Geiser v. Simplicity, Inc. et al
Filing
292
MEMORANDUM AND OPINION and ORDER Granting in part and Denying in part Defendants' 197 Motion for Summary Judgment; unserved John Doe (s) terminated. Signed by Senior Judge Frederick P. Stamp, Jr on 1/20/12. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JEANNIE GEISER, as Administratrix
of the Estate of J.G., deceased
and JEANNIE GEISER, individually,
Plaintiff,
v.
Civil Action No. 5:10CV21
(STAMP)
SIMPLICITY, INC. a/k/a
SIMPLICITY FOR CHILDREN,
SFCA, INC. d/b/a SIMPLICITY, INC.
a/k/a SIMPLICITY FOR CHILDREN,
WAL-MART STORES EAST, LP,
WAL-MART STORES, INC.,
and JOHN DOE(S) MANUFACTURER/
DISTRIBUTOR/WHOLESALER,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT1
AND DISMISSING WITHOUT PREJUDICE,
THE UNSERVED JOHN DOE DEFENDANTS
I.
Procedural History
The plaintiff filed this civil action in the Circuit Court of
Ohio County, West Virginia, alleging product liability, negligence,
breach of warranty and punitive damages claims against multiple
defendants for an alleged wrongful death of an infant arising from
the manufacture and sale of an allegedly defective crib.
1
All
At a pretrial conference previously held in this case, this
Court indicated to the plaintiff and the Wal-Mart defendants that
it intended to rule on the Wal-Mart defendants’ motion for summary
judgment as outlined below.
This memorandum opinion and order
confirms and sets forth in more detail the rulings announced at
that conference.
parties were successfully served and brought into the case except
the John Doe Manufacturer/Distributor/Wholesaler defendants. This
Court
later
Children’s
dismissed
Products,
all
Inc.
claims
and
against
Newell
defendants
Rubbermaid,
Graco
Inc.
by
stipulation of the parties, granted a motion to dismiss in favor of
Blackstreet
Capital
Management,
Inc.
and
Blackstreet
Capital
Partners, LLC, and granted a motion for summary judgment declaring
that third-party intervenor James River Insurance Company was not
obligated
to
provide
a
defense
or
indemnity
for
defendant
Simplicity, Inc., and was thus dismissed from this case. Following
this dismissal, counsel for Simplicity, Inc. was permitted to
withdraw, and Simplicity, Inc. has since been without counsel.2
Defendants Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP
(“the Wal-Mart defendants”) subsequently filed the instant motion
for summary judgment, asking this Court to dismiss the plaintiff’s
entire complaint on the grounds that no genuine issue of material
fact as to the claims made against the Wal-Mart defendants can be
established.
The plaintiff filed a timely response, and the Wal-
Mart defendants replied. This motion is now fully briefed and ripe
2
Corporations must be represented by an attorney in federal
court. See Nat’l Indep. Theatre Exhibitors, Inc. v. Buena Vista
Distribution Co., 748 F.2d 602, 609 (11th Cir. 1984).
As
Simplicity, Inc. has been unrepresented by counsel since this
Court’s August 10, 2011 order permitting its prior counsel to
withdraw, Simplicity Inc. has been unable, and will continue to be
unable to appear in any proceeding before this Court until such
time as counsel is obtained.
2
for disposition by this Court.
For the reasons set forth below,
the Wal-Mart defendants’ motion for summary judgment is granted
with regard to the negligence, breach of warranty, and punitive
damages claims.
However, the motion is denied with regard to the
plaintiff’s strict products liability claims and also denied based
upon the Wal-Mart defendants’ contention of spoliation.
II.
Facts
In January 2006, prior to the birth of their son J.G., the
plaintiff
and
her
husband
purchased
a
crib
manufactured
by
Simplicity, Inc. at a Wal-Mart store in St. Clairsville, Ohio. The
crib was purchased unassembled, and the Geisers assembled it
together in J.G.’s room by following the directions enclosed with
the crib. In September 2007, Simplicity issued a recall on certain
component parts of the drop-side rail of the plaintiff’s crib
because the drop-side could detach from the crib and create a gap
and lead to entrapment.
The plaintiff and her husband then
requested the drop-side replacement track kit, retrofit kit, and
accompanying directions from Simplicity and disassembled the crib.
After receiving the retrofit kit, the Geisers reassembled the crib
together by following the directions that accompanied the retrofit
kit.
