Deeds v. Whirlpool Corporation et al
OPINION AND ORDER The Court ORDERS Plaintiffs file within twenty days an amended complaint that satisfies the law and the pleading requirements for their warranty claims, if they can. They shall include an explanation why they did not meet Rule 26 039;s requirements for their non-retained experts and why they should be allowed to try to cure their deficiencies. Defendants shall file a timely response. The scheduled dates for the pretrial order, docket call, and trial are VACATED. The Court further ORDERS that 22 Defendants second motion for summary judgment is DENIED as premature without prejudice to reasserting the arguments if and after Plaintiffs file the ordered amended pleading; 28 Defendants motion for continuance of trial se tting is GRANTED for the reasons stated herein, but the Court will establish a new docket control schedule, if appropriate, after it reviews Plaintiffs ordered third amended complaint and Defendants responsive pleading; 35 Defendants motion for pro tective order is DENIED as some discovery will be permitted, but new discovery should not be sought until the Court establishes a new schedule; 32 Defendants second motion to compel discovery requests that were timely made in its first motion (#11) is GRANTED and that discovery may be provided now; and 34 Plaintiffs Rule 26 motion for protective order is MOOT in light of the above orders.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
JUDITH DEEDS and DAVID DEEDS,
WHIRLPOOL CORPORATION and
SEARS, ROEBUCK AND CO.,
October 17, 2016
David J. Bradley, Clerk
Civ. A. H-15-2208
OPINION AND ORDER
Pending before the Court in the above referenced products
liability case is Defendants Whirlpool Corporation (“Whirlpool”)
and Sears, Roebuck and Co.’s (“Sears’”) second motion for summary
judgment (instrument #22)1 on Plaintiffs’ pending claims for breach
of express warranty, implied warranty of merchantability, and
implied warranty of fitness for a particular purpose (instrument
This suit arises from Judith Deeds’ serious personal injury2
when she slipped and fell in her home on October 21, 2012 on water
evaporator pan in a refrigerator that was designed, produced,
manufactured, and packaged by Whirlpool, a “manufacturer” under
The docket sheet erroneously records this instrument as
Defendants’ first motion for summary judgment. Defendants’ first
motion for summary judgment was instrument #9.
According to the first amended complaint (#25), Judith
Deeds’ injuries required surgical implantation of a metal rod
into the back of her right arm and shoulder.
Tex. Civ. Prac. & Rem. Code § 82.001(4), and sold to Plaintiffs on
or about June 18, 2012 by Sears,, a “seller” under Tex. Civ. Prac.
& Rem. Code § 82.001(3),
On June 20, 2016, just four months before the docket call and
trial dates for this case and despite a discovery deadline of June
1, 2016, United States Magistrate Judge Frances Stacy granted leave
to Plaintiffs to add the breach of express and implied warranty
In its recent opinion and order, the Court granted
Defendants’ first motion for summary judgment (#9), which was filed
before Plaintiffs moved for leave to amend and which dismissed as
time-barred all of Plaintiffs’ claims in their Original Petition
(#9-1, Ex. A) for strict liability product liability, negligence,
the related evidentiary rule of res ipsa loquitur, negligent
misrepresentation, and respondeat superior. Thus at this time only
the breach of warranty claims asserted in the amended complaint
Standard of Review
Summary judgment under Federal Rule of Civil Procedure 56(c)
is appropriate when, viewing the evidence in the light most
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, 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.”
A dispute of material
fact is “genuine” if the evidence would allow a reasonable jury to
find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Where the nonmovant bears the burden of proof at trial,
the movant must offer evidence that undermines the nonmovant’s
claim or point out the absence of evidence supporting essential
elements of the nonmovant’s claim; the movant may, but does not
have to, negate the elements of the nonmovant’s case to prevail on
Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885
(1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.
“A complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other
Celotex, 477 U.S. at 323.
If the movant meets its burden and points out an absence of
evidence to prove an essential element of the nonmovant’s case on
which the nonmovant bears the burden of proof at trial, the
nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate that
there is a genuine issue of material fact for trial.
Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d 698, 712
(5th Cir. 1994).
“[A] complete failure of proof concerning an
essential element of the nonmoving party’s case renders all other
Celotex, 477 U.S. at 323.
The nonmovant may
unsubstantiated assertions that a fact issue exists, but must set
forth specific facts showing the existence of a genuine issue of
material fact concerning every element of its cause(s) of action.
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.
A breach of warranty claim requires a showing that a warranty
Mott v. Red’s Safe and Lock Services, Inc., 249 S.W.
3d 90, 98 (Tex. App.--Houston [1st Dist.] 2007), citing Tex. Bus.
& Com. Code Ann, § 2.314 cmt. 13 (Vernon 1994).
To prevail in a
breach of warranty claim in a products liability suit, a plaintiff
must establish that a defect in the product proximately caused the
plaintiff to suffer an injury.
Helen of Troy, L.P. v. Zotos Corp.,
511 F. Supp. 2d 703, 724 (W.D. Tex. 2006). citing Hyundai Motor Co.
v. Rodriguez, 995 S.W. 2d 661, 667 (Tex. 1999).
To show that the
defect proximately caused the plaintiff’s alleged injuries, the
Id., citing id. (“While the concepts of defect
are functionally indistinguishable for strict liability and breach
of implied warranty, for strict liability a product defect must be
shown to have been only a producing cause3–that is, a ‘but for’
Texas courts define “producing cause” as one that is “a
substantial factor in bringing about an injury, and without which
the injury would not have occurred.” Ford Motor Co. v. Ledesma,
cause-of injury, while liability for breach of warranty requires a
showing of proximate cause--that is, ‘but for’ causation and
In a products liability case, “the word ‘defect’ means a
condition of the product that renders it unreasonably dangerous.”
Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W. 2d 442, 444 (Tex.
A product may be unreasonably dangerous because of defects
in marketing/failure to warn, in design, or in manufacturing.
American Tobacco Co. v. Grinnell, 951 S.W. 2d 420, 426 (Tex. 1997).
“Under Texas law, a plaintiff has a manufacturing defect claim
when a finished product deviates, in terms of its construction or
quality, from the specifications or planned output in a manner that
renders it unreasonably dangerous.”
American Tobacco Co. v.
Grinnell, 951 S.W. 2d 420, 434 (Tex. 1997).
To prevail on a
manufacturing defect claim, the plaintiff must demonstrate that the
product was defective when it left the hands of the manufacturer
and that the defect was the producing cause of the plaintiff’s
injuries. Dewayne Rogers Logging, Inc. v. Propac Industries, Ltd..
242 S.W. 3d 32, 46 (Tex. 2007). The essential elements of
producing cause are that “(1) the cause must be a substantial
cause of the event in issue and (2) must be a but-for cause,
namely one without which the event would not have occurred.” Id.
Statutorily required by Tex. Civ. Prac. & Rem. Code §
82.005(a)(2), “[a] producing cause is an ‘efficient, exciting, or
contributing cause, which in a natural sequence, produced
injuries or damages complained of, if any.’” Flock v. ScriptoTokai Corp., 319 F.3d 231, 238 (5th Cir. 2003), quoting G.M.C. v.
harper, 61 S.W. 3d 118, 130 (Tex. App.--Eastland 2001).
299 S.W. 3d 374, 383 (Tex. App.--Tyler 2009), citing Ford Motor Co.
v. Ridgway, 135 S.W. 3d 598, 600 (Tex. 2004), and Torrington Co. v.
Stutzman, 46 S.W. 3d 829, 844 (Tex. 2000)(“To recover in strict
liability for a manufacturing defect, the plaintiffs had to show
that the bearing was defective when Textron sold it, and that the
defect was the producing cause of plaintiffs’ injuries.”).
Texas law, a manufacturer’s duty to warn about risks posed by a
product exists at the time it is manufactured and sold, but the
manufacturer has no duty to warn about a product after that point.
Bryant v. Giacomini, S.p.A., 491 F. Supp. 2d 495, 503 (N.D. Tex.
20015), citing McLennan v. Eurocopter Corp, Inc., 245 F.3d 403, 430
(5th Cir. 2001); Syrie v. Knoll Intern., 748 F.2d 304, 311 (5th Cir.
The plaintiff bears the burden of proving that the goods
were defective at the time they left the manufacturer’s or seller’s
Plas-Tex, Inc., 772 S.W. 2d at 445.
“A design defect renders a product unreasonably dangerous as
designed, taking into consideration the utility of the product and
the risk involved in its use.”
Dewayne Rogers, 299 S.W. 3d at 383,
quoting Gen. Motors Corp. v. Sanchez, 997 S.W. 2d 584, 588 (Tex.
A design defect requires the plaintiff to allege that “(1)
there was a safer alternative; (2) the safer alternative would have
prevented or significantly reduced the risk of injury without
substantially impairing the product’s utility; and (3) the safer
alternative was both technologically and economically feasible when
the product left the control of the manufacturer.”
Smith v. Aqua-
Flo, Inc., 23 S.W. 3d 473, 477 (Tex. App.--Houston [1st Dist.] 2000,
Tex. Civ. Prac. & Rem. Code Ann. § 82.005 and
Section 402A of the Restatement (Second) of Torts (1965)4 govern
Section 82.005(a) and (b) state,
(a) In a products liability action in which a claimant
alleges a design defect, the burden is on the claimant
to prove by a preponderance of the evidence that:
(1) there was a safer alternative design; and
(2) the defect was a producing cause of the
personal injury, property damage or death for
which the claimant seeks recovery.
(b) In this section, “safer alternative design” means a
product design other than the one actually used that in
(1) would have prevented or significantly reduced
the risk of the claimant’s personal injury,
property damage, or death without substantially
impairing the product’s utility; and
(2) was economically and technologically feasible
at the time the product left the control of the
manufacturer or seller by the application of
existing or reasonable achievable scientific
Section 402A of the Restatement provides,
(1) one who sells any product in a defective condition
unreasonably dangerous to the ultimate user or consumer
or his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer,
or to his property, if
(a) the seller is engaged in the business of
selling such a product, and
(b) it is expected to and does reach the user or
products liability claims for design defects in Texas.
Scripto-Tokai Corp., 319 F.3d 231, 236 (5th Cir. 2003).
A marketing defect exists “when a defendant knows or should
have known of a potential risk of harm presented by the product but
markets it without adequately warning of the danger or providing
instructions for safe use.”
Id., citing USX Corp v. Salina, 818
S.W. 2d 473, 482 (Tex. App.-–San Antonio 1991, writ denied).
plaintiff must prove “(1) a risk of harm exists that is inherent in
the product or that may arise from the intended or reasonably
anticipated use of the product; (2) the product supplier must
actually know or reasonably foresee the risk of harm at the time
the product is marketed; (3) the product must possess a marketing
defect; (4) the absence of the warning and/or instructions must
render the product unreasonably dangerous to the ultimate user or
consumer of the product; and (5) the failure to warn and/or
instruct must constitute a causative nexus in the product user’s
Id. at 384, citing USX Corp., 818 S.W. 2d at 482-83.
also Tex. Civ. Prac. & Rem. Code § 2.313.
