Freeland et al v. Ameristep, Inc. et al

Filing 95

OPINION AND ORDER by District Judge James H. Payne: granting 37 Motion for Summary Judgment and 45 Motion in Limine (cjt, Deputy Clerk)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
BRIAN FREELAND &
ROBYN FREELAND

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Plaintiffs,
v.
AMERISTEP, INC., and
PRIMAL VANTAGE CO., INC.,
Defendants.

Case No. 13-cv-08-JHP

OPINION AND ORDER
Before the Court are Defendants Ameristep, Inc. and Primal Vantage Co., Inc.’s Motion
for Summary Judgment [Doc. No. 37]; Plaintiffs’ Response in Opposition to Defendants’ Motion
for Summary Judgment [Doc. No. 43]; and Defendants’ Reply to Plaintiffs’ Response [Doc. No.
73]. Also before the Court are Defendants’ Motion in Limine [Doc. No. 45] and Plaintiff’s
Response in opposition [Doc. No. 87]. After consideration of the briefs, and for the reasons
detailed below, Defendants’ Motion for Summary Judgment [Doc. No. 37] and Defendants’
Motion in Limine [Doc. No. 45] are GRANTED.
BACKGROUND
A. Procedural History
Plaintiffs commenced the instant action on November 26, 2012, seeking to recover
damages stemming from an accident that occurred on September 27, 2011, which involved
hunting equipment manufactured by Defendants. Plaintiffs assert claims against Defendants for
(1) strict manufacturer’s products liability based on design defect, manufacturing defect, and
inadequate warning; and (2) negligence based on failure to exercise due care in designing and
manufacturing certain hunting equipment and warning of potential dangers associated with the
use of the hunting equipment. On February 27, 2014, Defendants filed a Motion for Summary

Judgment seeking summary adjudication on all claims asserted by Plaintiffs. [Doc. No. 37].
Defendants also filed Motion in Limine seeking to exclude the testimony of Plaintiffs’ expert,
Mr. Charles Powell. [Doc. No. 45].
B. Factual Background
Plaintiff Brian Freeland purchased two 2008 model ratchet straps (“2008 Ratchet Straps”)
from Wal-Mart in Atoka, Oklahoma. The 2008 Ratchet Straps were used to secure a treestand
from which Mr. Freeland hunted. On September 27, 2011, after attaching his treestand to a tree
using the 2008 Ratchet Straps, Mr. Freeland was injured when one of the 2008 Ratchet Straps
broke, allowing Mr. Freeland to fall. It is undisputed that Mr. Freeland was not wearing a safety
harness at the time he was injured. It is also undisputed that Mr. Freeland did not read the
warnings provided with the 2008 Ratchet Straps and had not read the warnings provided with
any hunting equipment for nearly twenty (20) years.
DISCUSSION
I. Defendants’ Motion in Limine
Before the Court can address whether Plaintiffs have produced evidence sufficient to
survive Defendants’ Motion for Summary Judgment, it must first rule on Defendants’ motion to
exclude the testimony of Mr. Powell. [Doc. Nos. 45]. The 2000 amendment to Federal Rule of
Evidence 702 codified the Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals Inc., 509 U.S. 579 (1995), and provided the standard for admissibility of expert
opinion testimony: “(1) the testimony is based upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.” Carver v. Kia Motors Corp., 10-CV-642-JHP-PJC,
2012 WL 119587 (N.D. Okla. Jan. 12, 2012) (citing Fed. R. Evid. 702).

