Gasperson et al v. Plano Synergy Holdings, Inc. et al
Filing
92
ORDER Denying 69 Defendants' Motion for Summary Judgment. Signed on 4/3/2019 by District Judge Roseann Ketchmark. (Stout, Courtney)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
DANIEL GASPERSON, ROSALIE
GASPERSON,
Plaintiffs,
v.
PLANO SYNERGY HOLDINGS, INC.,
SYNERGY OUTDOORS, LLC,
PRIMAL VANTAGE CO., INC.,
AMERISTEP, INC,
Defendants.
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No. 6:17-03272-CV-RK
ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants’ Motion for Summary Judgment. (Doc. 69.) The Motion
for Summary Judgment is fully briefed. (Docs. 70, 77, 81.) For the reasons below, the Motion for
Summary Judgment is DENIED.
Background
Plaintiffs Daniel and Rosalie Gasperson (“Plaintiffs”) bring this action against Defendants
stemming from a fall from the Ameristep Two-Man 15’ Ladder Stand (“the Product”). The
Product is a vaulted stand with corresponding ladder that is used to allow hunters to reach an aerial
position for hunting game. Plaintiff Daniel Gasperson (“Mr. Gasperson”) was injured when he
fell from the Product. Plaintiffs argue the design of the Product and corresponding warnings were
defective. Defendants argue the Product and corresponding warnings are not defective, and
Plaintiffs were injured because they failed to follow the Product’s warnings and instructions.
Plaintiffs are citizens of Missouri and bring this action against all Defendants for strict liability,
negligence, violations of the Missouri Merchandising Practices Act (“MMPA”), breach of implied
warranty of fitness for a particular purpose, breach of implied warranty of merchantability, and
loss of consortium.1
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Plaintiffs are citizens of Missouri, and all Defendants hold citizenships outside of Missouri.
(Doc. 1.) The Court has diversity jurisdiction over this matter in that the parties have diverse citizenship
The Complaint provides the following allegations. Defendant Primal Vantage designs,
manufactures, assembles, tests, markets, promotes, advertises, and distributes the Product. After
manufacture, the Product is sent to Defendant Ameristep for distribution to retailers. Defendant
Synergy Outdoors, LLC acquired a controlling ownership interest in Defendant Ameristep.
Defendant Plano Synergy Holdings, Inc. acquired all assets of Defendant Synergy Outdoors, LLC.
Mr. Gasperson purchased and installed the Product on August 8, 2015. Mr. Gasperson purchased
the Product based on the representation that it was new and could be used for its intended purpose.
Plaintiff reviewed the instruction manual, safety manual, and watched the safety DVD included
with the Product. While installing the Product, the ladder section of the Product (“ladder stand”)
failed, and Mr. Gasperson was injured. Mr. Gasperson brings this action to recover damages as a
result of his injuries including past and future medical expenses, mental and physical pain and
suffering, loss of earnings, impaired earning capacity, permanent disability, disfigurement, and
other general and special damages. Plaintiff Rosalie Gasperson (“Mrs. Gasperson”) brings this
action to recover damages including loss of consortium, mental anguish and emotional distress,
and other general and special damages.
The Complaint contains the following causes of action: Count I: Strict Liability – Product
Defect; Count II: Strict Liability – Failure to Warn; Count III: Negligent Failure to Warn; Count
IV: Negligent Design and Manufacture; Count V: Violations of the MMPA; Count VI: Breach of
Implied Warranty of Fitness for a Particular Purpose; Count VII: Breach of Implied Warranty of
Merchantability; and Count VIII: Loss of Consortium.
Legal Standard
Under Fed. R. Civ. P. 56, “[t]he court shall grant summary judgment if 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.” “As to materiality, the substantive law will identify which facts are material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Id. “[A] dispute about a material fact is ‘genuine,’ . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. “In considering a motion for
summary judgment, the court does not weigh the evidence, make credibility determinations, or
and the amount in controversy is in excess of $75,000. Id. The parties do not dispute that Missouri law
applies.