The supplier of the
product is not liable for a failure to warn of dangers that were
unforeseeable at the time the product was marketed.
id. at 483.
The existence of a duty to warn of dangers or instruct
regarding proper use of a product is a question of law.
consumer without substantial change in the
condition in which it is sold.
Tobacco Co. v. Grinnell, 951 S.W. 2d 420, 426 (Tex. 1997).
associated with the product are matters “within the ordinary
knowledge common to the community.”
Id. at 427-32, citing Joseph
E. Seagram & Sons, Inc. v. McGuire, 814 S.W. 2d 385, 388 (Tex.
1991)(no legal duty exists to warn of the health risks of alcohol
consumption because such risks are common knowledge), and Comments
I and j to Restatement section 402A.
Bryant v. Giacomini, S.p.A.,
491 F. Supp. 2d 495, 503 (N.D. Tex. 20015), citing McLennan v.
Eurocopter Corp, Inc., 245 F.3d 403, 430 (5th Cir. 2001).5
plaintiff must prove “‘1) an affirmation or promise made by the
seller to the buyer [plaintiff]; 2) that such affirmation or
promise was part of the basis for the bargain, e.g., that the buyer
relied on such affirmation or promise in making the purchase; 3)
that the goods failed to comply with the affirmation or promise; 4)
that there was financial injury; and 5) that the failure to comply
was the proximate cause of the financial injury to the buyer.’”
Scott v. Dorel Juvenile Group, Inc., 456 Fed. Appx. 450, 456 (5th
There are two exceptions to this rule, neither of which
applies here: where the manufacturer again gains some
substantial control over the product and where a manufacturer
assumes a post-sale duty and the fails to use reasonable means to
discharge that duty. Bryant, 391 F. Supp. 2d at 503-04, citing
Syrie v. Knoll Int’l, 748 F.2d 304, 311 (5th Cir. 1984), and Dion
v. Ford Motor Co., 804 S.W. 2d 302, 319 (Tex. App.--Eastland
1991, writ denied).
Cir. Jan. 4, 2012), quoting Lindenmann v. Eli Lilly & Co., 816 F.2d
199, 202 (5th Cir. 1987).
Tex. Bus. & Com. Code § 2.313.
In implied warranty cases, contact between the seller and the
plaintiff buyer is not required.
Scott, 456 Fed. Appx. at 456,
citing Garcia v. Tex. Instruments, Inc., 610 S.W. 2d 456. 465 (Tex.
To prevail on a claim for breach of implied warranty of
merchantability, the plaintiff must establish four elements:
the defendant sold or leased a product to the plaintiff; 2) the
product was unmerchantable; 3) the plaintiff notified the defendant
of the breach; and 4) the plaintiff suffered injury.’”
Troy, 511 F. Supp. 2d at 724-25, quoting Polaris Indus., Inc. v.
McDonald, 119 S.W. 3d 331, 336 (Tex. App.--Tyler 2003, no pet.),
citing Tex. Bus. & Com.
Code Ann. § 2.314 (nonexhaustive list of
minimum requirements for a product to be merchantable), § 2.314
cmt. 13, § 2.607(c)(1), § 2.714, and § 2.715 (Vernon 1994); PlasTex., Inc. v. U.S. Steel Corp., 772 S.W. 2d 442, 444 (Tex.
1989)(“Proof of a defect is required in an action for breach of
implied warranty of merchantability under section 2.314(b)(3)). “A
product is unmerchantable if it cannot pass without objection in
the trade, i.e., it must be of a quality comparable to other
products that are sold in that line of trade under the contract
Polaris, 119 S.W. 3d at 336, citing
Tex. Bus. & Com.
Code Ann. § 2.314(b)(1)(Vernon 1994), and Harris Packaging Corp. v.
Baker Concrete Constr. Co., 982 S.W. 2d 62, 65-66 (Tex. App.-Houston [1st dist.] 1998, pet denied).
It is also considered
unmerchantable if it is unfit for ordinary purposes, i.e., it has
a defect or lacks something necessary for adequacy because it fails
to accomplish the purposes for which it was manufactured or it was
constructed in a way that makes it unreasonably dangerous.
citing Plas-Tex, 772 S.W. 2d at 444, and Hyundai Motor Co. v.
Rodriguez, 995 S.W. 2d 661, 665 (Tex. 1999).
“In the context of an
implied warranty of merchantability case, the word ‘defect’ means
a condition of the goods that renders them unfit for the ordinary
purpose for which they are used because of a lack of something
necessary for adequacy.”
Para-Chem Southern, Inc. v. Sandstone
Products, Inc., No. 01-06-01073-CV, 2009 WL 276507, at *14 (Tex.
App.–-Houston [1st Dist.] Feb, 5, 2009), citing Plas-Tex, 772 S.W.
2d at 444.
It may also be unmerchantable if it fails to conform
to the promises or affirmations of fact on the product’s container
Id., citing Tex. Bus. & Co. Code Ann. § 2.314(b)(6).
plaintiff can show an implied warranty of merchantability was
broken by showing the goods were not “fit for the ordinary purposes
for which such goods are used.”
Mott at Tex. Bus. & Com. Code Ann.
§ 2.314(b)(3). “‘[F]or a defect to cause redressable damages in a
breach of the implied warranty of merchantability action, it must
cause the product not to function adequately in the performance of
its ordinary function for the plaintiff.’”
Helen of Troy, 511 F.
Supp. 2d at 725, quoting Everett v. TK-Taito, LLC, 178 S.W. 3d 844,
854 (Tex. App.--Fort Worth 2005, no pet.).
malfunction may be sufficient evidence of a defect.’” Id., quoting
Plas-Tex, 772 S.W. 2d at 444-45; in accord Parsons v. Fort Motor
Co., 85 S.W. 3d 323, 329-30 (Tex. App.--Austin 2002, pet. denied).
