Green v. Bradley Company, The et al

Filing 124

ORDER AND OPINION denying 118 Motion to Alter Judgment or Amend the Order entered on September 12, 2017 (ECF No. 113). Signed by Honorable J Michelle Childs on 4/13/2018.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Shameka Green,

)
)
Plaintiff,
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v.
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)
D.J. Bradley Company, Inc. d/b/a The
)
Bradley Company and Open Plan Systems, )
LLC f/k/a HMU, LLC,
)
)
Defendants.
)
___________________________________ )
D.J. Bradley Company, Inc. d/b/a The
)
Bradley Company,
)
)
Third-Party Plaintiff,
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v.
)
)
Hignite Enterprises, LLC,
)
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Third-Party Defendant.
)
___________________________________ )

Civil Action No.: 3:15-cv-02581-JMC

ORDER AND OPINION

Plaintiff Shameka Green filed the instant warranty/products liability action against
Defendants D.J. Bradley Company, Inc. d/b/a The Bradley Company (“TBC” or “Bradley”) and
Open Plan Systems, LLC f/k/a HMU, LLC (“OPS” or “HMU”) (together “Defendants”) seeking
damages as a result of injuries she sustained when a desk collapsed on her while working for
Teleperformance Group, Inc. (“TGI”). (ECF No. 1-1 at 3 ¶ 9.)
This matter is before the court on Plaintiff’s Motion to Alter or Amend Judgment
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (ECF No. 118.) Specifically,
Plaintiff seeks to alter or amend the court’s Order entered on September 12, 2017 (ECF No. 113)
(the “September Order”), that granted OPS’ Motion for Summary Judgment (ECF No. 75) as to
Plaintiff’s claims for breach of the implied warranty of merchantability under S.C. Code § 36-2314 (2015) and breach of the implied warranty of fitness for a particular purpose under S.C.

Code § 36-2-315 (2015).1 OPS opposes Plaintiff’s Motion to Alter or Amend asserting that the
September Order correctly awarded OPS summary judgment on Plaintiff’s claims and does not
contain clear error. (ECF No. 120 at 1.) For the reasons stated below, the court DENIES
Plaintiff’s Motion to Alter or Amend.
I.

LEGAL STANDARD AND ANALYSIS2

In the September Order, the court made the following observations in granting OPS
summary judgment on Plaintiff’s claims:
Regardless of the particular theory, a plaintiff must establish: ‘(1) that he was
injured by the product; (2) that the product, at the time of the accident, was in
essentially the same condition as when it left the hands of the defendant; and (3)
that the injury occurred because the product was in a defective condition
unreasonably dangerous to the user.’”) (internal and external citations omitted); 
Soaper v. Hope Indus., 424 S.E.2d 493, 495 (S.C. 1992) (holding that plaintiff,
who purchased film processing machine, “impliedly made known to [defendant]
that his particular purpose for the machine was fast film processing” and that
“[w]hen the machine failed in that purpose, it was both unmerchantable and unfit
for its particular purpose”). Defect claims require competent expert testimony to
establish proximate cause. Disher v. Synthes (U.S.A.), 371 F. Supp. 2d 764, 772
(D.S.C. 2005) (applying South Carolina law); see also Babb v. Lee Cty. Landfill
SC, LLC, 747 S.E.2d 468, 481 (S.C. 2013) (“The general rule in South Carolina is
that where a subject is beyond the common knowledge of the jury, expert
testimony is required.”) (citation omitted).
(ECF No. 113 at 10–11.)
Upon review of the foregoing, the court finds that Plaintiff has not met her burden
of demonstrating the admissibility of Durig’s testimony. In support of this
finding, the court observes that even though strict application of the Daubert
factors is not expected in the context of engineering testimony, see Kumho Tire,
526 U.S. at 150, it is very difficult to conclude that any Daubert factor is satisfied
in this circumstance much less analyze what principles and/or methodology Durig
used. As a result, the court does not find Durig’s testimony to be sufficiently
reliable to satisfy the requirements of either Rule 702 or Daubert and therefore
should be excluded. Young v. Swiney, 23 F. Supp. 3d 596, 611 (D. Md. 2014)
(“However, to be admissible, the expert testimony need not be irrefutable or
1

