Earls v. Medtec Ambulance Corporation et al

Filing 189

ORDER AND REASONS denying 79 Motion for Summary Judgment; denying 87 Motion for Summary Judgment ; granting 85 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 3/20/2012. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RYAN EARLS

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VERSUS
MEDTEC AMBULANCE CORPORATION

CIVIL ACTION
NO. 11-398
SECTION “B”(5)

ORDER AND REASONS

Before the Court are cross motions for summary judgment.
First, is Plaintiff Ryan Earls’ Motion for Summary Judgment and
his responsive pleadings. (Rec. Doc. Nos. 79, 112, and 114).

In

response, Defendants Medtech Ambulance Corporation and Oshkosh
Corporation

filed

opposition

thereto.

(Rec.

Doc.

No.

97).

Further, Defendants filed their Medtech Ambulance Corporation’s
and

Oshkosh

Corporation’s

Motion

for

Summary

Judgment.

(Rec.

Doc. No. 87). Accordingly, Plaintiff filed opposition thereto.
(Rec. Doc. No. 107). Also, Oshkosh Corporation filed its own
Motion

for

Summary

Judgment.

(Rec.

Doc.

No.

85).

Initially,

Plaintiff did not oppose dismissing Oshkosh Corporation from the
instant action, (Rec. Doc. No. 96), but he later changed his
position and filed opposition thereto.

(Rec. Doc. No. 138).

Accordingly, and for the reasons pronounced below, IT IS
ORDERED that Plaintiff Ryan Earls’ Motion for Summary Judgment
(Rec. Doc. No. 79) is DENIED.
1

IT IS FURTHER ORDERED that Medtech Ambulance Corporation’s
and Oshkosh Corporation’s Motion for Summary Judgment (Rec. Doc.
No. 87) is DENIED.
IT IS FURTHER ORDERED that Oshkosh Corporation’s Motion for
Summary Judgment (Rec. Doc. No. 85) is GRANTED.

Cause of Action and Facts of Case:
The

facts

of

liability injury.
2010,

Plaintiff

this

case

arise

from

an

(Rec. Doc. No. 79-1, at 1).
worked

as

an

emergency

alleged

product

In December of

medical

technician,

employed by the City of New Orleans. (Id.). Plaintiff and his
partner, Matthew Alewine, responded to an emergency call in a
New Orleans EMS ambulance, Unit 3215.

(Id.). Plaintiff loaded

the gun-shot victim into the ambulance while his partner drove.
(Id. at 2).

As Plaintiff was administering patient care to the

victim, Unit 3215 traveled over a bump in the road.
Subsequently,

allegedly,

the

ambulance’s

bench

seat,

(Id.).
where

Plaintiff was seated, collapsed, causing Plaintiff to fall and
sustain injuries to his lower back.1 (Id.).

1

Plaintiff weighed 215 lbs at the time of the accident. (Rec.
Doc. No. 79-7, Exh. F, at 3).
2

LAW and ANALYSIS
a. Motion for Summary Judgment
Summary judgment is proper if the pleadings, depositions,
interrogatory
affidavits,

answers,

show

that

and
there

admissions,
is

no

together

genuine

issue

with
as

any

to

any

material fact and that the moving party is entitled to judgment
as a matter of law.

Fed. R. Civ. P. 56(c); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 327 (1986).

A genuine issue

exists if the evidence would allow a reasonable jury to return a
verdict for the nonmovant.
U.S. 242, 248, (1986).
evidence

with

all

Anderson v. Liberty Lobby, Inc., 477
Although the Court must consider the

reasonable

inferences

in

the

light

most

favorable to the nonmoving party, the nonmovant must produce
specific facts to demonstrate that a genuine issue exists for
trial.

Webb v. Cardiothoracic Surgery Assocs. of N. Texas, 139

F.3d 532, 536 (5th Cir. 1998).
pleadings

and

use

The nonmovant must go beyond the

affidavits,

depositions,

interrogatory

responses, admissions, or other evidence to establish a genuine
issue.

Id.

Accordingly, conclusory rebuttals of the pleadings

are insufficient to avoid summary judgment.

Travelers Ins. Co.

v. Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).

3

b. Oshkosh Corporation
Plaintiff initially did not oppose dismissing Oshkosh from
this

action.