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In determining the admissibility of expert testimony the Court must initially determine
whether the proffered expert is qualified to offer an opinion on the pertinent issues of the case.
Ralston v. Smith & Nephew Richards Inc., 275 F.3d 965, 969 (10th Cir. 2001). A qualified
expert possesses the necessary knowledge, skill, experience, training, or education relevant to the
facts at issue. Id. The Court must then conduct a two-pronged inquiry as to the reliability and
relevance of the proffered testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir.
2004). It is now well established that Fed. R. Evid. 702 imposes on a district court a gatekeeper
obligation to “ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” Daubert, 509 U.S. at 589. This gatekeeper function requires the judge to
assess the reasoning and methodology underlying the expert’s opinion, and determine whether it
is both scientifically valid and applicable to a particular set of facts. Id. at 592–93. The Supreme
Court has made clear that “where [expert] testimony’s factual basis, data, principles, methods, or
their application are called sufficiently into question ... the trial judge must determine whether
the testimony has a ‘reliable basis in the knowledge and experience of [the relevant] discipline.’”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (quoting Daubert, 509 U.S. at 592).
To be reliable under Daubert, an expert’s scientific testimony must be based on scientific
knowledge, which “implies a grounding in the methods and procedures of science” based on
actual knowledge, not “subjective belief or unsupported speculation.” 509 U.S. at 590. In other
words, “an inference or assertion must be derived by the scientific method ... [and] must be
supported by appropriate validation—i.e. ‘good grounds,’ based on what is known.” Id. “The
plaintiff need not prove that the expert is undisputably correct or that the expert’s theory is
‘generally accepted’ in the scientific community.” Mitchell v. Gencorp Inc., 165 F.3d 778, 781
(10th Cir. 1999). Instead, a plaintiff must show that the method employed by the expert in

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reaching the conclusion is scientifically sound and that the opinion is based on facts which
satisfy Rule 702’s reliability requirements. Id.
To assist in the assessment of reliability, the Supreme Court has listed four nonexclusive
factors that the trial court may consider: (1) whether the opinion at issue is susceptible to testing;
(2) whether the opinion has been subjected to peer review; (3) whether there is a known or
potential rate of error associated with the methodology used and whether there are standards
controlling the technique’s operation; and (4) whether the theory has been accepted in the
scientific community. Daubert, 509 U.S. at 593–94. As noted, the list is not exclusive, and
district courts applying Daubert have broad discretion to consider a variety of other factors.
Kuhmo Tire, 526 U.S. at 150. (“[W]e can neither rule out, nor rule in, for all cases and for all
time the applicability of the factors mentioned in Daubert ... Too much depends upon the
particular circumstances of the particular case at issue.”).
Generally, courts should focus on an expert’s methodology rather than the conclusions it
generates. Daubert, 509 U.S. at 595. However, an expert’s conclusions are not immune from
scrutiny: “A court may conclude that there is simply too great an analytical gap between the data
and the opinion proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in
either Daubert or the Federal Rules of Evidence requires a district court to admit opinion
evidence which is connected to existing data only by the ipse dixit of the expert.”). Under
Daubert, “any step that renders the analysis unreliable ... renders the expert’s testimony
inadmissible. This is true whether the step completely changes a reliable methodology or merely
misapplies that methodology.” Mitchell, 165 F.3d at 782 (quoting In re Paoli RR. Yard PCB
Litigation, 35 F.3d 717, 745 (3d Cir. 1994). It is critical that the district court determine
“whether the evidence is genuinely scientific, as distinct from being unscientific speculation

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offered by a genuine scientist.” Id. at 783 (quoting Rosen v. Ciba–Geigy Corp., 78 F.3d 316, 318
(7th Cir. 1996). Regardless of the specific factors at issue, the purpose of the Daubert inquiry is
always “to make certain that an expert, whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Khumo Tire, 526 U.S. at 152.
The Court has carefully considered Mr. Powell’s credentials, expert report, and
deposition testimony. At the outset, the Court finds that Mr. Powell expertise with regard to
design of ratchet straps manufactured using polymer polypropylene webbing insufficient to
qualify him as an expert on the design and manufacture of the 2008 Ratchet Straps. Although
Mr. Powell is an accomplished engineer, his expertise appears to be strongly concentrated in the
area of metallurgy. Significantly, Mr. Powell has very limited experience with UV inhibitors to
polymer materials—the very materials that are the subject of this case. [Doc. No. 73, Ex. 3 at
44]. As such, the Court finds that Mr. Powell’s general engineering knowledge is insufficient to
qualify him as an expert with regard to the 2008 Ratchet Straps at issue in this case. See Whiting
v. Boston Edison Co., 891 F. Supp. 12, 24 (D. Mass. 1995) (“Just as a lawyer is not by general
education and experience qualified to give an expert opinion on every subject of the law, so too a
scientist or medical doctor is not presumed to have expert knowledge about every conceivable
scientific principle or disease.”); Watkins v. Telsmith, Inc., 121 F.3d 984, 987 (5th Cir. 1997);
Wilson v. Woods, 163 F.3d 935, 938 (5th Cir. 1999) (affirming the district court’s refusal to
qualify a witness as an expert where the witnesses expertise “was no greater than that of any
other individual with a general scientific background”). Therefore, the Court finds that Mr.
Powell is not qualified to opine as to the design and manufacture of the 2008 Ratchet Straps.

