Glascock et al v. Medical Depot, Inc.

Filing 27

RULING granting 21 Medical Depot, Inc.'s Motion for Summary Judgment. Signed by Judge James J. Brady on 1/28/2013. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
STEWART V. GLASCOCK AND
FAYE GLASCOCK
CIVIL ACTION
VERSUS
NO. 11-305-JJB
MEDICAL DEPOT, INC.
RULING ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment (Doc. 21) filed by
the Defendant, Medical Depot, Inc., d/b/a Drive Medical Design & Manufacturing. The Motion
is opposed (Doc. 23), and a reply has been filed thereto (Doc. 26). Jurisdiction exists pursuant
Title 28 of the United States Code, Section 1332. Oral argument is unnecessary.
I.

Factual Background

On September 19, 2010, Stewart Glascock fell to the ground when the cane seat upon
which he was sitting folded or collapsed. A cane seat is a walking cane that extends into a threelegged seat or stool. Glascock, who was seventy-five years old and weighed about 145 pounds at
the time, originally received a cane seat as a gift in June 2009. Glascock sent the original seat
back and was advised that he was using it incorrectly. Medical Depot sent Glascock a second
cane seat, which Glascock fell from, and which is the subject of the instant litigation. The
Glascock’s expert’s report concluded that the collapse of the cane seat was consequence of a
material failure at the seat to articulation slider joint. Doc. 23-3, at 97. The Glascock’s expert
testified the configuration or geometry of the seat could have been changed to reduce the loads
on the slider, the slider could have been made out of either fiber reinforced plastic or die cast
metal to increase its strength, and the product had a non-existent safety factor. Doc. 23-2, at 67,
77–82. Medical Depot’s expert concluded that the failure of the cane seat was due to improper

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use and repeated overloading of the slider hinge on the seat. Doc. 23-6, ¶¶ 5–6. Glascock and
his wife, Faye Glascock, subsequently filed this lawsuit against Medical Depot as the
manufacturer of the cane seat and/or as someone who holds himself out to be the manufacturer of
the cane seat. The Glascocks seek damages and assert that the doctrine of res ipsa loquitur is
applicable against Medical Depot, and alternatively, that Medical Depot is liable under the
Louisiana Products Liability Act as a result of improper design and/or vice in the original
construction of the cane seat and/or the failure to provide adequate warnings regarding the use of
the cane seat. Medical Depot now seeks summary judgment on the Glascock’s claims.
II.

Motion Standard

Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact.” Fed. Rule Civ. P. 56(a). The party seeking summary judgment
carries the burden of demonstrating that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the burden at
trial rests on the non-moving party, the moving party need only demonstrate that the record lacks
sufficient evidentiary support for the non-moving party’s case. Id. The moving party may do
this by showing that the evidence is insufficient to prove the existence of one or more essential
elements of the non-moving party’s case. Id. A party must support its summary judgment
position by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the absence or presence of a genuine dispute.” Fed. Rule Civ. P. 56(c)(1).
Although the Court considers evidence in a light most favorable to the non-moving party,
the non-moving party must show that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248–49 (1986).

Conclusory allegations and unsubstantiated

assertions will not satisfy the non-moving party’s burden. Grimes v. Tex. Dep’t of Mental

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Health, 102 F.3d 137, 139–40 (5th Cir. 1996). Similarly, “[u]nsworn pleadings, memoranda or
the like are not, of course, competent summary judgment evidence.” Larry v. White, 929 F.2d
206, 211 n.12 (5th Cir. 1991). If, once the non-moving party has been given the opportunity to
raise a genuine fact issue, no reasonable juror could find for the non-moving party, summary
judgment will be granted for the moving party. Celotex, 477 U.S. at 322.
III.

Analysis

Medical Depot argues it is entitled to summary judgment, because the Glascocks have
failed to meet their burden for their LPLA claims, and because the doctrine of res ipsa loquitur
does not apply in this matter.
A. Louisiana Product Liability Act Claims
In order to establish manufacturer's liability under the LPLA, a claimant must show (1)
damage, (2) proximately caused by, (3) a characteristic of an unreasonably dangerous product,
(4) during a reasonably anticipated use of that product. La. Rev. Stat. Ann. § 9:2800.54(A)
(1998).
A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as
provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in R.S.
9:2800.56;
(3) The product is unreasonably dangerous because an adequate warning about
the product has not been provided as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not conform to an
express warranty of the manufacturer about the product as provided in R.S.
9:2800.58.
La. Rev. Stat. Ann. § 9:2800.54(B) (1998). Medical Depot argues that the Glascocks have failed
to produce any evidence by which a reasonable juror could return a verdict that the subject cane
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seat was unreasonably dangerous in design, unreasonably dangerous in composition or
construction, or unreasonably dangerous due to inadequate warning. Medical Depot further
argues that the Glascocks failed to assert a cause of action for breach of express warranty, so a
material issue of fact regarding breach of express warranty should not defeat Medical Depot’s
Motion for Summary Judgment.
1.