(Rec.

Doc.

No.

96)

(“Plaintiff

.

.

.

would

respectfully respond to the Motion for Summary Judgment sought
by Oshkosh Corporation in that Plaintiff at this time will not
oppose a Motion to Dismiss Oshkosh without prejudice.”).
at

1).

However,

after

deposing

Mr.

Robert

Wilkey,

(Id.
whose

testimony has been excluded in part and admitted in part by the
Court,

(Rec.

position.

Doc.

No.

171),

Plaintiff

(Rec. Doc. No. 138).

sought

to

change

his

Plaintiff contends that he

learned that “Medtec effectively is Oshkosh at the deposition of
Medtec’s ‘chief engineer’ (Mr. Wilkey).” (Id. at 1). However,
Plaintiff promised to attach the February 3, 2012 transcribed
deposition to the record, and it took him well over one month to
do so. (Id.; see also Rec. Doc. No. 182). Furthermore, Plaintiff
fails to demonstrate where in the transcript there is testimony
from Wilkey supporting Plaintiff’s contention that Medtec and
Oshkosh are connected.2

Plaintiff’s memorandum merely states

“[t]he testimony of Mr. Wilkey will show that a genuine issue of
fact exists concerning the control of Medtec by Oshkosh.” (Rec.
2

While Plaintiff does specify certain statements made by Wilkey
with regard to his knowledge of seat belt safety requirements
and him not testing the squad bench seat at issue, (Rec. Doc.
No. 176), Plaintiff fails to delineate any statements made by
Wilkey regarding the alleged connection between Medtec and
Oshkosh.
4

Doc. No. 138). Plaintiff’s deposition transcript is over 155
pages

in

length,

and

there

is

no

delineation

either

in

his

memoranda or in the transcript that specifies where Wilkey’s
statements support his contentions.3

Therefore, all Plaintiff

has proffered regarding Oshkosh’s involvement in this action is
“conclusory rebuttals” which are “insufficient to avoid summary
judgment.”
1203,

Travelers Ins. Co. v. Liljeberg Enter., Inc., 7 F.3d

1207

(5th

Cir.

1993).

Thusly,

unless

Plaintiff

can

directly point to relevant statements made by Wilkey, or some
other evidence connecting Oshkosh to the instant matter, summary
judgment in favor of Oshkosh is proper at this time.4

c. Medtec
It is well-settled that “a manufacturer of a product is
liable

to

a

characteristic

claimant
of

the

for

damage

product

that

‘proximately
rendered

it

caused’

by

a

‘unreasonably

dangerous’ when the damage arose from a reasonably anticipated

3

Note: Even after Plaintiff was directed to limit the transcript
to the relevant portions of Wilkey’s testimony, he still failed
to do so. (Rec. Doc. Nos. 181 and 182).
4

Furthermore, the Court notes that even if Plaintiff produces
said evidence, if this proves that Medtec is a parent company of
Oshkosh, summary judgment is still proper, as “Louisiana law
does not permit a court to hold the parent company liable for
its subsidiary’s actions without proof that the parent company
knew of and approved those actions.”
Andry v. Murphy Oil,
U.S.A., Inc., 935 So.2d 239, 249-50 (La. App. 4th Cir. 2006).
5

use of the product by the claimant . . .” Jefferson v. Lead
Industries Ass’n, Inc., 106 F.3d 1245, 1251 (5th Cir. 1997).
Here, Medtec, by its own admission, manufactured Unit 3215
and the bench seat at issue. (Rec. Doc. No. 79-1, Exh. A).
Plaintiff sat on the bench seat in Unit 3215, and the collapse
and

failure

of

same

allegedly

caused

Plaintiff’s

injuries.

Further, neither party has contested that sitting on a seat is
not a reasonably anticipated use of the bench seat.
primary

issue

centers

around

whether

the

bench

Thusly, the
seat

was

unreasonably dangerous either by it having a defective design or
because there was a failure to warn.
First, a product is unreasonably dangerous if, at the time
the

product

alternative

left
design

the
existed

manufacturer’s
for

the

control,

product

that

“a

safer

would

have

prevented [a plaintiff’s] alleged harm, and the burden on the
manufacturer

of

adopting

the

alternative

design

does

not

outweigh the likelihood that the product will cause harm and the
gravity of that harm.”5 See Grenier v. Medical Engineering Corp.,
99 F.Supp.2d 759, 764 (W.D. La. 2000).