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The Court also finds that Mr. Powell’s testimony must be excluded for failing to satisfy
the reliability requirements mandated by Daubert and its progeny. Mr. Powell opined that the
2008 Ratchet Straps were defective because they lacked a UV additive, explaining that the
webbing for the 2008 Ratchet Straps “should contain antioxidants and be UV stabilized for
typical weather exposure for a tree stand for 5 to 10 years.” [Doc. No. 44, Ex. 4 at 5, ¶ 6.6]. In
reaching this opinion, Mr. Powell conducted a FTIR analysis, the results of which identified
webbing material in the 2008 Ratchet Straps “as the polymer polypropylene.” [Id. at ¶ 6.4].
However, Mr. Powell’s expert report plainly states, “[The FTIR] analysis can only identify the
base polymer and not any additives such as antioxidants or UV light inhibitors that could be
added to the base polymer to protect the [polymer polypropylene] from exposure degradation
and weakening that PP is susceptible to.” [Id. (emphasis added)].1 Furthermore, Mr. Powell’s
report explains that “[t]he design drawing and documents produced to date by [Defendants] are
inadequate to determine if the [2008 Ratchet Straps] contain design defects as well as
manufacturing defects.

No documents identifying the specific polymer chemistry for the

webbing has been produced.” [Id. at ¶ 6.6]. Without more, there is simply no basis for Mr.
Powell’s conclusion that the 2008 Ratchet Straps failed to contain a UV additive. Furthermore,
Mr. Powell admits that he cannot determine whether the design of the 2008 Ratchet Straps was
defective because he did not review the design specifications in order to determine if the 2008
Ratchet Straps were manufactured according to the products intended specifications or were
simply aberrant units. Consequently, the Court is left to wonder how Mr. Powell could logically
conclude that the ratchet straps contained no UV additives, either by design or as the result of a
manufacturing defect. Without knowing whether the ratchet straps contained UV additives, Mr.

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 In their brief, Plaintiffs’ misrepresent Mr. Powell’s report as follows:  “Mr. Powell in his report states that he 
conducted a FTIR analysis and determined that the Subject Straps did not contain any antioxidants or UV light 
inhibitors within the polypropylene webbing … .”  [Doc. No. 87, 4]. 

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Powell’s opinion that the ratchet straps were defective due to the absence of UV additives cannot
be supported.
The Court also finds that Mr. Powell’s did not offer an opinion regarding the specific
cause of the 2008 Ratchet Straps failure.

Instead, Mr. Powell’s report merely states that

exposure to the elements, or weathering, caused the 2008 Ratchet Straps to degrade. [Id. at ¶¶
6.1, 6.7]. Given Mr. Powell’s opinion that the 2008 Ratchet Straps were defective due the
Defendants’ failure to incorporate a UV additive into their design, the relevant inquiry is whether
the UV additive would have prevented Mr. Freeland’s injuries. Mr. Powell testified that he did
not do any tests on the 2008 Ratchet Straps or any exemplar ratchet straps to determine the
amount of degradation and resulting tinsel strength reduction caused by exposure to the
elements. [Doc. No. 73, Ex. 3 at p. 22-3]. Mr. Powell also testified that he did not identify what
element (i.e., sunlight, wind, rain, extreme temperatures) caused the breakdown of the ratchet
straps. [Id. at 24-5]. Furthermore, Mr. Powell did not attempt to quantify how much longer the
ratchet straps would have lasted if Defendants incorporated a UV additive into the polymer
webbing used to manufacture the ratchet straps. [Id. at 25]. Consequently, Mr. Powell’s opinion
that the ratchet straps were defective because they failed to contain UV additives does not satisfy
the requirements of Daubert, and Defendants’ Motion in Limine [Doc. No. 45] must be
GRANTED.
II. Defendants’ Motion for Summary Judgment
As a general rule, summary judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is genuine if the evidence is such

