Boggs et al v. Cintas Corporation No. 2 et al

Filing 131

MEMORANDUM OPINION AND ORDER granting United States' 99 MOTION to dismiss or for summary judgment; the 21 third-party complaint is dismissed without prejudice and the United States as the third-party defendant is dismissed from this action; denying as moot the United States' 82 MOTION to Strike the jury demand of third-party plaintif; denying as moot the 91 JOINT STIPULATION AND MOTION concerning the United States' 82 motion to strike; denying as moot Ci ntas' 92 MOTION for leave to amend its third-party complaint; denying Cintas' 83 MOTION to exclude from evidence the affidavit of Marcine Mullins; denying Cintas' 86 MOTION for summary judgment on its liability for plain tiffs' injuries; denying Cintas' 84 MOTION for summary judgment concerning Mrs. Boggs' knee surgeries; and denying as moot plaintiffs' 126 MOTION to add exhibit 18 to their response in opposition to Cintas' motion for summary judgment on liability. Signed by Judge John T. Copenhaver, Jr. on 4/9/2012. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARY S. BOGGS and
DALE C. BOGGS, her husband,
Plaintiffs,
v.

Civil Action No. 2:11-0150

CINTAS CORPORATION No. 2,
a Nevada corporation; and
JOHN DOE, as an agent, employee and
servant of Cintas Corporation,
Defendants and
Third-Party Plaintiffs,
v.
THE UNITED STATES,
Third-Party Defendant.

MEMORANDUM OPINION AND ORDER

Pending are 1) the motion of the United States to
strike the jury demand of third-party plaintiff Cintas
Corporation No. 2 (“Cintas”), filed February 23, 2012; 2) the
motion of the United States to dismiss or for summary judgment,
filed March 13, 2012; 3) the motion of Cintas for summary
judgment concerning Mrs. Boggs’ knee surgeries, filed February
24, 2012; 4) the motion of Cintas for summary judgment on its
liability for plaintiffs’ injuries, filed February 24, 2012; 5)
the motion of Cintas to strike an affidavit, filed February 24,

2012; 6) the “joint stipulation and motion concerning the US
motion to strike” jury demand, filed March 8, 2012; 7) the
motion of Cintas for leave to amend, filed March 9, 2012; and,
8) plaintiffs’ motion to add exhibit 18 to their response in
opposition to Cintas’ motion for summary judgment on liability,
filed April 4, 2012.

I.

Background

This action was initiated by plaintiffs for Mary S.
Boggs’ injuries resulting from a trip and fall allegedly caused
by a Cintas Corporation No. 2 (“Cintas”) floor mat at the United
States Post Office in Clendenin, West Virginia, on October 20,
2008, and for Dale C. Boggs’ derivative loss of consortium.

The floor mat that allegedly caused Mrs. Boggs’
injuries was delivered to the post office by Cintas on October
16, 2008.

(Cintas’ Responses to Plaintiffs’ First Set of

Interrogatories; Pl.’s Ex. 7, Invoice).

Cintas provided floor

mats to the Clendenin Post Office pursuant to a contract with
the United States Postal Service (“USPS”).

(Cintas’ Responses

to Plaintiffs’ First Set of Interrogatories; United States’ Ex.
A (the “contract”)).

Every two weeks, Cintas would send a

delivery driver, John Cleek, from its St. Albans, West Virginia,

2

branch to drop off new mats and remove the old ones for
cleaning.

(Id.; Cintas’ Rule 26(a)(1) disclosures).

At that time, James Creel was Postmaster and Marcine
Mullins was a custodian for the Clendenin Post Office.

Mr.

Creel and Mrs. Mullins both testified that they did not recall
any problems with the mat upon its delivery.
Mullins dep. at 113-114).

(Creel dep. at 39;

Even so, while visiting the post

office on October 20, 2008, Mrs. Boggs tripped and fell over
what plaintiffs claim were the curled up, outer edges of the
mat.1

After her fall, Mrs. Boggs underwent knee replacement

surgery on her right knee on February 17, 2009, and on her left
knee on May 26, 2009.

Doctors performed a revision surgery on

her left knee on August 16, 2010.

On November 10, 2010, plaintiffs filed their complaint
in state court against Cintas.

On December 21, 2010, Cintas

filed its third-party complaint against the United States
seeking contribution and indemnity.