Such circumstantial evidence can be used to establish an issue of
material fact as to a product defect; thus expert testimony is not
required to establish an issue of material fact as to a product
Mott v. Red’s Safe and Lock Services, Inc., 249 S.W. 3d
90, 96 (Tex. App.--Houston [1st Dist.] 2007), citing Ford Motor Co.
v. Ridgway, 135 S.W. 3d 598, 601 (2004).
Once plaintiff shows a product is unmerchantable, he must show
the defect caused him to suffer injury. Id., citing Rodriguez, 995
S.W. 2d at 667-68.
Expert evidence will be required to establish
proximate cause if the issue involves matters beyond “the general
experience and common understanding of laypersons.”
Ford Motor Co., 269 S.W. 3d 199, 204-05 (Tex. App.-–Texarkana 2008,
no pet.)(“There is no expert testimony bridging the analytical gap
between the origin of the fire in the left rear area of an engine
compartment and the conclusion that the [speed control deactivation
switch] in the areas was the cause-in-fact of the fire,” but only
“a strong suspicion”; requiring expert evidence), citing Mack
Trucks, Inc. v. Tamez, 206 S.W. 3d 572. 583 (Tex. 2006).
Unlike a strict products liability case, in which the word
unreasonably dangerous, in an implied warranty of merchantability
case “defect” means “a condition of the goods that renders them
unfit for the ordinary purposes for which they are used because of
a lack of something necessary for adequacy.”
Plas-Tex, Inc., 772
S.W. 2d at 444; Mott, 249 S.W. 3d at 98 (Whether a product is unfit
for its intended purpose is not an element of products liability).
A product can be unreasonably dangerous while at the same time be
fit for its intended purposes.
Mott, 249 S.W. 3d at 98, citing
Everett, 178 S.W. 3d at 854.
In a claim for breach of implied warranty of merchantability,
the plaintiff can recover actual damages, including the difference
between the value of the goods accepted and the value of the goods
if they had been as warranted, and incidental and consequential
damages such as foreseeable lost profits, personal injury and
property damage caused by the breach.
Polaris, 119 S.W. 3d at 337,
citing Tex. Bus. & Com. Code Ann. § 2.714(b); Signal Oil & Gas Co.
v. Universal Oil Prods., 572 S.W. 2d 320, 326-27 (Tex. 1978);
Garcia v. Texas Instruments, 610 S.W. 2d 456, 462 (Tex. 1980)..
To prevail on a breach of implied warranty of fitness for a
particular purpose, the plaintiff must prove that (1) the seller
had reason to know any particular purpose for which the goods were
required at the time of contracting, and (2) the buyer was relying
on the seller’s skill or judgment to select or furnish suitable
Para-Chem, 2009 WL 276507 at *15, citing Tex. Bus. & Com.
Code Ann. § 2.315; ASAI v. Vanco Insulation Abatement, Inc., 932
S.W. 2d 118, 121 (Tex. App.--El Paso 1996, no writ).
warranty of fitness for a particular purpose “does not arise unless
the particular purpose differs from the usual and ordinary use of
In other words, the particular purpose must be some
unusual, out of the ordinary purpose peculiar to the needs of an
Coghlan v. Aquasport Marine Corp., 75 F. Supp.
2d 769, 774 (S.D. Tex. Oct. 8, 1999), citing Tex. Bus. & Com. Code
Ann. § 2.315, Comment (2)(“A ‘particular purpose’ differs from the
ordinary purpose for which the goods are used in that it envisages
a specific use by the buyer that is peculiar to the nature of his
business.”); Sipes v. General Motors Corp., 946 S.W. 2d 143, 158-59
(Tex. App.-Texarkana 1997, writ denied)(no warranty of fitness for
particular purpose where plaintiffs acquired airbags “for the
general purpose for which they were designed.”); ASAI, 932 S.W. 2d
at 122 (no implied warranty of fitness for a particular purpose
because “the record reveals no evidence that Appellant’s particular
purpose for the vacuum was somehow different than its ordinary
A warranty for the ordinary use of a product is covered
under the warranty of merchantability in section 2.314.”
122, citing Crosbyton Seed Co. v. Mechura Farms, 875 S.W. 2d 353,
365 (Tex. App.--Corpus Christi 1994, no writ), and Tex. Bus. & Com.
Code Ann. § 2.315, comment 2.
See also Coghlan, 73 F. Supp. 2d at
(“Obviously, a seller may nevertheless be liable if a product
proves unsuitable for its ordinary use, but that liability hinges
merchantability.”), citing Tex. Bus, & Com. Code Ann. § 2.314, and
Crosbyton Seed, 875 S.W. 2d at 365.
Whether a particular issue requires the presentation of expert
testimony is an issue of law.
Mack Trucks, Inc. v. Tamez, 206 S.W.
3d 572, 583 (Tex. 2006). Expert evidence is required when an issue
involves matters beyond jurors’ common understanding. Alexander v.
Turtur & Assocs., 146 S.W. 3d 113, 119-20 (Tex. 2004).
expert testimony is required depends on whether the theory argued
by the plaintiff involves issues beyond the general experience and
common understanding of laypersons.
Driskill v. Ford Motor Co.,
269 S.W. 3d 199, 204 (Tex. App.--Texarkana 2008, no pet.). “Proof
other than expert testimony will support a jury finding only when
the jurors’ common understanding and experience will allow them to
make that finding with reasonable probability.”
