HINTON v. OUTBOARD MARINE CORPORATION et al

Filing 98

ORDER dismissing without prejudice 48 Plaintiff's Motion in Limine to Exclude or Limit Testimony of Defendants' Expert Witnesses; dismissing without prejudice 52 Defendants' Motion to Exclude the Testimony of Plaintiff's Exper t, Robert Flynn; dismissing without prejudice 65 Defendants' Motion for Summary Judgment; dismissing without prejudice 67 Defendants' Motion for Summary Judgment on the Identity of the Manufacturer of the Accident Boat; and, granting 79 Plaintiff's Motion to Strike Defendants' Statement of Additional Undisputed Facts. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MICHAEL HINTON,
Plaintiff,
v.
OUTBOARD MARINE
CORPORATION,
and
OMC RECREATIONAL
BOAT GROUP, INC.
Defendants.

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1:09-cv-00554-JAW

ORDER ON MOTIONS TO EXCLUDE EXPERT TESTIMONY, TO STRIKE
REPLY TO ADDITIONAL STATEMENT OF MATERIAL FACT, AND FOR
SUMMARY JUDGMENT
Concluding that there are genuine issues of material fact that preclude relief
on dispositive motions, the Court dismisses the Defendants‘ two motions for
summary judgment. The Court also dismisses the parties‘ motions to exclude the
opposing experts concluding there is an insufficient context to adequately judge
whether the experts meet Daubert standards.

Finally, the Court grants the

Plaintiff‘s motion to strike the Defendants‘ statement of additional material fact.
I.

BACKGROUND AND PROCEDURAL HISTORY
Michael Hinton filed a complaint in Maine Superior Court, Waldo County, on

July 18, 2003 concerning an accident that occurred on September 10, 2000. State
Ct. R. (Docket # 6).

After a series of motions for enlargement and amended

complaints complicated by an intervening bankruptcy and difficulties with service

of process, on October 30, 2009, OMC Recreational Boat Group, Inc. removed the
action to this Court.1 Notice of Removal (Docket # 1). Discovery closed on March 1,
2011, Report of Telephone Conf. and Am. Scheduling Order at 3 (Docket # 23), and
the parties began filing motions in earnest.
On March 31, 2011, Mr. Hinton led off with a motion to exclude the testimony
of the Defendants‘ expert witnesses. Pl.’s Mot. in Limine to Exclude or Limit Test.
of Defs.’ Expert Witnesses (Docket # 48) (Pl.’s Experts Mot.). On April 21, 2011, the
Defendants responded to the motion to exclude. Defs.’ Opposing Mem. of Law in
Resp. to Pl.’s Mot. in Limine to Exclude or Limit Test. of Defs.’ Expert Witnesses
(Docket # 70) (Defs.’ Experts Opp’n). Mr. Hinton replied on April 22, 2011. Pl.’s
Reply Mem. in Support of Mot. in Limine to Exclude or Limit Test. of Defs.’ Expert
Witnesses (Docket # 74) (Pl.’s Experts Reply).
Meanwhile, on April 1, 2011, the Defendants moved to exclude the Plaintiff‘s
expert. Defs.’ Mot. to Exclude the Test. of Pl.’s Expert, Robert V. Flynn (Docket # 52)
(Defs.’ Flynn Mot.). On April 22, 2011, Mr. Hinton responded. Pl.’s Mem. of Law in
Opp’n to Defs.’ Mot. to Exclude the Expert Test. of Robert Flynn (Docket # 73) (Pl.’s
Flynn Opp’n). On May 6, 2011, the Defendants filed a reply. Defs.’ Reply Mem. in
Support of Their Mot. to Exclude the Test. of Pl.’s Designated Expert, Robert V.
Flynn (Docket # 76) (Defs.’ Flynn Reply).
On April 11, 2011, the Defendants moved for summary judgment and filed a
statement of material facts. Defs.’ Mot. for Summ. J. (Docket # 65) (Defs.’ Mot. for
The Court described this complex history in a December 22, 2010 Order denying the Defendants‘
Motion for Judgment on the Pleadings. Order Denying Mot. for J. on the Pleadings at 1-4 (Docket #
38).
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Summ. J.); Defs.’ Statement of Material Facts in Support of Defs.’ Mot. for Summ. J.
(Docket # 66) (DSMF). On April 22, 2011, Mr. Hinton responded to the motion and
the Defendants‘ statement of material facts. Pl.’s Mem. of Law in Opp’n to Defs.’
First Mot. for Summ. J. (Docket # 71) (Pl.’s Opp’n to Summ. J.); Pl.’s Resp. to Defs.’
Statement of Undisputed Material Facts and Statement of Additional Facts (Docket
# 72) (PRDSMF; PSAMF). On May 6, 2011, the Defendants replied to the Plaintiff‘s
response and to his statement of additional material facts.

Defs.’ Reply to Pl.’s

Opp’n to Defs.’ Mot. for Summ. J. (Docket # 77) (Defs.’ Summ. J. Reply); Defs.’ Reply
to Pl.’s Statement of Facts and Defs.’ Additional Statement of Undisputed Facts
(Docket # 78) (DRPSAMF; DASMF). On May 9, 2011, Mr. Hinton moved to strike
the Defendants‘ statement of additional material facts. Pl.’s Mot. to Strike “Defs.’
Statement of Additional Undisputed Facts” (Docket # 79) (Pl.’s Mot. to Strike). On
May 31, 2011, the Defendants responded to Mr. Hinton‘s motion to strike. Defs.’
Resp. to Pl.’s Mot. to Strike Defs.’ Statement of Additional Undisputed Facts (Docket
# 83) (Defs.’ Opp’n to Pl.’s Mot. to Strike).
On April 11, 2011, the Defendants separately moved for summary judgment
on the ground that the boat that is the subject of the litigation was manufactured by
Four Winns, Inc., a separate corporation not named as a defendant. Defs.’ Mot. for
Summ. J. on the Identity of the Mfr. of the Accident Boat (Docket # 67) (Defs.’ Four
Winns Mot.).

On the same day, the Defendants filed a separate statement of

material facts in support of the motion.

Defs.’ Statement of Material Facts in

Support of Defs.’ Second Mot. for Summ. J. (Docket # 68) (DSMF – Four Winns).

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Mr. Hinton responded on July 8, 2011. Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ.
J. on the Identity of the Mfr. (Docket # 93) (Pl.’s Four Winns Opp’n). He also filed a
response to the Defendants‘ statement of material fact and a statement of
additional facts.

Pl.’s Opposing Statement of Material Facts and Statement of

Additional Facts (Docket # 92) (POSMF – Four Winns; PSAMF – Four Winns). On
July 22, 2011, the Defendants replied to the Plaintiff‘s opposition and to his
statement of additional material facts. Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for
Summ. J. on the Identity of the Mfr. (Docket # 95) (Def.’s Four Winns Reply); Defs.’
Reply Statement in Support of Defs.’ Second Mot. for Summ. J. (Docket # 96)
(DRPSAMF – Four Winns).
II.

