Fagundez v. Louisville Ladder, Inc.

Filing 140

REPORT AND RECOMMENDATION recommending denying 99 Defendants' Joint Motion for Summary Judgment. Signed by Magistrate Judge John J. O'Sullivan on 12/22/2011. (mms) Modified from Order to R&R on 12/22/2011 (wc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-23131-CIV-LENARD/O’SULLIVAN
RAUL FAGUNDEZ,
Plaintiff,
v.
LOUISVILLE LADDER, INC.,
Defendant.
__________________________/
REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court on the Defendants’ Joint Motion for
Summary Judgment (DE # 99, 6/6/11) and the Defendants’ Memorandum in Support of
Joint Motion for Summary Judgment (DE # 100, 6/6/11). This matter was referred to
the undersigned by the Honorable Joan A. Lenard, United States District Court Judge
for the Southern District of Florida pursuant to 28 U.S.C. § 636(b). Having reviewed the
applicable filings and law, the undersigned respectfully RECOMMENDS that the
Defendants’ Joint Motion for Summary Judgment (DE # 99, 6/6/11) and the Defendants’
Memorandum in Support of Joint Motion for Summary Judgment (DE # 100, 6/6/11) be
DENIED in light of its denials of the defendant’s motions in limine to exclude plaintiff’s
expert opinions as more fully discussed below.
STANDARD OF REVIEW
This is a products liability case based on theories of strict liability against both
defendants, negligent design and manufacture against Louisville Ladder, and negligent
distribution against Home Depot, for injuries resulting from an accident involving a

ladder. The defendants seek summary judgment on the plaintiff’s claims. The Court, in
reviewing a motion for summary judgment, is guided by the standard set forth in
Federal Rule of Civil Procedure 56(a), which states, in relevant part, as follows:
A party may move for summary judgment, identifying each claim or
defense--or the part of each claim or defense--on which summary
judgment is sought. The court shall grant summary judgment 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.
Fed. R. Civ. P. 56 (a).
The Court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law. The moving party bears the burden of meeting this standard. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). That is, “[t]he moving party bears the
initial responsibility of informing the . . . court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact.” U.S. v. Four Parcels of Real Prop., 941 F.2d 1428,
1437 (11th Cir. 1991) (quoting Celotex, 477 U.S. at 323) (internal quotation marks
omitted). In assessing whether the moving party has satisfied this burden, the Court is
required to view the evidence and all factual inferences arising therefrom in the light
most favorable to the non-moving party. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.
1994). “When evaluating cross-motions for summary judgment, the Court analyzes
each individual motion on its own merits and thus views the facts on each motion in the
light most favorable to the respective nonmovant.” Adega v. State Farm Fire & Cas. Ins.
Co., No. 07-20696, 2009 WL 3387689, at *3 (S.D. Fla. Oct.16, 2009). Summary
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judgment is appropriate when there is no dispute as to any material fact and only
questions of law remain. Id. If the record presents factual issues, the Court must deny
the motion and proceed to trial. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
Despite these presumptions in favor of the non-moving party, the Court must be
mindful of the purpose of Rule 56 which is to eliminate the needless delay and expense
to the parties and to the Court occasioned by an unnecessary trial. Celotex, 477 U.S. at
322-23. Consequently, the non-moving party cannot merely rest upon bare assertions,
conclusory allegations, surmises or conjectures. Id. As the Supreme Court noted in
Celotex:
[T]he plain language of Rule 56(c) mandates the entry of summary
judgment . . . 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. In such a
situation, there can be “no genuine issue as to any material fact,” since a
complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.
Id. at 322-23. The mere existence of a scintilla of evidence in support of the non-moving
party’s position is insufficient. There must be evidence on which the jury could
reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251
(1986).
ANALYSIS
Under Florida law, to prevail in a products liability case for either negligence or
strict liability, the plaintiff must establish a defect in the subject product, i.e., the ladder.
See West Caterpillar Tractor Co., 336 So. 2d 80, 87 (Fla. 1976). “‘Design defects must
be proven by expert testimony.’” Cooper v. Old Williamsburg Candle Corp., 653 F.
Supp. 2d 1220, 1225 (M.D. Fla. 2009) (quoting Alvarez v. General Wire Spring Co., No.
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8:07-cv-1319-T-33TGW, 2009 WL 248264, *4 (M.D. Fla. Feb. 1, 2009) (other citations
omitted)); Principi v. Survivair, Inc., 231 F.R.D. 685, 687 (M.D. Fla. 2005); Alexander v.
Danek Medical, Inc., 37 F. Supp. 2d 1346, 1349 (M.D. Fla. 1999) (“To prove a defective
product, a defect must be proven by expert testimony.”) (citing Humphreys v. Gen.
Motors Corp., 839 F. Supp. 822, 828-29 (N.D. Fla. 1993), aff’d, 47 F.3d 430 (11th Cir.
1984); Broderick v. Danek Medical, Inc., No. 95-8644-CIV-RYSKAMP, 1999 WL
1062135 (S.D. Fla. April 9, 1999).
The defendants argue that the plaintiff has not produced admissible opinion
testimony on product defect. Without competent technical testimony, the defendant
argues that the plaintiff is unable to prove either that the subject ladder contains an
unreasonably dangerous defect or that any such defect was the proximate cause of his
accident and injuries. Defs’ Motion for Summary Judgment p. 6 (DE# 100, 6/6/11).
Defendant argues that the plaintiff’s only evidence of an alleged defect in the accident
ladder is contained in the Rule 26 reports authored by his two proposed engineering
experts, John Schwartzberg and Oren Masory. Id. p. 7. The undersigned denied the
defendant’s motions to exclude these experts. Thus, the plaintiff has sufficient record
evidence to demonstrate the existence of genuine issues of material fact. See Meneely
v. Denman Tire Corp., No. GCA 93-10151-MMP, 1995 WL 902213, *8 (N.D. Fla. July
20, 1995).
CONCLUSION
The defendants are not entitled to summary judgment on the plaintiff’s claim
because material issues of fact exist. Accordingly, the Court should deny the
Defendants’ Joint Motion for Summary Judgment (DE # 99, 6/6/11).
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RECOMMENDATION
In accordance with the foregoing, the undersigned respectfully recommends that
the Defendants’ Joint Motion for Summary Judgment (DE # 99, 6/6/11) be DENIED.
The parties have fourteen (14) days from the date of receipt of this Report and
Recommendation within which to serve and file written objections, if any, with the
Honorable Joan A. Lenard, United States District Court Judge. Failure to file objections
timely shall bar the parties from attacking on appeal the factual findings contained
herein. See LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988); RTC v. Hallmark
Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
RESPECTFULLY SUBMITTED at the United States Courthouse, Miami, Florida
this 22nd day of December, 2011.

JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
United States District Judge Lenard
All Counsel of Record

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