Gharda USA, Inc.
v. Control Solutions, Inc., 464 S.W. 3d 338, 348 (Tex. 2015),
citing Mack Trucks, Inc. v. Tamez, 296 S.W. 3d 572, 583 (Tex.
The Texas Supreme Court has consistently required expert
testimony and objective proof to support a jury finding that a
product defect caused the plaintiff’s injury.
Id., citing id. at
582-83, and Nissan Motor Co. v. Armstrong, 145 S.W. 3d 131, 137-38
(Tex. 2004)(whether product defect caused a motor vehicle to
Amended and in effect as of December 1, 2010, Federal
Rule of Civil Procedure 26 distinguishes between two types of
experts, (1) “retained or specially employed to provide expert
testimony in the case or one whose duties as the party’s employee
regularly involved in giving expert evidence”6 and (2) non-retained
experts, regarding disclosure requirements.
requires generally that a party “disclose to the other parties the
identity of any witness it may use at trial to present evidence
under Federal Rule of Evidence 702,7 703,8 or 705.”
26(a)(2) the retained or specially employed experts must submit a
written report containing
Fed. R. Civ. P. 26(a)(2).
Rule 702 states,
A witness who is qualified as an expert by knowledge,
skill, experience, training or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Rule 703 states in part, “An expert may base an opinion on
facts or data in the case that the expert has been made aware of
or personally observed.”
(I) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in
(iii) any exhibits that will be used to summarize or
(iv) the witness’s qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the
previous 4 years, the witness testified as an expert at
trial or by deposition; and
(vi) a statement of the compensation to be paid for the
study and testimony in the case.
Under Rule 26(a)(2)(C), added in the 2010 amendment of Rule
26, non-retained witnesses do not have to submit a written report,
[and] “may both testify as fact witness[es] and also provide expert
Advisory Committee Notes (2010 Amendments).
retained witnesses must disclose
(i) the subject matter on which the witness is expected
to present evidence under Federal Rule of Evidence 702,
703, or 705; and
(ii) a summary of the facts and opinions to which the
witness is expected to testify.
See generally Gtg Holdings, Inc. v. Amvensys Capital Group, LLC,
2015 WL 11120884 (N.D. Tex. Apr. 8, 2015).
These requirements for
non-retained witnesses were intended to be “considerably less
extensive” that those for retained experts and courts “must take
care against requiring undue detail.”
Advisory Committee Notes to
Rule 26 does not define “retained or specially employed to
provide expert testimony” and courts have tried to distinguish them
from non-retained experts. For example the district court in Davis
v. GEO Group, Civ. A. No. 10-cv-02229-WJM-KMT, 2012 WL 882405, at
*2 (D. Colo. March 15, 2012)(citations omitted by this Court)(in
application of Rule 26(a)(2)(C)), wrote,
[I]t is the substance of the expert’s testimony, not the
status of the expert, which will dictate whether a Rule
26(a)(2)(B) report will be required. When a witness’s
testimony is limited to “his observations, diagnosis, and
treatment of a patient, the physician is testifying about
what he saw and did and why he did it, even though the
physician’s treatment and his testimony about that
treatment are based on his specialized knowledge and
Under these circumstances, no Rule
26(a)(2)(B) report is necessary. However, when a witness
“opines as to causation, prognosis, or future disability,
the physician is going beyond what he saw and did and why
he did it . . . and [is] giving an opinion formed because
there is a lawsuit. A similar conclusion may be reached
when a witness is asked to review the records of another
healthcare provider in order to formulate his or her own
opinion on the appropriateness of care.
instances, the witness is considered “retained or
employed” under Rule 26(a)(B) and must file a written
In accord, Piper v. Harnischfeger Corp., 170 F.R.D. 173, 174 (D.
Nevertheless with the amendment of Rule 26 in 2010,
adding 26(a)(2)(C), a treating physician must file a summary report
or a complete expert report, depending on the breadth of his
testimony; the Advisory Committee Notes indicate that physicians
Brunswick v. Menard, No. 2:11 CV 247, 2013 WL
5291965, at *4 (N.D. Ind. Sept. 19, 2013).
The First Circuit has defined a retained or specialty expert
as “an expert who without prior knowledge of the facts giving rise
to litigation, is recruited to provide expert opinion testimony,”
while a non-retained expert is one who is “actually involved in the
events giving rise to the litigation” and whose knowledge arises
from his or her involvement in those events giving rise to the
involvement . Downey v. Bob’s Disc Furniture Holdings, 633 F.3d 1,
6-7 (1st Cir. 2011).
In contrast, “the expert [who] comes to the
case as a stranger and draws the opinion from facts supplied by
others in preparation for trial [can reasonably] be viewed as
retained or specially employed for that purpose, within the purview
of Rule 26(a)(2)(B).”
Id. at 7.
In Burreson v. BASF Corp., No. 2:13-cv-0066 TLN AC, 2014 WL
4195588, at *2-8 (E.D. Calif. Aug. 22, 2014) the district court
rejected the view that application of Rule 26(a)(2)(B) turns on
whether the witness is paid and concluded that “[t]he dispositive
question for present purposes is whether the witness’s opinion was
developed either for purposes of litigation or as part of the
witness’s duties as the party’s employee”), citing Ordon v. Karpie,
223 F.R.D. 33, 36 (D. Conn. 2004).
See also Meyers v. National
2010)(“Dr. Rosseau and Dr. Tonino prepared letters with options as
to the causation of Meyers’s injuries at the request of Meyers’s
attorney, specifically for the purpose of litigation” so they are
required to provide a proper expert report).
“Absent a stipulation or a court order,” these disclosures
must be made “at least 90 days before the date set for trial or for
the case to be ready for trial.”
