Bailey v. B.S. Quarries, Inc. et al

Filing 395

MEMORANDUM (Order to follow as separate docket entry) re 378 Lippmann DFts' MOTION for Summary Judgment Signed by Honorable James M. Munley on 09/29/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PAULINE M. BAILEY,
Administrator of the Estate
of Wesley Sherwood, Jr.,
Plaintiff

:
No. 3:13cv3006
:
:
(Judge Munley)
:
:
v.
:
:
B.S. QUARRIES, INC.;
:
DAMASCUS 535 QUARRY AND
:
STONE PRODUCTS, LLC.; TNT
:
ONE LIMITED PARTNERSHIP;
:
LIPPMANN MILWAUKEE, INC.;
:
LIPPMANN QUALITY USED
:
EQUIPMENT; VIRA
:
CORPORATION; TIMOTHY
:
SMITH; AND/OR THOMAS
:
BOLLES,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM

Before the court for disposition is the motion for summary judgment filed by
Defendants Lippmann Milwaukee, Inc., Lippmann Quality Used Equipment and
Vira Corporation (hereinafter collectively “Lippmann Defendants”) against
Defendants B.S. Quarries, Inc., Damascus 535 Quarry and Stone Products, Inc.,
Damascus 535, TNT One Limited Partnership, Timothy Smith and Thomas

Bolles (hereinafter collectively “Quarry Defendants”). 1 The motion has been fully
briefed and is ripe for disposition.
Background 2
This case arises from Wesley Sherwood’s accidental death at the
Lanesboro Quarry in Susquehanna County, Pennsylvania on December 15,
2011. Sherwood fell into a rock crusher manufactured by the Lippmann
Defendants and died.
Wesley Sherwood, whose estate brought the instant suit, was twenty-two
years old and worked as the operator of a rock crusher at the Lanesboro Quarry
in Susquehanna County, Pennsylvania when he died.
Defendant B.S. Quarries owned and operated the Lanesboro Quarry at the
time of the accident. Defendant Damascus 535 owned and operated a portable
crushing plant at the Quarry. Defendant TNT Limited Partnership owned the land
on which the Quarry was located. Defendant TNT Services Corp. owned trucks
and operated as a trucking company that provides quarry-related services.
Defendants Thomas Bolles and Timothy Smith owned all of these
companies jointly, with the exception of Damascus 535, which Defendant Smith
The Quarry Defendants urge us to refrain from referring to them as the “Quarry
Defendants” to avoid causing jury confusion. At this point we find it still
convenient to use the term “Quarry Defendants”. Of course, at the appropriate
times during trial, all the defendants will be referred to separately.
2
These background facts are well known to the parties and thus citations to the
record have been omitted.
2
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owned in its entirety. Defendant Smith was President and CEO of Damascus
535, and Defendant Bolles was Vice-President of B.S. Quarries.
The Lippmann Defendants manufactured and sold the rock crusher. The
plaintiff asserts a product liability claim against the Lippmann Defendants and
negligence claims against the Quarry Defendants. The Quarry Defendants and
Lippmann Defendants filed crossclaims against each other.
At the close of discovery, the parties filed six motions for summary
judgment, which we ruled upon on March 31, 2016. (Doc. 138, Memo of March
31, 2016; Doc. 139, Ord. of March 31, 2016). We granted summary judgment in
favor of Defendant TNT Services Corp., and that entity is no longer a party. (Id.)
We granted plaintiff’s motion to pierce the corporate veil and held that B.S.
Quarries and Damascus 535 are alter egos of Thomas Bolles and Timothy
Smith. (Id.)
Subsequently, the court held a pretrial conference and set the case for trial
on October 17, 2016. (Doc. 268, Order of Sept. 15, 2016). On October 14,
2016, the Third Circuit Court of Appeals issued a stay based upon an appeal filed
by Defendant Damascus 535 Quarry and Stone Products, LLC. (Doc. 350, Third
Cir. Ct. Order of Oct. 14, 2016). The Third Circuit issued its order on the appeal,
and we lifted the stay in January 2017. The court held a status conference on

