Mauer v. ICON Health and Fitness, Inc. et al
Filing
27
MEMORANDUM OPINION AND ORDER granting 24 Defendant's Motion for Summary Judgment. This action is hereby dismissed and judgment shall enter in favor of Defendant ICON and against Plaintiff Mauer. Signed by Chief Judge Leonard T Strand on 3/4/2020. (jag)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
MARLENE MAUER,
Plaintiff,
No. C18-2009-LTS
vs.
ICON HEALTH AND FITNESS, INC.,
Defendant.
MEMORANDUM OPINION AND
ORDER ON DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT
___________________________
I.
INTRODUCTION
This case is before me on a motion (Doc. No. 24) for summary judgment filed by
defendant ICON Health and Fitness, Inc. (ICON). Plaintiff Marlene Mauer has filed a
resistance (Doc. No. 25) and ICON has filed a reply (Doc. No. 26). I find that oral
argument is not necessary. See Local Rule 7(c).
II.
PROCEDURAL HISTORY
Mauer commenced this action on January 5, 2018, by filing a petition (Doc. No.
3) in the Iowa District Court for Bremer County against ICON, Sears, Roebuck and Co.
(Sears) and Sears Home Services, LLC (Sears Home). 1 Defendants timely removed the
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case to this court based on diversity of citizenship jurisdiction pursuant to 28 U.S.C. §
1446(a). Mauer’s petition includes three counts against ICON: (1) products liability
based on a failure to warn, design defect, manufacturing defect and/or insufficient
inspection; and (2) negligence based on a failure to warn, design defect, manufacturing
1
Mauer dismissed Sears and Sears Home without prejudice on April 3, 2019, due to their
bankruptcy filing. See Doc. Nos. 12, 16, 17, 18.
defect and/or insufficient inspection and (3) breach of implied warranty of
merchantability.
Mauer served her initial disclosures on April 19, 2018. Doc. No. 24-1 at 3. She
identified Dennis Peters of Cedar Valley Fitness Repair as a potential witness in this case.
Id. Mauer generally explained that Peters inspected the treadmill on March 1, 2016, and
is of the opinion that the treadmill’s speed automatically increased during the incident at
issue (as described further below) because of either a console or lower control board
issue. Id. However, Mauer did not follow up providing any disclosures of expert witness
opinions by her June 28, 2019, deadline to designate expert witnesses and provide expert
witness disclosures. Id.
After ICON served defense expert witness disclosures on Mauer, Mauer’s counsel
advised ICON’s counsel that Peters had passed away, and that Mauer’s counsel was
seeking a replacement expert. Id. Discovery in this case closed on November 18, 2019.
Doc. No. 20. ICON filed its motion for summary judgment on January 2, 2020, seeking
judgment in its favor on all counts. Mauer has not, at least up to the date of ICON’s
motion for summary judgment, identified any other expert witness or disclosed the
opinions of any such witness. Doc. No. 24-1 at 6. A jury trial is scheduled to begin
June 22, 2020.
III.
RELEVANT FACTS
The following facts are undisputed 2 for purposes of ICON’s motion except where
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otherwise noted:
2
Mauer did not file a response to ICON’s Statement of Material Facts. Doc. No. 24-1. The
Local Rules required Mauer to file a response in which she “expressly admits, denies, or qualifies
each of the moving party’s numbered statements of fact . . . .” Local Rule 56(b)(2). Mauer’s
failure to file a response is deemed an admission of all facts contained in ICON’s Statement of
Material Facts. Local Rule 56(b) (“The failure to respond to an individual statement of material
fact, with appropriate appendix citations, may constitute an admission of that fact.”).
2
Mauer purchased a Proform Crosswalk Fit 415 Treadmill (the treadmill) from
Sears, Roebuck and Co. (Sears) on May 28, 2015. Doc. No. 25-1 at 1. The treadmill
was designed and sold to Sears by ICON. Id. Mauer alleges that on one occasion
between May 28, 2015, and June 15, 2015, the treadmill accelerated automatically, and
without warning, during use, causing her to fall. 3 Id. ICON disputes whether the
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treadmill automatically accelerated and disputes whether it caused Mauer to fall. Doc.