The court observes that also on September 12, 2017, Plaintiff’s case against Defendant TBC
was dismissed based on its settlement. (See ECF No. 116.)
2
The September Order contains a thorough recitation of the relevant factual and procedural
background of the matter and is incorporated herein by reference. (See ECF No. 113 at 2–5.)
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certainly correct. Rather, the proponent must show that it is reliable.”) (citations
and quotation marks omitted); Fernandez v. Spar Tek Indus., Inc., C.A. No. 0:063253-CMC, 2008 WL 2185395, at *6 (D.S.C. May 23, 2008) (“It follows that an
opinion based on an inadequate or inaccurate factual foundation cannot be a
reliable opinion, no matter how valid the principles and methods applied or how
well-qualified the expert.”). Accordingly, OPS’s Motion to Exclude Durig should
be granted.
Absent the now-excluded testimony of Durig, Plaintiff is unable to establish either
the existence of a defect in the furniture station at issue, or that a defect was the
proximate cause of her injury—both essential elements of her claim.
Accordingly, OPS is entitled to summary judgment on Plaintiff’s claims for
breach of the implied warranty of merchantability and breach of the implied
warranty of fitness for a particular purpose.
(ECF No. 113 at 14–15.) Plaintiff seeks to alter or amend the foregoing conclusion in the
September Order pursuant to Rule 59(e).
A.

Applicable Standard under Rule 59(e)
Rule 59 allows a party to seek an alteration or amendment of a previous order of the

court. Fed. R. Civ. P. 59(e). Under Rule 59(e), a court may “alter or amend the judgment if the
movant shows either (1) an intervening change in the controlling law, (2) new evidence that was
not available at trial, or (3) that there has been a clear error of law or a manifest injustice.”
Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010); see also Collison v. Int’l
Chem. Workers Union, 34 F.3d 233, 235 (4th Cir. 1994). It is the moving party’s burden to
establish one of these three grounds in order to obtain relief. Loren Data Corp. v. GXS, Inc., 501
F. App’x 275, 285 (4th Cir. 2012). The decision whether to reconsider an order under Rule 59(e)
is within the sound discretion of the district court. Hughes v. Bedsole, 48 F.3d 1376, 1382 (4th
Cir. 1995). A motion to reconsider should not be used as a “vehicle for rearguing the law,
raising new arguments, or petitioning a court to change its mind.” Lyles v. Reynolds, C/A No.
4:14-1063-TMC, 2016 WL 1427324, at *1 (D.S.C. Apr. 12, 2016) (citing Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5 (2008)).

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B.

The Parties’ Arguments
In her Motion, Plaintiff first argues that the September Order contains clear error of law

because “her expert’s opinion as stated in his Affidavit was based on evidence which justified
the ultimate conclusion that this additional painting [on the desk at issue] and its sequela were
the proximate cause of Plaintiff’s injuries.” (ECF No. 118 at 3.) Plaintiff next argues that even
if her expert’s opinion was deficient, the issues presented in her case were “within the ambit of a
lay person’s knowledge and therefore, [][di]d not necessitate expert testimony.” (Id.) In support
of this argument, Plaintiff asserts that her “circumstantial evidence . . . and related evidence
would both undergird Plaintiff’s expert’s opinion and present a factual scenario of circumstantial
evidence from which the jury could infer culpability and proximate cause regardless of the
exclusion or inclusion of the expert’s opinion.” (Id.) In this regard, Plaintiff asserts that the
totality of her “evidence indicates that this [extra paint] defect was the proximate cause of
Plaintiff’s injury because there is no question that the desk in question fell and Plaintiff’s injury
followed.” (Id. at 4.) Therefore, “[t]he conclusions reached by the Court that Plaintiff was
unable to establish these [warranty] elements appears to be an invasion of the province of the
jury.” (Id.) Accordingly, Plaintiff urges the court to alter or amend the September Order to deny
OPS summary judgment. (Id. at 6.)
In its opposition to Plaintiff’s Motion to Alter or Amend, OPS asserts that there is no
legal support for Plaintiff’s argument that the issues in this matter are so simple that either (1)
“an expert witness is not required to go forward on her product defect claims” or (2) “her
expert’s testimony should be admissible to support her theory of causation.” (ECF No. 120 at 2,
3.) Moreover, OPS asserts that Plaintiff is expressly asking the court “to allow a jury to
speculate as to the cause of the desk failure,” the avoidance of which is one of the purposes of

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summary judgment. (Id. at 3.) Therefore, in light of the aforementioned, OPS asserts that the
court correctly granted summary judgment and should further deny Plaintiff’s Motion to Alter or
Amend. (Id. at 5.)
C.

