Brown et al v. Linear LLC et al

Filing 72

ORDER granting 23 Motion for Reconsideration, as more fully set out. Signed by Honorable David L. Russell on 3/7/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ESTATE OF CHARLES A. BROWN,
deceased, JON BROWN, individually,
and KIM GREEN, individually,
Plaintiff,
v.
LINEAR, L.L.C. and
CRITICAL SIGNAL TECHNOLOGIES,
INC.,
Defendants.

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CIV-15-280-R

ORDER
On August 17, 2015, the Court ordered Plaintiffs herein to respond to the motions for
summary judgment filed in the District Court of Grady County by filing two separate
responses, to permit the Court to properly consider Defendants' separately filed Motions for
Reconsideration which addressed individual motions for summary judgment filed in state
court. On September 8, 2015, Plaintiffs filed a Response in Opposition to CST's Motion for
Summary Judgment (Doc. No. 66). Defendant CST has filed a reply in support of its motion,
and Plaintiff has filed a Motion to Strike (Doc. No. 69), to which Defendants have filed a
joint objection (Doc. No. 70).
The Court must first consider its authority to reconsider the motions denied by the
District Court of Grady County. 28 U.S.C. § 1450 provides as follows with regard to cases
removed from state court:
All injunctions, orders, and other proceedings had in such action prior to

removal shall remain in full force and effect until dissolved or modified by the
district court.
28 U.S.C. § 1450. Therefore, consistent with its authority interlocutory orders, the Court may
also reconsider the orders entered by the District Court of Grady County.1
Pursuant to Fed. R. Civ. P. 56(c), a party has four options to dispute a fact in response
to a motion for summary judgment: (1) cite to record evidence contradicting the fact; (2)
show that the cited evidence does not establish the presence or absence of a genuine dispute;
(3) show that the adverse party cannot produce admissible evidence to support the fact; or
(4) object that the fact is not supported by admissible evidence. Facts offered to dispute a
defendant's statements of fact must be supported by "particular parts of material in the
record." Fed. R. Civ. P. 56(c)(1)(A). Under Local Civil Rule 56.1(b), the movant's brief must
contain “a concise statement of material facts” that the movant contends are not genuinely
disputed. If any such fact is not “specifically controverted” by the nonmoving party, that fact
“may be deemed admitted for the purpose of summary judgment.” LCvR 56.1(c).
The Court notes at the outset that Plaintiffs' supplemental response brief makes it
difficult to construe :
Defendant's fact no. 1. Anne Grenier did install, but Plaintiffs deny Anne
Greier "successfully installed" the Linear equipment in Mr. Brown's home. See

1

As noted by the Supreme Court in Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S.
423, 434 (1974), § 1450 serves two basic purposes, judicial economy by granting state court orders full effect
after removal and preventing the lapse of state courts orders upon removal. The statute, however, clearly
contemplates modification of state court orders following removal. Id. Following removal federal law applies,
and therefore, Defendants' contention that Plaintiff's brief in the District Court of Grady County did not
comport with Oklahoma procedural law does not provide a basis for this Court to reject the state court
decision.

2

reference to testimony of Anne Grenier concerning installation at Mr. Brown's,
admitted Linear fact nos. 5 and 19, and response to Linear's fact no. 6, in
Plaintiff's Response in Opposition to Linear's Motion for Summary Judgment.
Anne Grenier cannot recall testing with Mr. Brown. The phone line was never
discussed. No literature manuals or literature were provided. "Success" is an
issue.
Doc. No. 66, p. 1-2. Plaintiffs' response contains additional shortcomings, such as the
response to Defendant's Uncontroverted Facts No. 7 and 8.
Defendants' fact nos. 7 and 8. Deny Mr. Brown was "unresponsive." Kim
Green, Duane Smith, Jon Brown, Shelli Brown, and agreed to medical records.
Rule 26 report of Dr. Banowetz, Plaintiffs' Response in Opposition to Linear's
Motion for Summary Judgment. See ARGUMENTS
Doc. No. 66, p. 2. A proper record citation, such as to a page of deposition testimony of the
identified persons is appropriate, rather than a vague reference to testimony, evidence and
arguments.2 The shortcomings, with which the brief is replete, make it difficult to construe
Plaintiffs' arguments. The Court finds, however, that for the same reasons set forth in the
Court's Order entered this same date with regard to Defendant Linear, that Defendant CST
is entitled to summary judgment.
Defendant CST concedes that Oklahoma law permits suit against an entity in the chain
of distribution. CST contends, however, that Plaintiff cannot prove that the PERS unit was
defective, unreasonably dangerous or that the warnings thereon were insufficient as a matter
of law. "A manufacturer's products liability plaintiff need not exclude all other possible

2

Plaintiff does successfully challenge a single portion of Defendant CST's uncontroverted fact 3, as
being without record support. Specifically, the evidence cited by Defendant does not support that "the purpose
of collecting this [emergency contact] information was so that, in the event of an emergency, CST could
notify 911 to dispatch an ambulance and/or contact family members." CST's Motion for Summary Judgment,
p. 5.

3

conclusions. However, the mere possibility that a defect caused the injury is not sufficient.”
Dutsch v. Sea Ray Boats, Inc., 845 P.2d 187, 191 (Okla.1992). As set forth in more detail in
the Order granting Defendant Linear's motion for summary judgment, there is simply no
evidence in this case that Mr. Brown attempted to utilize the PERS console unit or the
pendant transmitter during the relevant time period. As such, Defendants cannot be held
liable.
Defendant CST also contends that Plaintiff's negligence claim fails as a matter of law,
because Plaintiffs lack evidence that its failure to respond to a report that the unit was not
sending a proper signal for approximately one month, six months prior to January 2013,
when Mr. Brown suffered his stroke. Again, Plaintiffs lack evidence to link any breach of
a duty by CST to Mr. Brown's death. To the extent Plaintiffs complain CST was negligent
because the PERS unit should have been replaced due to alleged failures in May and June
of 2012, its motion for summary judgment is granted. The undisputed evidence is that the
unit functioned properly on both December 24 and December 28, 2012, mere weeks before
Mr. Brown was found in his home, and after January 13, 2013. The mere fact that the unit
failed to test properly six months before Mr. Brown's death does not establish negligence,
especially in light of the fact that it worked correctly thereafter. More fundamentally,
however there is no evidence that Mr. Brown attempted to utilize the PERS unit during his
stroke to summon aid. The absence of such evidence leads the Court to conclude that
Defendant CST is, like Defendant Linear, entitled to summary judgment on all of Plaintiffs'
claims.
4

Defendant CST's motion for reconsideration is hereby GRANTED. Defendant CST
is entitled to summary judgment for the reasons set forth herein and the reasons set forth in
the Court's Order entered this same date granting Defendant Linear's motion for summary
judgment.
IT IS SO ORDERED this 7th day of March, 2016.

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