No. 26 at 1.
On June 16, 2015, a Sears technician tested the treadmill and adjusted the motor
speed. Doc. No. 25-1 at 1. It is disputed whether the Sears technician did any other
work on the treadmill on that date. Mauer alleges that no parts were replaced or repaired.
Id. at 2. ICON notes there is no testimony from any witness with personal knowledge
about what the Sears technician did to the treadmill on June 16, but agrees there is a
document that suggests no parts were replaced or repaired. Doc. No. 26 at 1–2.
Mauer alleges that on January 24, 2016, the treadmill again accelerated
automatically and without warning after she had been walking on it for approximately six
minutes. Doc. No. 25-1 at 2. Mauer alleges that as a result, she fell off the treadmill
and broke her shoulder, bruised her chin and hurt her left knee. Id. ICON disputes
whether the treadmill automatically and without warning accelerated and disputes whether
it caused Mauer to fall. Doc. No. 26 at 1. Mauer alleges that when using the treadmill
on January 24, she pressed only the “start” button and otherwise kept her hands on the
treadmill’s hand bar while she walked. Doc. No. 25-1 at 2. ICON disputes whether
Mauer pressed only the “start” button. Doc. No. 26 at 2. Mauer also claims she never
changed programs or features while using the treadmill. Doc. No. 25-1 at 2. ICON
disputes whether Mauer ever changed programs or features on the treadmill. Doc. No.
26 at 2. Mauer’s husband put blue painter’s tape over the program controls on the
3
Mauer’s claims are not based on this fall. See Doc. No. 3 at 2 (Mauer’s petition mentions only
the fall that occurred on January 24, 2016). Further, Mauer testified that the only injury from
her earlier fall was a scrape on the right side of her face. Doc. No. 25-2 at 15.
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treadmill to make sure they were never used but Mauer is not sure about when he placed
the blue tape on the treadmill. Doc. No. 25-1 at 2.
When Mauer was asked during her deposition whether she knew if there were
programs built into the treadmill that would increase the treadmill’s speed on its own
depending upon the program, Mauer replied she did not. Doc. No. 24-1 at 5. When
asked if it was possible that the treadmill could have accelerated because a workout
program on the treadmill was activated such that the treadmill’s speed would change on
its own, Mauer stated “I wouldn’t know because I don’t know anything about all them
programs and stuff.” Id.
IV.
SUMMARY JUDGMENT STANDARDS
Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
A material fact is one that “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.” Id. Facts that are “critical”
under the substantive law are material, while facts that are “irrelevant or unnecessary”
are not. Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question.” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence
that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475
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U.S. at 586, or evidence that is “merely colorable” or “not significantly probative,”
Anderson, 477 U.S. at 249–50, does not make an issue of material fact genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248–49. The party moving
for entry of summary judgment bears “the initial responsibility of informing the district
court of the basis for its motion and identifying those portions of the record which show
a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323).
Once the moving party has met this burden, the nonmoving party must go beyond the
pleadings and by depositions, affidavits, or otherwise, designate specific facts showing
that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910
(8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and
material as it relates to the substantive law. If a party fails to make a sufficient showing
of an essential element of a claim or defense with respect to which that party has the
burden of proof, then the opposing party is entitled to judgment as a matter of law.
Celotex, 477 U.S. at 322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
587–88. Further, I must give the nonmoving party the benefit of all reasonable inferences
that can be drawn from the facts. Id. However, “because we view the facts in the light
most favorable to the non-moving party, we do not weigh the evidence or attempt to
determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383
F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine whether a
dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372,
1377 (8th Cir. 1996).
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V.
ANALYSIS
While Mauer’s state court petition names ICON in only three counts, those counts
assert nine different claims under Iowa law: (1) product liability based on a failure to
warn, (2) negligence based on a failure to warn, (3) product liability based on a design
defect, (4) negligence based on a design defect, (5) product liability based on a
manufacturing defect, (6) negligence based on a manufacturing defect, (7) product
liability based on insufficient inspection, (8) negligence based on insufficient inspection
and (9) breach of implied warranty of merchantability. Doc. No. 3. I will address each
of Mauer’s claims, although for reasons I will explain below, I will address her product
liability and negligence claims on each defect issue together.
