957 (Ala. 2000)
(alteration and emphasis in original)). Moreover, where, as here, the plaintiff
alleges a design defect under the AEMLD, see doc. 1-1, at 7-8, the plaintiff must
also prove that:
A safer, practical, alternative design was available to the
manufacturer at the time it manufactured the [product]. The existence
of a safer, practical, alternative design must be proved by showing
that:
(a) The plaintiff’s injuries would have been eliminated or in some
way reduced by use of the alternative design; and that
(b) taking into consideration such factors as the intended use of the
[product], its styling, cost, and desirability, its safety aspects, the
foreseeability of the particular accident, the likelihood of injury, and
the probable seriousness of the injury if that accident occurred, the
obviousness of the defect, and the manufacturer’s ability to eliminate
the defect, the utility of the alternative design outweighed the utility
of the design actually used.
Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839, 858 (Ala. 2002)
(alterations in original, quotation marks and citations omitted). As Borum relies
on the expert testimony of Dr. Toutanji to support his AEMLD claim, the court

Page 24 of 41

must consider Defendants’ Daubert motion to exclude Dr. Toutanji’s expert
testimony, doc. 19, and Defendants’ motion to strike Dr. Toutanji’s supplemental
affidavit submitted in opposition to summary judgment, doc. 52. For the reasons
stated below, the court GRANTS both the motion to exclude and the motion to
strike, and, as a result, will also GRANT Lowe’s motion for summary judgment
on the AEMLD claim.
In April 2011, Borum produced Dr. Toutanji’s expert report, see doc. 19-1,
which generally concluded that:
[The ladder’s] failure was due to the combination of tensile and
compression forces, which caused buckling/bending. At about one
foot from the ground, the failure started due to an inward twisting
load. This combination of these forces caused the distortion of the
frame in the out-of-plane direction inducing bending at the bottom
part of the beam leg. The bending in the member exceeded the
maximum bending strength of the GFRP [glass fiber reinforced
polymer] beam. The bending stresses are usually resisted by bracing
members . . . This failure could have been prevented by employing a
lateral bracing at the bottom of the ladder.
Id. at 7-8. On January 12, 2012, Defendants moved to exclude Dr. Toutanji’s
testimony under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),
arguing that Dr. Toutanji’s opinions and conclusions “are not based ‘in
appropriate scientific method or fact’ and are due to be excluded as unreliable. He
presents nothing more than unsupported, conclusory statements and speculation.”
Doc. 19.
In response to Defendants’ Daubert motion and in opposition to summary

Page 25 of 41

judgment, on March 20, 2012, Borum offered an affidavit by Dr. Toutanji. Doc.
48-3. This affidavit provided “supplemental opinions, conclusions; and rebuttal.”
Id. at 9. Namely, (1) the ladder at issue failed to meet the applicable American
National Standards Institute’s Safety Requirements for Portable Reinforced Plastic
Ladders (“ANSI 14.5”), id. at 10; (2) there is no validity to any testing performed
by a Warner entity and the professional and engineering opinion of Werner Co.
(DE) representative Dale King is unreliable, id. at 12-18; (3) the ladder contained
no design feature or testing to prevent “creep-rupture”—defined as an “endurance
time frame” for products that undergo stress such as the frequent loading and
unloading on a ladder, id. 9, 18; (4) the ladder “should have contained warnings it
had not been tested for stress and twisting and turning within the ladder frame
should be avoided; that fiberglass, subjected to loading and unloading, over time,
can suddenly fail; and that the ladder should never be exposed to high humidity or
sunlight for extended periods of time,” id. at 19-20; and (5) “Werner had the
manpower, resources and knowledge to design its fiberglass ladders with a lateral
brace, and should have done this to correct the design following the failed cyclic
horizontal test,” id. at 20. Dr. Toutanji’s affidavit also rebutted the expert report
offered by King. Id. at 23.
On April 3, 2012, Defendants moved to strike Dr. Toutanji’s supplemental
affidavit because it “amounts to nothing more than an additional attempt to
manipulate this Court’s Scheduling Order and ‘backdoor’ new opinions and other
elements of a proper expert disclosure.” Doc. 52. The court agrees that Dr.
Page 26 of 41

