Stroud v. Falcon Safety Products, Inc. et al

Filing 77

ORDER granting 67 Motion for Summary Judgment. Plaintiff's claims against Defendant are dismissed with prejudice. Signed by District Judge Louis Guirola, Jr. on 5/16/2019 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CHARLES STROUD, SR., Individually
and as wrongful death representative
of Charles Stroud, Jr.
v.

PLAINTIFF

CAUSE NO. 1:18CV110-LG-JCG

WALMART, INC., d/b/a WALMART
STORES, INC..

DEFENDANTS

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Before the Court is the [67] Motion for Summary Judgment filed by
Defendant Walmart, Inc. in this products liability case. 1 The Motion has been fully
briefed, and after due consideration, the Court finds that there is no question of
material fact for the jury. Summary judgment will be granted and this case
dismissed.
I. BACKGROUND
Plaintiff alleges that his fifteen-year-old son died after intentionally inhaling
a keyboard cleaning product called Ultra Duster, which another adult in the family
purchased from Wal-Mart. Plaintiff alleges that Wal-Mart “is the
manufacturer/designer/seller” of Ultra Duster. (Am. Compl. 1, 10, ECF No. 44.) He
alleges that Wal-Mart knows that young people “huff” the product, but has

Defendant Walmart, Inc., says that the proper party to this suit is Wal-Mart
Stores East, LP. Plaintiff does not address this in his response, so, without
determining the proper party, the Court will refer to both Walmart, Inc., and WalMart Stores East, LP, collectively as “Wal-Mart.”

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attempted to reduce this misuse only by the inadequate measure of adding a
bitterant.
The defendants have chosen profit over safety and chosen keyboard
cleaning over young human life. In so doing the defendants have
manufactured and sold a product that is defective in design, is
inherently dangerous and have violated their obligation to adequately
warn of the dangers of the Ultra Duster product, have failed to take
measures to keep it out of the hands of children, and have taken safety
steps that are designed to provide a defense to liability claims rather
than recognize the reality that the product is not worth the harm that
it causes, can never be made safe, and is a sham of a product that
exists without adequate or legitimate reason save for the profit it
brings to the defendants.
(Am. Compl. 4, ECF No. 44.) Plaintiff’s claims against Wal-Mart are for defective
design and failure to warn under the Mississippi Products Liability Act, and
negligence in designing, testing, manufacturing, marketing, and selling the Ultra
Duster product. 2
Wal-Mart moves for summary judgment, claiming that 1) as an innocent
seller under the Mississippi Products Liability Act it is immune from liability; 3 2)
Plaintiff cannot show that the proximate cause of the decedent’s death was any
action by Wal-Mart; and 3) by failing to deny Wal-Mart’s requests for admissions,
Plaintiff has admitted that Wal-Mart is not liable for the decedent’s death. Plaintiff

2 As Plaintiff’s negligence claims are based on the damages purportedly caused by
the alleged defects in the Ultra Duster product, those claims must be analyzed
under the Mississippi Products Liability Act. See Elliot v. El Paso Corp., 181 So. 3d
263, 269 (Miss. 2015).
3 Wal-Mart refers to the Mississippi Products Liability Act’s “innocent seller”
provision, Miss. Code Ann. § 11-1-63(h). This is an affirmative defense on which
Wal-Mart bears the burden of proof, but there is no evidence of record indicating
that Wal-Mart is not an innocent seller.
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responded to Wal-Mart’s Motion, but he addressed only the matter of his
admissions, arguing that he should be allowed to set them aside as requested in his
[64] Motion to Withdraw or Amend Admissions and Request for Oral Argument. In
an April 11, 2019 [75] Order, the Magistrate Judge denied Plaintiff’s motion to
withdraw or amend his admissions. As a result, the Court is left with no
substantive opposition to Wal-Mart’s summary judgment motion.
II. DISCUSSION
A. The Legal Standard
A motion for summary judgment may be filed by any party asserting that
there is no genuine issue of material fact and that the movant is entitled to prevail
as a matter of law on any claim. Fed. R. Civ. P. 56. The movant bears the initial
burden of identifying those portions of the pleadings and discovery on file, together
with any affidavits, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant
carries its burden, the burden shifts to the non-movant to show that summary
judgment should not be granted. Id. at 324-25. The non-movant may not rest upon
mere allegations or denials in its pleadings but must set forth specific facts showing
the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256-57 (1986).
A motion for summary judgment cannot be granted simply because there is
no opposition, even if the failure to oppose violated a local rule. Factual
controversies are resolved in favor of the non-moving party, but only when there is