THE PENDING MOTIONS
A.

The Plaintiff’s Motion to Exclude Experts
1.

The Defendants’ Experts and the Parties’ Positions

In his motion, Mr. Hinton says that the Defendants designated three expert
witnesses, Robert Taylor, Wendy Sanders, and Robert MacNeill. In general, Mr.
Hinton asserts that the opinions of these experts are faulty because the opinions
lack foundation, place an expert patina on common sense observations, express
legal conclusions, amount to legal argument, and are irrelevant. Pl.’s Experts Mot.
at 1-14.
In response, the Defendants contend that Mr. Hinton‘s position is ―without
foundation or basis.‖ Defs.’ Experts Opp’n at 1. They criticize Mr. Hinton for having
failed to undertake any expert discovery and filing his motion ―one day before the

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discovery cutoff.‖

Id.

They say that Mr. Hinton engaged in an unwarranted

―piecemeal attack‖ of their experts and has taken their opinions ―entirely out of
context.‖ Id. at 4. The Defendants further argue: 1) that the Court must not accept
mere argument of counsel as evidence; 2) that Mr. Hinton‘s motion does not comply
with Rule 11 because the arguments do not have a reasonable basis; 3) that his
motion violates Local Rule 7 because it is not supported by affidavits or other
documents; 4) that the proffered expert opinions would aid in the jury‘s
understanding of the evidence; and, 5) that his asserted troubles with their experts‘
opinions are matters for cross-examination, not admissibility. Id. at 5-14.
In reply, Mr. Hinton accuses the Defendants of making ―numerous false
statements about the facts and procedural history of this case.‖ Pl.’s Experts Reply
at 1. Mr. Hinton is especially annoyed with the Defendants‘ citation of Rule 11,
noting that ―Defendants cite no rule or case law in support of their inflammatory
claim that the Plaintiff‘s decision not to depose Defendants‘ experts, but instead to
move to exclude their opinions, is a Rule 11 violation.‖ Id. Mr. Hinton then notes
that some of the Defendants‘ arguments are directed to a theory of the case the
Plaintiff is not pursuing. For example, Mr. Hinton observes that expert testimony
about the warning on the boat addresses a ―failure to warn‖ but that he is not
pursuing a failure-to-warn theory; rather, he is claiming defective design. Id. at 4.
Mr. Hinton reiterates the position that the defense‘s expert opinions will not be
helpful to the factfinder and instead will ―do nothing more than tell the jury what
result to reach.‖ Id. at 4-5.

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2.

Discussion

First, the Court agrees with Mr. Hinton that the Defendants‘ Rule 11
argument is unwarranted on these facts. Reference to Rule 11 raises the stakes for
the opposing attorney because it presents the specter of attorney misconduct and
sanctions. See Defs.’ Experts Opp’n at 5 (citing FED. R. CIV. P. 11(b)(3)). Here, the
Defendants assert that before filing the motion, Mr. Hinton failed to make ―a
reasonable inquiry under the circumstances‖ and to assure that his ―factual
contentions‖ have evidentiary support because he failed to depose the Defendants‘
experts. Id.
The Court disagrees with the Defendants that Mr. Hinton‘s motion to exclude
their experts without first deposing them constitutes a Rule 11 violation.

The

Plaintiff‘s motion is based on the Defendants‘ own expert witness disclosures so the
Defendants are not in a position to claim their own disclosures lack evidentiary
support. Furthermore, as Mr. Hinton pointed out, Rule 26 was amended in 1993 to
require automatic expert disclosures and the Civil Rules Committee noted that
―[t]he requirement under subdivision (a)(2)(B) of a complete and detailed report of
the expected testimony of certain forensic experts may, moreover, eliminate the
need for some such depositions or at least reduce the length of the depositions.‖
FED. R. CIV. P. 26 advisory committee‘s note (1993).
Courts have uniformly rejected the Defendants‘ position: that the failure to
depose an expert affects the right to object to the expert‘s testimony. Bolton v. WJV
Miss., Inc., No. 08-0310-WS-M, 2011 U.S. Dist. LEXIS 6142, *14 (S.D. Ala. Jan. 20,

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2011) (―[T]he defendant argues that any harm to the plaintiff is its own fault,
because he did not demand a supplemental report or depose Dr. Graham. The
defendant would shift the responsibility for an inadequate report from itself to the
plaintiff, forcing the plaintiff to ferret out what the defendant, in violating Rule
26(a)(2), failed to provide and penalizing the plaintiff for not rescuing the defendant
from the consequences of its omission‖); New Colt Holding Corp. v. RJG Holdings of
Fl., Inc., No. 3:02cv173 (PCD), 2003 U.S. Dist. LEXIS 25309, *4 n.2 (D. Conn. Aug.
11, 2003) (―As [expert] reports may obviate the need to depose the expert,
defendant‘s standing argument, i.e., that plaintiffs may not move to exclude unless
proposed experts are first deposed, is without merit‖); Bonesmo v. The Nemours
Found., 253 F. Supp. 2d 801, 811 (D. Del. 2003) (―Contrary to plaintiffs‘ argument,
the opposing party is not required to depose the expert to develop what his opinion
is or the reasons for it‖); SEC v. Lipson, 46 F. Supp. 2d 758, 763 n.3 (N.D. Ill. 1999)
(―One of the purposes of the expanded disclosure requirement for expert reports . . .
was to provide in substance the expert's direct testimony at trial.

This was

intended to allow the opposing party, if he or she so chose, to dispense with the
expert's deposition‖). This Court concludes that Mr. Hinton‘s failure to depose the
Defendants‘ expert witnesses does not affect his right to move to exclude the expert
testimony and does not constitute a Rule 11 violation.
At the same time, although Mr. Hinton plausibly asserts that portions of the
proposed testimony address legal theories he is not pressing or amount to
argument, the Defendants plausibly respond that Mr. Hinton has taken the

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opinions out of context. Without a more complete context, the Court is reluctant to
issue a fiat based on a limited glimpse of the evidence and its significance. If it is
essential to obtain a pretrial ruling, the parties might request the Court to schedule
a Daubert hearing to present a more complete understanding of the issues in the
case and the context of the proposed testimony.
At this point, the Court dismisses the motion in limine without prejudice.
The motion was useful in highlighting issues that counsel believe are at play in this
case but, from the Court‘s perspective, those issues are not fully formed.
B.

Defendants’ Motion to Exclude the Testimony of Robert Flynn
1.