5

According to LA. REV. STAT.
§ 9.2800.56, a product
is unreasonably dangerous in design if, at the time
the product left the manufacturer's control, an
alternative design existed for the product that was
capable of preventing the alleged damage, and the
alternative design would prevail in a traditional
risk/utility analysis.
6

Here,

Plaintiff

alternative

designs

contends
that

that

were

there

used

were

available

by

other

ambulance

manufacturers that would have prevented the harm at issue, and
he also relies upon the testimony of his expert, Andrew McPhate.
As McPhate testified to the fact that “[t]here was no other
structural support at the rear of the seat, nor was there any
structural support at the sides.” (Rec. Doc. No. 79-1, Exh. F,
p.

2).

He

further

testified

that

“[t]his

is

an

unusual

configuration.” (Id.). Yet, in rebuttal, Medtec relies upon the
testimony of its expert, Robert Wilkey, as well.

While the

Court did exclude his testimony relating to his opinions about
“causation since he did not conduct or participate in testing
the bench seat at issue.” (Rec. Doc. No. 171).

The Court did

admit Wilkey’s “fact and opinion testimony about governmental
standards
(Id.).

and

historical

information

about

the

bench

seat.”

Thusly, there is a factual dispute regarding integral

information about the bench seat.

Furthermore, it is recognized

that:
In both defective design and failure to warn cases
courts have applied a risk-utility analysis to
determine liability. A court must first determine
what risk, if any, the product created. A court must
then determine whether a reasonable person would
conclude
that
the
danger-in-fact,
whether

Grenier v. Medical Engineering Corp., 99 F.Supp.2d
759, 764 (W.D. La. 2000).
7

foreseeable or not, outweighs the utility of the
product . . . In applying the risk-utility analysis,
we have said that a plaintiff must show evidence
concerning the frequency of accidents like his own,
the economic costs entailed by those accidents, or
the extent of the reduction in frequency of those
accidents that would have followed on the use of his
proposed alternative design.
Krummel v. Bombardier Corp., 206 F.3d 548, 551 (5th Cir. 2000)
(internal quotation marks omitted, citations omitted, and
emphasis added).

Plaintiff has submitted only a portion of what he would
need to produce to satisfy the risk-utility analysis.

He has

presented some evidence concerning the economic costs of the
accident

at

hand,

but

failed

to

satisfy

the

other

prongs.

According to Plaintiff’s expert Andrew McPhate, if Medtec had
adopted an alternative design and completed certain repairs, the
repairs

would

have

cost

6)(“[C]oncrete

proof

in

$423.86.

this

matter

(Rec.
shows

Doc.
that

No.

107,

at

the

economic

impact to Medtec in adopting at least one alternative design was
very

minimal,

especially

when

weighed

against

the

risk

of

extensive damages suffered by someone like Mr. Earls.”).
In rebuttal, Medtec claims that it “has put evidence into
the record showing that Medtec does not have knowledge of any
other accidents like Plaintiff’s” and that “[w]ithout evidence
showing the severity of the risk created by the bench seat or
the frequency of other failures,” Plaintiff cannot sustain his

8

burden.
some

(Rec. Doc. No. 97, at 7-8).

remaining

factual

questions

As such, there are still

to

Plaintiff’s defective design claim.

be

resolved

concerning

Thusly, summary judgment is

not appropriate on this issue at this time.
Second, to prove a failure to warn case, a plaintiff must
present competent evidence that the manufacturer: (1) knew of
the risk; (2) failed to warn of the risk; and (3) the failure to
warn

was

both

the

cause-in-fact

and

proximate

cause

of

a

plaintiff’s injury. See Hall v. Sinn, Inc., 102 Fed. Appx. 846,
849 (5th Cir. 2004).6
As an initial matter, the Court recognizes that Plaintiff
has failed to proffer any evidence that Medtec knew of the risk
at issue or failed to warn of same.

Furthermore, per LA. REV.