A.
Failure to Warn – Product Liability and Negligence
ICON argues it is entitled to summary judgment on Mauer’s failure to warn claim
under a product liability theory because she has not identified any deficiency in the
instructions or warnings provided with the treadmill and has not provided alternative
instructions that would have prevented her January 24, 2016, accident. Doc. No. 24-2
at 6. ICON also argues that Iowa law requires Mauer to have expert opinion to support
her failure to warn claim. Id. at 8. ICON argues that even assuming Mauer has the
necessary expert testimony, she cannot demonstrate proximate causation because she did
not fully read the warnings or instructions that accompanied the treadmill. Id. at 7. Last,
ICON contends it is entitled to summary judgment on Mauer’s claim of failure to warn
under a negligence theory because Iowa law prohibits a plaintiff from bringing claims of
failure to warn under both product liability and negligence theories. Id. at 10.
Mauer’s resistance fails to address ICON’s arguments on either of her failure to
warn claims. Instead, she argues only that that she has a general negligence claim that
should proceed to a jury because res ipsa loquitur would permit a jury to infer negligence
from the facts presented. Doc. No. 25 at 3.
I will address Mauer’s claim of general
negligence under res ipsa loquitur later in this opinion.
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1.
Applicable Law
Under Iowa law, a plaintiff cannot assert a failure to warn claim under a theory of
strict liability. Scott v. Dutton–Lainson Co., 774 N.W.2d 501, 504 (Iowa 2009) (citing
Olson v. Prosoco, Inc., 522 N.W.2d 284, 289 (Iowa 1994)). The Iowa Supreme Court
has reiterated, “In Wright [v. Brooke Group, Ltd., 652 N.W.2d 159 (Iowa 2002)], we
adopted the Restatement (Third) of Torts: Products Liability sections 1 and 2 (1998)
[Products Restatement],” which, in turn, “recognizes that ‘strict liability is appropriate
in manufacturing defect cases, but negligence principles are more suitable for other
defective product cases.’” Id. at 504 (quoting Wright, 652 N.W.2d at 168). Still more
specifically, “[t]he standards for . . . failure to warn claims—as recognized by the Third
Products Restatement and Wright—require consideration of reasonableness and therefore
incorporate negligence principles.” Id. at 506 (citing Products Restatement § 2(c), at
14). Thus, failure to warn product defect claims are negligence claims under Iowa law,
as defined in Products Restatement § 2(c):
A product . . . is defective because of inadequate instructions or warnings
when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the provision of reasonable instructions or warnings
by the seller or other distributor, or a predecessor in the commercial chain
of distribution, and the omission of the instructions or warnings renders the
product not reasonably safe.
Products Restatement § 2(c). “Among other things, this claim specifically requires the
plaintiff to show that the foreseeable risk of harm could have been reduced or avoided
with reasonable instructions or warnings. Further, this claim requires a showing that the
risk to be addressed was not obvious to product users.”
Neilson v. Whirlpool
Corporation, No. C10-140, 2012 WL 13018693, at *11 (S.D. Iowa Jan. 3, 2012).
Iowa’s appellate courts discussed the necessity of expert testimony in product
liability cases on several occasions. Iowa does not categorically require expert testimony
in all product liability cases. Housley v. Orteck Int’l, Inc., 488 F. Supp. 2d 819, 828
(S.D. Iowa 2007) (citing Reed v. Chrysler Corp., 494 N.W.2d 224, 226–27 (Iowa 1992)).
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“Whether expert testimony is required ultimately depends on whether it is a fact issue
upon which the jury needs assistance to reach an intelligent or correct decision.” Reed,
494 N.W.2d at 226–27 (quoting Wernimont v. Int'l Harvestor Corp., 309 N.W.2d 137,
141 (Iowa Ct.App.1981)); see also Giles v. Miners, Inc., 242 F.3d 810, 813 (8th Cir.