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that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of the
suit under the governing law.” Id. In making this determination, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
Thus, the inquiry for this Court is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Id. at 251–52.
A. Strict Manufacturer’s Product Liability—Design Defect Claim
Plaintiffs assert a manufacturer’s products liability claim in strict tort based on
Defendants’ failure to incorporate include UV additives into the polypropylene webbing used to
manufacture the 2008 Ratchet Straps. The Oklahoma Supreme Court set forth three factors that
a plaintiff must prove in order to establish a viable products liability claim.
First of all, Plaintiffs must prove that the product was the cause of the injury; the
mere possibility that it might have caused the injury is not enough.
Secondly, Plaintiffs must prove that the defect existed in the product, if the action
is against the manufacturer, at the time the product left the manufacturer’s
possession and control. If the action is against the retailer or supplier of the
article, then the Plaintiffs must prove that the article was defective at the time of
sale for public use or consumption or at the time it left the retailer’s possession
and control.
Thirdly, Plaintiffs must prove that the defect made the article unreasonably
dangerous to Mr. Freeland or to his property as the term “unreasonably
dangerous” is defined below.
Kirkland v. General Motors Corp., 521 P.2d 1359, 1363 (Okla. 1974) (internal citation omitted).
“Unreasonably dangerous” is defined as “‘dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common

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to the community as to its characteristics.’” Id. at 1362–63 (quoting Restatement (Second) of
Torts § 402A).
Plaintiffs contend that a design and/or manufacturing defect caused the 2008 Ratchet
Straps on Mr. Freeland’s treestand to break, leading to his injury. Specifically, Plaintiffs asserts
that “the design of Defendants’ replacement straps was defective because these straps lacked UV
additives, which would allow these straps to be used outdoors for several weeks … .” [Doc. No.
43]. As outlined above, Plaintiffs submitted no evidence from which one could infer that the
2008 Ratchet Straps lacked UV additives. Logically, if Plaintiffs cannot establish that the 2008
Ratchet Straps did not have UV additives, then it follows that Plaintiffs cannot establish that the
2008 Ratchet Straps are defective based on Defendants failure to incorporate UV additives into
the polymer webbing of the 2008 Ratchet Straps. Consequently, the Court finds that Plaintiffs
have failed to present evidence sufficient establish that the 2008 Ratchet Straps were defective.
Even if the Court were to find that Plaintiffs were able to establish a defect, Plaintiffs still
fail to show that the purported defect caused Mr. Freeland’s injuries. In order to defeat summary
judgment, Plaintiffs must offer evidence of probable causation in order to create a question of
material fact that can be presented to a jury. Dutsch v. Sea Ray Boats, Inc., 845 P.2d 191, 191
(1992) (“[T]he mere possibility that a defect caused the injury is not sufficient.”).

While

circumstantial evidence may be used to support the probability of a defect, the totality of the
evidence must be sufficient to allow the jury to focus on probabilities, rather than speculating
about possibilities. Chickasha Cotton Oil Co. v. Hancock, 306 P.2d 330 (Okla. 1957); Sadler v.
T. J. Hughes Lumber Co., Inc., 537 P.2d 454 (Okla. Civ. App. 1975). Furthermore, it is wellestablished that if a plaintiff’s injury would have occurred even with the alternative design, then
a defendant’s failure to adopt the alternative design cannot be said to have caused the injury.

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Marshall v. Ford Motor Co., 446 F.2d 712 (10th Cir. 1971); Marker v. Universal Oil Products
Co., 250 F.2d 603 (10th Cir. 1957) (holding that the plaintiff did not meet her burden on
causation because there was no proof that the decedent would have survived had the alternative
design feature been installed). See also Wicker v. Ford Motor Co., 393 F. Supp. 2d 1229 (W.D.
Okla. 2005).
The Court finds that Plaintiffs have failed to present evidence sufficient to demonstrate
that Defendants’ alleged failure to incorporate a UV additive into the polymer webbing of the
2008 Ratchet Straps caused Mr. Freeland’s injuries. As explained above, Plaintiffs have no
evidence to establish that the 2008 Ratchet Straps were damaged by exposure to sunlight. Under
the circumstances presented, it is entirely possible that some other element caused the 2008
Ratchet Straps to degrade. Without more, Plaintiffs cannot demonstrate that the inclusion of the
UV additive in the polymer webbing of the 2008 Ratchet Straps would have prevented Mr.
Freeland’s injury. As such, the Court finds that Plaintiffs have failed to present evidence
sufficient to establish that the purported defect in the 2008 Ratchet Straps caused their injuries.
Accordingly, summary judgment in favor of Defendants on Plaintiffs’ manufacturer’s products
liability claims is appropriate.
2. Negligence—Design and Manufacture
Plaintiffs also seek to recovery under a theory of negligent design and manufacture,
asserting that Defendants failed to exercise due care in the design and manufacture of the 2008
Ratchet Straps.