Unreasonably Dangerous in Construction of Composition

“A product is unreasonably dangerous in construction or composition if, at the time the
product left its manufacturer’s control, the product deviated in a material way from the
manufacturer’s specifications or performance standards for the product or from otherwise
identical products manufactured by the same manufacturer.” La. Rev. Stat. Ann. § 9:2800.55
(1988). Accordingly, the Plaintiffs must present evidence of Medical Depot’s specifications or
performance standards for the cane seat or otherwise identical products it manufactures, as well
as how the cane seat materially deviated from those specifications or standards. Milton v.
Rapiscan Security Products, 2005 U.S. Dist. WL 1400433, at *2 (E.D. La. June 6, 2005); Welch
v. Technotrim, Inc., 2001-34,355, p. 8 (La. App. 2 Cir. 1/24/01); 778 So. 2d 728, 733.
Medical Depot argues that the Plaintiffs have failed to present evidence of Medical
Depot’s specifications or performance standards for the cane seat or otherwise identical products
it manufactures, as well as how the cane seat materially deviated from those specifications or
standards. Medical Depot additionally presents evidence that the Plaintiffs’ expert expressly said
he did not even review the manufacturer’s design plans or specifications for the product, the
Plaintiffs’ expert testified that he could not state how the cane seat deviated from the plan or
specifications, and the Plaintiffs’ expert testified that he does not know if this seat is different
from other seats manufactured. Doc. 21-4, p. 7, 35–38. The Plaintiffs’ counsel presents no

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evidence of Medical Depot’s specifications or performance standards for the cane seat or
otherwise identical products it manufactures, or how the cane seat materially deviated from those
specifications or standards. The Plaintiffs’ counsel solely states that “[c]learly, in the absence of
a defect in the design or composition of this product, it would not have failed in the reasonably
anticipated use by the plaintiff.” Doc. 23-2, at 8. “Inference of the existence of a vice or defect
in a product is not allowed merely on the basis of the fact that an accident occurs.” Jaeger v.
Automotive Cas. Ins. Co., 95-2448, p. 9 (La. App. 4 Cir. 10/9/96); 682 So. 2d 292, 298. Clearly,
the Plaintiffs’ counsel does not meet its burden for this element.
2.

Unreasonably Dangerous in Design

A product is unreasonably dangerous in design if, at the time the product left its
manufacturer's control:
(1) There existed an alternative design for the product that was capable of
preventing the claimant's damage; and
(2) The likelihood that the product's design would cause the claimant’s damage
and the gravity of that damage outweighed the burden on the manufacturer of
adopting such alternative design and the adverse effect, if any, of such alternative
design on the utility of the product. An adequate warning about a product shall be
considered in evaluating the likelihood of damage when the manufacturer has
used reasonable care to provide the adequate warning to users and handlers of the
product.
La. Rev. Stat. Ann. § 9:2800.56 (1988). The Plaintiffs must therefore present evidence of a
feasible alternative design existing when the product left the manufacturer’s control that would
have prevented the Plaintiff’s injury, and perform an analysis to show that the risk avoided by
the alternative design outweighed the burden of its adoption. Seither v. Winnebago Industries,
Inc., 2002-2091, p. 4–5 (La. App. 4 Cir. 7/2/03); 853 So. 2d 37, 40. The alternative design must
be based more than on mere speculation. Id. at 41.

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Medical Depot argues that the Plaintiffs’ expert has failed to offer any specific testimony
regarding alternative designs to the cane seat and has only offered theoretical alternatives. It
further argues that the Plaintiffs’ expert has not offered testimony as to whether these alternative
designs existed at the time the subject cane seat left Medical Depot. Medical Depot finally
argues that because the Plaintiffs’ expert does not offer specific design alternatives, he can offer
no testimony as to whether the benefits of his suggested design alternatives outweigh the burden
of adopting the alternative designs.
In response, the Plaintiffs contend that the configuration or geometry of the seat could
have been changed to reduce the loads on the slider, the slider could have been made out of
either fiber reinforced plastic or die cast metal to increase its strength, and the product had an
insufficient or non-existent safety factor.1 The Plaintiffs also argue that Louisiana courts have
found products defective without evidence of specific alternative designs or materials. It cites
two cases for this proposition: Darbonne v. Wal-Mart Stores, Inc., 2000-551 (La. App. 3 Cir.
11/2/00); 774 So.2d 1022, and Ellis v. Weasler Engineering, Inc., 258 F.3d 326 (5th Cir. 2001).
A number of cases have discussed what constitutes sufficient evidence of a feasible
alternative design. Seither v. Winnebago Industries, Inc. was a suit against the manufacturer of a
recreational vehicle, by the family of a man killed while operating the recreational vehicle. 853
So. 2d at 38–39. Evaluating a claim for defective design, the Court found that the plaintiffs
presented no valid alternative design for the recreational vehicle. Id. at 41. The plaintiffs’ expert
determined that the “appropriate alternative design was to stretch the front end of this vehicle
out,” and “he presented a mock-up of a Dodge Ram van.” Id. at 40–41. The Court found that
the expert did not outline his design criteria, did not produce engineering drawings, did not
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While the Plaintiffs’ counsel points to the location in the expert’s deposition referencing an insufficient or nonexistent safety factor, for the other evidence he solely references the 109 page exhibit he submitted, as if the Court
has time to do the attorney’s job and scour the document for this information.