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attempt to discern the truth of any factual issue.” Morris v. City of Chillicothe, 512 F.3d 1013,
1018 (8th Cir. 2008) (citation omitted). “Once the movant fulfills its responsibility of informing
the court of the basis for its motion, identifying the portions of the record that demonstrate the
absence of a genuine issue of material fact, the nonmovant must respond by submitting evidentiary
materials that set out specific facts showing that there is a genuine issue for trial.” Hess v. Union
Pac. R.R. Co., 898 F.3d 852, 857 (8th Cir. 2018) (quotation marks and citations omitted).
Discussion
A. Validity of Plaintiffs’ Expert Bill Munsell
Before addressing the substantive claims in the motion and its briefing, the Court will
address Defendants’ assertion that Plaintiffs’ expert Bill Munsell’s report is invalid. Defendants
argue the report is invalid for two reasons. First, Defendants argue the report is unsworn, thus
inadmissible. “To be considered on summary judgment, documents must be authenticated by and
attached to an affidavit made on personal knowledge setting forth such facts as would be
admissible in evidence or a deposition that meets the requirements of Fed. R. Civ. P. 56(e).”
Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir. 2005). The Court issued a Show Cause Order
presenting this deficiency, and Plaintiffs supplemented the record. (Docs. 89, 90.) This deficiency
is now cured; therefore, Plaintiffs’ expert report is admissible at the summary judgment stage. See
DG&G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576 F.3d 820, 825-26 (8th Cir. 2009)
(“Subsequent verification or reaffirmation of an unsworn expert’s report, either by affidavit or
deposition, allows the court to consider the unsworn expert’s report on a motion for summary
judgment.”) (internal quotation marks and citation omitted).
Next, Defendants seek to exclude or limit Mr. Munsell’s opinion testimony because
Defendants allege his testing was faulty and fails to reveal any design defect. Defendants have
also filed a Motion in Limine to limit or exclude Mr. Munsell’s opinion testimony. (Doc. 71.) As
discussed in the Court’s ruling on Defendants’ Motion in Limine, Mr. Munsell is an appropriate
expert under Daubert and Fed. R. Evid. 702, and his opinions in support of Plaintiffs’ position are
proper for the jury to consider. (Doc. 91.)
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B. Count I: Strict Liability - Design Defect
To recover on a strict liability theory for a design defect, Plaintiffs must establish that
(1) The defendant sold a product in the course of its business; (2)
the product was then in a defective condition, unreasonably
dangerous when put to a reasonably anticipated use; (3) the product
was used in a manner reasonably anticipated; and (4) the plaintiff
was damaged as a direct result of such defective condition as existed
when the product was sold.
“[A] product’s design is deemed defective, for purposes of imposing liability, when it is
shown by a preponderance of the evidence that the design makes the product unreasonably
dangerous.” Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 377 (Mo. banc 1986).
“Proximate cause is whether the defect in the product is the ‘cause or act of which the injury was
the natural and probable consequence.’” Pitman v. Ameristep Corp., 208 F. Supp. 3d 1053, 1062
(E.D. Mo. 2016) (citation omitted). “The determination of probable cause is usually a question
left for the jury, unless there is an intervening cause.” Id. at 1063.
Defendants argue there is no evidence that a defect in the Product was the proximate cause
of Mr. Gasperson’s accident, and the cause of Mr. Gasperson’s accident was Plaintiff’s misuse of
the Product and failure to follow warnings and instructions provided. In support of their argument,
Defendants rely on their expert George Saunders’ opinion. Mr. Saunders opined that the accident
was the result of Mr. Gasperson’s failure to: a) follow the manufacturer’s published weight limits,
b) properly assemble the Product by placing the installation strap in the wrong location, c) select
a tree of the appropriate size, d) utilize additional people to support his ladder stand, and e) wear
a safety harness.
