Rider et al v. Kawasaki Motors Corporation USA et al

Filing 307

MEMORANDUM DECISION AND ORDER granting 214 Motion for Summary Judgment: Plaintiff's causes of action against Defendants Kawasaki Motors Corporation USA and Kawasaki Heavy Industries are dismissed with prejudice. Crossclaim par ties are to provide a status update be no later than 11/13/19, including information as to whether ruling on remaining motions re ecperts is still necessary or if they are moot per entry of this order. Signed by Judge David Nuffer on 11/7/19 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
NICOLE WELLS,
Plaintiff,
v.
KAWASAKI MOTORS CORP., U.S.A., a
Delaware corporation, KAWASAKI HEAVY
INDUSTRIES, LTD., a Japanese corporation,
and H20 ZONE, LLC, an Arizona limited
liability company,

MEMORANDUM DECISION AND
ORDER GRANTING [214]
DEFENDANTS KAWASAKI MOTORS
CORP., U.S.A. AND KAWASAKI HEAVY
INDUSTRIES, LTD.’S MOTION FOR
SUMMARY JUDGMENT
Case No. 2:16-CV-01086-DN
District Judge David Nuffer

Defendants.

Defendants Kawasaki Motors Corp., U.S.A. (“KMC”) and Kawasaki Heavy Industries,
Ltd. (“KHI”) (collectively the “Kawasaki Defendants”) move for summary judgment (the
“Motion”) 1 on the three causes of action against them in Plaintiff Nicole Wells’ (“Plaintiff”)
Complaint: strict products liability, negligence, and breach of warranty. 2 Plaintiff opposed 3 the
Motion as to the strict products liability and negligence causes of action, but does not oppose the
Motion as to her breach of warranty cause of action which she concedes is duplicative of her
other two causes of action. 4 The Kawasaki defendants replied in support. 5 Because the experts

1

Defendants Kawasaki Motors Corp., U.S.A. and Kawasaki Heavy Industries, Ltd.’s Motion for Summary
Judgment and Memorandum in Support, docket no. 214, filed July 22, 2019.

2

Amended Complaint for Damages at 3-8, docket no. 14, filed December 2, 2016.

3

Plaintiff’s Opposition Re: Kawasaki Motors Corp., U.S.A. and Kawasaki Heavy Industries, Ltd.’s Motion for
Summary Judgment, docket no. 252 filed August 18, 2019.

4

Id. at 1

5
.Reply in Support Defendants Kawasaki Motors Corp., U.S.A. and Kawasaki Heavy Industries, Ltd.’s Motion for
Summary Judgment, docket no. 273, filed September 3, 2019.

that would have provided the expert testimony required to support the strict products liability and
negligence causes of action have been excluded, 6 the Motion is Granted.
Plaintiff alleges that she suffered an orifice injury during a trip to Lake Powell in 2015
when she fell off the back of a personal watercraft (“PWC”) manufactured by the Kawasaki
Defendants. 7 Plaintiff maintains her injury is attributable to defects in the PWC. She brings strict
products liability and negligence causes of action against the Kawasaki Defendants. 8 Central to
these causes of action are Plaintiff’s allegations that inadequate warnings were placed on the
PWC (a failure to warn claim) and that the design of the PWC’s seat permitted riders to fall
backwards as Plaintiff did (a design defect claim). 9
Initially, plaintiff designated Anand Kasbekar and Wilson Hayes as experts that would
testify concerning her design defect claim. 10 Plaintiff then indicated that Wilson Hayes would be
testifying only as a rebuttal expert and not as part of Plaintiff’s case-in-chief. 11 Plaintiff also
designated Joellen Gill as the expert that would testify concerning her failure to warn claim. 12

6

Memorandum Decision and Order: Granting [210] Defendants Kawasaki Motors Corp., U.S.A. And Kawasaki
Heavy Industries, Ltd.’s Motion to Exclude the Proposed Testimony of Plaintiff’s Expert Witness, Joellen Gill; and
Granting [221] Defendants Kawasaki Motors Corp., U.S.A. And Kawasaki Heavy Industries, Ltd.’s Motion to
Exclude the Proposed Testimony of Plaintiffs’ Expert, Anand Kasbekar, docket no. 306, filed November 7, 2019.

7

Amended Complaint for Damages at 3, docket no. 14, filed December 2, 2016.

8

Id. at 3-8.

9

Id. at 4.

10

Motion at 20.

11

Plaintiff's Opposition to Defendants Kawasaki Motors Corp., U.S.A. And Kawasaki Heavy Industries, Ltd.’s
Motion and Supporting Memorandum to Exclude the Proposed Testimony of Plaintiff’s Expert Witness, Wilson
Hayes at 3, docket no. 228, filed August 5, 2019.
12

Motion at 20.

2

Defendants moved to exclude the proposed the proposed expert testimonies of Kasbekar and Gill
under Fed. R. Evid. 702 13 and those motions were granted. 14
It has been previously decided that, as the 2015 PWC incident occurred on navigable
waters, maritime law is applicable in this case. 15 Other courts applying maritime law to design
defects and failure to warn claims involving personal or recreational watercraft have determined
that a plaintiff is required to provide expert evidence or opinion supporting those claims. 16 And
because maritime law is “drawn from state and federal sources” 17 this determination is reinforced
by decisions within this district that have required plaintiffs to provide expert testimony in
support of design defect and failure to warn claims. 18
Absent expert testimony, Plaintiffs’ design defect and failure to warn claims fail. As the
Plaintiff’s strict products liability and negligence causes of action are based on these claims
Summary Judgment for the Kawasaki Defendants on these causes of action is appropriate. The
Motion is granted.