Mr. Flynn’s Proposed Testimony and the
Parties’ Positions

On October 15, 2010, Mr. Hinton designated Robert V. Flynn as a liability
expert. Defs.’ Flynn Mot. Ex. 2 (Letter from Arthur J. Greif to Phillip S. Bixby) at 3
(Docket # 52). According to the Plaintiff, Mr. Flynn is a safety engineer and would
express the opinion that the swim ladder in this case ―was unreasonably dangerous,
defective and in breach of implied warranties in the manner in which it was
attached to the boat.‖ Id. The Defendants move to exclude the testimony of Mr.
Hinton‘s expert witness Robert V. Flynn on the grounds that he is not qualified to
express the opinions for which he has been designated and that his methodology
and opinions fail to meet Daubert standards for admissibility. Defs.’ Flynn Mot. at
1-18. Naturally, Mr. Hinton takes an opposing position. Pl.’s Flynn Opp’n at 1-9.
2.

Discussion

Rule 702 provides:
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If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise.
FED. R. EVID. 702. The First Circuit has noted that experts ―come in various shapes
and sizes‖ and there ―is no mechanical checklist for measuring whether an expert is
qualified to offer opinion evidence in a particular field.‖ Santos v. Posadas De P.R.
Assocs. Inc., 452 F.3d 59, 63 (1st Cir. 2006) (citing United States v. Hoffman, 832
F.2d 1299, 1310 (1st Cir. 1987) (―Expertise is not necessarily synonymous with a
string of academic degrees or multiple memberships in learned societies‖)). At the
same time, a testifying expert ―‗should have achieved a meaningful threshold of
expertise‘ in the given area.‖ Levin v. Dalva Bros. Inc., 459 F.3d 68, 78 (1st Cir.
2006) (quoting Prado Alvarez v. R.J. Reynolds Tobacco Co., Inc., 405 F.3d 36, 40 (1st
Cir. 2005)).

―The test is whether, under the totality of the circumstances, the

witness can be said to be qualified as an expert in a particular field through any one
or more of the five bases enumerated in Rule 702 ― knowledge, skill, experience,
training, or education.‖ Santos, 452 F.3d at 64.
Here, Mr. Flynn is qualified to express expert opinions.

Mr. Flynn is a

graduate of Maine Maritime Academy who majored in nautical science. Defs.’ Flynn
Mot. Ex. 4 (Biography of Robert V. Flynn). He served as a deck officer in the United
States Navy. Id. He has been employed as a safety engineer and safety director.
Id. He is a professional member of the American Society of Safety Engineers and he
has been self-employed as a safety consultant and expert witness since 1978. Id.

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Mr. Flynn has withstood similar challenges to his qualifications in both state and
federal court. In Hall v. Home Depot USA, Inc., 752 F. Supp. 2d 58, 60-64 (D. Me.
2010), this District accepted Mr. Flynn as an expert witness. He has also testified
as an expert in Maine state court. Burns v. Wayne-Dalton Corp., No. CV-07-282,
2009 Me. Super. LEXIS 155, at *1-17 (Me. Super. Ct. Sept. 11, 2009). Accordingly,
this Court will not exclude Mr. Flynn as an expert witness based on his
qualifications alone.
The Defendants are free to explore on cross-examination the limits of Mr.
Flynn‘s expertise and to offer countervailing expert opinions, if available, from
witnesses with equal or more extensive training. Under standard jury instructions
in this Circuit, the jury is instructed that it should consider the relative expertise of
each expert in evaluating how much weight to give the expert‘s testimony. The
Court declines to exclude Mr. Flynn‘s expert opinions based on his supposed lack of
expertise; it is the function of the jury in this case to measure the convincing power
of Mr. Flynn‘s expert opinions against the other evidence in this case and to arrive
at a verdict.
Whether his proposed testimony meets Daubert standards is another matter.
As it determined with the proposed testimony of the Defendants‘ experts, the Court
is reluctant on this record to issue a definitive order. Instead, the Court would
benefit from further development of the facts so that it can place Mr. Flynn‘s
opinions in a more concrete context.

For now, the Court will dismiss without

prejudice the Defendants‘ motion in limine to exclude Mr. Flynn‘s testimony.

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C.

Defendants’ Motion for Summary Judgment
1.

Plaintiff’s Motion to Strike Defendants’ Statement of
Additional Undisputed Facts

In accordance with Local Rule 56, the Defendants filed a statement of
material fact with their motion for summary judgment. DSMF; D. ME. LOC. R.
56(b).

The Plaintiff responded with an opposing statement and with a set of

additional facts. PRDSMF; PSAMF; D. ME. LOC. R. 56(c). The Defendants filed a
reply statement of facts.

DRPSAMF; D. ME. LOC. R. 56(d).

Defendants also filed ten additional facts.

However, the

Defs.’ Statement of Additional

Undisputed Facts (Docket # 78).
The Plaintiff moved to strike the Defendants‘ ten additional facts on the
ground that ―Local Rule 56 does not permit such a filing.‖ Pl.’s Mot. to Strike at 1.
The Defendants insist that, under Local Rule 56(d), they are entitled to file
additional statements of material facts ―limited to the additional facts submitted by
Plaintiff.‖

Defs.’ Opp’n to Pl.’s Mot. to Strike at 1 (―A party replying to the

opposition to a motion for summary judgment shall submit with its reply a
separate, short, and concise statement of material facts which shall be limited to
any additional facts submitted by the opposing party‖) (emphasis in Defs.’ Opp’n).
They justify the additional statement of facts by observing that when they filed
their motion for summary judgment, not all the witnesses had been deposed, which
―thereby allow[ed] Defendants to utilize their testimony by incorporating it into
their subsequently filed Statement of Undisputed Facts.‖ Id. Finally, they say that
the Local Rules do not permit motions to strike and therefore the ―Court should
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strike Plaintiff‘s Motion to Strike Defendants‘ Statement of Additional Undisputed
Facts.‖ Id. at 2.
The Defendants are wrong. First, the Defendants quote only a portion of
Local Rule 56(d); the full text of Local Rule 56(d) reads:
A party replying to the opposition to a motion for summary judgment
shall submit with its reply a separate, short, and concise statement of
material facts which shall be limited to any additional facts submitted
by the opposing party. The reply statement shall admit, deny or
qualify such additional facts by reference to the numbered paragraphs
of the opposing party‘s statement of material facts and unless a fact is
admitted, shall support each denial or qualification by a record citation
as required by subsection (f) of this rule. Each such reply statement
shall begin with the designation ―Admitted,‖ ―Denied,‖ or ―Qualified‖
and, in the case of an admission, shall end with such designation.
D. ME. LOC. R. 56(d). ―The clear language of Local Rule 56(d) requires the movant
to limit its reply statement to admitting, denying or qualifying the responsive
statement.