Plaintiffs argue there is a genuine issue of material fact whether Mr. Gasperson’s actions
caused the accident. In support, Plaintiffs point to their expert Bill Munsell’s report. In direct
contradiction to Mr. Saunders’ report, Mr. Munsell’s report found that neither Mr. Gasperson’s
choice of tree, positioning of the Product, applying the installation straps, adjusting the stabilizer
bar, applying the tiedown rope, nor attempting to apply the ratchet strap before the harness strap
were causative in of the accident. Plaintiffs argue a genuine issue of material fact exists as to
whether the safety harness would have prevented the injuries because Mr. Gasperson testified that
he would not have had time to fasten the harness after reaching the height before the stand
collapsed; Defendants’ expert Lorne Smith opined that if Plaintiff did not have time to secure the
harness once he stepped on the foot platform, the safety harness would not have prevented the fall;
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and Mr. Munsell opined that there is no evidence that the accident would not have occurred had
Mr. Gasperson worn a safety harness. Mr. Munsell also opined the design of the Product was
defective because no tool to measure the diameter of the tree was included with the Product and it
was very difficult to apply the ratchet straps without contacting the seat platform. Finally,
Plaintiffs also argue in the alternative that Mr. Gasperson may have comparative fault but the
amount of which remains a jury question.
The Court finds that a genuine issue of material fact exists as to whether Mr. Gasperson
was damaged as a direct result of the Product’s condition at the time of sale. Both parties have
presented conflicting expert opinions as to whether a design defect was the cause of Plaintiffs’
injuries. See Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 936 (Mo. App. 1996) (the issue
of causation is suited for the fact finders as reasonable minds here could differ as to causation of
injuries); Pitman, 208 F. Supp. 3d at 1604 (causation is a question usually left for the jury).
C. Count II: Strict Liability: Failure to Warn
To establish a failure to warn claim under strict liability, Plaintiffs must show that the injury
resulted from a failure to provide an adequate warning of a danger inherent in the use of the
Product; however, Plaintiffs are also required to prove a causal connection between the lack of a
warning and the injuries. Nesselrode, 707 S.W.2d at 392. In other words, Plaintiffs must establish
that the Product without an adequate warning caused Plaintiffs’ damages and an additional or
modified warning would have altered Plaintiffs’ behavior. Johnson v. Medtronic, Inc., 365 S.W.3d
226, 232 (Mo. App. 2012). The key issue here is whether the information included with the
Product “effectively communicates to the consumer or user the dangers that inhere in the product
during normal use and the dangerous consequences that can or will result from misuse or abnormal
misuse of the product.” Nesselrode, 707 S.W.2d at 382. In Missouri, it is presumed that a warning
will be heeded by the user. Johnson, 365 S.W.3d at 232. Defendants can be liable for failure to
warn even if the Product does not have any design defect. Pitman, 208 F. Supp. 3d 1053, 1062.
Defendants argue the manufacturer provided adequate warnings and instructions that
warned the user how to properly use, install, and assemble the Product. Defendants argue that
because Mr. Gasperson testified that he understood the warnings and installation instructions but
chose not to follow them, Plaintiffs cannot show that additional warnings or modified warnings
would have altered Plaintiffs’ behavior.
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Plaintiffs argue Defendants’ warnings and instructions are inadequate because they do not
alert the user to avoid placing their weight on the seat while reaching around the tree to attach their
harness or the ratchet straps. Mr. Munsell opined that the Product’s instructions did not clearly
instruct the user to prevent any portion of their weight from being applied to the seat which could
result in failure of the Product. Mr. Munsell explained that it is difficult to apply the ratchet strap
without contacting the seat platform and that the manufacturer did not supply any method or
equipment to reliably avoid contact with the seat platform when applying the harness or ratchet
straps. The safety DVD depicts users kneeling and laying on the seat platform while affixing the
ratchet strap as well as attaching their safety harness. Further, Mr. Munsell states that the video
of Mr. Saunders testing the Product shows him leaning heavily on the seat as he attaches the ratchet
straps and his harness. Mr. Gasperson testified that he did not sit or put weight on the seat platform.
