Cutler et al v. Louisville Ladder, Inc. et al

Filing 41

MEMORANDUM AND ORDER Defendants Motion for Partial Summary Judgment [Doc. # 26] is GRANTED in part and DENIED in part. Specifically, summary judgment is granted dismissing by agreement Plaintiffs claims of manufacturing defect; negligent manufacturi ng; marketing defect; negligent failure to warn; negligent misrepresentation; express warranty; implied warranty of fitness; future medical expenses for Joshua Cutler; loss of earnings or future earning capacity for Joshua Cutler; costs of medical mo nitoring and prevention in the future for Joshua Cutler; and future loss of consortium. Summary judgment is DENIED on Plaintiffs claim of loss of household services for Kristina Cutler. It is furtherORDERED that Plaintiffs Motion for Partial Summar y Judgment on Reasonableness and Necessity of Medical Bills and Services [Doc. # 24] is GRANTED in part. The amount of medical expenses actually incurred by Joshua Cutler at St. Joseph Regional Health Center and Central Texas Sports Medicine, and pa id by him or on his behalf, is $49,851.90. It is furtherORDERED that on or before July 16, 2012, Plaintiffs must file an Advisory to the Court listing all remaining claims in this lawsuit, stating each theory asserted on each claim, and specifying the Defendant or Defendants against which each theory is alleged.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JOSHUA CUTLER, et al.,
Plaintiffs,
v.
LOUISVILLE LADDER, INC., et al.,
Defendants.

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CIVIL CASE NO. 4:10-4684

MEMORANDUM AND ORDER
Plaintiffs Joshua and Kristina Cutler brought this products liability suit against
Louisville Ladder, Inc. (“Louisville Ladder”) and Wal-Mart Stores, Inc. (“WalMart”). Plaintiffs filed a Motion for Partial Summary Judgment on Reasonableness
and Necessity of Medical Bills and Services [Doc. # 24] (“Plaintiff’s Motion”), to
which Defendants have responded [Doc. # 27] and Plaintiffs have replied [Doc. # 32].
Defendants filed a Motion for Partial Summary Judgment [Doc. # 26] (“Defendants’
Motion”), to which Plaintiffs have responded [Doc. # 30]. The motions are ripe for
decision. Having considered the parties’ briefing, the applicable legal authorities, and
all matters of record, the Court concludes that Plaintiff’s Motion should be granted
in part and Defendants’ Motion should be granted in part and denied in part.

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I.

BACKGROUND
Plaintiffs’ Original Petition was filed in the 361st Judicial District Court of

Brazos County, Texas, on October 21, 2010, and Defendants removed to this Court
on November 23, 2010.1 Plaintiff’s Petition alleges that, on or about October 11,
2009, Plaintiff Joshua Cutler was severely and permanently injured when a ladder he
was using suddenly collapsed. The ladder was manufactured by Louisville Ladder
and sold by Wal-Mart. Plaintiff Kristina Cutler, Joshua’s wife, witnessed the
accident.
Plaintiffs bring multiple claims against both Defendants, including claims for
products liability, negligence, and breach of express or implied warranty.
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial.2 “The court shall

1

Notice of Removal [Doc. # 1]; Plaintiffs’ Original Petition (Exhibit 5 to Notice
of Removal) (“Petition”).
2

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem.
Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002).
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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.”3
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.”4 The moving party, however, need not negate the elements of the
non-movant’s case.5 The moving party may meet its burden by pointing out “the
absence of evidence supporting the nonmoving party’s case.”6
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial.7 “An issue is material if its resolution could affect the outcome of the

3

FED. R. CIV. P. 56(a); Celotex Corp., 477 U.S. at 322–23; Weaver v. CCA
Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
4

Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).

5

See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).