On January 15, 2008, the plaintiff, a few hours after placing
J.G. into his crib for a nap, discovered that J.G.’s head and neck
were wedged between the headboard and the first rail of the
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stationary side of the crib.
J.G. was suffocated as a result of
his head and neck slipping between the rail and the headboard, and
did not survive his injuries.
Following J.G.’s death, a missing
bolt was discovered on the back of the stationary rail of the crib,
but the bolt was not recovered by investigators.
It is undisputed
that J.G.’s death was the result of this machine screw becoming
dislodged from the housing unit.
On the evening of January 15, 2008, the plaintiff’s husband
destroyed the crib in which J.G. was suffocated when, according to
the plaintiff, she was not present in the home.
The plaintiff
further maintains that she was unaware that her husband was going
to destroy the crib, but when she returned home the following day
and saw that he had, she helped him to clean up the pieces that
remained by carrying them to the garbage behind the Geiser home.
III.
Applicable Law
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of
4
material fact.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
“The burden then shifts to the nonmoving party to come
forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”
Id. at 256.
“The
inquiry performed is the threshold inquiry of determining whether
there is the need for a trial -- whether, in other words, there are
any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of
either party.”
Id. at 250; see also Charbonnages de France v.
Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary judgment “should
be granted only in those cases where it is perfectly clear that no
issue of fact is involved and inquiry into the facts is not
desirable to clarify the application of the law.” (citing Stevens
v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
5
showing
sufficient
to
establish
the
existence
of
an
element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”
Celotex, 477 U.S. at 322.
Summary
judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.
See Oksanen v. Page
Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074 (1992). In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the party
opposing the motion.
See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
IV.
Discussion
In their motion for summary judgment, the Wal-Mart defendants
advance three bases for their argument that this plaintiff’s claims
should be dismissed: (1) that, based upon the evidence available,
the plaintiff cannot establish a genuine dispute of fact as to the
Wal-Mart
defendants’
liability
under
any
theory
of
recovery
advanced in the complaint; (2) that the plaintiff engaged in
spoliation of evidence, and thus, her claims must be dismissed; and
(3) that the plaintiff has failed to establish evidence to support
a punitive damages claim against the Wal-Mart defendants.
A.
Negligence and Breach of Warranty
As an initial matter, the plaintiff has indicated that she
does not dispute that there is no genuine issue of material fact as
to the negligence and breach of warranty claims with regard to the
6
Wal-Mart defendants.
As such, this Court will grant summary
judgment for the Wal-Mart defendants as to those claims without
discussion. However, with regard to the strict products liability
claims,
this
Court
finds
that
sufficient
evidence
has
been
established to support the plaintiff’s claims to allow a reasonable
juror to conclude that liability exists on the part of the Wal-Mart
defendants.
B.
Strict Products Liability
Strict products liability exists in West Virginia law as an
avenue
by
which
consumers
injured
by
products
can
receive
compensation for their injuries without the burden of having to
prove negligence on the part of the manufacturer.
Similarly,
because the manufacturer of a product may not be available or even
known to the plaintiff, strict products liability also “extends to
those in the product’s chain of distribution.
Thus, an innocent
seller can be subject to liability that is entirely derivative
simply by virtue of being present in the chain of distribution of
the defective product.”
Va. 40, 46 (1995).
Dunn v. Kanawha Co. Bd. of Educ., 194 W.
Still, liability in strict products liability
is not absolute. Instead, rather than having to prove actual fault
on the part of the manufacturer, a plaintiff in a strict products
liability case has the burden of proving defect of the product.
Morningstar v. Black & Decker Mfg. Co., 162 W. Va. 857, 888 (1979).
7
Strict products liability law provides for liability for
defective products based upon three categories of defect: “design
defectiveness; structural defectiveness; and use defectiveness
arising out of the lack of, or the inadequacy of, warnings,
instructions and labels.”
Id.
All three of these categories
require the plaintiff to prove defectiveness of the product in some
capacity, but in design and structural defect theories, the defect
lies in the “physical condition of the product,” while in use
defect, the inquiry focuses on defect of the instruction, warning
or label.
Id.
In her complaint, the plaintiff alleges design
defect and use defect of the crib against the Wal-Mart defendants.
1.
Design Defect
The Wal-Mart defendants argue that because the crib was
destroyed and the missing machine screw never recovered, summary
judgment
in
their
favor
as
to
the
design
defect
claim
is
appropriate. While it is conceded by all parties that the cause of
J.G.’s death was the bolt which was missing from the joint of the
back headboard and the stationary wall, the manner by which the
bolt became dislodged is at issue, and is the main point of alleged
defect in the case.