It does not allow the movant to add new facts at this late stage.‖

Knowlton v. Shaw, No. 09-cv-334-JAW, 2011 U.S. Dist. LEXIS 94954, at *18 (D. Me.
Aug. 24, 2011). The Court addressed the rationale for this rule in Knowlton:
The overall rationale of the rule is clear: there must be an end point.
The Rule requires the movant for summary judgment to set forth those
undisputed facts it contends entitle it to summary judgment; it permits
the non-movant to put into play any facts, which the non-movant
contends require trial. Finally, it permits the movant to respond to the
non-movant's facts. But the Rule does not permit the movant to add
yet another set of facts. If the movant were allowed to posit new facts
in its reply, the movant's final document would be an unanswered set
of factual assertions, which would run contrary to the requirement
that the facts must be interpreted in a manner most congenial to the
non-movant. In other words, if the rule were interpreted in the
Defendants' fashion, to comply with Rule 56, the Local Rule would
have to permit the non-movant to sur-reply. However there is no
provision in the local rule for the non-movant to file a sur-reply
precisely because the movant is not allowed to posit a new set of facts
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with its reply statement. Finally, movants would be encouraged to
hide their most salient statements of fact until the very end of the
point-counterpoint process so that there would be no counter to their
final point.
Id. at *18-19; Brooks v. Local S7, Int’l Ass’n of Machinists and Aerospace Workers,
AFL-CIO, No. 07-30-P-S, 2008 U.S. Dist. LEXIS 82585, at *11 n.2 (D. Me. Oct. 3,
2008) (―The summary judgment factual exchange stops at the second round, when a
nonmoving party admits, denies, or qualifies each entry in the moving party‘s
statement of material facts.

The exchange does not, and cannot, extend

indefinitely‖).
In addition to rejecting their misinterpretation of the language of the local
rule, the Court rejects the Defendants‘ further arguments. The Court turns first to
the Defendants‘ contention that further discovery justified an additional statement
of material facts.

Under the Court‘s amended scheduling order, the discovery

deadline was March 1, 2011 and the initial deadline for filing dispositive motions
was April 1, 2011.

Report of Telephone Conference and Am. Scheduling Order

(Docket # 23). The Defendants filed their motions on April 1 but the motions failed
to comply with Local Rule 56 and there were problems obtaining the deposition of
one of the witnesses; these issues led to a conference with the Court on April 8,
2011. Report of Telephone Conference and Order (Docket # 63). At the conference,
the Court remedied the witness problem, struck the motions for summary
judgment, and extended the time for Defendants to file dispositive motions to April
11, 2011. Id. at 2-3. The Defendants filed their motion for summary judgment on
April 11, 2011.
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The Defendants assert that ―at the time of the original filing of Defendants‘
Motion for Summary Judgment and statements of facts incorporated therein, Justin
Hinton and Terri Paquin had not yet been deposed, thereby allowing Defendants to
utilize their testimony by incorporating it into their subsequently filed Statement of
Undisputed Facts.‖ Defs.’ Opp’n to Pl.’s Mot. to Strike at 1. This statement is an act
of legerdemain.

Mr. Hinton and Ms. Paquin were deposed on April 6, 2011.

DRPSAMF and DSAMF at Exs. 1, 3. It is technically true, as Defendants assert,
that these witnesses were deposed after the ―the time of the original filing of
Defendants‘ Motion‖ but the Court struck those motions and extended the time for
the filing of the Defendants‘ dispositive motions to April 11, 2011. Defs.’ Opp’n to
Pl.’s Mot. to Strike at 1 (emphasis supplied). These witnesses were deposed on April
6, 2011―five days before the filing deadline for the pending motions for summary
judgment. To say that because these witnesses were not deposed before April 1,
2011, the Defendants could not incorporate their April 6th depositions into their
April 11, 2011 motion is misleading and frivolous.
Second, if the Defendants wished additional time to depose these witnesses to
ensure the incorporation of their testimony in their contemplated dispositive
motion, they should have asked the Court to authorize the depositions beyond the
discovery deadline and to extend the time for filing dispositive motions. They did
not—perhaps because they knew the depositions would be completed on
Wednesday, April 6, 2011, well in time for the Monday, April 11, 2011 deadline.
Instead, the Defendants held back, failed to incorporate the Hinton and Paquin

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depositions into their April 11th statement of material facts, and attempted to place
their testimony before the Court on May 6, 2011, in violation of the Local Rule.
The Defendants‘ citation of Local Rule 56(e), which forbids the filing of
motions to strike, is ironic. By filing a statement of additional material facts, the
Defendants have violated Local Rule 56 and, when challenged, claim the protection
of the Rule. If the prohibition against filing a motion to strike were taken to its
extreme, a party could cavalierly violate the rules, yet punctiliously insist that the
rules prevent a remedy.

The Court is authorized to relax the Local Rules ―in

exceptional circumstances when justice so requires.‖ D. ME. LOC. R. 1(a). Here,
where the most logical means for the opposing party to bring a Rule 56 violation to
the attention of the Court is a motion to strike, the Court relaxes the Local Rule
56(e) prohibition to allow the Plaintiff in this case to bring Defendants‘ Rule 56(d)
violation to its attention.
In sum, the Defendants‘ position on this issue is not well taken. The Court
STRIKES the Defendants‘ Additional Statement of Undisputed Facts (Docket # 78).
2.

The Facts2

Michael Hinton admitted to ―‗vaulting‘ over the boat‘s transom onto the boat‘s
swim deck while the boat‘s engine was on and propeller spinning in an effort to
retrieve his son‘s hat.‖3 DSMF ¶ 1; PRDSMF ¶ 1. Mr. Hinton stated:

In accordance with ―conventional summary judgment praxis,‖ the Court recounts the facts in the
light most favorable to Mr. Hinton‘s theory of the case consistent with record support. Gillen v.
Fallon Ambulance Serv., Inc., 283 F.3d 11, 17 (1st Cir. 2002). In accordance with this obligation, the
Court recites certain events as facts even though the Defendants dispute them.
3 The Plaintiff interposed a qualified response to this and the next six statements of material fact,
saying that the cited testimony is accurately quoted but denying the Defendants‘ editorializing.
PRDSMF ¶¶ 1-7. The Court overrules these qualified responses. Since the statements are
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As we approached the cap, I vaulted over the transom onto the swim
platform with my right hand on the gunwale and my left hand on the
swim ladder. My right hand slipped from the gunwale because it was
wet. At the same time, a swell must have come up because I lost my
balance.
DSMF ¶ 2; PRDSMF ¶ 2.

