Obomsawin v. Tempur-Pedic North America, LLC

Filing 117

MEMORANDUM AND ORDER Denying 114 Motion for Reconsideration and/or Clarification. Signed by Judge William M Nickerson on 2/10/2015. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ROBBIN OBOMSAWIM
v.
TEMPUR-PEDIC NORTH AMERICA,
LLC, et al.

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Civil Action No. WMN-12-3410

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MEMORANDUM AND ORDER
Before the Court is a Motion for Reconsideration and/or
Clarification filed by Plaintiff Robbin Obomsawim, ECF No. 114,
asking the Court to reconsider its Memorandum and Order from
January 5, 2015.

ECF Nos. 112-113.

and ripe for review.

The motion is fully briefed

Upon review of the papers, facts, and

applicable law, the Court determines that no hearing is
necessary, Local Rule 105.6, and Ms. Obomsawim’s motion will be
denied.
Robbin Obomsawim brought this negligence action as legal
representative of her deceased mother, Esther Whitman, against
Tempur-Pedic North America, LLC (Tempur-Pedic) for injuries
sustained by Ms. Whitman allegedly as the result of plastic
covering that was left on the base of her Tempur-Pedic Ergo bed.
Ms. Obomsawim had ordered the Ergo bed over the phone from
Tempur-Pedic and was promised free delivery and installation.

Defendant Cruz Transportation Services (Cruz) delivered and
installed the Ergo bed in Ms. Whitman’s home.

Cruz, an unknown

party to Tempur-Pedic, was a subcontractor of Old PFS, Inc.
(Purnell)1, a furniture installation and delivery company.
Purnell had a direct contract with Tempur-Pedic to deliver and
install its beds.

At issue is who bears responsibility for the

protective plastic covering remaining on the bed after
installation, when its presence allegedly caused the mattress to
slip, which caused Ms. Whitman to fall and sustain serious
injury.
Tempur-Pedic sought summary judgment on the grounds that it
did not violate a duty of care owed to Ms. Whitman and that it
was not liable for the actions of either its contractor,
Purnell, or an unknown third party, Cruz.

ECF No. 97.

Ms.

Obomsawim opposed the Motion on the grounds that Tempur-Pedic
did in fact violate its duty “to properly deliver and install
Plaintiff’s specialty mattress,” ECF No. 103-1 at 18, and that
Tempur-Pedic could be held liable for the actions of Cruz and
Purnell on actual and apparent agency theories.

ECF No. 103-1.

The Court granted in part and denied in part Tempur-Pedic’s
motion.

ECF Nos. 112-113.

Specifically, and at issue here, the

Court found that Tempur-Pedic discharged its duty “to properly
deliver and install Plaintiff’s specialty mattress” when it used
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Old PFS, Inc., does business as Purnell Furniture Services.
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reasonable care by selecting in Purnell a reputable company to
deliver and install its products and by entering into a detailed
agreement by which Tempur-Pedic sought to ensure that Purnell
ECF No. 112 at 8-9.2

would properly install its beds.

Ms. Obomsawim now moves for reconsideration on the ground
that “Plaintiff believes there is a factual issue to be resolved
by the jury, namely Plaintiff’s standard of care testimony
against Tempur-Pedic, and therefore summary judgment is
inappropriate because there is a material dispute of fact.”
No. 114 at 5.3

ECF

The dispute of fact arises, Plaintiff argues,

because her experts can testify that “defendant breached a duty
of care,” ECF No. 114 at 7, and that “the duty is non-delegable
because Plaintiff’s standard of care experts opined that this
duty was non-delegable.”

Id. at 6.

Tempur-Pedic objects that

this testimony is inadmissible because it asserts impermissible
legal conclusions.

ECF No. 115 at 2.