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establish dimensions, and had done no analysis or testing. Id. at 41. The Court found the expert
merely presented a concept that was untested, unengineered, and not presented in any fashion
more than mere speculation. Id. Moore v. BASF Corp., 2012 U.S. Dist. WL 6025917, at *1
(E.D. La. Dec. 4, 2012), was a suit by a painter against the manufacturers of benzene or benzenecontaining products, arising from a deceased painter’s alleged exposure to products containing
benzene. Evaluating the plaintiffs’ defective design claim, the court noted that “[t]he alternative
design proposed must be reasonably specific and not based on mere speculation.” Id. at *4. The
plaintiffs’ expert “suggested that a quality-control program could have been used to ensure that
the products’ components did not contain benzene, but he did not suggest any particular solvents
that would have eliminated the purported traces of benzene.” Id. The plaintiffs’ expert also
suggested use of a purification process to study and remove contaminants, but provided no
specifics about the method other than saying different distillation processes and chemical
additions can expel benzene. Id. The court found these conclusions “far too vague,” since the
expert did not identify the components to be replaced or explain how the purification process
would operate.
The Court of Appeals for the Fifth Circuit, in Morgan v. Gaylord Container Corp., 30
F.3d 586, 590 (5th Cir. 1994), addressed the requirement that the design alternative must be in
existence at the time the product leaves the manufacturer’s control. Morgan held that evidence
that the alternative design exists at the time the product leaves the manufacturer’s control is
required. Id. Moore also noted that the plaintiffs’ expert did not establish that alternatives were
available during the period which the decedent was exposed to the plaintiffs’ products. 2012
U.S. Dist. WL 6025917, at *4.

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The Plaintiffs’ expert’s “example” of what the slider material could be changed to—a die
cast alloy or fiber-reinforced plastic, his idea to change the geometry of the seat, and his
conclusion that the seat has a non-existent safety factor, do not present a valid alternative design
for the cane seat. Doc. 23-3, at 64–69, 77–84. The Plaintiffs’ expert testified in his deposition
that his suggestion of geometric changes to the seat, and the use of different materials, was
speculative. Id. at 83. Furthermore, the Plaintiffs’ expert testified that he does not have a
specific geometry for the seat that he would recommend, and has not redesigned the seat. Id. at
81–82. It is telling that the Plaintiffs’ expert states “the design flaw possibly—as we said before,
it’s speculation—could possibly have been resolved—been solved by a different material. It
could possibly be solved by a change in geometry using the same material.” Id. at 87. The
Plaintiffs have not presented evidence of a feasible alternative design; nor have they argued,
much less presented evidence, that it existed at the time the cane seat left Medical Depot’s
control. As in Seither and Moore, the Plaintiffs suggestions are untested, unengineered, not
presented in any fashion more than mere speculation, and are far too vague to constitute a
feasible alternative design.
Finally, the Plaintiffs’ cases attempting to show specifics are not necessary are inapposite.
Darbonne does not address whether a product is unreasonably dangerous in design, and did not
address the requirement here that the plaintiff present evidence of a feasible alternative design. It
addresses whether a product was unreasonably dangerous in construction or composition.
Darbonne, 774 So. 2d at 1029–31. Ellis also does not address the requirement that a plaintiff
must present evidence of a feasible alternative design. It addresses the reasonably anticipated

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use of a product. Ellis, 258 F.3d at 334–36.2 Accordingly, the Plaintiffs fail to present evidence
that the cane seat is unreasonably dangerous in design.
3.