Fed. R. Civ. P. 26(a)(2)(D)(1).
“If a party fails to provide . . . information . . . as
required by Rule 26(a) or 26(e)[supplement disclosures], the party
is not permitted to use that information or witness . . . at trial,
unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1); Primrose Operating Co. v. Nat’l Ins. Co.,
382 F.3d 546, 563 (5th Cir. 2004).
In deciding whether such a
failure is harmless, the court considers four factors:
importance of the evidence; (2) the prejudice to the opposing party
of including the evidence; (3) the possibility of curing such
prejudice by granting a continuance; and (4) the explanation for
the party’s failure to disclose.”
Primrose, 382 F.3d at 564.
This Court in its discretion may exclude the testimony of
experts who have not been properly designated. Davis v. Duplantis,
448 F.2d 918, 921 (5th Cir. 1971)(to achieve justice under Federal
Rule of Civil Procedure 16 the court should exercise its discretion
over pretrial procedures “with intelligent flexibility, taking into
full consideration the exigencies of each situation.
judge must be permitted wide latitude in
its preparatory stages.
guiding a case through
His decision as to the extent that
pretrial activity should prevent the introduction of otherwise
competent and relevant testimony at trial must not be disturbed
unless it is demonstrated that he has clearly abused the broad
discretion vested in him by Rule 16.”); Timberlake v. Synthes
Spine, Inc., Civ. A. No. V-08-4, 2010 WL 582574 (S.D. Tex. Feb. 10,
2010)(finding Plaintiffs satisfied the four-part test and allowing
Plaintiff to designate an additional expert witness after the
deadline for designating experts).
Defendants’ Motion for Summary Judgment (#22)
Because Plaintiffs have pleaded in this personal injury suit
claims for breach of warranty claims along with strict liability,
negligence, respondeat superior and res ipsa loquitur, under Texas
Civ. Prac. & Rem. Code § 82.001(2), the instant suit is a products
Section 82.001(2) of the Texas Civil Practice &
Remedies Code provides, “‘Products liability action’ means any
action against a manufacturer or seller for recovery of damages
arising out of personal injury, death, or property damage allegedly
caused by a defective product whether the action is based in strict
misrepresentation, breach of express or implied warranty, or any
other theory or combination of theories. [emphasis added by this
Texas Civil Practice & Remedies Code § 16.012 defines a
product liability action as “any action against a manufacturer or
seller for recovery of damages or other relief for harm allegedly
caused by a defective product, whether the action is based in
strict tort liability, strict products liability, negligence,
misrepresentation, breach of express or implied warranty, or any
other theory or combination of theories, and whether the relief
sought is recovery of damages or any other legal or equitable
relief, including a suit for . . . personal injury. [emphasis added
by this Court]”
designer/producer/manufacturer, Whirlpool, and from Sears as the
seller of the refrigerator at issue as a defective product,
Plaintiffs’ breach of warranty claims fall within the definition of
“products liability action” as set forth in Tex. Civ. Prac. & Rem.
Code § 82.001(2). Plaintiffs have further alleged that a defective
evaporator pan in the refrigerator caused injury to Judith Deeds.
While the Court has previously dismissed Plaintiffs’ claims for
Plaintiffs’ claims for breach of warranty and of implied warranty
governed by a four-year statute of limitations, remain pending.
Nevertheless, even for those breach of warranty claims Plaintiffs
must prove the refrigerator was defective.
Plaintiffs must, but have failed to, designate an expert to opine
on Defendants’ alleged liability
under Nissan Motor Co., Ltd. v.
Armstrong, 145 S.W. 3d 131, 137 (Tex. 2004)(a products liability
action arising from the unintended acceleration of an automobile
allegedly due to a defective throttle cable requires competent
expert testimony and objective proof that a defect caused the
acceleration in a suit where plaintiff allege design, manufacturing
and marketing defects because there were many potential causes).
Therefore, Defendants argue, Plaintiffs’ failure to designate even
one liability expert means they cannot meet their prima facie
burden of establishing liability on any of their claims, which must
therefore be dismissed.
See also Cooper Tire & Rubber Co. v.
Mendez, 204 S.W. 3d 797 (Tex. 2006)(Generally a product failure
standing alone does not prove a product defect); DeGrate v. Exec.
Imprints, Inc., 261 S.W. 3d 402, 410-11 (Tex. App.--Tyler 2008, no
pet.)(design defect claim requires expert testimony and objective
proof that a defect caused the injury; conclusory statements by an
expert are not competent summary judgment evidence); GeorgiaPacific Corp. v. Stephens, 239 S.W. 3d 304, 321 (Tex. App.--Houston
[1st Dist.] 2007, pet. denied)(expert testimony required to show
that painter frequently and regularly worked in close proximity to
sufficiently exposed to asbestos to increase his risk of developing
mesothelioma); Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W. 3d
513, 516-17 (Tex. App.--Fort Worth 2007, no pet.).
Defendants further point out that the deadline in the docket
control schedule for Plaintiffs’ designation of expert witnesses
was April 1, 2016.
Plaintiffs’ Response (#26)
Plaintiffs insist that the Court should deny Defendants’
motion for two reasons:
(1) lay testimony is sufficient to prove
causation here; and (2) applying the doctrine of res ipsa loquitur
here, Plaintiffs can show causation by circumstantial evidence
without the need for expert testimony.
Under Texas law, lay
testimony is adequate to prove causation in cases which general
experience and common sense enable a layman to decide, with
reasonable probability, the causal relationship between the event
and the condition.
Kallassy v. Cirrus Design Corp., No. Civ. A.