2001) (“Although Iowa law does not appear to require expert testimony for recovery in
a products liability action, the plaintiff must supply sufficient evidence to satisfy the trial
court that the jury, with its common knowledge, could reasonably find an alternative
design to be practicable and feasible.”).
Expert testimony is required to establish
causation when “the average juror needs the assistance of expert testimony to reach an
intelligent decision about whether the foreseeable risks of harm posed by [a product]
could have been reduced or avoided by the provision of reasonable instructions or
warnings and, if so, whether an omission of instructions or warnings rendered the device
not reasonably safe.” Benedict v. Zimmer, Inc., 405 F. Supp. 2d 1026, 1033 (N.D. Iowa
2005).
2.
Discussion
Mauer may bring a failure to warn claim under Iowa law, pursuant to Products
Restatement § 2(c). However, her petition and resistance brief makes no mention of the
warnings or instructions that could have been provided to reduce or avoid her injury.
Further, she does not mention the actual risk to be addressed by such warnings. Even if
Mauer had addressed these issues, expert testimony would be required. This is a complex
and technical case involving issues of product design, engineering and manufacturing
beyond the common experience of the average juror. The average juror is not familiar
with the design of the treadmill, what parts are in it, how it was created or how it
functions. The average juror will not be able to understand what instructions or warnings
could have been provided with the treadmill without expert testimony. See Neilson, 2012
WL 13018693, at *11 (holding expert testimony was required in a product liability case
in which the plaintiff alleged a washing machine was defective and caused a fire);
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Housley, 488 F. Supp. 2d at 829 (same where the product was a tractor tire); Benedict,
405 F. Supp. 2d at 1033 (same where the product was an artificial hip); Rock v. Smith,
985 F. Supp. 2d 1066, 1074 (S.D. Iowa 2013) (same where the product was a tow dolly).
Because Mauer may not bring a failure to warn claim based on strict liability, and
because she has not generated a genuine issue of material fact as to whether alternative
instructions or warnings could have been provided to reduce the foreseeable risk of harm,
ICON is entitled to summary judgment on her failure to warn claims.
B.
Design Defect – Product Liability and Negligence
ICON argues it is entitled to summary judgment on Mauer’s claim of design defect
under a product liability theory because she has not identified any reasonable alternative
design for the treadmill that would have reduced or avoided the foreseeable risks of harm,
nor has she shown how the omission of the alternative design rendered the treadmill
unsafe. Doc. No. 24-2 at 5. ICON also argues that Iowa law requires Mauer to have
expert opinion to support her design defect claim. Id. at 5. Last, ICON contends it is
entitled to summary judgment on Mauer’s design defect claim under a negligence theory
because Iowa law prohibits a plaintiff from bringing claims of design defect under both
product liability and negligence theories. Id. at 10. Mauer’s resistance fails to address
ICON’s arguments on either of her design defect claims.
1.
Applicable Law
“Under a design-defect claim, a plaintiff is essentially arguing that, even though
the product meets the manufacturer's design specifications, the specifications themselves
create unreasonable risks.” Parish v. Jumpking, Inc., 719 N.W.2d 540, 543 (Iowa
2006). A plaintiff may bring only one claim based on a design defect. The Iowa Supreme
Court has explained:
Prior to this court's recent decision in Wright v. Brooke Group Ltd., 652
N.W.2d 159 (Iowa 2002), design defect claims could be brought under a
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theory of either strict liability or negligence. See, e.g., Chown v. USM
Corp., 297 N.W.2d 218, 220 (Iowa 1980); Hawkeye–Security Ins. Co. v.
Ford Motor Co., 174 N.W.2d 672, 682–84 (Iowa 1970). In Wright, we
adopted the Restatement (Third) of Torts: Products Liability sections 1 and
2 (1998) [hereinafter Third Products Restatement]. Wright, 652 N.W.2d
at 169. The Third Products Restatement recognizes that “strict liability is
appropriate in manufacturing defect cases, but negligence principles are
more suitable for other defective product cases.” Id. at 168. Therefore,
Wright adopted a standard of risk-utility analysis, which incorporates a
consideration of reasonableness, for design defect claims, but chose to
“label a claim based on a defective product design as a design defect claim
without reference to strict liability or negligence.” Id. at 169.