Toutanji’s affidavit constitutes an untimely, and therefore, improper supplemental
expert report. Accordingly, the court GRANTS Defendants’ motion to strike this
affidavit. The court entered a Scheduling Order on April 25, 2011, setting a
deadline of August 1, 2011 for Borum’s expert reports and November 30, 2011,
for the close of all discovery. Doc. 9, at 2. After Defendants moved for summary
judgment and to exclude the expert testimony of Dr. Toutanji, on January 13,
2012, well after the discovery period ended, Borum moved to reopen discovery to
identify fictitious and indispensable party Defendants, depose experts and
corporate representatives, and depose treating physicians. Doc. 22. The court
granted the motion, and reopened discovery until February 17, 2012 for the
specific purposes stated in Borum’s motion. Critically, Borum failed to seek leave
from the court for submission of a supplemental expert report that offered
additional theories of liability against Defendants. In addition, the court agrees
with Defendants that, even if the reopening of discovery until February 17, 2012
included the option to submit supplemental expert reports, Borum failed to
provide this supplemental report to Defendants prior to the February 17, 2012
deadline. See doc. 60, at 4. As such, Borum may not now rely on this subsequent
expert report to defeat summary judgment.10
10

In opposition to the motion to strike, Borum maintains that the parties stipulated that
“Defendant’s expert report could be delivered when written discovery was due; and Plaintiff’s
expert could submit a supplemental report following receipt of Defendant’s report so that
Plaintiff would have a final initial report.” Doc. 58, at 3. The parties never presented this
stipulation to the court. Moreover, Defendants provided Borum with Dale King’s expert report
on November 18, 2011, see doc. 58, at 4; doc. 48-12, as such, nothing prevented Borum from
Page 27 of 41

Furthermore, the court agrees with Defendants that a Daubert analysis
requires the exclusion of Dr. Toutanji’s original expert report, and therefore, this
motion is also GRANTED. See doc. 19-1. The Eleventh Circuit instructs that, in
determining the admissibility of expert testimony, the court must “engage in a
rigorous three-part inquiry,” considering whether:
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert
reaches his conclusions is sufficiently reliable as determined by the
sort of inquiry mandated in Daubert [ v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993)]; and (3) the
testimony assists the trier of fact, through the application of scientific,
technical, or specialized expertise, to understand the evidence or to
determine a fact in issue.
Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011)
(citations omitted, alteration in original). It is not this court’s role “‘to make
ultimate conclusions as to the persuasiveness of the proffered evidence,’” id.
(quoting Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341
(11th Cir. 2003)); rather, “‘vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are [generally] the
traditional and appropriate means of attacking shaky but admissible evidence,’” id.
(quoting Quiet Tech., 326 F.3d at 1341). Accordingly, “[t]he focus, of course,
must be solely on principles and methodology, not on the conclusions that they
generate.” Daubert, 509 U.S. at 594-95. On the other hand, “nothing in either

seeking leave to file a supplemental expert report prior to the close of discovery.
Page 28 of 41

Daubert or the Federal Rules of Evidence requires a district court to admit opinion
evidence that is connected to existing data only by the ipse dixit of the expert. A
court may conclude that there is simply too great an analytical gap between the
data and the opinion offered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997).
Defendants argue that Dr. Toutanji’s conclusions are unreliable and fail to
assist the trier of fact because they “are not based on the particular facts of the case
at bar . . . [in that] [h]e fails to consider the undisputed evidence that the Plaintiff
landed on top of the ladder as a result of his fall and became entangled in the legs
of the ladder.” Doc. 19, at 10. Thus, Defendants contend, Dr. Toutanji assumes
that the 7 inch crack in the bottom of the ladder caused the fall, as opposed to
Borum’s fall causing the crack. Id. at 10-11 (citing Verchot v. General Motors
Corp., 812 So. 2d 296, 303 (Ala. 2001)). Defendants also argue that Dr. Toutanji
fails to properly “explain his methodology with respect to his theory that the
ladder was defectively designed”—more specifically, Dr. Toutanji neglects to
account for industry standards, why additional bracing is recommended, the
feasibility of his proposed alternative design, and testing for the alternative design.
Id. at 11-12.
In his report, Dr. Toutanji analyzed the stress or force exerted on Borum’s
ladder based on Borum’s size and purported movement, stress tested a specimen of
the ladder using the “MTS Insight Electromechanical compression/tension
machine,” and concluded that the combination of these forces “caused
Page 29 of 41

