Kirk v. Schaeffler Group USA, Inc. et al

Filing 323

ORDER denying 288 motion to strike. Signed on December 22, 2015 by Chief District Judge Greg Kays. (Lehr, Jonathan)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JODELLE L. KIRK,
Plaintiff,
v.
SCHAEFFLER GROUP USA, INC.,
FAG HOLDING, LLC, and
FAG BEARINGS, LLC,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. 3:13-cv-5032-DGK

ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ SUMMARY
JUDGMENT ARGUMENT ON PLAINTIFF’S FAILURE TO WARN CLAIM
This case arises from Defendants’ release of trichloroethylene (“TCE”) into the
environment near Plaintiff Jodelle Kirk’s childhood home. Plaintiff alleges she was exposed to
the TCE, and that it caused her to develop several serious illnesses, including autoimmune
hepatitis.
Now before the Court is Plaintiff’s Motion to Strike Defendants’ Motion for Summary
Judgment on Plaintiff’s Failure to Warn Claim (Doc. 288). Plaintiff notes Defendants’ Renewed
Motion for Summary Judgment includes a new argument, namely that the Court should grant
Defendants partial summary judgment on Plaintiff’s claim for negligence based on an alleged
failure-to-warn theory. Defendants contend that Plaintiff’s own evidence and testimony from
third parties—including individuals who were located and deposed after discovery was
reopened—show that Plaintiff and her family did receive several warnings about TCE
contamination.

Plaintiff contends this argument is untimely since it was not included in Defendant’s
initial summary judgment motion and, Plaintiff contends, this argument goes beyond the scope
of additional discovery authorized by the Court.
In response, Defendants concede that this argument was not made in their initial motion,
but they note that nothing in the Court’s June 15, 2015, Order re-opening discovery and allowing
Defendants to file a revised summary judgment motion so limits Defendants. On the contrary, a
subsequent order authorized Defendants to make “any new arguments they wish[ed] to present.”
Doc. 274 at ¶ 2. They also observe that some of the information supporting their argument was
learned from witnesses identified and interviewed after discovery was reopened, so the argument
could not have been made in its present form before discovery was reopened.
In her reply brief, Plaintiff argues Defendants knew of Plaintiff’s failure to warn claims
for several years. She does not, however, discuss the text of the Court’s subsequent order
authorizing Defendants to make new arguments, nor does she dispute that Defendants learned
additional information supporting their argument after discovery was reopened.
The Court finds no merit to Plaintiff’s argument. The motion to strike (Doc. 288) is
DENIED.
IT IS SO ORDERED.
Date: December 22, 2015

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

2

.