On March 8, 2011, the

United States removed the action to this court and filed a
motion to dismiss for lack of subject matter jurisdiction.
1

Plaintiffs note that throughout this litigation, “the
parties and counsel have used the terms, ‘hooved up,’ curled,
kinked, rippled, and rolled up interchangeably to refer to the
condition of the outer edges of the floor mat in question.”
(Pl.’s Response at 1, n. 1).
3

Pursuant to a memorandum opinion and order entered May 31, 2011,
the court granted the United States’ motion to dismiss.

See

Boggs v. Cintas Corp. No. 2, No. 11-150, slip op. at 11 (S.D. W.
Va. May 31, 2011).

Finding diversity jurisdiction, however, the

court denied plaintiffs’ motion to remand.

Id.

On June 20,

2011, Cintas re-filed its third-party complaint against the
United States seeking contribution and indemnity.

The United

States filed its initial motion to dismiss Cintas’ third-party
complaint or for summary judgment on February 27, 2012.

On

March 9, 2012, Cintas moved for leave to file an amended thirdparty complaint.

On February 24, 2012, Cintas filed two motions for
summary judgment, one addressing plaintiffs’ entitlement to
damages and the other addressing Cintas’ liability for
plaintiffs’ injuries.

On the same day, Cintas also filed a

motion to exclude the affidavit of Marcine Mullins.

The United

States then filed an amended motion to dismiss Cintas’ thirdparty complaint or for summary judgment on March 13, 2012.

II.

Cintas’ Motion to Exclude the Affidavit of Marcine Mullins

As an initial matter, Cintas seeks to exclude from
evidence the affidavit of Marcine Mullins on the grounds that it
contradicts her later-given deposition.
4

(Cintas’ Mem., Ex. A,

Mullins Affidavit).

At all relevant times Mullins was an

independent contractor for the USPS and custodian at the
Clendenin Post Office.

After Mrs. Boggs’ fall, Mullins states

that she spoke over the phone to an investigator working for
plaintiffs’ counsel who asked her about Mrs. Boggs’ fall and the
mats at the Clendenin Post Office.

Following this conversation,

Mullins was approached in person by the investigator while
working at the post office.

He asked her to sign the affidavit.

She testified that she did not read the affidavit prior to
signing it, stating that she felt pressure to sign the affidavit
so that she could return to work and that she was told that if
she did so, she would not have to be involved in the lawsuit any
further.

Mullins signed the affidavit on August 31, 2011.

For the purposes of this motion, the court addresses
only those statements from the affidavit on which plaintiffs now
rely in opposing summary judgment.

(Pl.’s Response to Def.’s

Mot. for Summary Judgment at 6 (citing to testimony from
Mullins’ affidavit ¶¶ 9, 10, and 13)).2

The alleged

inconsistencies with her later deposition are as follows:

2

Cintas seeks to “exclude the affidavit from evidence.”
(Cintas’ Mot. to Exclude). The court construes defendant’s
motion as a request that the court disregard the Mullins
affidavit to the extent that the inconsistencies between it and
her later deposition testimony constitute a disputed issue of
fact.
5

1)

Affidavit ¶ 9.
At [the time of the accident], the Post Office had
problems previously with the mats on different
occasions.
Deposition at 48:8-49:8.
Q.
A.

Yes, I know. It says that post office had
problems with the mats in different
occasions.

Q.

Now that we’ve been sitting here talking
about it, did the post office have any
problems with the mats that Cintas provided?

A.

2)

Look at No. 9, please.

No. They were wrinkled sometimes but
everything gets wrinkled depending on how
they roll them up.

Affidavit ¶ 10.
Prior to Ms. Boggs falling, others had complained to
the post office that the mats did not lay flat on the
floor.
Deposition at 48:8-49:8.
Q.

Let’s go to No. 10, please.

A.

And No. 10, I did tell Mr. Creel that some
lady, not Ms. Boggs, said that – cause there
was sometime or another there was a – I
don’t remember if it was prior to this lady
falling, but there was a little, there was a
raised place. And I did tell Mr. Creel he
needed to call Cintas and tell them, you
know, somebody’s going to trip over that
because I never (sic, knew?) they were going
– that somebody would sue them for it, you
know, if they tripped.

Q.

Do you remember who this lady was that
complained?

6

A.

No. She didn’t really complain. She just
said, you know, they needed to fix that, but
I don’t. . . .

Q.

Do you remember when this lady made the
complaint?

A.