Mr. Hinton testified he twice went onto the swim

platform while the speedboat was under power in his effort to retrieve the hat; the
first time he could not successfully hold onto the wet transom railing while reaching
for the hat floating in the water. DSMF ¶ 3; PRDSMF ¶ 3. Mr. Hinton testified:
Q. Okay. Was this the very first time you had stepped onto the swim
platform, or had you stepped onto it one earlier time just before?
A. I had stepped onto it just a minute before.
Q. Okay. And where had you stepped onto the swim platform the first
time?
A. Right dead center of the stern.
Q. And what were you using for a grip the first time?
A. The railing, the - - transom, the - - the transom.
Q. This raised rail on the - A. Yes.
Q. - - transom?
A. Mm-hmm.
Q. How was your grip on that raised rail of - A. It was wet, and my hand slipped that time.
Q. So what did you do?
A. I climbed back in the boat.
Q. And what decision did you make after you climbed back into the
boat?
A. To find a better way to do it. I saw the swim ladder and decided
that was a better way to do it.
DSMF ¶ 4; PRDSMF ¶ 4.

As to the first time over the transom, Mr. Hinton

testified:
Q. I‘m talking about the first time.
A. Oh, the first time. The first time, I went over and held the - - the
railing.
accurately quoted, the qualified responses are too vague to pose a valid objection. At the same time,
the Court has attempted to eliminate any overt editorializing.

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Q. Okay. So your both - - both your hands were on the railing the first
time?
A. Yes.
Q. Okay. Did both of them slip off of the railing, or did they stay?
A. I didn‘t give that second one a chance to slip.
Q. Okay. So you had one hand on the railing, and you said one slipped
off. What caused it to slip off?
A. It was wet.
Q. Okay. I got that part. But if the - - if you‘re in the lee side of the
island and you weren‘t getting any waves, why did it slip off?
A. We‘d been out for an hour and a half.
Q. Okay.
A. Maybe two.
Q. Were you getting waves causing your hand to slip the first time?
A. Swells - - I - - I don‘t know what caused me to slip the first time. I
attributed it to it being wet.
Q. Okay. But you had swells and the railing was wet?
A. Mm-hmm.
***
Q. Okay. Were you also crouched at that time - A. I was standing rather upright - Q. The first time?
A. - - and was - - yes. And the swell actually pitched me more inboard
than out.
Q. Okay. So you - A. But my hand still slipped.
Q. Okay. One hand slipped and one didn‘t and you were standing
upright the first time on the swim platform?
A. Ah-ha. And I was being pitched more inward at that point.
Q. Now - A. And I could tell it was a difficult task ahead of me.
DSMF ¶ 5; PRDSMF ¶ 5. Mr. Hinton further testified:
Q. You said, sir, that the reason you grabbed the ladder the second
time around is you could not get secure enough purchase the first time;
isn‘t that true, because your hand would - - your hand slipped the first
time?
A. This is true.
Q. So you knew that when you went out there that you could fall into
the water if your hand slipped as it did the first time and get hit by the
prop, didn‘t you?
A. I - - didn‘t know.
Q. Did you reason that that was a real risk?
17

A.
Q.
A.
Q.
A.

Yes. I took a calculated risk - Okay.
- - in taking hold of the swim ladder.
And did you take a calculated risk the first time your hand slipped?
I did.

DSMF ¶ 6; PRDSMF ¶ 6. Mr. Hinton further described his position:
Q. You get onto the swim platform - - you‘ve got one hand on the
railing, the right hand on the railing, the left hand on the ladder, swim
ladder. From that point in time, can you tell me, were you standing
upright, were you crouching on down? What were you doing?
A. I was crouching down.
Q. Okay. Were your knees fully bent like in a 45 degree angle, or - A. Almost.
DSMF ¶ 7; PRDSMF ¶ 7. Mr. Hinton testified further:
Q. Did you realize you were taking a risk by hopping on the swim
ladder with the engine on, the boat in reverse under power?4
A. I took a calculated risk based on the assumption that the swim
ladder would hold my weight as I did this.
Q. And why did you presume that a swim ladder that is designed for a
swimmer in the water to grab it would in any way hold your weight?
A. The swim ladder was sticking up above the transom in such a way
as it invited me to hold it. It was an obvious - - if you want to talk
about obvious, it was more obvious to have the swim ladder there than
were the warning labels that we see here in these exhibits.
***
Q. A cap in the water, it‘s your son‘s, and instead of him retrieving it,
making sure the engine is off and the propeller is stopped spinning,
you got over the transom, onto the swim ladder, grabbed ahold as I
understand it - - I mean onto the swim platform, grabbed ahold of the
swim ladder, and that‘s what you say happened that caused this
accident, correct?
A. Yes. It - - well what caused it was it gave way.
***

Mr. Hinton interposed a qualified objection to the first sentence of the quoted transcript, saying
that it was not accurately quoted. DSMF ¶ 8; PRDSMF ¶ 8. The Court compared counsel‘s question
in the Defendants‘ Statement of Material Fact with the transcript and sustains Mr. Hinton‘s
objection. In place of Defendant‘s question, the Court inserted a verbatim quote reflecting counsel‘s
question.
4

18

Q. Why, when you know a spinning propeller is there, the boat is
under power and it‘s backing up and you‘re out in the ocean, would you
ever get on a swim platform?
A. We were on the bay, backing slowly to the hat, and I had firm grasp
on the ladder. My plan depended on the ladder.
***
Q. Did you grab ahold of the railing? And if not, why not?
A. I did with my right hand. With my left hand, I had the ladder. So I
did, in fact, grab the railing. But it was - - it was wet; something was
wet. The railing was wet, my hand slipped off that railing. So that put
me depending upon the ladder, which is why I continued my purpose
on the swim platform.
***
Q. Okay. Was it unreasonable for you to grab ahold of the railing?
A. No. Because I did.
Q. All right.
A. And my hand slipped.
Q. Why did your hand slip?
A. It was wet. It‘s lower than the swim ladder, so any spray from the
ocean, especially if you‘re backing or been out a while, the - - the wet is
more likely to be on the railing than on the swim ladder that‘s higher.
And I think that‘s probably - - you know, it looked like a really good
place to hold. That‘s why I held it.
Q. And so you‘ve got your left hand on the railing?
A. No. My right hand on the railing.
Q. Okay. You got your right hand - - are you dominant - - right hand
dominant?
A. Yes, sir.
Q. Okay. So you‘ve got your right hand on the railing. Why if you‘re
trying to reach for a hat did you ever touch the swim ladder? Because
you got to have a hand to touch the - - to get the hat, right? So you‘re
holding on with your dominant hand onto the railing, you‘re leaning
out to grab the hat. Why did you grab the swim ladder?
A. I didn‘t have a chance to reach for the hat because the ladder gave
way before - Q. You - - okay.
A. - - just, you know, like maybe that long before we were upon the
hat. I was contemplating getting the hat; so when my hand slipped off
the railing, I grabbed my knee to kind of right myself.
***
Q. So you had ahold of the railing with your right hand. You‘re
hanging onto it, and for reasons - - what was your reason to grab the
boarding ladder at that juncture when you‘re holding onto the railing?
A. It appeared to me a better grip than the railing.
19