6

Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995)
(internal citations and quotations omitted).
7

Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001)
(internal citation omitted).
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action. A dispute as to a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”8
In deciding whether a genuine and material fact issue has been created, the facts
and inferences to be drawn from them must be reviewed in the light most favorable
to the nonmoving party.9 However, factual controversies are resolved in favor of the
non-movant “only ‘when both parties have submitted evidence of contradictory
facts.’”10 The non-movant’s burden is not met by mere reliance on the allegations or
denials in the non-movant’s pleadings.11 Likewise, “conclusory allegations” or
“unsubstantiated assertions” do not meet the non-movant’s burden.12 Instead, the
nonmoving party must present specific facts which show “the existence of a genuine

8

DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal
citations and quotation marks omitted).
9

Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412
(5th Cir. 2003).
10

Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (quoting
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999)).
11

See Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir.
2002), overruled on other grounds, Grand Isle Shipyards, Inc., v. Seacor Marine, LLC, 589
F.3d 778 (5th Cir.2009).
12

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395,
399 (5th Cir. 2008).
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issue concerning every essential component of its case.”13 In the absence of any proof,
the court will not assume that the non-movant could or would prove the necessary
facts.14
Affidavits cannot preclude summary judgment unless they contain competent
and otherwise admissible evidence.15

A party’s self-serving and unsupported

statement in an affidavit will not defeat summary judgment where the evidence in the
record is to the contrary.16
Finally, although the Court may consider all materials in the record when
deciding a summary judgment motion, “the court need consider only materials cited
by the parties.”17 “When evidence exists in the summary judgment record but the
nonmovant fails even to refer to it in the response to the motion for summary

13

Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th
Cir. 2003) (citation and internal quotation marks omitted).
14

Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990)).
15

See FED. R. CIV. P. 56(c)(4) (“An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify
on the matters stated”); Love v. Nat’l Medical Enters., 230 F.3d 765, 776 (5th Cir.
2000); Hunter-Reed v. City of Houston, 244 F. Supp. 2d 733, 745 (S.D. Tex. 2003).
16

See In re Hinsely, 201 F.3d 638, 643 (5th Cir. 2000).

17

FED. R. CIV. P. 56(c)(3).

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judgment, that evidence is not properly before the district court. Rule 56 does not
impose upon the district court a duty to sift through the record in search of evidence
to support a party’s opposition to summary judgment.”18
III.

ANALYSIS
A.

Defendants’ Motion

Defendants’ Motion seeks dismissal of (1) all claims asserted against Wal-Mart,
and (2) all claims against Louisville Ladder except for design defect, negligent design,
and breach of implied warranty of merchantability.19 In particular, they seek dismissal
of Plaintiffs’ claims for:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.

manufacturing defect;
negligent manufacturing;
marketing defect;
negligent failure to warn;
negligent misrepresentation;
express warranty;
implied warranty of fitness;
future medical expenses for Joshua Cutler;
loss of earnings or future earning capacity for Joshua Cutler;
costs of medical monitoring and prevention in the future for Joshua
Cutler;
future loss of consortium; and,
loss of household services for Kristina Cutler.

18

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (internal citations and
quotation marks omitted).
19

Defendants’ Motion, at 1.

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Plaintiffs’ Response states that, based on the evidence developed in this case,
Plaintiffs do not oppose summary judgment on the first eleven claims listed above.
Summary judgment therefore will be granted as to claims # 1 through # 11 against
both Defendants.
As for Defendants’ summary judgment motion on the claim for loss of
household services, Plaintiffs oppose the motion. Defendants argue that a claim for
household services involves the performance by a spouse of household and domestic
duties,20 and that Kristina Cutler’s claim is “negated” by Plaintiffs’ deposition
testimony that, after the accident, Plaintiffs received household help from Kristina
Cutler’s parents and did not hire anyone to perform domestic duties.21 Plaintiffs
oppose the motion, citing to Kristina Cutler’s deposition testimony that Joshua
Cutler’s household duties included caring for the couple’s small children by bathing,
changing, wiping, and feeding them.22 Kristina Cutler testified that, although she
received some help with domestic duties after the accident, that assistance did not

20

See Whittlesey v. Miller, 572 SW.2d 665, 666 n.2 (Tex. 1978) (“The term
‘services’ is generally taken to include the performance by a spouse of household and
domestic duties”).
21

Defendants’ Motion, at 10.

22

Response, at 1-2 (citing Deposition of Kristina Cutler (Exhibit 1 to Response),
at 34-36).
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replace all of Joshua Cutler’s duties.23 Although somewhat conclusory, in context,
this evidence demonstrates a genuine issue of material fact regarding Plaintiffs’ claim
for loss of household services. Summary judgment is denied as to that claim.
To clarify the record for the balance of this litigation, Plaintiffs are required to
advise the Court of all their remaining claims, specifically identifying the Defendant
against which each claim is asserted and each operative theory. Plaintiff’s Petition is
insufficient at this stage, as it pleads all claims against “Defendants” generally,
without distinguishing between Louisville Ladder and Wal-Mart.
B.