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March 23, 2017. At the conference, a trial date of October 16, 2017 was
scheduled, with jury selection to be held on October 11, 2017. (Doc. 362).
Recently, the plaintiff and the Lippmann Defendants have settled the
product liability claim between themselves. (Doc. 378, Summ. Judg. Mtn. ¶ 10
(indicating that plaintiff and the Lippmann Defendants reached a settlement on
August 28, 2017)).
As noted above, Quarry Defendants have asserted a crossclaim against
the Lippmann Defendants. (Doc. 21). The crossclaim alleges: “[The Lippmann
Defendants] are joined to protect the [Quarry Defendants’] rights of indemnity
and/or contribution and the [Quarry Defendants] allege that the [Lippmann
Defendants] are alone liable to the Plaintiff or, in the alternative are liable over to
the [Quarry Defendants] or, in the alternative, are jointly and severally liable to
the Plaintiff with the [Quarry Defendants], the existence of any liability on the part
of the [Quarry Defendants] being denied.” (Doc. 21, Crossclaim ¶ 5).
Subsequent to settling the case with the plaintiff, the Lippmann Defendants
sought permission to file a summary judgment motion against the Quarry
Defendants in light of the settlement. We granted permission, and the parties
have briefed the motion, bringing the case to its present posture.
Jurisdiction

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The court has jurisdiction pursuant to the diversity statute, 28 U.S.C.
§ 1332. Plaintiff Pauline M. Bailey is a citizen of New York. (Doc. 1, Compl. ¶ 1).
The B.S. Quarries Defendants, including B.S. Quarries, Inc., Damascus 535
Quarry and Stone Products, LLC1, and TNT One Limited Partnership and TNT
Services Corp. (hereinafter, collectively, the “TNT Defendants”) are citizens of
the State of Pennsylvania with their principal places of business in Pennsylvania.
(Id. ¶¶ 7-12). Defendants Timothy Smith and Thomas Bolles are both citizens of
Pennsylvania. (Id. ¶¶14-15). Defendants Lippmann Milwaukee, Inc., Lippmann
Quality Used Equipment, and Vira Corporation (hereinafter, collectively, the
“Lippmann Defendants”) are citizens of Wisconsin with their principal places of
business in Wisconsin. Additionally, the amount in controversy exceeds
$75,000. Because complete diversity of citizenship exists among the parties and
the amount in controversy exceeds $75,000, the court has jurisdiction over the
case. See 28 U.S.C. § 1332 (“district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between . . . citizens of different
States[.]”). As a federal court sitting in diversity, the substantive law of
Pennsylvania applies to the instant case. Chamberlain v. Giampapa, 210 F.3d
154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).

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Legal Standard
Granting summary judgment is proper “‘if 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 judgment as a matter of law.’” See Knabe v. Boury,
114 F.3d 407, 410 n.4 (3d Cir. 1997) (quoting FED. R. CIV. P. 56(c)). “[T]his
standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original).
In considering a motion for summary judgment, the court must examine
the facts in the light most favorable to the party opposing the motion. Int’l Raw
Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is such that a
reasonable jury could not return a verdict for the non-moving party. Anderson,
477 U.S. at 248. A fact is material if it might affect the outcome of the suit under
the governing law. Id. Where the non-moving party will bear the burden of proof
at trial, the party moving for summary judgment may meet its burden by
establishing that the evidentiary materials of record, if reduced to admissible
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evidence, would be insufficient to carry the non-movant’s burden of proof at trial.
Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its
burden, the burden shifts to the non-moving party, who must go beyond its
pleadings, and designate specific facts with affidavits, depositions, admissions,
or answers to interrogatories demonstrating that there is a genuine issue for trial.
Id. at 324.
Discussion
The Lippmann Defendants move for summary judgment on the Quarry
Defendants crossclaim. Their position is that the Quarry Defendants do not have
any expert witness evidence to establish the product liability claim against the
Lippmann Defendants. The deadline for producing expert reports has passed;
and therefore, judgment should be granted to the Lippmann Defendants on the
crossclaim. Plaintiff concurs in the motion for summary judgment. (Doc. 386,
Corres. from Pl. counsel dated Sept. 25, 2017). After a careful review, we also
agree with the Lippmann Defendants.
In the instant case, the court set the expert witness report deadline for
plaintiff as April 14, 2015 and for defendants as June 15, 2015. (Doc. 73). The
court provided these deadlines after several previous extensions, and we
indicated on the scheduling order that “NO FURTHER EXTENSIONS SHALL BE
GRANTED.” (Id.)(emphasis in original). The Quarry Defendants did not produce
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a timely expert report with respect to its products liability crossclaim against the
Lippmann Defendants. Plaintiff has settled her claim against the Lippmann
Defendants, and plaintiff will not be presenting any expert witness testimony
regarding the product liability claim. (See Doc. 386, Correspondence from Pl.
counsel dated Sept. 25, 2017). Thus, the only party with a claim against the
Lippmann Defendants is the Quarry Defendants, and the Quarry Defendants
have presented no timely expert report with regard to the product liability claim.
The parties agree that a product liability claim must be supported by expert
witness testimony. (Doc. 379, Lippmann Defs.’ Supp. Br. at 5; Doc. 385, Quarry
Defs.’ Oppo. Br. at 3). The parties are further in agreement that the Quarry
Defendants did not submit an expert witness report regarding the products
liability claim by the deadline of June 15, 2015. (See Doc. 73, Order of Nov. 19,
2014). The Quarry Defendants now attempt to utilize an expert report from Mark
J. Vic, Ph.D., P.E., dated September 22, 2017, more than two years after the
expert witness report deadline and also after the filing of the instant motion for
summary judgment. We find that the late submission of this expert report, on the
eve of trial, is inappropriate, and we will preclude the expert report from the
evidence. 3 The Quarry Defendants evidently made a strategic decision to not
submit expert witness reports at the time when they were due. Over two years

