Haskell v. Paccar, Inc. et al
ORDER granting 24 partial Motion to Dismiss for Failure to State a Claim. Signed on 11/18/2021 by District Judge M. Douglas Harpool. (Maerz, Mary)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
PACCAR, INC., et al.,
Civil Action No.: 3:21-cv-05067-MDH
Before the Court is Defendant PACCAR Inc.’s (“PACCAR”) partial Motion to Dismiss
and Motion to Strike. (Doc. 24). For the reasons set forth herein, the Motion is GRANTED in its
entirety. Counts II, III, and VII of Plaintiff’s Amended Complaint (“Complaint”) (Doc. 8) are
hereby dismissed with prejudice as to Defendant PACCAR. The allegations contained in paragraph
28 of Plaintiff’s Complaint are stricken pursuant to Fed. R. Civ. P. 12(f).
Plaintiff is a resident, and, at all times relevant to this matter, he was employed “as an overthe-road truck driver” for CFI, Inc. (“CFI”), which is a North American trucking and shipping
company with ten locations throughout the United States, including one in Joplin, Missouri.
Defendant PACCAR is a Delaware company with a principal place of business in Washington.
PACCAR designs, manufactures, and sells commercial trucks, and one of its divisions is Kenworth
With respect to the events causing Plaintiff’s claimed injuries, Plaintiff alleges that on
August 17, 2019:
Plaintiff was operating the Truck when the CMS activated when there were no other
vehicles nearby and there was no safety-based reason or cause for the deceleration.
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The activation caused an unexpected, sudden, and violent deceleration from
As a result of this incident, Plaintiff allegedly sustained “whiplash” and other injuries.
Plaintiff brings strict liability defective manufacture and/or design claims against
PACCAR in Count I; strict liability failure to warn against PACCAR in Count II; and negligent
manufacture and/or design and failure to warn against PACCAR in Count III. Plaintiff brings a res
ipsa loquitur claim against all defendants in Count VII. PACCAR moves the Court to dismiss
Counts II, III, and VII as they apply to PACCAR. PACCAR additionally moves the Court to strike
paragraph 28 of Plaintiff’s Complaint.
Under Rule 12(b)(6), a court can dismiss a cause of action for a failure to state a claim
upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). “In order to meet the [Rule 8(a)]
standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a complaint must contain sufficient
factual matter, accepted as true to state a claim to relief that is plausible on its face.’” Pumphrey v.
Frontera Produce Ltd., 2014 WL 12607824, at *1 (W.D. Mo. July 3, 2014) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
When considering a 12(b)(6) motion to dismiss, the court treats all well-pleaded facts as true.
Kulkay v. Roy, 847 F.3d 637, 641 (8th Cir. 2017). A cause of action will, however, have “facial
plausibility” only “‘when the plaintiff pleads factual content that allows the court to draw the
reasonable inference the defendant is liable for the misconduct alleged.’” Sampson v. Burlington
N. Santa Fe Ry. Co., 2018 WL 10322115, at *1 (W.D. Mo. Apr. 12, 2018) (quoting Iqbal, 556
U.S. at 678). Therefore, a plaintiff is obligated to provide the grounds of his entitlement to relief,
which “requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555.