13

Defendants Kawasaki Motors Corp., U.S.A. and Kawasaki Heavy Industries, Ltd.’s Memorandum in Support of
Their Motion to Exclude the Proposed Testimony of Plaintiff’s Expert Witness, Joellen Gill, docket no. 210, filed
July 22, 2019; Defendants Kawasaki Motors Corp., U.S.A. and Kawasaki Heavy Industries, Ltd.’s Motion and
Supporting Memorandum to Exclude the Proposed Testimony of Plaintiffs’ Expert Witness, Anand Kasbekar,
docket no. 221, filed July 22, 2019.

14

Memorandum Decision and Order: Granting [210] Defendants Kawasaki Motors Corp., U.S.A. And Kawasaki
Heavy Industries, Ltd.’s Motion to Exclude the Proposed Testimony of Plaintiff’s Expert Witness, Joellen Gill; and
Granting [221] Defendants Kawasaki Motors Corp., U.S.A. And Kawasaki Heavy Industries, Ltd.’s Motion to
Exclude the Proposed Testimony of Plaintiffs’ Expert, Anand Kasbekar, docket no. X, filed November 6, 2019.

15

Memorandum Decision and Order Overruling [124] Defendants Kawasaki Motors Corp., U.S.A. And Kawasaki
Heavy Industries Ltd’s Objection to Magistrate Judge Furse’s Order Denying Motion to Strike Allegations Of
Admiralty Jurisdiction, docket no. 137, filed September 10, 2018.

16

In re C.F. Bean L.L.C, 2015 WL 927408, at *1 (S.D. Miss. Mar. 4, 2015) (citing Sullivan v. Rowan Companies,
Inc., 952 F.2d 141, 146–49 (5th Cir.1992)); Hickerson v. Yamaha Motor Corp., U.S.A., 2016 WL 4367141, at *4
(D.S.C. Aug. 16, 2016), aff'd, 882 F.3d 476 (4th Cir. 2018).
17

In re Aramark Sports & Entm’t Servs., LLC, 831 F.3d 1264, 1279 (10th Cir. 2016) (quoting East River S.S. Corp.
v. Transamerica Delaval, Inc., 476 U.S. 858, 864, (1986)).

18

Boucher v. Zimmer, Inc., 2010 WL 3815706, at *3-4 (D. Utah Sept. 27, 2010); Christison v. Biogen Idec Inc., 199
F. Supp. 3d 1315, 1342 (D. Utah 2016).

3

ORDER
IT IS HEREBY ORDERED that Defendants Kawasaki Motors Corp., U.S.A. and
Kawasaki Heavy Industries, Ltd.’s Motion for Summary Judgment 19 is GRANTED. Plaintiff’s
causes of action against Defendants Kawasaki Motors Corp., U.S.A. and Kawasaki Heavy
Industries, Ltd.—strict products liability, negligence, and breach of warranty—are dismissed
with prejudice.
IT IS FURTHER ORDERED as follows:
1) Defendant H2O Zone LLC has asserted a crossclaim against Defendants Kawasaki
Motors Corp., U.S.A. and Kawasaki Heavy Industries, Ltd., that seeks allocation and
contribution. 20 The parties are ORDERED to meet and confer and provide a status
update no later than November 13, 2019 regarding the effect on that crossclaim of
dismissal of Plaintiff’s causes of action against Kawasaki Motors Corp., U.S.A. and
Kawasaki Heavy Industries, Ltd.
2) The remaining motions to exclude 21 filed by Defendants Kawasaki Motors Corp.,
U.S.A. and Kawasaki Heavy Industries, Ltd. seek to exclude experts designated by
Plaintiff as rebuttal witnesses. The dismissal of Plaintiff’s causes of action against
Kawasaki Motors Corp., U.S.A. and Kawasaki Heavy Industries, Ltd. would appear
to make those motions moot. As part of the status report, the parties are ORDERED

19

Defendants Kawasaki Motors Corp., U.S.A. and Kawasaki Heavy Industries, Ltd.’s Motion for Summary
Judgment and Memorandum in Support, docket no. 214, filed July 22, 2019.

20

Amended Answer to Amended Complaint and Cross-Claim at 14-18, docket no. 145, filed September 28, 2018.

21

Defendants Kawasaki Motors Corp., U.S.A. And Kawasaki Heavy Industries, Ltd.’s Motion and Supporting
Memorandum to Exclude the Proposed Testimony of Plaintiffs’ Expert Witness, Wilson Hayes, docket no. 212, filed
July 22, 2019; Defendants Kawasaki Motors Corp., U.S.A. And Kawasaki Heavy Industries, Ltd.’s Motion and
Supporting Memorandum to Exclude the Proposed Testimony of Plaintiffs’ Expert Witness, Sourabh Apte, docket
no. 213, filed July 22, 2019.

4

to indicate whether ruling on those motions is still necessary or if those motions are in
fact moot after the entry of this memorandum decision and order.
Signed November 7, 2019
BY THE COURT

________________________________________
David Nuffer
United States District Judge

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