In order to prevail on their negligence claim, Plaintiffs must show that

Defendants owed them a legal duty, defendant breached that duty, and such breach was the direct
and proximate cause of Plaintiff’s injuries. Lockhart v. Loosen, 943 P.2d 1074, 1079 (Okla.
1997).

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The threshold question for a negligence claim is whether the defendant owed a duty to
the plaintiff. Wofford v. E. State Hosp., 795 P.2d 516, 518 (Okla. 1990). Whether a duty is
owed is a question of law for the court. Id. at 519. It is fundamental that every person or entity
must use ordinary care to avoid a foreseeable risk of injury to other persons. See Iglehart v. Bd.
of County Comm'rs of Rogers County, 60 P.3d 497, 502–03 (Okla. 2002). The contours of this
duty, however, depend on the relationship of the parties and the facts and circumstances of a
particular case. See Wofford, 795 P.2d at 519. The most important consideration in determining
whether a defendant owes a duty of care is the foreseeability of harm to the plaintiff. Lowery v.
Echostar Satellite Corp., 160 P.3d 959, 964 (Okla. 2007). Thus, a manufacturer must exercise
ordinary care in the design and manufacture of a product to protect foreseeable users of its
products from foreseeable risks of harm. See generally Royse v. Stine, 473 P.2d 923, 925 (Okla.
1970) (“Since the defendants designed and built this machine, it was their duty to make it safe
for those who were called upon to use it.”) (citing Crane Co. v. Sears, 35 P.2d 916 (1934)).
Although the Court regards Plaintiffs’ products liability and negligent design claims as
distinct claims for relief, both claims fail if Plaintiffs fail to establish a defect.

Indeed,

Defendants cannot be held to have breached the duty to produce a non-defective product if
Plaintiffs cannot establish the existence of a defect in the design or manufacture of the 2008
Ratchet Straps. Romero v. International Harvester Co., 979 F.2d 1444 (10th Cir. 1992)) (“[I]n
order to establish breach, the plaintiff in a negligence case generally must prove both defect and
negligence: that is, (1) that the product was defective (in its design, manufacture, or marketing),
and (2) that the manufacturer was negligent in some manner in allowing the product to be
manufactured and sold in a defective condition.”); Bradley v. General Motors Corporation, 116
F.3d 1489 (10th Cir. 1997) (unpublished). As explained above, the Court finds that Plaintiffs

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have failed to produce evidence sufficient to establish the existence of a defect. Therefore,
Plaintiffs’ negligent design and manufacturing claims must be dismissed.
3. Failure to Warn Claims
Plaintiffs also assert failure to warn claims against Defendants based on their alleged
failure to provide adequate warnings regarding the hazards of the 2008 Ratchet Straps. Whether
Plaintiffs are proceeding under a negligence or manufacturer’s products liability theory, the law
concerning the adequacy of a product warning is similar. See Grover v. Superior Welding, Inc.,
893 P.2d 500 (Okla. 1995); Berry v. Eckhardt Porsche Audi, Inc., 578 P.2d 1195, 1196 (Okla.
1978). A product may be defective due to defective design or manufacture, but a product may
also be defective if a manufacturer fails to provide the user adequate warning of inherent dangers
from all foreseeable uses of a product. Prince v. B.F. Ascher Co., Inc., 90 P.3d 1020 (Okla. Civ.
App. 2004); Edwards v. Basel Pharmaceuticals, 933 P.2d 298, 300 (Okla. 1997).
A manufacturer may be liable for selling or manufacturing a defective product if an
unclear or inadequate warning fails to inform a user of an inherent or latent defect. Smith v.
United States Gypsum Co., 612 P.2d 251, 253–54 (Okla. 1980). However, if the manufacturer
provides a warning that covers all foreseeable uses and the product would be safe if the
directions were followed, a product is not defective under a failure to warn theory. Id. at 253. A
manufacturer has no duty to warn users of an obvious danger or risk which an ordinary user
would expect from any foreseeable use of a product. Daniel v. Ben E. Keith Co., 97 F.3d 1329,
1334 (10th Cir. 1996); Duane v. Oklahoma Gas & Elec. Co., 833 P.2d 284, 286 (10th Cir. 1992).
As the Oklahoma Supreme Court stated in Duane v. Oklahoma Gas & Electric Co.,
[O]nly where the seller has reason to anticipate that danger may result from a
particular use, may he be required to give adequate warning of the danger, and a
product sold without such warning is in a defective condition.... A duty to warn
must also be based upon the foreseeability that the user would use the product in
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that way, the type of danger involved, and foreseeability of the user’s knowledge
of the danger.
833 P.2d at 286.
In order to prevail, Plaintiffs must also establish that the allegedly defective warning
caused their injuries. “The failure to adequately warn of a known potential risk renders a product
defective; however, the plaintiff must establish that the failure to warn caused the injury.”
Daniel, 97 F.3d at 1332-33 (internal citations omitted).