The Court’s Review
In her Motion, Plaintiff does not make any arguments for reconsideration referencing an

intervening change in controlling law, new evidence previously unavailable or manifest injustice.
Plaintiff solely seeks to alter or amend the September Order on the basis that it would be an error
of law if the court failed to reverse its decision granting OPS’ Motion for Summary Judgment on
Plaintiff’s claims for breach of the implied warranty of merchantability and breach of the implied
warranty of fitness for a particular purpose.3 Specifically, Plaintiff’s dispute with the September
Order is that she does not believe her warranty claims brought pursuant to state substantive law
require expert testimony to establish proximate cause. (E.g., ECF No. 118 at 3–4.) She asserts
that “it is a matter of common sense within the purview of the jury’s function that ‘extra paint
equals extra surface to fit into the same size receptacle’ thus establishing evidence sufficient to
avoid Summary Judgment.” (ECF No. 118 at 3–4.)
Plaintiff is correct that “there are instances where expert testimony is not required to
prove causation.” In re Lipitor (Atorvastatin Calcium) Marketing, Sales Practices & Prods.
Liab. Litig., 227 F. Supp. 3d 452, 477 (D.S.C. 2017). “[W]here a lay person can comprehend
and determine an issue without the assistance of an expert, expert testimony is not required.”
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Clear error occurs when the reviewing court “is left with the definite and firm conviction that a
mistake has been committed.” United States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008)
(internal quotation marks omitted); see also United States v. Martinez–Melgar, 591 F.3d 733,
738 (4th Cir. 2010) (“[C]lear error occurs when a district court’s factual findings are against the
clear weight of the evidence considered as a whole.”) (internal quotation marks omitted); Miller
v. Mercy Hosp., Inc., 720 F.2d 356, 361 n.5 (4th Cir. 1983) (explaining that a district court’s
factual finding is clearly erroneous if “the finding is against the great preponderance of the
evidence”) (internal quotation marks omitted).
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Babb v. Lee Cty. Landfill SC, LLC, 747 S.E.2d 468, 481 (S.C. 2013) (citing O’Leary–Payne v.
R.R. Hilton Head, II, Inc., 638 S.E.2d 96, 101 (S.C. Ct. App. 2006) (“[E]xpert testimony is not
necessary to prove negligence or causation so long as lay persons possess the knowledge and
skill to determine the matter at issue.”)). However, even under South Carolina substantive law,
the question of whether expert testimony is required “is a question that must be left within the
discretion of the trial judge” because of “the fact-specific nature of the determination.” Id.; see
also City of York v Turner-Murphy Co., Inc., 452 S.E.2d 615, 617 (S.C. Ct. App. 1994) (“The
application of the common knowledge exception depends on the facts of each case.”) (citation
omitted).
Upon its review, the court observes that Plaintiff’s contentions as to the simplicity of the
paint issue are expressly challenged by Plaintiff’s expert Bryan Durig’s factual description
demonstrating its technical complexity.

In his Affidavit, Durig provided the following

summation of the paint issue:
I have become aware of additional information regarding the subject workstation
and the location of exemplar workstations. Reportedly, paint was used to repaint
portions of the workstations without removing the old paint layers from the
existing workstation components. Adding layers of paint without removal of the
existing paint will decrease the ability of inert wooden or metal parts inside
recessed/slotted areas (the inserted piece becomes too thick to fit inside the slot)
which can allow the part to be improperly supported. An improperly supported
part can fail at a lower load than the designed load due to the supported piece not
being in full contact with the inserted piece. Higher stresses will be present since
less surface area is in contact between each part. Multiple layers of paint can
change the design conditions and loading conditions of the workstation and lead
to a failure at a lower loading condition compared to the original design.
(ECF No. 97-9 at 2 ¶ 4.) Based on these facts, the court is not persuaded that it is within the
common knowledge of a jury to evaluate the structural stress caused by the addition of paint on
the subject furniture station. Therefore, after considering Plaintiff’s arguments in the context of
the analysis presented in the September Order, the court finds that it did not commit clear error in

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reaching its determination that OPS was entitled to summary judgment on Plaintiff’s warranty
claims. Accordingly, Plaintiff’s Motion to Alter or Amend is DENIED.
II.

CONCLUSION

For the foregoing reasons, the court DENIES Plaintiff’s Motion to Alter or Amend (ECF
No. 118) the Order entered on September 12, 2017 (ECF No. 113).
IT IS SO ORDERED.

United States District Judge
April 13, 2018
Columbia, South Carolina

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