However, because the crib was destroyed and the bolt never
recovered, any evidence to this issue is in the form of testimony
of Mr. and Mrs. Geiser as to their experiences with and upkeep of
the crib, and in the form of expert testimony that is offered by
8
the
plaintiff’s
expert
regarding
inspection of exemplar cribs.
his
opinions
following
an
The Wal-Mart defendants maintain
that, because the plaintiff has no physical evidence of defect of
the crib and can only offer circumstantial evidence of the same, as
a matter of law, she cannot prove design defect.
This Court
disagrees.
The
West
Virginia
Supreme
Court
has
repeatedly
allowed
plaintiffs in strict products liability actions to proceed to a
jury when no physical evidence was available and defect could only
be inferred through circumstantial evidence, when it can be shown
that the malfunction of the product is one that would normally only
happen as a result of a defect.
See Anderson v. Chrysler, 184 W.
Va. 641 (1991); Bennett v. ASCO Servs., 218 W. Va. 41 (2005); and
Aliff v. Carrier Corp., 2011 W. Va. LEXIS 114 (W. Va. Apr. 1,
2011).
This concept is known as the “malfunction” theory of
proving defect.
The standard for proving malfunction theory was
clearly set forth by the West Virginia Supreme Court when it
adopted this theory in Anderson:
This theory encompasses nothing more than circumstantial
evidence of product malfunction . . . . It permits a
plaintiff to prove a defect in a product with evidence of
the occurrence of a malfunction and with evidence
eliminating abnormal use or reasonable, secondary causes
for the malfunction . . . . It thereby then relieves the
plaintiff from demonstrating precisely the defect yet it
permits the trier-of-fact to infer one existed from the
evidence of the malfunction, of the absence of abnormal
use and or the absence of reasonable, secondary causes.
184 W. Va. at 645
9
The Wal-Mart defendants argue that the plaintiff’s expert’s
opinion regarding the reason that the bolt became dislodged cannot
be considered when deciding this motion, because this opinion is
not admissible in evidence. Without discussing or deciding in this
opinion whether or not this argument is valid, this Court finds it
unnecessary to consider this evidence at this time because the
testimony of the Geisers is sufficient evidence to allow this
plaintiff to present her case to a jury.
In order to defeat summary judgment under malfunction theory,
it is not necessary for a plaintiff “to conclusively eliminate all
possible contributing causes other than a defect for an accident.
Instead, a plaintiff is only required to submit evidence that has
the capacity to sway the outcome of the litigation.”
W. Va. at 49.
Bennett, 218
This Court believes that the plaintiff has met this
burden with the Geisers’ testimony alone.
Based upon the evidence
presented to this Court in the briefing of this motion, the Geisers
have testified at depositions and intend to testify at trial
regarding all of the above-outlined elements of malfunction theory.
First, Mr. and Mrs. Geiser have both testified that they assembled,
disassembled and reassembled the crib according to the directions
included with the crib.
Further, they both testified that all
parts were present and they assembled it correctly. Secondly, they
both offered testimony that the crib was never moved from J.G.’s
room at any time before J.G.’s death.
10
Mrs. Geiser even testified
that she never moved the crib to vacuum, but rather cleaned around
it.
The Geisers also say that J.G. was unable to, and had never,
climbed out of the crib.
Finally, Mrs. Geiser stated that she
shook the crib and visually inspected it regularly in order to
discern whether it had become unstable or unsafe for any reason.
The Wal-Mart defendants argue that this testimony, without
corroborating evidence, is insufficient to create a genuine dispute
of material fact.
However, Federal Rule of Civil Procedure 56(c)
does not allow a court to make credibility determinations, to weigh
the evidence, or to draw “legitimate inferences from the facts.”
Anderson, 477 U.S. at 255. Likewise, in order to proceed to trial,
the non-movant is not required to prove all material facts which
she
claims
exist,
but
rather,
must
only
present
“sufficient
evidence supporting the claimed factual dispute be shown to require
a jury or judge to resolve the parties’ differing versions of the
truth at trial.”
Id. at 248-49.
While the plaintiff may not be
able to ultimately prove her case by a preponderance of the
evidence if it is based solely upon the testimony of the Geisers,
such a determination at this point would require this Court to make
a
determination
regarding
the
credibility
of
that
testimony;
something that it is specifically not permitted to do at this
juncture.
