Plummer et al v. Terex Corporation et al

Filing 148

ORDER: For the reasons stated on the record at the 21 May 2014 hearing, the Court makes the following order. 67 Motion denied without prejudice to limiting instructions being given at trial as need be. 80 Motion granted in part and denied without prejudice in part. Olson is qualified as an expert, but the Plummers may raise the asserted changes in his opinion by separate motion. 82 Motion granted in part and denied in part. Moore is qualified as an expert in engineering, but cannot offer t estimony on the warnings issues. 126 Motion mostly granted, except as to Geasland's testimony. 84 Motion as supplemented by 103 , is denied. 94 Motion is denied without prejudice to the Court's reconsideration. 87 Motion for Partia l Summary Judgment is denied. 86 Motion as supplemented by 105 & 111 , is granted as to the strict liability claim; denied as to the negligence, warnings, and warranty claims. 90 Motion remains under advisement. The Court granted Plummers 9; oral motion to amend their complaint. The Court further requested simultaneous brief due 30 May 2014. The trial in this case is rescheduled to begin 16 July 2014. Signed by Judge D. P. Marshall Jr. on 5/23/2014. (jak) (Docket text modified on 5/23/2014 to correct a typographical error).(jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
JOHN PLUMMER and
DEZIRIE PLUMMER
v.

PLAINTIFFS
No. 2:12-cv-192-DPM

TEREX SOUTH DAKOTA, INC.,
ffk/a TEREX-TELECT

DEFENDANT
CROSS-CLAIMANT

FORMERLY FORESTRY, INC.

v.
TEREX CORPORATION;
TEREX USA, LLC; TEREX
UTILITIES, INC.; TEREX SOUTH
DAKOTA, INC. f/k/a TEREX-TELECT

CROSS-DEFENDANTS

ORDER
For the reasons stated on the record at the 21 May 2014 hearing, the
Court makes the following order:

•

The Plummers' motion, NQ 67, is denied without prejudice to
limiting instructions being given at trial as need be.

•

The Plummers' motion, NQ 80, is granted in part and denied
without prejudice in part. Olson is qualified as an expert, but the
Plummers may raise the asserted changes in his opinions by
separate motion.

•

The Plummers' motion, NQ 82, is granted in part and denied in
part. Moore is qualified as an expert in engineering, but cannot
offer testimony on the warnings issues.

•

The Plummers' motion, NQ 126, is mostly granted, except as to
Geasland's testimony. The Court held consideration of the
apportionment issue in abeyance.

•

Terex's motion, NQ 84, as supplemented by NQ 103, is denied.

•

Terex's motion, NQ 94, is denied without prejudice to the Court's
reconsideration of the issue.

•

The Plummers' motion for partial summary judgment on the
issue of foreseeable misuse, NQ 87, is denied.

•

Terex's motion for summary judgment, NQ 86, as supplemented
by NQ 105 & 111, is granted as to the strict liability claim, and
denied as to the negligence, warnings, and warranty claims.

•

The Plummers' motion to strike Terex's cross-claim, NQ 90,
remains under advisement.

The Court also took the following actions:

•

The Court granted the Plummers' oral motion to amend their
complaint to include a notice allegation for their breach-ofwarranty claims.

•

The Court requested simultaneous briefs, no more than ten pages
in length, on the pending cross-claim issues. Briefs due 30 May
2014.

•

The Court rescheduled trial to begin Wednesday, 16 July 2014 .
Counsel should be ready by 8:30a.m. We should have the venire
by 9:30a.m.

So Ordered.
-

l/

D.P. Marshall Jr.
United States District Judge

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