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an actual controversy; that is, when both parties have submitted evidence of
contradictory facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Ultimately, the movant has the burden of establishing the absence of a genuine
issue of material fact and, unless it has done so, the court may not grant the motion,
regardless of whether any response was filed. Hibernia Nat. Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).
B. Plaintiff’s Admissions
A full account of the events leading to denial of Plaintiff’s motion to have his
admissions set aside is set out in the Magistrate Judge’s [75] Order. In short,
Plaintiff failed to comply with his Rule 36 obligations on multiple occasions, and did
not show diligence in seeking or good cause for obtaining relief from his admissions.
Plaintiff’s admissions are therefore conclusively established. Fed. R. Civ. P. 36(b).
Wal-Mart relied on Plaintiff’s admissions as a basis for its summary judgment
motion.
As noted above, a court can grant summary judgment when the record,
including “admissions” establish that “there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R, Civ. P. 56. In the Fifth Circuit, admissions can establish “a broad range of
matters, including ultimate facts, as well as applications of law to fact.” In re
Carney, 258 F.3d 415, 419 (5th Cir. 2001) (citations omitted). “[I]f the requests for
admissions concern an essential issue, the failure to respond to requests for
admission can lead to a grant of summary judgment against the non-responding

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party.” Hill v. Breazeale, 197 F. App’x 331, 336 (5th Cir. 2006) (quoting Dukes v. S.
C. Ins. Co., 770 F.2d 545, 548-49 (5th Cir. 1985)).
In this case, Wal-Mart shows that Plaintiff admitted the following:
• Decedent misused keyboard cleaner on March 21, 2015, which caused his death;
• Wal-Mart never exercised substantial control over the design, testing or
manufacture of Ultra Duster;
• Wal-Mart never exercised substantial control over the labeling or packaging of
Ultra Duster;
• Wal-Mart never altered or modified Ultra Duster;
• Wal-Mart did not sell the Ultra Duster used by the decedent; and
• Wal-Mart is not liable to Plaintiff for the decedent’s death.
(Def. Mot. Ex. F, ECF No. 68-6.)
Based on Plaintiff’s failure to respond, the Court finds these matters both
admitted and conclusively established. See Fed. R. Civ. P. 36(a)(3), (b). Because
these admissions encompass the totality of Plaintiff’s claims, the Court finds that
summary judgment in Wal-Mart’s favor is warranted on this basis.
C. Proximate Cause
Wal-Mart also argues that any causal connection between its actions and the
decedent’s death was broken because it sold the Ultra Duster legally to another
person, who gave it to the decedent, who then misused it. Plaintiff did not respond
to this argument, but he does not allege that the decedent used the Ultra Duster for
its designed purpose. Mississippi courts hold that when misuse of a product is the

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proximate cause of the harm suffered, that is a complete defense to liability in a
products liability case. Mine Safety Appliance Co. v. Holmes, 171 So. 3d 442, 457
(Miss. 2015). Wal-Mart could not have known that the Ultra Duster it sold to an
adult would be given to a child and then misused.
Even if the Ultra Duster had been sold directly to the decedent, it is doubtful
that Mississippi law would support the causal connection necessary to establish a
products liability or negligence claim. “[A] minor’s . . . act beyond mere negligence –
breaks the causal connection unless the [seller] had reason to know that the minor
had a propensity to commit such an act. More than a negligent sale is required.”
Williams ex rel. Raymond v. Wal-Mart Stores E., L.P., 99 So. 3d 112, 119 (Miss.
2012). In this case, there is not even a negligent sale at issue. Wal-Mart sold a
legal product to an adult, and could not have prevented the subsequent events.
“Ordinarily [ ] in the absence of a special relationship between the parties, there is
no duty to control the conduct of a third person so as to prevent him from causing
harm to another.” Permenter v. Milner Chevrolet Co., 91 So. 2d 243, 248 (Miss.
1956). Summary judgment is therefore appropriate for the additional reason of the
lack of evidence of a causal connection between Wal-Mart’s acts and the harm
suffered by Plaintiff.
D. Lack of Expert Witness Testimony
Finally, even if there were evidence of a causal connection, the Court struck
Plaintiff’s only expert expected to testify about the Ultra Duster product, Jesse
Hines. (Order Granting in Part and Denying in Part Motion to Strike 7, ECF No.

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76.) Without expert testimony, Plaintiff cannot establish his product liability
claims. “Federal courts in this state have repeatedly held that expert testimony is
required in product liabilities claims brought under the MLPA.” Taggert v. FCA US
LLC, No. 1:16CV179-GHD-DAS, 2018 WL 493479, at *3-4 (N.D. Miss. Jan. 19,
2018) (citations omitted). Because Plaintiff will be unable to provide the necessary
expert testimony, he has “failed to offer proof on a matter which he bears the
burden of proof at trial.” Hammond v. Coleman Co., 61 F. Supp. 2d 533, 542 (S.D.
Miss. 1999) (citation omitted).
IT IS THEREFORE ORDERED AND ADJUDGED that the [67] Motion
for Summary Judgment filed by Defendant Walmart, Inc. is GRANTED. Plaintiff’s
claims against Defendant are DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED this the 16th day of May, 2019.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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