Thus, the Wal-Mart defendants’ motion for summary
judgment on the plaintiff’s design defect claim is denied.
11
2.
Use Defect
Similarly, the plaintiff has presented sufficient evidence of
use defect to defeat summary judgment.
The Wal-Mart defendants
argue that the instructions for the crib contained a warning that
the bolts needed to be tightened periodically so that they would
not loosen through use of the crib. They further contend that this
warning was adequate, as a matter of law, to inform the plaintiff
of the danger that the bolts in the crib could become loose with
use.
A manufacturer has a duty to adequately warn users of its
products of dangers which it can reasonably foresee, which may be
present when the product is used, even if the product was designed
as safely as is reasonable, or even possible.
Tire Corp., 172 W. Va. 435, 442.
Ilosky v. Michelin
The standard for adequacy of a
warning is the level of warning that “the reasonably prudent
manufacturer would accomplish in regard to the safety of the
product, having in mind the general state of the art of the
manufacturing process, including design, labels and warnings, as it
relates to the economic costs, at the time the product was made.”
Morningstar, 162 W. Va. at 886.
Further, “the determination of
whether a defendant’s efforts to warn of a product’s dangers are
adequate is a jury question.”
Ilosky, 172 W. Va. at 443.
The Wal-Mart defendants here readily admit that an attempt was
made by the manufacturer of the Simplicity crib to warn consumers
12
of the dangers of the bolts coming loose on the crib through use.
The plaintiff, however, contends that this warning was inadequate
to protect users from such dangers.
The determination of the
adequacy of the warnings to this end which were included in the
crib’s instructions is a jury question and is not an appropriate
determination for this Court to make at this time.
As such, the
Wal-Mart defendants’ motion for summary judgment is likewise denied
for the plaintiff’s use defect claim.
C.
Spoliation
The
Wal-Mart
defendants
additionally
argue
that
the
plaintiff’s complaint must be dismissed because she engaged in
spoliation of evidence critical to the claims.
Spoliation is an
evidentiary concept which grants district courts the discretion to
impose a wide variety of sanctions when a party can be shown to
have destroyed or materially altered evidence, or to have failed
“to preserve property for another’s use as evidence in pending or
reasonably foreseeable litigation.”
583, 590 (4th Cir. 2001).
Silvestri v. GMC, 271 F.3d
In order for spoliation to exist, a
court must determine that a party actually destroyed, altered or
failed to preserve evidence, and that they did so in anticipation
of pending or reasonably foreseeable litigation.
Further, the
power to impose sanctions based upon spoliation is grounded in the
courts’
inherent
power
to
“control
the
judicial
process
and
litigation, but the power is limited to that necessary to redress
13
conduct
‘which
abuses
the
judicial
process.’”
Id.
(quoting
Chambers v. Nasco, Inc., 501 U.S. 32, 45-46 (1991)).
Based upon the evidence presented to this Court, it does not
appear that the plaintiff engaged in conduct which can reasonably
be deemed to be spoliation, or that any abuse of the judicial
process has taken place.
It is true that, on the evening of J.G.’s
death, Mr. Geiser destroyed the crib -- arguably the most important
and valuable piece of evidence in this case -- thus making it
unavailable
to
the
Wal-Mart
defendants
for
the
purposes
of
litigation. Further, it is also true that, upon returning home the
next day and finding that her husband had destroyed the crib, Mrs.
Geiser helped to dispose of the pieces that remained by placing
them in the garbage behind the home.
However, this Court does not
believe that Mrs. Geiser’s acts of aiding in the clean up of the
pieces, which she describes as a “a mangled mess” of “pieces of
wood and metal,” qualifies as destroying, materially altering, or
failing to retain evidence, in light of the fact that Mr. Geiser
had destroyed the crib the evening before.
Further, even if such actions could be construed as failing to
retain evidence, this Court cannot reasonably charge Mrs. Geiser
with anticipating litigation at the time that the crib was disposed
of.
When Mr. and Mrs. Geiser cleaned up the crib and carried it to
the garbage, it was less than 24 hours after J.G.’s death.
Both of
the Geisers express that they were severely distressed at the loss
14
J.G. at this time, and this Court finds it likely that their
thoughts and emotions had not turned further than the grief that
they felt in the immediate aftermath of their son’s tragic death.
No lawyers had been contacted at this time, nor has any evidence
been presented that the Geisers were even aware that a lawsuit was
possible.