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Under Rule 12(f), a Court may “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). While motions to
strike are generally disfavored, a claim for relief that is not available under the applicable law or a
prayer for relief asserting a damage claim in excess of the maximum recovery are properly subject
to a motion to strike. Johnson v. Metro. Sewer Dist., 926 F. Supp. 874, 875 (E.D. Mo. 1996); see
also Hackethal v. Harbor Freight Tools USA, Inc., 2016 WL 695615, at *1 (E.D. Mo. Feb. 22,
A. Counts II and III
Plaintiff asserts a strict liability failure to warn claim against PACCAR in Count II and a
negligent manufacture and/or design and failure to warn claim in Count III. Whether brought as a
negligence or strict liability claim, to state a cognizable claim for failure to warn, “[t]he lack of a
warning is what renders the product defective or unreasonably dangerous.” Sperry v. Bauermeister,
Inc., 804 F. Supp. 1124, 1140 (E.D. Mo. 1992), aff’d, 4 F.3d 596 (8th Cir. 1993); see also Belec
v. Hayssen Mfg. Co., 105 F.3d 406, 409 (8th Cir. 1997) (applying Missouri law and explaining
that for a failure to warn claim to succeed, a jury would have to find that “the failure to provide a
warning made the product unsafe and therefore caused the accident”); Prince v. Michelin N. Am.,
Inc., 2003 WL 1090158, at *4 (W.D. Mo. Jan. 29, 2003) (explaining that to maintain a cause of
action for failure to warn, “the lack of said warning or warning system [must] render the tire at
issue defective or unreasonably dangerous” and there must be evidence that the “inadequacy of
[the] warning caused the damage for which plaintiff seeks redress”). In other words, to have a
viable failure to warn claim, the lack, or inadequacy, of a warning is what makes the product
unreasonably dangerous and causes the accident. Id.
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Here, Plaintiff’s claims for failure to warn (both under a strict liability and a negligence
theory) are contingent on the existence of a design or manufacturing defect. In this regard, Plaintiff
contends that PACCAR did not give an adequate warning regarding the defect in the collision
mitigation system in the Truck. (See Doc. No. 105, Plt. 2d Am. Compl., ¶¶ 38, 42.) Therefore,
Plaintiff contends that the defect in the collision mitigation system made the Truck unreasonably
dangerous. Any alleged lack of warning in this case is not “what render[ed] the product defective
or unreasonably dangerous.” Sperry, 804 F. Supp. at 1140. As such, Plaintiff’s claims based on an
alleged failure to warn in Counts II and III are dismissed with prejudice for failure to state a claim
under Rule 12(b)(6).
B. Count VII
Plaintiff asserts a claim against PACCAR under the doctrine of res ipsa loquitor in Count
VII of the Complaint. For a claim to be based on res ipsa loquitur, there must be three elements:
(1) the incident normally does not occur without negligence; (2) the incident was caused by an
instrumentality under the control of the defendant; and (3) the defendant has superior knowledge
about the cause of the incident. Weaks v. Rupp, 966 S.W.2d 387, 393 (Mo. Ct. App. 1998). Without
control, there is no application of res ipsa loquitur. Weber v. McBride & Son Cont. Co., 182 S.W.3d
643, 655 (Mo. Ct. App. 2005).
In terms of the second element, Missouri law is clear that the defendant must have control
of the instrumentality at the time of the injury. Green v. The Plaza in Clayton Condo., 410 S.W.3d
272, 283 (Mo. Ct. App. 2013) (collecting cases and explaining that “[t]he elements of the res ipsa
loquitur doctrine are well established in Missouri, and the second element requires control over
the instrumentality that caused the injury at the time the injury occurred”). “Case law addressing
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the doctrine of res ipsa loquitur has firmly established that the time at which control over the
instrumentality is dispositive is the time the injury occurred.” Id.
In Schmidt v. Hosley International, Inc., 2015 WL 4134338 (E.D. Mo. July 8, 2015), the
court addressed a product liability lawsuit against a manufacturer. In addition to bringing product
liability claims for strict liability and negligence, the plaintiff also asserted a negligence claim
based on the doctrine of res ipsa loquitur. Id. at *1. The defendant brought a partial motion to
dismiss this cause of action, and, relying on well-settled Missouri precedent, the Court granted the
In Count III of the complaint, plaintiff asserts that the doctrine of res ipsa loquitur
applies in the instant case to place the burden on defendant to exculpate itself from
negligence liability. “To make a submissible case of negligence under the res ipsa
loquitur doctrine, the plaintiff must establish… (2) the incident was caused by an
instrumentality under the defendant's control… [T]he second element requires
control over the instrumentality that caused the injury at the time the injury
Plaintiff's complaint fails to establish that the warmer and the oil were under
defendant's control at the time of the fire. According to the complaint, the warmer
and the oil were located in the decedent's home and were being used there when the
oil spilled and caught fire.