DSMF ¶ 8; PRDSMF ¶ 8. The boat contained a warning sign that read:
DANGER
MAKE SURE ENGINE IS OFF AND PROPELLER IS STOPPED BEFORE
USING BOARDING LADDER.
DSMF ¶ 9; PRDSMF ¶ 9.5

Robert Flynn, the Plaintiff‘s liability expert,

acknowledged at his deposition that ―it says, essentially in black and white, make
sure the engine is off and propeller stopped before using boarding ladder.‖6 DSMF ¶
10; PRDSMF ¶ 10.
Mr. Hinton testified:
A. . . . I fell in, even though I - - I was swung out, I still fell in relatively
behind the boat. But when I came up, I was surprised to see the port
side of the boat, and actually very little of the transom at that point,
but mostly the port side of the boat. That was curious to me. And then
when I tried to level out to swim, it seemed awkward to me. I couldn‘t
figure out what was wrong. But then my mind went to the fact that
my deck shoe was coming off. And I didn‘t want to lose my deck shoe,
so I pulled it back on. And then suddenly, the boat was there.
DSMF ¶ 12; PRDSMF ¶ 12.
Robin Sprague, an eyewitnesses and the Plaintiff‘s financée at the time,
testified that Michael Hinton fell overboard from the port side of the speedboat
while reaching for his son‘s hat. DSMF ¶ 13; PRDSMF ¶ 13. Ms. Sprague testified:
Q. So from the moment the hat blew into the water, can you tell me
what happened?
The Plaintiff interposed a qualified objection to the Defendants‘ characterization of the warning
sign and therefore the Court quoted the language from the sign itself. DSMF ¶ 9; PRDSMF ¶ 9. The
Plaintiff also objected to the portion of this statement that describes the location of the warning sign
as not supported by the record citation. PRDSMF ¶ 9. The Court agrees and has not included the
portion of the Defendants‘ statement that describes the location of the warning sign.
6 The Plaintiff denied Defendants‘ statement of material fact paragraph 11 on the ground that the
statement is not supported by the record citation. PRDSMF ¶ 11. The Court agrees and has not
included the paragraph in its recitation of the facts.
5

20

A. The hat blew into the water, the boat was still running because it‘s
a large boat. Justin - - I think we were yelling to Topper [Christopher
Sprague] that the hat was in the water, and it‘s a loud boat, so we had
to keep yelling to have that fact be known and then recognize because
also, you could see it. Michael stood up, he was - - first he tried to
reach out to get the boat like that - - I mean, the hat like that. Topper
was yelling, sit down. He yelled that very forcefully several times,
several meaning two at least, perhaps three. Michael stood up. I saw
his hands go up and his leg go up, and then he fell over approximately
here (indicates).
Q. You‘re taking your finger and you‘re - A. I‘m pointing to the back left-hand side of the boat.
Q. Why don‘t you make an arrow where you‘re pointing.
A. (Indicates).
Q. And you‘ve made an X, and what does that X mean?
A. The X means that to my memory that‘s approximately where he
fell.
Q. So he fell into the water at that X as best you recall?
A. Yes, as best I recall.
Q. Did you see that happen?
A. Yes. I saw that happen.
DSMF ¶ 14; PRDSMF ¶ 14. She further testified:
Q. Okay. What happened after that? The hat, what color was the
hat?
A. I‘m not even sure anymore. It was either a dark color like a navy
blue or a tan. I can‘t remember, but it said Navy on it. That‘s what I
most remember.
Q. Before we get to what happened next, Mr. Hinton, you saw him
before he fell into the water, you saw him reaching over the side of the
boat for the hat; is that - A. Yes, and I think Justin may have been, too. I can‘t say for sure. It
seems like there was an effort on both their parts to reach the hat and
my brother saying sit down, sit down.
DSMF ¶ 15; PRDSMF ¶ 15. Ms. Sprague testified that, at the moment Mr. Hinton
fell into the water over the port side of the boat, the hat was six to eight feet away.
DSMF ¶ 16; PRDSMF ¶ 16. She further testified:
Q. Okay, so let‘s go back to the moment that Mr. Hinton falls into the
water. What do you remember from that point onward?
21

***
A. [Michael Hinton] got - - he swam and he got the hat, and he held it
up and he smiled, and the boat was not moving - - it was still going but
it was not moving. He swam back toward the boat with the hat, and
he was here (indicates) where there‘s a swim ladder.
Q. You‘re pointing at the diagram now. Why don‘t you make - - Why
don‘t you make a Y where you‘re describing where he was at this
moment.
A. With the hat.
Q. So you‘ve just made a Y off the stern of the boat on the left side.
And you can continue your testimony.
A. Okay. He had the hat in one hand; I don‘t quite recall which hand.
He is reaching up to the ladder. He‘s got his hands on it, and we - Justin and I are there in the back of the boat. Justin is closer to him.
Justin is on my right, we‘re facing Michael, and all of a sudden his face
changes to an utter mask of pain, and he said, I‘m hurt, or I‘m - - then
we knew something was - - and his hands - - at least one of them fell
away from the ladder at that same time, and then - - I‘m trying to get
this chronologically. He initially had his hands on the ladder, his face
changed, the hands fell away - - at least one of them - - from the
ladder, and we knew - - he said something, I‘m hurt, and then Justin
pulled him in, and his leg was practically detached. It looked like
lobster meat. It was not recognizable as a leg.
DSMF ¶ 16; PRDSMF ¶ 16.
The warnings on the boat were very small and the color was such that Robert
Flynn does not believe that they would meet the standard for warnings.7 PSAMF ¶
17; DRPSAMF ¶ 17. Michael Hinton did not see any warning labels on the boat.
PSAMF ¶ 18; DRPSAMF ¶ 18. Mr. Hinton fell out of the boat because the swim
ladder gave way under his grasp.8 PSAMF ¶ 19; DRPSAMF ¶ 19. At the time the
ladder snapped and Michael Hinton fell into the water, Justin Hinton was
The Defendants denied this statement. DRPSAMF ¶ 17. A portion of the denial is based on their
position regarding the admissibility of Robert Flynn‘s testimony, which the Court has addressed.
Further, the Defendants point to the testimony of their own experts. However, the Court has
included the statement because it is required to view the facts in the light most favorable to the nonmovant.
8 The Defendants denied this statement, citing testimony of other witnesses. DRPSAMF ¶ 19. The
Court included the statement because it is required to view the facts in the light most favorable to
the non-movant.
7

22

approximately three feet away from Michael Hinton and had Michael Hinton in full
view.9 PSAMF ¶ 20; DRPSAMF ¶ 20. Justin Hinton testified that Michael Hinton
fell out of the boat and was completely submerged underwater for about four
seconds.