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The Court, however, did not relieve Tempur-Pedic of all
potential liability and found that a finder of fact could
conclude that Cruz’s deliverymen were acting as apparent agents
of Tempur-Pedic, and therefore could be held liable if any
action taken by Cruz within the course of installation was
negligent. ECF No. 112 at 12.
3
Plaintiff argues on multiple occasions that “Tempur-Pedic has
presented no deposition or other evidence that they, in fact,
complied with the standard of care.” ECF Nos. 114 at 6, 116-1
at 3. Although Tempur-Pedic chose not to enlist an expert to
declare it in compliance with the standard of care, Tempur-Pedic
did submit sufficient evidence, including the shipping-carrier
contract between Tempur-Pedic and Purnell and the Ergo Bed
installation manual, upon which the Court could make its
decision.
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“A motion for reconsideration is appropriate ‘to correct
manifest errors of law or fact or to present newly discovered
evidence,’ . . . or where there has been an intervening change
in controlling law.”

Potter v. Potter, 199 F.R.D. 550, 552 (D.

Md. 2001) (internal citations omitted).

Plaintiff styles her

motion as a “request for clarification,” but clearly believes
that the Court has made an error of law in that it failed to
reach the same conclusion as her experts.4

The Court may grant a

motion for reconsideration “only in very narrow circumstances”
and the movant may not “take a second, unpermitted, swing at the
piñata.”

Wonasue v. University of Maryland Alumni Ass’n, Civ.

No. PWG-11-3657, 2013 WL 6178041, at *2(D. Md. Nov. 22, 2013).
The Court finds that Plaintiff has not identified a manifest
error upon which the Court may reverse its opinion, and instead
“ask[s] the Court to rethink what the Court had already thought
through – rightly or wrongly.”

Dunford v. Astrue, Civ. No. BPG-

10-0124, 2012 WL 380057, at *1 (D. Md. Feb. 3, 2012).
As previously articulated, the legal test for negligence is
met when (1) the defendant owed a duty to plaintiff; (2) the
defendant breached its duty; (3) the plaintiff was injured; and
(4) the injury was proximately caused by defendant’s breach.
Read Drug & Chem. Co. v. Colwill Constr. Co., 243 A.2d 548, 552-

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In her motion, Plaintiff does not present new evidence or
demonstrate an intervening change in the law.
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53 (Md. 1968).

In considering a motion for summary judgment, if

there is no material dispute of fact, the Court may apply
relevant, admissible facts to determine whether the moving party
is entitled to judgment as a matter of law.

In its prior

opinion, the Court found that Tempur-Pedic did not breach its
duty based on evidence that established that Tempur-Pedic
selected a reputable delivery company, Purnell, and took
reasonable steps to ensure that such delivery was completed in a
satisfactory manner.

Plaintiff, in its current Motion and

opposition to Tempur-Pedic’s Motion for Summary Judgment, argues
that the testimony of Plaintiff’s experts reached an opposite
legal conclusion, that Tempur-Pedic violated its duty because
the protective plastic remained on the bed after installation.
Rule 704 of the Federal Rules of Evidence permits the
admission of opinion testimony that “embraces an ultimate issue
to be decided by the trier of fact.”

Opinion testimony,

however, that draws a legal conclusion is generally
inadmissible.

The Court identifies improper legal conclusions

by determining whether “‘the terms used by the witness have a
separate, distinct, and specialized meaning in the law different
from that present in the vernacular.’”

United States v. McIver,

470 F.3d 550, 562 (4th Cir. 2006) (citations omitted); see also
In re Titanium Dioxide Antitrust Litig., Civ. No. RDB-10-0318,

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2013 WL 1855980, at *2 (D. Md. May 1, 2013).5

Examples of words

with specialized meaning include “extortion,” “deadly force,”
“fiduciary,” and “unreasonably dangerous.”

McIver, 470 F.3d at

562 (collecting cases). “Put another way, ‘opinions which would
merely tell the jury what result to reach’ are inadmissible.”
Elat v. Ngoubene, 993 F. Supp. 2d 497, 512 (D. Md. 2014)
(quoting In re Titanium Dioxide Antitrust Litig., supra, at *3);
see also Fed. R. Evid. 704, Advisory Committee Note.

In the

testimony offered by Plaintiff, Dr. Singh states that “TempuraMedic [sic] failed to meet the standard duty of care” and Mr.
Kail opines that Tempur-Pedic “had a duty to ensure the proper
installation of the Tempur-Pedic bed regardless of who the
installer is.”

ECF No. 116-1 at 2.