Scott, 774 N.W.2d at 504.
To prove a design defect, a plaintiff must demonstrate “the foreseeable risks of
harm posed by the product could have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of alternative design renders the
product not reasonably safe.” Wright, 652 N.W.2d at 169 (citing Products Restatement
§ 2(b)). “Thus, ‘[t]o succeed under [Products Restatement] section 2(b), a plaintiff must
ordinarily show the existence of a reasonable alternative design, and that this design
would, at a reasonable cost, have reduced the foreseeability of harm posed by the
product.’” Nationwide Agribusiness Ins. Co. v. SMA Elevator Const. Inc., 816 F. Supp.
2d 631, 657 (N.D. Iowa 2011) (citations omitted).
2.
Discussion
Mauer may bring a design defect claim under Iowa law, pursuant to Products
Restatement § 2(b). However, Mauer fails to identify a design defect in the treadmill
that could have been remedied by a reasonable alternative design, and further fails to
show that an alternative design would have reduced or avoided foreseeable risks of harm.
Even if Mauer had addressed these issues, expert testimony would be necessary. An
average juror has no understanding as to the actual design of the treadmill or any
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alternative designs which might reduce the risk of foreseeable harm. See Neilson, 2012
WL 13018693, at *11; see also Reed, 494 N.W.2d at 227 (“[D]esign defect cases
sometimes involve technical, scientific issues which cannot be fully understood by the
average juror without some expert assistance. In such cases, expert testimony as to the
defective nature of defendant's design will be an indispensable element of plaintiff's
case.”).
Because Mauer has failed to create a genuine issue of material fact as to what
design defect could have been remedied by a reasonable alternative design, and whether
that alternative design might reduce the risk of foreseeable harm, ICON is entitled to
summary judgment on Mauer’s defect design claims.
C.
Manufacturing Defect – Product Liability and Negligence
ICON argues it is entitled to summary judgment on Mauer’s claims of
manufacturing defect under product liability and negligence theories because Mauer has
not presented any expert evidence demonstrating that the treadmill deviated from its
intended design, or that any manufacturing defect caused Mauer’s injuries. Doc. No.
24-2 at 4.
Mauer’s resistance fails to address ICON’s arguments on either of her
manufacturing defect claims. As such, I find that she has abandoned those claims.
Nonetheless, I will briefly address them.
1.
Applicable Law
Iowa law allows a plaintiff to bring manufacturing defect claims under strict
liability and negligence theories. The Iowa Supreme Court has explained that, unlike
design defect and warning defect claims, to which negligence principles are applicable,
“[t]he Third Products Restatement recognizes that ‘strict liability is appropriate in
manufacturing defect cases.’” Scott, 774 N.W.2d at 504 (quoting Wright, 652 N.W.2d
at 168). The court recognized, however, that “[c]omment c of the Third Products
Restatement section 2 notes that ‘[a]lthough Subsection (a) calls for liability without fault
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[in manufacturing defect claims], a plaintiff may seek to recover based upon allegations
and proof of negligent manufacture.’” Id. at 505 n.3 (quoting Products Restatement § 2
cmt. c); see Nationwide Agribusiness Ins. Co., 816 F. Supp. 2d at 663 (finding that
Products Restatement § 2(a) authorizes both strict liability and negligence claims based
on a single manufacturing defect); see also Estate of Thompson v. Kawasaki Heavy
Industries, Ltd., 922 F. Supp. 2d 780, 786 (N.D. Iowa 2013); Depositors Ins. Co. v.
Wal-Mart Stores, Inc., 506, F.3d 1092, (8th Cir. 2007).