Under Oklahoma law, it is well

established that Plaintiffs are entitled to a rebuttable presumption that Mr. Freeland would have
read and heeded an adequate warning.
Oklahoma recognizes a rebuttable presumption that plaintiff would have read and
heeded an adequate warning. Thus, in the absence of evidence rebutting the
presumption, a plaintiff need not produce evidence that she would have acted
differently if an adequate warning had been given. But once the opposing party
meets its burden to come forward with evidence rebutting the presumption, the
presumption disappears.
Id. at 1332.
The dispositive issue is whether Defendants’ alleged failure to warn caused Mr.
Freeland’s injuries. Based on the evidence presented, the Court finds that Defendants have
rebutted the presumption that Mr. Freeland would have read and headed an adequate warning if
it had been provided. It is undisputed that Mr. Freeland never read any of the written warnings
and instructions for the 2008 Ratchet Straps, or any of the other hunting equipment he has used
or purchased in roughly twenty (20) years. Mr. Freeland testified:
Q When you, when you buy a stand are you the kind of person, strike that -- are
you the kind of person that when he buys a product, particularly one that could be
involved in a serious injury, if used improperly, are you the type of guy that reads
the instructions?
A I haven't read a treestand instruction in 20 years.
Q And why is that?

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A Well, I guess you read one, you’ve read them all, I guess. It had been long ago
last time I read treestand instructions.
Q Approximately was it ten years since you read a treestand instruction?
A No, probably early 90s before school.
Q So, if you purchased a treestand you wouldn't read the warnings and
instructions. You would just use it?
A Yes.
Q Based on your prior knowledge?
A Yes.
Q Likewise, if treestands you were purchasing contains safety DVD’s or hunting
DVD’s, did you ever watch those?
A No.
Q If there was a warning label on a treestand or a hunting product, would you
actually read that label?
A No.
[Doc. No. 38, Ex. 1 at 42-43]. Furthermore, Plaintiffs point out several alleged deficiencies
regarding the language used to warn consumers of the risks associated with use of the 2008
Ratchet Straps, but do not quarrel with the manner in which the warning was conveyed. [Doc.
No. 43, 20-21]. Consequently, any presumption that a different warning would have been read
and heeded by Mr. Freeland has disappeared and Plaintiffs continue to carry the burden of
establishing that the allegedly inadequate warnings cause their injuries. Daniel, 97 F.3d at 1333.
The Court concludes that that Plaintiffs have failed to present evidence sufficient to allow a jury
to conclude that the alleged inadequate warnings caused the injuries at issue.

Therefore,

Plaintiffs have failed to present evidence to establish the essential element of causation for their
failure to warn claims. Accordingly, Defendants are entitled to summary judgment on Plaintiffs’
failure to warn claims.
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CONCLUSION
For the reasons outlined above, Defendants’ Motion for Summary Judgment [Doc. No.
37] and Defendants’ Motion in Limine [Doc. No. 45] are GRANTED.
SO ORDERED this 24th day of April, 2014.

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