Unreasonably Dangerous because Adequate Warning not Provided

A product is unreasonably dangerous because an adequate warning about the
product has not been provided if, at the time the product left its manufacturer's
control, the product possessed a characteristic that may cause damage and the
manufacturer failed to use reasonable care to provide an adequate warning of such
characteristic and its danger to users and handlers of the product.
La. Rev. Stat. Ann. § 9:2800.57(A) (1988). The LPLA defines an “adequate warning” as:
a warning or instruction that would lead an ordinary reasonable user or handler of
a product to contemplate the danger in using or handling the product and either to
decline to use or handle the product or, if possible, to use or handle the product in
such a manner as to avoid the damage for which the claim is made.
La. Rev. Stat. Ann. § 9:2800.53(9) (1988). “An essential element of a plaintiff’s cause of action
for failure to warn of a product’s danger is that there be some reasonable connection between the
omission of the manufacturer and the damage which the plaintiff has suffered.” Delery v.
Prudential Ins. Co., 94-0352, p. 8 (La. App. 4 Cir. 9/29/94); 643 So. 2d 807, 814. “A mere
allegation of inadequacy is insufficient for a plaintiff to survive summary judgment on a failureto-warn claim.” Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 264 (5th Cir. 2002).
The Plaintiffs “must go beyond the pleadings and designate specific facts in the record showing
that there is a genuine issue for trial to defeat summary judgment.” Id. at 265.
The Plaintiffs’ counsel does not even mention this claim in his opposition, much less
present evidence in support of it. The allegation of inadequacy is therefore insufficient for the
Plaintiffs to survive summary judgment on this claim.

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The Plaintiffs’ counsel also inexplicably cites, in the middle of argument, Federal Rule of Civil Procedure 50,
which governs judgment as a matter of law during a jury trial. Rule 50 is not applicable to this Motion.

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4.

Unreasonably Dangerous because does not Conform to Express Warranty of
Manufacturer about the Product

The Plaintiffs’ counsel’s opposition barely attempts to show the Court that genuine issues
of fact exist for trial on the claims pled in the Complaint. The Plaintiffs’ counsel makes more of
an attempt to create a genuine issue of fact on the element of whether the cane seat is
unreasonably dangerous because it does not conform to the manufacturer’s express warranty
about the product. However, the Plaintiffs’ counsel did not plead a claim for breach of express
warranty. As no claim was pled for breach of express warranty, this issue is not before the
Court.
B. Res Ipsa Loquitur Claim
The doctrine of res ipsa loquitur involves a plaintiff’s using circumstantial evidence alone
to meet the burden of proof by a preponderance of the evidence and aids the plaintiff in
presenting a prima facie case when direct evidence is not available. Linnear v. CenterPoint
Entergy Entex/Reliant Energy, 2006-3030, p. 6–7 (La. 9/5/07); 966 So. 2d 36, 41–42. “The
doctrine, meaning ‘the thing speaks for itself,’ permits the inference of negligence on the part of
the defendant from the circumstances surrounding the injury.” Id. at 41. Res ipsa loquitur has
been applied in products liability actions when the court is presented with circumstantial
evidence which excludes other reasonable hypotheses with a fair amount of certainty.” State
Farm Mut. Auto. Ins. Co. v. Wrap-On Co., Inc., 626 So. 2d 874, 877 (La. Ct. App. 1993). This
occurs when “the only reasonable and fair conclusion is that the accident resulted from a breach
of duty or omission on the part of the defendant.” Jurls v. Ford Motor Co., 2000-32,125, p. 8
(La. App. 2 Cir. 1/6/00); 752 So. 2d 260, 265. To do this, the “Plaintiffs need to sufficiently
exclude inference of the plaintiff’s own responsibility or the responsibility of others besides [the]

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defendant in causing the accident.” Lawson v. Mitsubishi Motor Sales of Am., Inc., 2005-0257,
p. 20–21 (La. 9/6/06); 938 So. 2d 35, 50.
This issue therefore turns on whether the Plaintiffs have sufficiently excluded inference
of Mr. Glascock or someone else causing the accident. One reasonable hypothesis for the cause
of the accident presented by Medical Depot’s expert is that the failure of the cane seat was due to
improper use and repeated overloading of the slider hinge on the seat. Doc. 23-6, ¶¶ 5–6.
Here, as elsewhere, the Plaintiffs’ counsel fails to satisfy his burden. Plaintiffs’ counsel
fails to respond to any of Medical Depot’s arguments or evidence regarding what else may have
caused the product to fail, such as improper use or repeated overloading. Stating “[c]learly, in
the absence of a defect in the design or composition of this product, it would not have failed,” is
insufficient to exclude inference of the Plaintiff’s own responsibility. The Plaintiffs therefore do
not sufficiently exclude inference of the Plaintiff’s own responsibility in causing the accident,
and res ipsa loquitur is inapplicable to this case.
IV.

Conclusion

Accordingly, Medical Depot, Inc.’s Motion for Summary Judgment (Doc. 21) is
GRANTED.
Signed in Baton Rouge, Louisiana, on January 28, 2013.





JAMES J. BRADY, DISTRICT JUDGE

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