Under either theory, a plaintiff must show that the product did, in fact, have a
manufacturing defect at the time of sale that caused the plaintiff’s harm. Products
Restatement § 2(a) cmt. n. This means the product “contains a manufacturing defect
when the product departs from its intended design even though all possible care was
exercised in the preparation and marketing of the product. . . .” Products Restatement §
2(a). “A departure from the intended design of a product cannot be determined without
knowing the actual intended design of the product. Thus, under Iowa law, an essential
element of any manufacturing defect claim is the intended design of the product.”
Depositors Ins. Co., 506 F.3d at 1095.
2.
Discussion
Mauer offers no evidence showing the intended design of the treadmill or how the
manufacturing of this particular treadmill departed from its intended design. See id.
(holding that a plaintiff fails to establish a manufacturing defect claim when she offers no
evidence of the intended design of product or how the manufacturing of the product
departed from its intended design). Even if Mauer had addressed these issues, expert
testimony would be necessary. An average juror has no knowledge on whether the
treadmill contains a defect that departs from its intended design without testimony from
an expert. See Neilson, 2012 WL 13018693, at *9. The technical details of how the
treadmill should work and may have deviated from that are not something an average
juror would know about. Mauer has failed to show a genuine issue of material fact that
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the treadmill has a defect that departs from its intended design. Thus, under either a
strict liability or a negligence theory, ICON is entitled to summary judgment on Mauer’s
manufacturing defect claims.
D.
Insufficient Inspection – Product Liability and Negligence
Mauer’s claims of insufficient or inadequate inspection under strict liability and
negligence theories have no legal merit. Mauer cites no authority suggesting that these
are recognized claims under Iowa law, nor have I been able to locate such authority.
Further, Mauer has failed to address her claims of insufficient inspection in her briefing,
thus effectively abandoning those claims. ICON is entitled to summary judgment on
Mauer’s insufficient inspection claims.
E.
Breach of Implied Warranty of Merchantability
ICON argues it is entitled to summary judgment on Mauer’s claim of breach of
implied warranty of merchantability because she has not presented expert testimony on
whether the treadmill contained a defect, nor can she prove that any defect caused her
accident without expert testimony. Doc. No. 24-2 at 9. Mauer’s resistance fails to
address ICON’s arguments on breach of implied warranty of merchantability. While this
indicates that she has abandoned this claim, I will nonetheless address it briefly.
1.
Applicable Law
The Iowa Supreme Court has observed that “a warranty of merchantability ‘is
based on a purchaser's reasonable expectation that goods . . . will be free of significant
defects and will perform in the way goods of that kind should perform.’” Wright, 652
N.W.2d at 180–81 (quoting Van Wyk v. Norden Labs., Inc., 345 N.W.2d 81, 84 (Iowa
1984), with emphasis added in Wright). To prove a claim of breach of the implied
warranty of merchantability, a plaintiff must show (1) a merchant sold the goods, (2) the
goods were not merchantable at the time of sale, (3) injury or damage occurred to the
13
plaintiff, (4) the defective nature of the goods caused the damage proximately and in fact
and (5) notice was given to the seller of the damage. Conveyor Company v. Sunsource
Technology Services, Inc., 398 F. Supp. 2d 992, 1000 (N.D. Iowa 2005). Goods are
merchantable if they “are fit for the ordinary purposes for which such goods are used.”
Iowa Code § 554.2314(2)(c). “[W]arranty liability under section 554.2314(2)(c) requires
proof of a product defect as defined in Products Restatement section 2.” Wright, 652
N.W.2d at 182; see also Depositors Ins. Co., 506 F.3d at 1095 (analyzing separate claims
of product liability, implied warranty of merchantability and negligence based on an
alleged manufacturing defect in an extension cord or lamp cord).
2.
Discussion
For reasons I have already explained above, without expert testimony Mauer
cannot create a jury issue on whether the treadmill contains a warning defect, design
defect or manufacturing defect as defined in Products Restatement § 2. Therefore, she
is unable to demonstrate that the treadmill was not merchantable at the time she purchased
it. I will grant ICON’s motion for summary judgment on Mauer’s implied warranty of
merchantability claim.
F.