3:04-CV-0727N, 2006 WL 1489248, at *5 (N.D. Tex. May 30, 2006).
They also state that they filed a designation of expert
witness list (#7), which names, as non-retained experts9 and fact
witnesses on the defective pan, the Installation and Service
Providers who are agents and/or employees of Defendants, with their
addresses, specifically Edgar Roldan d/b/a Roldan Trucking Company
and Pham, Technician I.D. #0687509 of A&E Services.
It also names
A non-retained expert may testify only about opinions
formed during the course of his participation in the relevant
events of the case and only to opinions which were properly
disclosed. Guarantee Trust Life Ins. Cp. v. Am. Medical and Life
Ins. Co., 291 F.R.D. 234, 237 (N.D. Ill. 2013). The difference
between retained and non-retained experts is that non-retained
experts gain their information through percipient observations,
while retained experts gain their information in any other
manner. U.S. v. Sierra Pac. Indus., No. CIV S-09-2445, 2011 WL
2119078, at *4 (E.D. Cal. May 26, 2011).
Plaintiff David Deeds as a non-retained expert in industrial
plastics from his work in the manufacturing industry.
The Court finds that Defendants’ second motion for summary
judgment is premature because Plaintiffs have failed even to state
a claim for breach of any warranties upon which relief can be
granted, one that would satisfy Rule 12(b)(6), no less one for
which there are sufficient facts for the Court to determine whether
evidence from a retained or specially employed expert is needed,
whether the identified non-retained experts’ testimony would be
sufficient, or whether lay testimony would suffice.
the facts (1) that Plaintiffs moved for leave to amend on May 19,
2016 to add claims even though the deadline for amending was
January 15, 2016 and the deadline for discovery was June 1, 2016,
(2) that Defendants had previously moved for summary judgment on
all their original petition’s claims based on limitations, (3) that
Plaintiffs failed to move for an amended docket control schedule
when they moved for leave to amend,10 and (4) that the proposed
Federal Rule of Civil Procedure 11(b)(emphasis added by
this Court) provides that in presenting the proposed amended
complaint to the court, Plaintiffs’ counsel was certifying “to
the best of [his] knowledge, information and belief, performed
after an inquiry reasonable under the circumstances”:
(1) it is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions
second amended complaint attached to Plaintiffs’ motion for leave
to amend (#17) added warranty claims that are factually deficient,
but which have longer, four-year statutes of limitations, this
Court finds that the motion for leave to amend should not have been
Even though a motion to dismiss has not been filed,11 the Court
finds that the amended complaint’s breach of warranty claims do not
satisfy the basic requirements of Rule 12(b)(6).
To breach a
warranty in a products liability suit there must be a defect in the
product that renders it unreasonably dangerous. Comments h, j, and
I of the Restatement (Second) of Torts § 402A.
“While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
are warranted by existing law, or by a nonfrivolous
argument for extending, modifying, or reversing
existing law or for establishing new law:
(3) the factual contentions have evidentiary support
or, if specifically so identified, likely have
evidentiary support after a reasonable opportunity for
further investigation or discovery . . . .
The Court has the right to assert a motion to dismiss sua
sponte as long as it provides the parties with notice of its
intention and an opportunity to respond. Baney v. Mukasey, 2008
WL 706917, at *4 (N.D. Tex. Mar. 14, 2008), citing Carroll v.
Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006); Guthrie v.
Tifco Indus., 941 F.2d 374, 379 (5th Cir. 1991); and 5A Wright &
Miller, Federal Practice & Procedure § 1357, at 301 (1990).
Nevertheless, in the interests of fairness, it chooses not to do
detailed factual allegations, . . . a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do . . . .”
Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted).
“Factual allegations must be enough to raise a right to relief
above the speculative level.”
Id. at 1965, citing 5 C. Wright & A.
Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.
2004)(“[T]he pleading must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”). Twombly requires a complaint to
“allege enough facts to state a claim that is plausible on its
face.” St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th Cir. 2009),
citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
“‘A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.’” Montoya
v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.
2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
plausibility standard is not akin to a “probability requirement,”
but asks for more than a “possibility that a defendant has acted
Twombly, 550 U.S. at 556.
Dismissal is appropriate
when the plaintiff fails to allege “‘enough facts to state a claim
to relief that is plausible on its face’” and therefore fails to
“‘raise a right to relief above the speculative level.’”
“[T]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice” under Rule
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiffs have failed to allege what the specific defect(s)
is (were) and whether the defect in the refrigerator or evaporator
pan was a manufacturing defect (deviation from plans rendering it
unreasonably dangerous), a design defect (with a safer alternative
design with a reasonable probability of preventing or reducing the
risk of personal injury or property damage without substantially
technologically feasible at the time the product left the control
of the manufacturer or seller), and/or a marketing defect (with a
failure to warn or instruct), no less provide some supporting facts
for their claim.
See, e.g., Barnes v. General Motors Corp., 653
S.W. 2d 85 (Tex. App.--San Antonio 1983)(holding in a products
liability action against the manufacturer of a refrigerator that
the refrigerator was not defectively designed and the manufacturing
defect of a leak in the improper sealing of the outer shell of the
refrigerator did not render it “defective,” i.e., unreasonably
dangerous, taking into consideration the utility of the product and
the risk involved, that there no competent evidence showing that
the refrigerator left the hands of the manufacturer in such a
defective condition as to make it unreasonably dangerous, and that
the jury’s finding that the owner’s negligence in carrying the
burning refrigerator from the house was the sole proximate cause of
his back injury was not against the preponderance of the evidence).