When Michael Hinton resurfaced and his face broke the plane of the

water, Justin Hinton immediately observed blood in a five to six foot radius around
Michael Hinton.10 PSAMF ¶ 21; DRPSAMF ¶ 21. Within about fifteen seconds
after Justin Hinton saw blood around Michael Hinton as he resurfaced, Justin
Hinton had pulled Michael Hinton back into the boat; the entire event took only 25
to 30 seconds.11 PSAMF ¶ 22; DRPSAMF ¶ 22. Michael Hinton never retrieved
Justin Hinton‘s hat that had blown into the water.12 PSAMF ¶ 23; DRPSAMF ¶ 23.
Terri Paquin testified that she saw Michael Hinton fall into the water and the next
thing she saw was Justin Hinton and Robin Sprague pulling Michael Hinton out of
the water; Ms. Paquin does not remember seeing Michael Hinton swimming to get a
hat or swimming toward the boat. PSAMF ¶ 24; DRPSAMF ¶ 24.

The Defendants denied this statement, saying that the ―Plaintiff mischaracterizes the record in
that Justin Hinton stated he was three feet from the ladder, not the Plaintiff, inside the boat with
the transom and transom seating between him and the ladder off to one side.‖ DRPSAMF ¶ 20. The
Court is nonplussed by this objection. If Mr. Hinton was on the ladder when it snapped and if Justin
Hinton was three feet from the ladder, Justin Hinton would also have been three feet from Michael
Hinton. The Court overrules the Defendants‘ objection and accepts the statement. The Defendants
also object based on other portions of Justin Hinton‘s testimony; the Court rejects that portion of the
denial because it is required to view the facts in the light most favorable to Mr. Hinton.
10 The Defendants interposed a qualified response, stating that ―Justin Hinton stated as such after
speaking with Plaintiff‘s counsel and comparing notes.‖ DRPSAMF ¶ 21. The Court refuses to
accept the qualified response and deems the paragraph admitted. At best, the qualification goes to
Justin Hinton‘s credibility and at this stage, the Court is required to view the facts in the light most
favorable to Mr. Hinton.
11 The Defendants interposed a qualified response in part for the same reason in paragraph 21. In
addition, the Defendants point to supposedly contradictory testimony from other witnesses. The
Court refuses to accept the qualified response and treats the statement as admitted.
12 The Defendants denied this paragraph, citing Robin Sprague‘s testimony. DRPSAMF ¶ 23. The
Court refuses to accept the Defendants‘ denial and treats the statement as admitted.
9

23

3.

The Parties’ Positions

The Defendants base their motion for summary judgment on two theories: (1)
that there is ―no cause in fact or proximate cause between Plaintiff‘s product
liability ladder claims and Plaintiff‘s injury accident‖; and (2) that ―Plaintiff‘s fault
is greater than any he has alleged against Defendants and his claim is barred
thereby.‖ Defs.’ Mot. for Summ. J. at 13, 15.
The Plaintiff responds by saying that these issues are matters for jury
resolution. Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 2-6.
4.

Summary Judgment Standard

Summary judgment is appropriate when ―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). For summary judgment purposes, ―genuine
means that the evidence is such that a reasonable jury could return a verdict for the
nonmoving party, and a material fact is one which might affect the outcome of the
suit under the governing law.‖ Buchanan v. Maine, 469 F.3d 158, 166 (1st Cir.
2006) (quoting Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-19 (1st
Cir. 2004)) (internal quotation marks omitted). ―Neither conclusory allegations nor
improbable inferences are sufficient to defeat summary judgment.‖ Carroll v. Xerox
Corp., 294 F.3d 231, 236-37 (1st Cir. 2002) (citation and internal quotation marks
omitted).
5.

Discussion

24

The Defendants‘ motion for summary judgment is hopeless on these facts.
First, as the Defendants themselves acknowledge, not all the witnesses agree about
the details of this accident.

Defs.’ Mot. for Summ. J. at 8 (―Bizarrely, in the

deposition of Plaintiff‘s fiancée and eyewitness to this accident, Robin Sprague, Ms.
Sprague describes an entirely different accident than the one testified to by Michael
Hinton‖). Where there are manifest differences—amounting to the bizarre or not—
as to what actually happened, only a jury can resolve those differences.
Second, the Defendants‘ proximate cause contention is that Mr. Hinton was
injured because he became disorientated after he tumbled into the water, and the
boat operator failed to cut power to the propeller, thereby causing the injuries to
Mr. Hinton‘s leg. According to the Defendants, Mr. Hinton‘s injuries were thus a
result of his own negligence and the negligence of the boat operator. Id. at 13-14.
But under Maine law, proximate cause ―is that cause which, in natural and
continuous sequence, unbroken by an efficient intervening cause, produces the
injury, and without which the result would not have occurred.‖ Merriam v. Wanger,
2000 ME 159, ¶ 8, 757 A.2d 778, 780 (citations omitted).

The Merriam Court

explained:
Evidence is sufficient to support a finding of proximate cause if the
evidence and inferences that may reasonably be drawn from the
evidence indicate that the negligence played a substantial part in
bringing about or actually causing the injury or damage and that the
injury or damage was either a direct result or a reasonably foreseeable
consequence of the negligence. The mere possibility of such causation
is not enough, and when the matter remains one of pure speculation or
conjecture, or even if the probabilities are evenly balanced, the
defendant is entitled to a judgment.

25

Id. ¶ 8, 757 A.2d at 780-81.
Here the question narrows to whether there is a genuine issue of material
fact as to whether the manufacturer of a defective swim ladder on a boat should
anticipate that a person who falls into the water as a result of the defect is at risk of
becoming disoriented and that a boat operator, attempting to rescue a man
overboard, could fail to cut the propeller in time to avoid injury.
As the Maine Supreme Judicial Court has pointed out, ―[t]he question of
whether a defendant‘s acts or omissions were the proximate cause of a plaintiff‘s
injuries is generally a question of fact, and a judgment as a matter of law is
improper if any reasonable view of the evidence could sustain a finding of proximate
cause.‖ Houde v. Millett, 2001 ME 183, ¶ 11, 787 A.2d 757, 759. See Dyer v. Me.
Drilling & Blasting, Inc., 2009 ME 126, ¶ 32, 984 A.2d 210, 219 (―The question of
causation is generally one of fact to be determined by the fact-finder‖).
Regarding the Defendants‘ contention that the boat operator caused the
injury by failing to cut the power to the propeller, the argument assumes that a
fact-finder would conclude that the boat operator was in fact negligent in his
operation of the boat, a fact that the Court cannot determine on this record.
Furthermore, if the boat operator‘s negligence did contribute to Mr. Hinton‘s injury,
this would not necessarily absolve the Defendants. Maine law has long held that
―[a]n injury . . . may have more than one legal cause. Two or more persons or things
may act either independently or together to cause injury or damage, and in such a

26

case each may be a legal cause.‖ Donald G. Alexander, MAINE JURY INSTRUCTION
MANUEL § 7-81 (4th ed. 2003).
The analysis of comparative negligence is similar.