Plaintiffs’ Motion on Reasonableness and Necessity of Medical Bills
and Services

Plaintiffs seek summary judgment as to a damages issue, in particular, the
amount of medical care expenses incurred in the past. Plaintiffs seek summary
judgment as to the reasonableness and necessity of Joshua Cutler’s past medical bills
and services, an issue that arises in the event Plaintiffs win a jury verdict on liability
issues. Under Texas law, recovery of medical expenses is limited “to those which
have been or must be paid by or for the claimant.”24

23

Response, at 1-2 (citing Deposition of Kristina Cutler (Exhibit 1 to Response),
at 34-36).
24

Haygood v. de Escabedo, 356 S.W.3d 390, 398 (Tex. 2011) (construing TEX.
CIV. PRAC. & REM. CODE § 41.0105).
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First, Plaintiffs seek summary judgment as to Joshua Cutler’s charges from St.
Joseph Regional Health Center. Plaintiffs originally submitted affidavits from St.
Joseph’s custodian of records stating that the charges for Joshua Cutler were
$61,648.80 for October 11 through 22, 2009, and $31,905.14 for October 22, 2009
through February 28, 2010.25 However, Defendants’ Response [Doc. # 27] pointed
to “contractual adjustments” in the amount of $15,959.12, and double charges of
$30,261.14, and therefore argued that the actual amount incurred was $47,333.68. In
their Reply, Plaintiffs agree that $47,333.68 is the correct amount for charges from St.
Joseph’s. Summary judgment will be granted in this amount.
Second, Plaintiffs seek summary judgment as to Joshua Cutler’s charges from
Central Texas Sports Medicine. Again, Plaintiffs original submission contained
figures that Plaintiff now agrees are too high. Although affidavits from Central Texas
Sports Medicine’s custodian of records stated that Joshua Cutler incurred charges of
$6,576.00 for October 19 through November 30, 2009 and $734.00 for the period after
November 30, 2009,26 Defendants pointed to insurance credits and duplicate entries
that reduce the amount actually incurred. The parties now agree that $2,518.22 is the

25

See Exhibits 1 and 2 to Plaintiffs’ Motion.

26

See Exhibits 3 and 4 to Plaintiffs’ Motion.

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correct amount actually incurred for Joshua Cutler’s care at Central Texas Sports
Medicine.27
The parties therefore agree that the amount of medical expenses actually
incurred by Joshua Cutler is $49,851.90. Summary judgment is granted for Plaintiffs
on the revised amount of $49,851.90.28
IV.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendants’ Motion for Partial Summary Judgment [Doc.

# 26] is GRANTED in part and DENIED in part. Specifically, summary judgment
is granted dismissing by agreement Plaintiffs’ claims of manufacturing defect;
negligent manufacturing; marketing defect; negligent failure to warn; negligent
misrepresentation; express warranty; implied warranty of fitness; future medical
expenses for Joshua Cutler; loss of earnings or future earning capacity for Joshua
Cutler; costs of medical monitoring and prevention in the future for Joshua Cutler; and

27

Reply, at 2.

28

Plaintiffs have not sought summary judgment on additional amounts incurred
at, but not paid to, St. Joseph Regional Health Center or Central Texas Sports
Medicine. See Reply, at 2. The Court does not reach the issue of the propriety of
those additional sums.
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future loss of consortium. Summary judgment is DENIED on Plaintiffs’ claim of loss
of household services for Kristina Cutler. It is further
ORDERED that Plaintiffs’ Motion for Partial Summary Judgment on
Reasonableness and Necessity of Medical Bills and Services [Doc. # 24] is
GRANTED in part. The amount of medical expenses actually incurred by Joshua
Cutler at St. Joseph Regional Health Center and Central Texas Sports Medicine, and
paid by him or on his behalf, is $49,851.90. It is further
ORDERED that on or before July 16, 2012, Plaintiffs must file an “Advisory
to the Court” listing all remaining claims in this lawsuit, stating each theory asserted
on each claim, and specifying the Defendant or Defendants against which each theory
is alleged.
SIGNED at Houston, Texas, this 5th day of July, 2012.

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