buckling/bending.” Doc. 19-1, at 5-7. In other words, “[t]his combination of
these forces caused the distortion of the frame in the out-of-plane direction
inducing bending at the bottom part of the beam leg. The bending in the member
exceeded the maximum bending strength of the GFRP beam.” Id. at 7. Finally,
Dr. Toutanji provides that “[t]his failure could have been prevented by employing
a lateral bracing at the bottom of the ladder.” Id. at 8.
Dr. Toutanji’s “Discussion” relies on significant assumptions for which he
offers insufficient support to demonstrate reliable methodology. For example, Dr.
Toutanji concludes that the ladder failed “due to the combination of tensile and
compression forces, which caused buckling/bending. At about one foot from the
ground, the failure started due to an inward twisting load.” Doc. 19-1, at 7.
However, Dr. Toutanji fails to define or even discuss the cause of this “inward
twisting load,” or, perhaps more importantly, the force exerted by the “inward
twisting load.” In short, Dr. Toutanji assumes away the initial causal factor of the
ladder’s failure. Such omission renders the expert report unreliable. Similarly, the
court agrees with Defendants that Dr. Toutanji neglects to account for other
possible, if not probable, causes of the ladder’s failure. See doc. 19, at 11.
Namely, Dr. Toutanji provided that “[a] big crack (7 inches) was observed on the
left leg of the ladder at the very bottom.” Doc. 19-1, at 4. However, Dr. Toutanji
fails to even consider whether the crack pre-existed the accident. See Guinn v.
AstraZeneca Pharm. LP, 602 F.3d 1245, 1253 (11th Cir. 2010) (citing Westberry
v. Gislaved Gummi AB, 178 F.3d 257, 265 (4th Cir. 1999) for proposition that “an
Page 30 of 41

expert must provide some explanation of why other potential causes were not the
sole cause”). Accordingly, the court finds that this “analytical gap” regarding
causation of the ladder’s failure warrants exclusion of Dr. Toutanji’s conclusions.
See doc. 19, at 11. As the gatekeeper of expert testimony, the court refuses to
allow Dr. Toutanji to proceed on his theory that the ladder failed due to some
specific combination of forces when the analysis never actually defines one of
these forces and neglects to account for any other potential alternative causes of
structural failure.
Moreover, Dr. Toutanji offers no support, analysis, or testing regarding his
reasonable alternative design. The AEMLD requires that plaintiffs prove a safer
alternative design to succeed on a design defect theory of liability. See Hannah,
840 So. 2d at 858. Here, Dr. Toutanji merely states that the ladder’s failure “could
have been prevented by employing a lateral bracing at the bottom of the ladder.”
Doc. 19-1, at 8. Without more analysis regarding his engineering methodology,
the court may not blindly accept Dr. Toutanji’s conclusions. Indeed, the court
finds Slay v. Keller Indus., Inc., 823 So. 2d 623 (Ala. 2001), instructive on this
point. In Slay, plaintiff submitted expert testimony “suggest[ing] certain design
changes that [the expert] believed could improve the ladder.” Id. at 624. The
purported expert “offered no test results or factual information to support his
belief that the ladder was ‘underdesigned,’ though he suggests the rather obvious
conclusion that the ladder would have been stronger if it had been constructed
with a thicker-gauge aluminum.” Id. at 625. As such, the court excluded the
Page 31 of 41

expert’s testimony under Daubert and Frye v. United States, 293 F. 1013, 1014
(D.C. Cir. 1923), because “[m]ere assertions of belief, without any supporting
research, testing, or experiments, cannot qualify as proper expert scientific
testimony.” Id. at 626 (noting that Alabama still follows the “general-acceptance”
test for expert witnesses enunciated in Frye, but ultimately analyzing the expert’s
admissibility under both Daubert and Frye). Put differently, “[t]he problem with
the methods and procedures behind [the expert’s reasonable alternative design] is
that, as far as the court can detect, there were no methods or procedures
employed.” McCreless v. Global Upholstery Co., Inc., 500 F. Supp. 2d 1350,
1357 (N.D. Ala. 2007).
In addition, “[a]lthough testing is not always a prerequisite to reliability, an
expert who conducts no testing must be prepared with ‘“a good explanation as to
why his or her conclusion remained reliable” notwithstanding the absence of
testing.’” Hendrix v. Evenflo Co., Inc., 255 F.R.D. 568, 588-89 (N.D. Fla. 2009)
(quoting Bauer v. Bayer A.G., 564 F. Supp. 2d 365, 379 (M.D. Pa. 2008) (quoting
In Re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 760 (3d Cir. 1994))). Here, lateral
bracing may have strengthened the ladder, but Dr. Toutanji’s expert report
provides no reliable methodology for concluding that additional lateral bracing
would have prevented or lessened Borum’s injuries; much less that the ladder,
absent the lateral bracing, was “unreasonably dangerous” for its intended use. See
Tillman, 871 So. 2d at 31.
With insufficient evidence regarding the proximate cause of the ladder’s
Page 32 of 41