Under Maine law,

comparative negligence under 14 M.R.S. § 156 is available as a defense to a strict
liability action under 14 M.R.S. § 221. Austin v. Raybestos-Manhattan, Inc., 471
A.2d 280, 283 (Me. 1984). But the Maine Supreme Judicial Court also limited the
type of negligence available as a defense to a strict liability action:
[C]ontributory negligence consisting merely in a failure to discover the
defect in the product or to guard against the possibility of its existence
is not ―fault‖ of the plaintiff under section 156; but . . . on the other
hand contributory negligence of a form commonly passing under the
name of assumption of the risk, consisting in voluntarily and
unreasonably proceeding to encounter a known danger, does constitute
such ―fault.‖
Id. at 286.

As the authors of MAINE TORT LAW explained, ―[t]o place a

responsibility on a consumer to discover product defects places a burden on the
consumer which strict liability was intended to remove.‖

Jack H. Simmons,

Donald N. Zillman, David D. Gregory, MAINE TORT LAW § 12.09 (2004 ed.).
Although the Defendants have a strong argument that Mr. Hinton ―voluntarily
and unreasonably proceed[ed] to encounter a known danger,‖ a jury could also
conclude that Mr. Hinton did not know about the defect in the swim ladder. The
resolution of this question depends on a fact-finder.
Moreover, as the Maine Law Court made clear in Austin, the jury‘s task
under section 156 is to ―compare the conduct of the seller of an unreasonably
dangerous product with the contributorily negligent conduct of the plaintiff.‖ 471

27

A.2d at 285. On this record, which contains virtually no information about the
nature of the defect, the Court is in no position to make that evaluation—and to
compare degrees of negligence—and is certainly in no position to rule that, as a
matter of law, Mr. Hinton‘s negligence was equal to or greater than the Defendants‘
liability. The Court dismisses the motion for summary judgment without prejudice.
D.

Defendants’ Four Winns Motion
1.

The Parties’ Positions

The Defendants have also moved for summary judgment on the ground that
Mr. Hinton has sued the wrong parties, saying that neither Outboard Marine
Corporation nor OMC Recreational Boat Group, Inc. designed or manufactured the
boat involved in this accident and that the actual designer is Four Winns, Inc., a
party the Plaintiff dismissed on March 26, 2009. Defs.’ Four Winns Mot. at 1-4.
Further, the Defendants contend that the statute of limitations has run as to Four
Winns. Id. at 5. Mr. Hinton vigorously disputes the factual underpinnings of the
Defendants‘ motion. Pl.’s Four Winns Opp’n. at 1-5.
2.

Discussion

Based on this highly contested record, the Court cannot begin to determine
whether Four Winns is the proper Defendant. Not surprisingly, in his responsive
statement of material facts, Mr. Hinton denied the Defendants‘ critical assertions.13

For example, the first sentence of paragraph 12 of the Defendants‘ Statement of Material Facts
reads:
13

The above representation by Plaintiff[‘]s counsel to the State Court was false.
DSMF – Four Winns ¶ 12. The Defendants‘ statement of supposedly undisputed material fact
includes the assertion that Mr. Hinton‘s lawyer made a false representation to the State Court, an

28

In their responsive statement of material facts, the Defendants admitted only one of
Mr. Hinton‘s ten statements of material fact. DRPSAMF ¶ 25. The parties agree
only on the most incontestable facts, such as that the Plaintiff originally filed the
Complaint in state court. The parties flatly dispute whether the Plaintiff is entitled
to rely on representations made by the bankruptcy trustee for Outboard Marine
Corporation during the bankruptcy process and what those representations were.
For example, the Plaintiff says that the attorneys for the trustee of Outboard
Marine Corporation represented that Four Winns was ―a division of OMC‖ and ―had
been in bankruptcy since December 22, 2000.‖ PSAMF – Four Winns ¶ 20. The
Defendants declaim this statement as ―false,‖ affirmatively stating that Four
Winns, Inc. had been dissolved since 1995. DRPSAMF – Four Winns ¶ 20. The
Court is also unclear about the significance, if correct, of the bankruptcy court‘s
lifting of the bankruptcy stay in the Outboard Marine Corporation bankruptcy to
allow Mr. Hinton to proceed in a lawsuit so long as the recovery was limited to
insurance proceeds. DRPSAMF – Four Winns ¶ 21.
To grant a motion for summary judgment, the Court is required to determine
that there is ―no genuine dispute as to any material fact.‖ FED. R. CIV. P. 56(a). On
whether Four Winns is the appropriate defendant, there appears virtually no
agreement as to any material fact. This case with its series of shifting corporate
identities, successor corporations, dismissals, service of process defenses, and an
intervening bankruptcy, seems particularly refractory to summary disposition.
assertion the Defendants had to know would be disputed. The Defendants also say that the
Plaintiff‘s statement about what he was told by the attorneys for the bankruptcy trustee for
Outboard Marine Corporation is false. DSMF – Four Winns ¶ 20.

29

The Court dismisses the motion without prejudice.14
III.

CONCLUSION
The Court DISMISSES without prejudice the Plaintiff‘s Motion in Limine to

Exclude or Limit Testimony of Defendants‘ Expert Witnesses (Docket # 48), the
Defendants‘ Motion to Exclude the Testimony of Plaintiff‘s Expert, Robert V. Flynn
(Docket # 52), Defendants‘ Motion for Summary Judgment (Docket # 65), and
Defendants‘ Motion for Summary Judgment on the Identity of the Manufacturer of
the Accident Boat (Docket # 67).

The Court GRANTS the Plaintiff‘s Motion to

Strike ―Defendants‘ Statement of Additional Undisputed Facts‖ (Docket # 79).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 21st day of November, 2011

It strikes the Court that this issue should be resolvable by an agreed statement of facts. The
Court suspects that the parties do not really disagree about much of what is set forth (and denied or
qualified) in their contested statements of material fact. If the Plaintiff, after all his efforts, has
targeted the wrong Defendant, it would seem better for him to know this now rather than after an
expensive trial. The same is true for the Defendants. If there truly is a core set of contested facts,
the parties could agree to present this issue to the Court for resolution both on the facts and law.
But the Court must leave these strategic decisions in the hands of able counsel.
14

30