STAT. §9.2800.57,7 Medtec has failed to proffer any evidence that
the allegedly dangerous characteristic of the bench seat would
have been contemplated by an ordinary user, or that Plaintiff
6

“To prevail on a failure to warn case under the LPLA [Louisiana
Products Liability Act], a plaintiff must prove that the
manufacturer failed to warn[] the treating physician of the
dangers associated with the drug and that this failure was both
a cause in fact and a proximate cause of plaintiff's injury.”
Hall v. Sinn, Inc., 102 Fed. Appx. 846, 849 (5th Cir.
2004)(citing Willet v. Baxter, 929 F.2d 1094 (5th Cir. 1991)).
7

“[A] manufacturer is not required to provide a warning about
its product when (1) the product is not dangerous to an extent
beyond that which would be contemplated by the ordinary user of
the product, or (2) where the user knows or reasonably should be
expected to know of the dangerous characteristic of the
product.” LA. REV. STAT. §9.2800.57.
9

knew

or

should

have

known

of

characteristic of the bench seat.

the

allegedly

dangerous

As such, there are several

genuine issues of material fact, which have not been resolved.
Accordingly,

summary

judgment

is

not

appropriate

at

this

juncture.
Furthermore,

while

non-use

of

a

seat

belt

cannot

be

proffered to prove a plaintiff was negligent,8 Medtec’s expert,
Les Becker, Ph.D., testified that Plaintiff should have been
wearing

his

seat

belt

at

the

time

of

the

accident,

as

“a

paramedic should be unrestrained in the rear patient compartment
only when truly life-saving measures are required.”

(Rec. Doc.

No. 97-3, at 2, ¶4(b)). Further, Becker testified that “[f]or
the

vast

majority

of

patients,

‘care’

can

be

provided

from

behind a seatbelt.

Even critical care providers can provide

most

while

of

their

care

restrained.”

(Id.).

In

contrast,

Plaintiff contends that he was not wearing a seat belt because
of EMS patient care protocol. Therefore, there is a factual
dispute as to whether Plaintiff should have been wearing his
seat belt at the time of the accident.9 Chris Martinez, one of
8

“Thus, we find that La. R.S. 32:295.1(E) prohibits Hyundai from
introducing evidence that [Plaintiff] was not wearing her seat
belt to prove that this failure caused her injuries.” Rougeau v.
Hyundai Motor America, 805 So.2d 147, 156 (La. 2002).
9

The Court recognizes that the issue of seat belt non-use is not
dispositive of whether Plaintiff bears some comparative fault
10

Plaintiff’s

co-workers,

also

testified

that

the

ambulance

traveled over the bump so hard that it caused the Plaintiff to
“fly off the bench seat,” causing him to hit his head on the
ceiling of the rear compartment “and then
on the bench seat.”10

. . . come back down

Given all of this, there is a factual

dispute as to whether the seat broke because Plaintiff fell on
it or whether he fell because the bench seat was defective.
Accordingly, this issue is not ripe for summary judgment and
should be resolved by the requisite fact-finder.

Accordingly, and for the reasons articulated above, IT IS
ORDERED that Plaintiff Ryan Earls’ Motion for Summary Judgment
(Rec. Doc. No. 79) is DENIED.
IT IS FURTHER ORDERED that Medtech Ambulance Corporation’s
and Oshkosh Corporation’s Motion for Summary Judgment (Rec. Doc.
No. 87) is DENIED.

for his injuries.
Yet, it can be illustrative to determine
whether this non-use allowed his body to be unrestrained, such
that upon the ambulance traveling over the bump in the road,
causing Plaintiff to hit his head, this created enough force for
his landing on the bench seat to cause it to collapse, and not a
defective design of same.
10

“The driver supposedly hit some kind of bump on the road, I
don’t know what it was, and causing him to fly off the bench
seat. I think he hit his head on the ceiling, I think is what
he said, and then he came back down on the bench seat and the
bench seat collapsed from the back part down.” (Rec. Doc. No.
97-4, at 3)(emphasis added).
11

IT IS FURTHER ORDERED that Oshkosh Corporation’s Motion for
Summary Judgment (Rec. Doc. No. 85) is GRANTED.

New Orleans, Louisiana, this 20th day of March, 2012.

______________________________
UNITED STATES DISTRICT JUDGE

12