Plaintiffs’ bare-bones, conclusory amended complaint (#25)
fails to state a claim for breach of any warranty.
alleged breach of express warranty claim (¶¶) 13-14) provides only
the boilerplate elements, no factual details, and even fails to
identify the warranty:
13. On June 18, 2012, Defendants sold the subject
refrigerator to Plaintiffs.
Defendant[s] made a
representation to Plaintiffs about the title, quality, or
characteristics of the subject refrigerator in the
(a) By affirmation of fact;
(b) By description; and
(c) By display of sample or model.
14. Subsequently, the Defendants’ representations became
part of the basis of the bargain.
refrigerator did not comply with the representation, as
the defective evaporator pan directly caused the slip and
fall experienced by Plaintiff JUDITH DEEDS.
plaintiff suffered injuries, which resulted in economic
and actual damages.
Tex. Bus. & Org. Code §§ 2.313,
As such, the subject refrigerator’s defective evaporator
pan effectively breached the Defendants’ express
The complaint fails to identify a single express warranty
about the “title, quality or characteristics” of the subject
refrigerator” by “affirmation of fact” or by “description” or by
“display of sample or model,” the central element of such a claim.
merchantability (¶¶ 15-17) they pleaded,
Defendants impliedly warranted that the subject
WHIRLPOOL refrigerator would operate in accordance with
its ordinary purpose.
16. The facts indicate that Defendants are merchants who
sold goods to plaintiffs. The goods were merchantable.
Upon Plaintiff JUDITH DEEDS’ slip, Plaintiffs notified
Defendants of the breach.
As a result, Plaintiffs
suffered economic and actual damages.
Evidence is sufficient to show that defective
evaporator pan in subject refrigerator establishes a
breach of implied warranty.
The subject refrigerator
failed substantially to operate in accordance with its
ordinary purpose. Tex. Bus. & Com. Code § 2.314; Hyundai
Motor Co. v. Rodriguez, 995 S.W. 2d 661, 667-68 (Tex.
Plaintiffs have failed to specify the ordinary purpose of the
evaporator pan or the refrigerator or to allege facts showing the
refrigerator and evaporator pan were or were not merchantable.
refrigerator and evaporator pan were defective at the time they
left the manufacturer’s or seller’s possession.
For their claim of breach of implied warranty of fitness for
a particular purpose, they allege (¶ 18),
18. Defendants further failed to disclose information
concerning the subject refrigerator that was known at the
time of the transaction. At that time of the purchase
and sale of the subject refrigerator, Defendants knew of
the particular purpose for which Plaintiffs Deeds
required the subject refrigerator and its components. In
particular, Defendants knew that the Plaintiffs intended
to use the subject refrigerator in a particular manner.
Relying on Defendants[‘] judgment, Plaintiffs purchased
the subject refrigerator from Defendant.
delivered the subject refrigerator that was unfit for the
Plaintiff’s [sic] particular purpose.
subsequently notified Defendants of the breach.
Plaintiffs have incurred both economic and actual
As indicated under “Applicable Law” above, an implied warranty
of fitness for a particular purpose “does not arise unless the
particular purpose differs from the usual and ordinary use of the
In other words, the particular purpose must be some
unusual, out of the ordinary purpose peculiar to the needs of an
Coghlan v. Aquasport Marine Corp., 75 F. Supp.
at 774, citing Tex. Bus. & Com. Code Ann. § 2.315, Comment (2)(“A
‘particular purpose’ differs from the ordinary purpose for which
the goods are used in that it envisages a specific use by the buyer
that is peculiar to the nature of his business.”); Sipes, 946 S.W.
2d at 158-59 (no warranty of fitness for particular purpose where
plaintiffs acquired airbags “for the general purpose for which they
were designed.”); ASAI, 932 S.W. 2d at 122 (no implied warranty of
fitness for a particular purpose because “the record reveals no
evidence that Appellant’s particular purpose for the vacuum was
somehow different than its ordinary use.”). Plaintiffs have failed
to identify such a particular purpose, and
or to allege any facts
showing that Defendants knew of that purpose, that Plaintiffs
relied on the seller to select an appropriate product, how the
refrigerator was unfit for that particular purpose, and the nature
of their damages.
In sum, it appears their attorney was not
familiar with the law of warranty of fitness for a particular
Moreover while Plaintiffs have designated two non-retained
expert witnesses, they have failed to comply with Rule 26's
requirements regarding them.
After considering the circumstances here, the Court
ORDERS that Plaintiffs shall file within twenty days an
requirements for their warranty claims, if they can.
include an explanation why they did not meet Rule 26's requirements
for their non-retained experts and why they should be allowed to
try to cure their deficiencies.
Defendants shall file a timely
response. The scheduled dates for the pretrial order, docket call,
and trial are VACATED.
Therefore, the Court further
(1) Defendants’ second motion for summary judgment (#22) is
DENIED as premature without prejudice to reasserting the arguments
if and after Plaintiffs file the ordered amended pleading;
(2) Defendants’ motion for continuance of trial setting (#28)
is GRANTED for the reasons stated herein, but the Court will
establish a new docket control schedule, if appropriate, after it
reviews Plaintiffs’ ordered third amended complaint and Defendants’
(3) Defendants’ motion for protective order (#35) is DENIED as
some discovery will be permitted, but new discovery should not be
sought until the Court establishes a new schedule;
(4) Defendants’ second motion to compel discovery requests
(#32) that were timely made in its first motion (#11) is GRANTED
and that discovery may be provided now; and
(5) Plaintiffs’ Rule 26 motion for protective order (#34) is
MOOT in light of the above orders.
SIGNED at Houston, Texas, this
October , 2016.
UNITED STATES DISTRICT JUDGE
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