The Wal-Mart defendants point to Silvestri as support
for their contention that spoliation occurred in this case because,
in Silvestri, the Fourth Circuit affirmed a dismissal based upon
spoliation when a plaintiff destroyed “the sole piece of evidence
in [the] case.”
Id. at 592.
However, this similarity is the only
place where the facts of that case and the instant situation
converge. In Silvestri, the plaintiff did not destroy the evidence
for “two to three months, or more” following the accident which was
the subject of the case.
Id.
Further, the plaintiff had already
retained counsel and had decided not only to file a lawsuit, but
had decided which defendants that he intended to sue.
93.
Id. at 592-
This is not the case here, as the crib was destroyed and
disposed of less than 24 hours following J.G.’s death.
Thus,
spoliation is not found and the Wal-Mart defendants’ motion for
summary judgment is likewise dismissed on this ground.
D.
Punitive Damages
The Wal-Mart defendants also argue that the plaintiff cannot
present sufficient evidence to allow her claim for punitive damages
to go to a jury against the Wal-Mart defendants.
15
To this point,
this Court agrees and will grant summary judgment for the Wal-Mart
defendants as to the plaintiff’s punitive damages claim.
Punitive damages are intended to act as punishment for serious
violations of civil obligations.
They are only to be awarded in
situations of gross wrongdoing on the part of a defendant, and the
burden of proving the appropriateness of such damages is on the
plaintiff.
Mayer v. Frobe, 40 W. Va. 246 (1895).
In order to
satisfy this burden at the point of summary judgment, the plaintiff
must present evidence which would allow a reasonable jury to
conclude that the Wal-Mart defendants committed a wrongful act
“maliciously,
wantonly,
mischievously,
or
with
criminal
indifference to civil obligations.”
Peters v. Rivers Edge Mining,
Co., 224 W. Va. 160, Syl. pt. 3.
The burden for showing that
punitive damages are warranted is a high one, and the plaintiff has
not satisfied it here.
Initially, it is noted that the plaintiff concedes that she
cannot establish a negligence or breach of warranty claim against
the
Wal-Mart
defendants,
seemingly
conceding
that
she
cannot
establish any affirmative wrongdoing on their part, much less
wrongdoing to the level necessary for punitive damages.
Further,
this Court cannot find any evidence of wanton or malicious conduct
on the part of these defendants.
Finally, in the briefing of the
Wal-Mart defendants’ motion for summary judgment, the plaintiff
does not address or offer any opposition to the argument that
16
punitive damages cannot be established.
Under Anderson, it was
found that a party opposing summary judgment cannot simply rest
upon the allegations of her complaint to defeat such a motion, but
must “set forth specific facts showing that there is a genuine
issue for trial.”
477 U.S. at 248.
As such, the plaintiff has
failed to carry her burden to allow her claim for punitive damages
to go before a jury, and the Wal-Mart defendants’ motion for
summary judgment is granted with regard to this claim.
V.
Conclusion
For the reasons stated above, the Wal-Mart defendants’ motion
for summary judgment is GRANTED IN PART AND DENIED IN PART.
With
regard to the plaintiff’s negligence and breach of warranty claims
against the Wal-Mart defendants, summary judgment is GRANTED for
the
movants,
and
these
claims
are
hereby
DISMISSED
against
defendants Wal-Mart Stores East, LP and Wal-Mart Stores, Inc. With
regard to the plaintiff’s strict products liability claims against
the Wal-Mart defendants, summary judgment is DENIED.
With regard
to the movants’ contention of spoliation, summary judgment is
DENIED.
With regard to the plaintiff’s claim for punitive damages
against the movants, summary judgment is GRANTED, and this claim is
hereby DISMISSED against defendants Wal-Mart Stores East, LP and
Wal-Mart Stores, Inc.
Finally, pursuant to Federal Rule of Civil Procedure 4(m),
this Court hereby DISMISSES WITHOUT PREJUDICE, the unserved John
17
Doe defendants named in the plaintiff’s complaint. Federal Rule of
Civil Procedure 4(m) allows this court to dismiss, sua sponte,
unserved defendants after 120 days following the filing of the
complaint. The plaintiff’s complaint in this case was filed in the
Circuit Court of Ohio County on January 15, 2010, and was removed
to this Court on February 19, 2010.
As the complaint was filed
over two years before this memorandum opinion and order, this court
has the power to, and does dismiss these unserved defendants
without prejudice under Federal Rule of Civil Procedure 4(m).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
January 20, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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