Because defendant was not in control of the warmer or the oil at the time the oil
spilled and the fire occurred, the doctrine of res ipsa loquitur is inapplicable. Count
III will be dismissed.
Id. at *1-2 (quoting Green, 410 S.W.3d at 282); see also Lopez v. Accu-Screen, Inc., 2013 WL
12155464, at *2-3 (W.D. Mo. June 19, 2013) (granting a motion to dismiss a negligence claim
based on the theory of res ipsa loquitur in a case involving an alleged tainted urine sample because
the defendants could not have “exercised management and control over the urine sample for the
entire relevant period” and something unrelated to the defendants’ carelessness “could have
occurred during that time to cause a false positive”).
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It is undisputed that the Truck was owned by CFI and being operated by Plaintiff at the
time of the alleged incidents. Therefore, PACCAR did not have “control” of the Truck at the time
of the incident, which renders the doctrine of res ipsa loquitur inapplicable as a matter of law. See
Weber, 182 S.W.3d at 655. Accordingly, Count VII is dismissed with prejudice as to PACCAR
for failure to state a claim under Rule 12(b)(6).
C. Motion to strike
Although not specifically referenced in his causes of action, Plaintiff’s Complaint does
include an allegation that the defendants failed to “take any action to recall the Truck.” (Doc. 8 at
¶ 28). However, “there is no common law duty to recall, under Missouri law, absent a mandate
recall by a governmental agency.” Hackethal v. Harbor Freight Tools USA, Inc., 2016 WL
695615, at *1 (E.D. Mo. Feb. 22, 2016); see Horstmyer v. Black & Decker (U.S.), Inc., 151 F.3d
765, 773-74 (8th Cir. 1998) (same); Simon v. Select Comfort Retail Corp., 2014 WL 5849243, at
*4 (E.D. Mo. Nov. 12, 2014); see also Efting v. Tokai Corp., 75 F. Supp. 2d 1006, 1010-11 (W.D.
Mo. 1999) (holding that there is no duty to recall or retrofit when a company becomes aware of a
defect). Simply, “[t]here is no duty under Missouri law to recall or retrofit.” Hackethal, 2016 WL
695615 at *1; Ardito v. ITW Food Equip. Group, LLC, 2016 WL 10677591, at *7 (W.D. Mo. Feb.
8, 2016) (noting that Missouri generally does not recognize post-sale duties); Dejana v. Marine
Tech., Inc., 2013 WL 678407, at *3 (E.D. Mo. Dec. 20, 2013) (“There is no common law duty to
recall under federal or Missouri law absent a mandated recall by a governmental agency.”).
Paragraph 28 of the Complaint states “Defendants were aware of the defect alleged herein,
yet Defendants failed to take any action to recall the Truck, warn Plaintiff, or otherwise remedy
the defective condition.” When a claim for relief is not available under the law, such allegations
should be stricken. Hackethal, 2016 WL 2695615 at *1. The Eastern District of Missouri was
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confronted with this identical issue in Hackethal, where the plaintiff’s product liability complaint
alleged that the manufacturer “fail[ed] to recall or retrofit” the allegedly defective product. Id. The
Court found, however, that “there is no common law duty to recall, under Missouri law, absent a
mandated recall by a government agency.” Id. Therefore, all allegations related to a duty to recall
were stricken under Rule 12(f): “Plaintiff’s petition does not assert any recall by a government
agency, and therefore allegations asserting liability for failure to recall will be stricken, because a
claim for relief is not available under the applicable law.” Id. Accordingly, paragraph 28 of
Plaintiff’s Amended Complaint is hereby stricken pursuant to Rule 12(f).
For the foregoing reasons, PACCAR’s partial Motion to Dismiss and Motion to Strike
(Doc. 24) is GRANTED. Counts II, III, and VII of Plaintiff’s Amended Complaint are dismissed
with prejudice for failure to state a claim under Rule 12(b)(6). Paragraph 28 of Plaintiff’s Amended
Complaint is stricken pursuant to Rule 12(f).
IT IS SO ORDERED.
Dated: November 18, 2021
/s/ Douglas Harpool______
United States District Judge
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