failure and the existence of a reasonable alternative design, Lowe’s summary
judgment motion on the AEMLD design defect claim is due to be GRANTED.
See Celotex Corp., 477 U.S. at 322. In conclusion, the court reiterates that
“[u]nder the AEMLD, a manufacturer has the duty to design and manufacture a
product that is reasonably safe for its intended purposes and uses. However, the
manufacturer of a product is not an insurer against all harm that might be caused
by the use of the product, and the manufacturer or designer is not obligated to
produce an accident-proof or injury-proof product.” Verchot v. General Motors
Corp., 812 So. 2d 296, 301 (Ala. 2001) (citations and quotation marks omitted).
The AEMLD is a fault based doctrine, and accordingly, plaintiffs “must prove
more than the fact that an injury occurred while [the plaintiff was] using the
product . . . [T]he plaintiff must affirmatively show a defect in the product.” Id.
(citations and quotation marks omitted, first alteration in original). In the final
analysis, while Borum has shown that he suffered severe injuries from his fall, he
simply failed to show that he fell because of a defective ladder. As such, summary
judgment is due on his AEMLD claim.
ii.

Negligent or Wanton Failure to Warn

The Alabama Supreme Court adopted the Restatement (Second) section for
failure to warn. See Purvis v. PPG Indus., Inc., 502 So. 2d 714, 719 (Ala. 1987).
This section provides:
One who supplies directly or through a third person a chattel for
another to use is subject to liability to those whom the supplier should
Page 33 of 41

expect to use the chattel with the consent of the other or to be
endangered by its probable use, for physical harm caused by the use
of the chattel in the manner for which and by a person for whose use
it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be
dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is
supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous
condition or of the facts which make it likely to be dangerous.
Abney, 919 So. 2d at 293 (quoting Restatement (Second) of Torts § 388). Put
simply, “[t]he duty to warn end users of the dangers of products arises[] in a pure
negligence context.” Ex parte Chevron Chemical Co., 720 So. 2d 922, 924 (Ala.
1998). Moreover, “[a] manufacturer is under no duty to warn a user of every
danger which may exist during the use of the product, especially when such
danger is open and obvious.” Gurley v. Am. Honda Motor Co., Inc., 505 So. 2d
358, 361 (Ala. 1987). Accordingly, “there is no duty to . . . explain the scientific
rationale for each warning, but only a duty to warn of those dangers [for] which
the owner or user would not be aware.” Id. And, where a warning is necessary, it
“need only be one that is reasonable under the circumstances and it need not be the
best possible warning.” Id.
In opposition to summary judgment, Borum asserts that the ladder “should
have contained warnings it had not been tested for stress and twisting and turning
within the ladder frame should be avoided; and fiberglass exposed to high
Page 34 of 41

humidity or sunlight for extended period of time, when the fiberglass is subjected
to loading and unloading, can suddenly fail.” Doc. 48, at 12. Similarly, Borum
also maintains that “[t]here is no warning on this ladder that it should be handled
with greater care than aluminum ladders; that it can lose up to 1% of its physical
properties per year; that it required a good general maintenance plan; that it had
failed a test for continuous loading and unloading; that it would deteriorate in
climates of high humidity and exposure to ultraviolet rays; that the weight
restriction did not include a factor for stress; that after repeated loading and
unloading a person should not twist or turn while on the ladder due to stress.” Id.
at 13-14.
First, as it relates to some of these allegedly defective warnings, Borum fails
to offer sufficient evidence that Lowe’s breached a duty. See doc. 54, at 8.
Assuming that the ladder at issue retained unknown dangerous propensities,11 as a
matter of law, the ladder’s “Safety Instructions,” see doc. 21-5, at 2, provided an
adequate warning regarding some of these qualities. Lowe’s submits the
“FIBERGLASS STEPLADDER AND PLATFORM LADDER SAFETY
INSTRUCTIONS” found on the side of Borum’s ladder. See doc. 21-5; doc. 213, at 39. See also doc. 54, at 8. These warnings provide, in relevant part:
WARNINGS: Failure to follow all instructions may result in serious
11