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Jury selection is set for Wednesday October 10, 2017.
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ago, the court ordered that the deadline would not be extended. (See Doc. 73).
In light of the lateness of the Quarry Defendants expert report and the fact that
the court ordered that no further extensions would be granted, it is inappropriate
to allow the late submission of an expert report.
The Quarry Defendants argue that the Lippman Defendants will not be
prejudiced if they have to defend against the crossclaim because they have
already entered into a pro rata release with the plaintiff, and therefore, will not
have to pay any more money in damages. This argument, however, does not
take into account the considerable cost that would be incurred by the Lippmann
Defendants in litigating the trial, a trial that will likely last several weeks. In
deciding to settle the case, the Lippmann Defendants certainly took into
consideration that the Quarry Defendants had not presented an expert witness
report regarding liability against them and the likelihood that this lack of evidence
would result in judgment being granted in their favor before the trial. To rule
otherwise at this point would be prejudicial to the Lippmann Defendants.
Next, the Quarry Defendants argue that the Lippmann Defendants will not
be prejudiced by the admission of their expert witness because plaintiff’s expert
witness will also discuss the Lippmann Defendants’ liability. Thus, the evidence
will be admitted regardless of whether their late expert witness testifies. Plaintiff
indicates, however, she will not elicit opinions from her expert witnesses as to the
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product liability claims. Accordingly, we find the Quarry Defendants’ argument
unconvincing. The evidence of the product liability claim will not be before the
jury because the plaintiff will not present this evidence from her witnesses. 4
The Quarry Defendants next argue that the very nature of a contribution
claim renders summary judgment inappropriate. Contribution applies in a tort
action where two or more defendants are found to be joint tortfeasors, that is,
jointly liable for the harm caused to the plaintiff. Specifically, Pennsylvania law
defines “joint tortfeasors” as “two or more persons jointly or severally liable in tort
for the same injury to persons or property, whether or not judgment has been
recovered against all or some of them.” 42 PA. CONS. STAT. § 8322. In such a
case, the pro rata share of liability for damages for each party is determined. If
one party has paid more than its share, it can recover the overpayment from the
other defendant. Oviatt v. Automated Entrance Sys. Co., Inc., 583 A.2d 1223,
1225 (Pa. Super. Ct. 1990).
Contribution may be asserted during the original proceeding or in a
separate action after a defendant has been found liable to the plaintiff. Id. at
1226. Defendant argues that judgment is not appropriate because they can
seek contribution against the plaintiff after the trial if they are found liable.
Therefore, it is premature to grant judgment to the Lippmann Defendants. The
Additionally, it would be inappropriate for the Quarry Defendants to try to elicit
this evidence from plaintiff’s experts.
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Quarry Defendants’ position, however, does not take into consideration that the
proceeding to determine liability will be the upcoming trial in this case, not in a
subsequent action, because the issue is raised in their crossclaim. They do not
have sufficient evidence to hold the Lippmann Defendants liable at this trial.
Thus, judgment against them and in favor of the Lippmann Defendants is
appropriate.
Conclusion
The Quarry Defendants are without admissible evidence to support their
crossclaim against the Lippmann Defendants. We will thus grant the Lippmann
Defendants’ motion for summary judgment. An appropriate order follows.

Date: September 29, 2017

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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