“Duty” and “standard duty

of care” within the context of tort law have highly specialized
legal meanings which are distinct from their vernacular meaning.
See Bd. of Cnty. Comm’rs for Cecil Cnty. v. Dorman, 979 A.2d
167, 174 (Md. Ct. Spec. App. 2009) (“Whether a duty exists is
not legitimately established by calling an expert witness to the
stand, no matter how qualified that expert might be.

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The

Plaintiff notes that Tempur-Pedic cites In re Titanium, an
unpublished antitrust case, and argues that because of its
unpublished status and the antitrust nature of the action, the
decision has no bearing on the Court’s evaluation of her
experts. ECF No. 116 at 5. In re Titanium applies, however, as
it interprets Supreme Court and Fourth Circuit precedent to deal
directly with permissible and impermissible expert testimony
under the Federal Rules of Evidence.
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existence, vel non, of a duty is a legal issue to be determined
by the court.”).

Dr. Singh’s testimony, in particular, would

tell a fact finder exactly what conclusion to reach.

As such,

Plaintiff attempts to prove that Tempur-Pedic failed in its duty
by offering expert testimony constituting impermissible legal
conclusions which explicitly state that Tempur-Pedic “failed to
meet the standard duty of care.”
In her reply, Plaintiff states that her “experts have not
opined on the ultimate legal issue – non-delegable duty,”

ECF

No. 116 at 5, even though in her original motion she expressly
argues that “[Tempur-Pedic’s] duty is non-delegable because
Plaintiff’s standard of care experts opined that this duty is
non-delegable.”

ECF No. 114 at 6.

Plaintiff also accuses

Tempur-Pedic of basing its characterization of the testimony
“solely on how Plaintiff framed her legal arguments in her
opposition to Tempur-Pedic’s Motion for Summary Judgment and not
on a single word of Dr. Singh or Mr. Kail’s testimony.”
Plaintiff is backpedaling from her original position.

Id.6

In this

Motion for Reconsideration and her earlier Opposition, Plaintiff
herself – not Tempur-Pedic – is the one who characterized the
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This accusation holds no weight with the Court, as what
arguments Plaintiff made in her earlier opposition is entirely
the point of this Motion. Novel legal arguments are not to be
considered, as “[h]indsight being perfect, any lawyer can
construct a new argument to support a position previously
rejected by the court, especially once the court has spelled out
its reasoning in an order.” Potter, 199 F.R.D. at 553.
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testimony of Dr. Singh and Mr. Kail as being about the duty owed
and its non-delegable nature.

Plaintiff cannot now seriously

argue that her experts “did not once address the ultimate legal
issue” when she in fact argued just that.

ECF No. 116 at 4.

Plaintiff’s original offering of its expert evidence is clearly
impermissible and constitutes unsuitable grounds for granting
reconsideration.
Plaintiff also makes passing arguments that summary
judgment is unwarranted because Tempur-Pedic chose not to hire
experts to rebut Mr. Kail and Dr. Singh and Tempur-Pedic had
“contractually promised to deliver and install its own products
and then failed to insure proper installation,” ECF No. 114 at
7.

Neither argument presents a ground upon which to grant

reconsideration.

First, a party is not obligated to hire an

expert to testify and may rely on any relevant evidence that
“has a tendency to make a fact more or less probable” where that
fact is “of consequence in determining the action.”
Evid. 401.

Fed. R.

The litigation choice of Tempur-Pedic not to hire

an expert has no bearing on the matter at hand.

Second,

Plaintiff has not brought a breach of contract action, and any
potential breach of contract on the part of Tempur-Pedic is
incidental to the question of tortious negligence as “[a]
contractual obligation, by itself, does not create a tort duty.
Instead, the duty giving rise to a tort action must have some
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independent basis.”

Mesmer v. Md. Auto Ins. Fund, 752 A.2d

1053, 1058 (Md. 1999).
Accordingly, it is this 10th day of February, 2015, ORDERED
that:
(1)

Plaintiff Robbin Obomsawim’s Motion for
Reconsideration, ECF No. 114, is DENIED; and

(2)

The Clerk of Court shall transmit a copy of this
Memorandum and Order to all counsel of record.

______________/s/__________________
William M. Nickerson
Senior United States District Judge

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