Mr. Munsell also testified that the warnings were inadequate because the warnings did not indicate
what type of knot to use or that the knot would be subject to significant loads. Finally, Mr. Munsell
testified the warnings were inadequate because the warnings do not explain that selecting a tree
with the proper diameter is crucial in the installation process.
Both parties have presented competing expert opinions and testimony as to whether
Defendants’ warnings and instructions were inadequate and caused the collapse, or whether the
cause of Plaintiffs’ injuries were due to Mr. Gasperson’s error in following the warnings and
installation instructions. Accordingly, a genuine issue of material fact exists as to whether the
Product has an inadequate warning, and if so, whether an adequate warning would have altered
Plaintiffs’ behavior.
D. Counts III, IV: Negligent Design Defect, Negligent Failure to Warn
Defendants’ Motion for Summary Judgment only addresses design defect and failure to
warn under a strict liability theory. Because Defendants do not address Plaintiffs’ negligence
claims and Defendants bear the burden of proof on summary judgment, these claims survive
summary judgment.
E. Count V, VI, VII: Violations of the MMPA, Breach of Implied Warranty of Fitness
for a Particular Purpose, and Breach of Implied Warranty of Merchantability
Plaintiffs argue the Product’s packaging is misleading to consumers. In support, Plaintiffs
offer Mr. Gasperson’s testimony that the “500 pound” representation contained on the packaging
was deceiving and misleading. Plaintiffs also offer Defendants’ expert Mr. Smith’s testimony;
however, this testimony does not opine directly as to whether the packaging was misleading.
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Defendants argue that Plaintiffs have not met their burden to provide evidence to establish that a
genuine issue of material fact exists because Plaintiffs have only provided Mr. Gasperson’s
testimony in support of their position that the packaging is misleading to consumers. Because
these claims involve the same arguments, they will be addressed at the same time.
The MMPA prohibits the “act, use or employment by any person of any deception, fraud,
false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression,
or omission of any material fact in connection with the sale or advertisement of any merchandise
in trade or commerce.” RSMo. § 407.020.1 To succeed on a claim under the MMPA, a plaintiff
must establish the following elements:
(1) The purchase of goods or services, (2) primarily for personal or
household purposes; and (3) an ascertainable loss of money or
property, as a result of, or caused by, the use or employment by
another person of a method, act, or practice declared unlawful under
the MMPA.
Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 310-11 (Mo. App. 2016).
To recover under the theory of implied warranty of merchantability, a plaintiff must prove:
(1) a merchant sold goods; (2) the goods were not merchantable at the time of the sale; (3) injury
and damage to plaintiff or his property were proximately caused or caused in fact by the defective
nature of the goods; and (4) the seller was given notice of the injury. Hays v. Nissan N. Am. Inc.,
297 F. Supp. 3d 958, 962 (W.D. Mo. Oct. 27, 2017).
A claim for breach of implied warranty of fitness for a particular purpose exists “[w]here
the seller at the time of contracting has reason to know any particular purpose for which the goods
are required and that the buyer is relying on the seller’s skill or judgment to select or furnish
suitable goods.” RSMo. § 400.2-315.
The Court acknowledges the only evidence Plaintiffs provide in support of their claims
under the MMPA and breach of warranties of merchantability and fitness is testimony by Mr.
Gasperson. However, considering the deferential standard used with summary judgment motions
and construing all doubts in favor of Plaintiffs, the Court finds there is a genuine issue of material
fact as to whether the warning was misleading; therefore, this is an issue of fact left for the jury.
F. Count VIII: Loss of Consortium
Because the Court finds a genuine issue of material fact remains, Mrs. Gasperson’s Loss
of Consortium claim survives summary judgment. See Sumpter v. Allergan, Inc., 2017 U.S. Dist.
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LEXIS 200563, at *3 (E.D. Mo. Dec. 6, 2017) (a loss of consortium claim is derivative from the
injured spouse’s claim and depends on the validity of the underlying claim).
Conclusion
After careful consideration, the Court finds that a genuine issue of material fact exists as
to whether the Product’s design was defective and whether the warnings were adequate.
Accordingly, Defendants’ Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: April 3, 2019
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