The court hesitates to make such an assumption after striking Dr. Toutanji’s
supplemental expert report. See supra. Ultimately, Borum’s “creep-rupture” theory—or
“endurance time frame” conceptualization, see doc. 48-3, at 9—is untimely, and therefore,
cannot defeat Lowe’s motion for summary judgment.
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injury
INSPECTION
1.
2.
3.
5.

Inspect for damaged or missing parts before each use
Never use a ladder with missing or damaged parts
Check all parts for good condition. Lightly lubricate moving
parts occasionally . . .
Destroy ladder if exposed to excessive heat or any corrosive
agent
PROPER SET-UP AND USE

....
4.
Ladder is designed to support the weight of one person and
material. Maximum weight not to exceed duty rating of ladder
...
15. Never walk, bounce, or move ladder while on it . . .
17. DO NOT OVER-REACH. Always keep belt buckle between
siderails when climbing or working from ladder. You may lose
your balance and/or tip the ladder
18. Use extreme caution pushing or pulling anything while on a
ladder. You may lose your balance and/or tip the ladder . . . .
PROPER CARE AND STORAGE
1.
2.
3.
4.

Always keep ladder clean of all foreign materials
Never store material on ladder
Properly support and restrain ladder in transit or storage
For additional care, use, and safety instructions, contact your
employer, dealer or the manufacturer, or see ANSI A14.5.

Doc. 21-5. While these warnings may not comport with Borum’s exact desired
verbiage, they describe and adequately warn of certain “unknown” dangers Borum
alleges. See Gurley, 505 So. 2d at 361 (“It is well settled law that in order to make
out a prima facie case of negligent failure to give adequate warning, the plaintiff
must provide at least a scintilla of evidence that defendant breached a duty.”). The
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“Inspection” section warns about potential dangers of substantial exposure to high
humidity and/or sunlight. The “Proper Set-Up and Use” section warns about
“twisting and turning” as it cautions against “pushing or pulling.” Moreover, the
“Proper Care and Storage” section offers a sufficient warning that the ladder
requires “good general maintenance.”
Second, as a matter of law, Lowe’s retained no duty to warn about the
potential loss of physical properties or cyclic horizontal testing. See doc. 48, at
10-11. To support his assertion of an unknown dangerous condition, Borum cites
Werner Co.’s Fiberglass Technical Manual for the ladder at issue. See doc. 48, at
10, 22-23, 27 (citing 48-14, at 2-12). In relevant part, Werner’s Manual provides:
Ultraviolet light will attack the FRP [Reinforced Plastic Ladders]
resin and will definitely influence the aesthetic and to a much lesser
degree, the physical and electrical properties . . . . “Fiber bloom” is an
aesthetic condition – not a structural one. Exposed glass fibers do not
reflect a loss in physical properties. Test programs instituted by
producers to review structural property loss as a function of time
show only small losses of strength. In programs of 10-15 years
duration, loss of 5%-10% in physicals were noted. These losses
cannot be attributed to weathering only. It has been estimated that the
maximum estimated loss in physical properties will approach 1% per
year (and still have an adequate safety factor).
Cyclic horizontal testing (100,000 cycles) of all composite designs
had to date developed different amounts and lengths of cracks. Often
these were along the inside radius between flange and web. At times
horizontal cracks developed within the web. All these units were
incline use tested at 1,000 lbs. They all carried the load.
Doc. 48-14, at 4, 8 (emphasis added). Thus, while Borum points to evidence that