Res Ipsa Loquitur
While Mauer presents no argument related to her lack of an expert witness, she
argues genuine issues of material fact exist as to a claim of general negligence under res
ipsa loquitur. Doc. No. 25 at 3. Mauer contends that res ipsa loquitur is applicable here
and there are genuine issues of material fact as to whether ICON’s negligence caused her
injuries. Id. Mauer argues that, after the treadmill left ICON’s control, no changes were
made to it capable of causing her injury. Id. at 5. Mauer also argues that the treadmill
would not have suddenly sped up while she was using it, and not pressing any buttons or
using any special features or programs, in the absence of ICON’s negligence. Id. at 7.
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ICON responds that Mauer cannot assert product defect claims based on general
negligence, and therefore res ipsa loquitur is inapplicable. Doc. No. 26-1 at 3. ICON
contends that allowing Mauer to assert a product liability claim and a negligence claim
would give her “two bites of the apple.” Id. ICON argues that even if res ipsa loquitur
is viable in this case, Mauer cannot show that her injury would not have happened in the
absence of ICON’s negligence. Id. ICON alleges the treadmill is designed to speed up
automatically if certain workout programs are selected, and it is possible that Mauer
activated one of those programs. Id.; Doc. No. 24-2 at 14. ICON also argues that the
treadmill was serviced by a third party at least once before Mauer’s accident occurred,
which could have caused the unintended speed up to occur. Doc. No. 26-1 at 4; Doc.
No. 24-2 at 13–14.
1.
Applicable Law
Under Iowa law, a plaintiff may plead, and the district court may submit to the
jury, a claim of both specific negligence and general negligence under res ipsa loquitur. 4
3F
Housley, 488 F. Supp. 2d at 833 (citing Weyerhaeuser Co. v. Thermogas Co., 620
N.W.2d 819, 831 (Iowa 2000). Courts have allowed a claim of general negligence under
res ipsa loquitur to proceed when the plaintiff also asserts product liability, specific
negligence and warranty claims based on a product’s alleged defect. See Depositors Ins.
Co., 506, F.3d at 1096; Neilson, 2012 WL 13018693, at *13; Housley, 488 F. Supp. 2d
at 833; Weyerhaeuser Co., 620 N.W.2d at 831. Res ipsa loquitur is a rule of evidence
and a type of circumstantial evidence that permits, but does not compel, an inference of
4
It is doubtful that Mauer adequately pleaded a claim of general negligence under res ipsa
loquitur in her petition. See Weyerhaeuser Co., 620 N.W.2d at 831 (Iowa is a notice-pleading
state and a petition must give a defendant sufficient notice that the plaintiff is relying on a general
negligence claim under res ipsa loquitur). The petition does not specifically mention a claim of
general negligence under a res ipsa loquitur theory. However, ICON did not raise a sufficiency
of the pleadings argument in its motion and, in any event, the res ipsa loquitur theory fails as a
matter of law for reasons I will explain below.
15
negligence upon showing an injury “would not have occurred absent some unspecified
but impliedly negligent act.” Sammons v. Smith, 353 N.W.2d 380, 385 (Iowa 1984).
“Under Iowa law, res ipsa loquitur applies when ‘(1) the injury is caused by an
instrumentality under the exclusive control of the defendant, and (2) the occurrence is
such as in the ordinary course of things would not happen if reasonable care had been
used.’” Brewster v. United States, 542 N.W.2d 524, 529 (Iowa 1996) (quoting Mastland,
Inc. v. Evans Furniture, Inc., 498 N.W.2d 682, 686 (Iowa 1993)). “The plaintiff must
provide substantial evidence to support both these elements, which then permits, but does
not compel, the jury to draw an inference of negligence by the defendant.” Housley, 488
F.Supp.2d at 833 (citing Weyerhaeuser, 620 N.W.2d at 831).
Res ipsa loquitur cannot “be relied on unless within the common experience of lay
persons the occurrence [is] such that in the ordinary course of things it would not have
happened if reasonable care had been used.” Brewster, 542 N.W.2d at 530 (citations
and quotations omitted). “If expert testimony is required to establish general negligence
or the foundational facts and expert testimony is unavailable, then summary judgment is
appropriate.” Id. at 530–31 (citing Welte v. Bello, 482 N.W.2d 437, 440 (Iowa 1992));
see also Housley, 488 F. Supp. 2d at 834.