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the ladder cannot fully withstand any and all potential conditions, this evidence
offers no support for the proposition that the ladder is dangerous because—even
assuming the worst conditions from the testing—the ladder is still a sufficiently
safe product. Cf. Graham v. Sprout-Waldron and Co., 657 So. 2d 868, 870 (Ala.
1995) (reasserting that “manufacturer of a product is not required to produce the
safest possible product, but only to produce a product that is reasonably safe when
put to its intended use.”). In other words, the absence of a warning regarding
these extreme conditions (where the ladder still adequately performed) fails to
make the ladder unreasonably dangerous for its intended use. Thus, even with the
testing results provided by Werner’s Technical Manual, Borum cannot
demonstrate that Lowe’s “knows or has reason to know that the chattel is or is
likely to be dangerous for the use for which it is supplied.” See Abney, 919 So. 2d
at 293. Plainly stated, there is no foreseeable risk of harm from this testing. See
DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So. 2d 454, 462-63 (Ala.
2008) (holding that foreseeability is generally the key factor in determining
whether a duty exists in a particular circumstance). Accordingly, Lowe’s had no
duty to warn about this testing. See Rose v. Miller & Co., Inc., 432 So.2d 1237,
1238-39 (Ala. 1983) (“The existence of a legal duty under a given statement of
facts and circumstances is essentially a question of law for the court . . . . It is
elementary that where there is no duty, there can be no negligence.”) (citations

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omitted).12
For these reasons, Lowe’s motion for summary judgment regarding Borum’s
failure to warn claim is due to be GRANTED. See, e.g., Haney v. Eaton Elec.,
Inc., 528 F. Supp. 2d 1262, 1270 (N.D. Ala. 2007) (granting summary judgment
on failure to warn claim for manufacturer of “relays” used to deactivate or
deenergize heavy machinery because plaintiff failed to introduce “reliable
evidence that the relays in question were imminently dangerous when put to their
intended purpose”).
iii.

Implied Warranty for Fitness of Particular Purpose

Alabama law imposes an implied warranty that, “[w]here the seller at the
time of contracting has reason to know any particular purpose for which the goods
are required and that the buyer is relying on the seller’s skill or judgment to select
or furnish suitable goods . . . the goods shall be fit for such purpose.” Ala. Code §
7-2-315. Here, however, Borum fails to establish a “particular” purpose for
purchasing the ladder or that he relied on Lowe’s skill or judgment to select the
ladder for that purpose. First, in opposition to summary judgment, Borum admits
that it is “unlikely proof of a particular purpose can be presented at trial.” Doc.
50-1, at 2; doc. 48. The comments to this Alabama Code section provide, “[a]
‘particular purpose’ differs from the ordinary purpose for which the goods are
used in that it envisages a specific use by the buyer which is peculiar to the nature
12

As there is insufficient evidence of negligence for Borum’s failure to warn claim, there
is also insufficient evidence of wanton behavior by Lowe’s.
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of his business whereas the ordinary purposes for which goods are used are those
envisaged in the concept of merchantability and go to uses which are customarily
made of the goods in question.” Ala. Code § 7-2-315, comment 2. In other words,
Borum cannot demonstrate that he purchased the ladder for a peculiar, as opposed
to ordinary, purpose.
Moreover, there is no evidence that Borum relied on a Lowe’s agent to
select the specific ladder model at issue. In fact, Borum barely recalls even buying
the ladder at Lowe’s, much less relying on the “seller’s skill or judgment” to
purchase the ladder. See doc. 21-3, at 15; doc. 48-6, at 3. And indeed, this
implied warranty is only “intended to cover the sale of goods where the buyer
relies on the seller’s expertise to provide appropriate goods.” Montgomery Rubber
and Gasket Co., Inc. v. Belmont Machinery Co., Inc., 308 F. Supp. 2d 1293, 1303
(M.D. Ala. 2004). See also Donald v. City Nat’l Bank of Dothan, 329 So. 2d 92,
96 (Ala. 1976) (finding summary judgment appropriate on implied warranty for
particular purpose claim where plaintiff offered “no evidence to show that the
bank possessed any skill or knowledge upon which he could have relied”). Absent
any proof of this implied warranty’s prima facie elements, summary judgment is
also warranted on this claim.
IV.

CONCLUSION

For the aforementioned reasons, by separate order the court will GRANT
Defendants’ summary judgment motions, Daubert motion, and motion to strike
Dr. Toutanji’s supplemental expert report, and will DENY Borum’s motion to
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amend his original complaint.

DONE the 6th day of June, 2012.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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