2.
Discussion
Mauer has not shown a genuine issue of material fact as to whether the treadmill
was defective or whether ICON’s negligence caused that defect. The fact alone that the
treadmill accelerated suddenly does not demonstrate that it would not have happened if
ICON had used reasonable care. 5 The average juror is not familiar with the design of
4F
5
While not relevant to my analysis, there is no support in the record for ICON’s argument that
the treadmill had workout programs which, if selected, would cause the treadmill to speed up
on its own. Doc. No. 24-2 at 14. At Mauer’s deposition she was asked if she knew the treadmill
had programs that would cause it to speed up on its own as part of a workout, and she replied
that she did not. Doc. No. 24-1 at 5. This answer does not establish that the treadmill actually
had any such programs, as Mauer admitted she knew nothing about them.
16
the treadmill, what parts are in it, how it was created or how it functions. An average
juror cannot conclude from the lone fact that the treadmill suddenly accelerated, without
Mauer pushing any of its buttons, that this occurred due to ICON’s negligence. See
Neilson, 2012 WL 13018693, at *13 (rejecting a res ipsa loquitur argument because the
plaintiff could not show a genuine issue of material fact on whether there was a product
defect or negligence associated with an alleged defect without expert testimony). Mauer
cites no Iowa authority, and I am unable to locate any, allowing a plaintiff to make a
claim of general negligence based on res ipsa loquitur when the plaintiff is found to need
expert testimony to establish a defect in a product and to establish that the defect caused
the plaintiff’s injury. See Weyerhaeuser Co., 620 N.W.2d at 833 (allowing a plaintiff to
bring a general negligence claim under res ipsa loquitur when the plaintiff had an expert
who could not pinpoint a defect in a liquid propane fuel tank, but testified the premature
explosion of the tank was the result of a defect).
I am unpersuaded by Mauer’s attempt to conduct an end-run around Iowa’s product
liability law and escape from her own failure to secure an expert witness. As I have
explained above, due to the complex technical nature of the treadmill, all of Mauer’s
claims require expert testimony. Mauer has not provided that expert testimony. Mauer
cannot avoid having to show the treadmill is defective through expert testimony by
arguing that the mere fact the treadmill sped up automatically is enough to show that the
product is somehow defective due to ICON’s negligence.
Indeed, allowing Mauer to use res ipsa loquitur to create a jury issue would defeat
the purpose of the res ipsa doctrine. The underlying reason for the doctrine is that
“evidence of the true cause of plaintiff’s injury is practically inaccessible to plaintiff but
accessible to defendant.” Reilly v. Straub, 282 N.W.2d 688, 694 (Iowa 1979). The
opposite is true here. Mauer has the treadmill in her possession and can employ an expert
to determine how it is defective (if at all). This is not a situation in which Mauer has an
expert who has determined Mauer’s injury was caused by a defect in the treadmill, but is
unable to determine exactly what that defect is. See Weyerhaeuser Co., 620 N.W.2d at
17
833. Instead, Mauer wishes to rely only on the fact that her treadmill accelerated without
warning to demonstrate that her injury would not have happened unless ICON was
somehow negligent. This she cannot do.
Mauer has not created a jury issue on whether the cause of her injuries was ICON’s
negligence or whether in the absence of any negligence, her injuries would not have
occurred. ICON is entitled to summary judgment on Mauer’s claim of general negligence
under res ipsa loquitur.
VI.
CONCLUSION
For the reasons set forth herein:
1.
ICON’s motion (Doc. No. 24) for summary judgment is granted as to all
claims.
2.
This action is hereby dismissed and judgment shall enter in favor of ICON
and against Mauer.
3.
The trial of this case, currently scheduled to begin June 22, 2020, is hereby
canceled.
4.
The Clerk of Court shall close this case.
IT IS SO ORDERED.
DATED this 4th day of March, 2020.
__________________________
Leonard T. Strand, Chief Judge
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