I think it was after that lady fell.
***

Q.
A.
3)

You’re not sure?
I’m not sure.

Affidavit ¶ 13.
Prior to Ms. Boggs falling, I would complain to the
postmaster, Jim Creel, about the mats kinking up in
places, and I told him that the mats were dangerous
when they were kinked up and that someone was going to
get hurt on the mats.
Deposition at 48:8-49:8.
Q.

Will you turn the page, please, and look at
No. 13.

A.

I did tell him that the mats – but I don’t
know if it was prior to Ms. Boggs falling,
but I would tell him, you know, that he
should – and which he did call Cintas and
tell them that the rugs were too wrinkly,
and the man said they had a – when he told –
what I knew for the first time when that
gentleman there (indicating) was there, that
the man said that they had a different
method, you know.
***

Q.

Looking back at Statement 13, do you
remember prior to Ms. Boggs falling, telling
Mr. Creel that you thought the mats that
Cintas was providing were dangerous?

A.

No, I did not.
7

Under certain circumstances, the court may disregard
an affidavit that is inherently inconsistent with deposition
testimony.

See Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970,

975-76 (4th Cir. 1990) (disregarding witness’s affidavit that
contradicted his earlier deposition testimony); Barwick v.
Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (same).

The

rationale for this result, at least in part, is that “‘[i]f a
party who has been examined at length on deposition could raise
an issue of fact simply by submitting an affidavit contradicting
his own prior testimony, this would greatly diminish the utility
of summary judgment as a procedure for screening out sham issues
of fact.’”

Barwick, 736 F.2d at 960 (quoting Perma Research and

Dev. Co. v. Singer, 410 F.2d 572, 578 (2d Cir. 1969)).

3

Our court of appeals has cautioned that “for the rule
of Rohrbough to apply, there must exist a bona fide

Plaintiffs suggest that Barwick and Rohrbough are
distinguishable in that those cases involved sham affidavits
generated after the depositions were taken. Our court of
appeals has not addressed whether the sham affidavit doctrine
applies to a pre-deposition affidavit. At least two circuits
have concluded that the sequencing matters not. See In re Citx
Corp., Inc., 448 F.3d 672, 679 (3d Cir. 2006) (“We perceive no
principle that cabins sham affidavits to a particular
sequence.”); Darnell v. Target Stores, 16 F.3d 174, 177 (7th
Cir. 1994) (“[T]hough the timing is reversed [i.e., the
affidavit preceded the contradictory deposition testimony], the
rule [that the deposition trumps] is the same”). Inasmuch as
the court concludes that the Mullins affidavit may be properly
considered in this case, the court need not reach the issue.
3

8

inconsistency,” but the Fourth Circuit has not had occasion to
define that term.

Spriggs v. Diamond Auto Glass, 242 F.3d 179,

185 n. 7 (4th Cir. 2001).

The Third, Fifth, Seventh, and Ninth

Circuits apply a flexible approach before deeming a contrary
affidavit a sham.

See Jiminez v. All Am. Rathskeller, Inc., 503

F.3d 247, 254 (3d Cir. 2007) (citing cases, stating that an
affidavit will not be disregarded if the witness can offer
“independent evidence on the record” or a “satisfactory
explanation for the discrepancy”); see also Kennett-Murray Corp.
v. Bone, 622 F.2d 887, 893-94 (5th Cir. 1980) (a court “cannot
disregard a party’s affidavit merely because it conflicts to
some degree with an earlier deposition”); Choudhry v. Jenkins,
559 F.2d 1085, 1090 (7th Cir. 1977) (summary judgment was
improper even though party’s testimony was “not a paradigm of
cogency or persuasiveness,” inasmuch it was not a “transparent
sham”).

While the court observes that Mullins’ pre-deposition
statements in her affidavit are not in some respects harmonious
with her deposition testimony, the apparent inconsistencies
noted above are not so material as to mandate the exclusion of
her affidavit, in whole or in part, as a sham.

Unlike her

affidavit, Mullins did exhibit in her later deposition some
uncertainty about whether the mats had drawn complaints before

9

Mrs. Boggs’ fall and whether she had informed her superior
before Mrs. Boggs’ fall that she thought the mats were
dangerous.

The discrepancies do not evince such a degree of

contradiction as to warrant the disregard of the affidavit.
Consequently, the court declines to exclude Ms. Mullins’
affidavit from the court’s consideration of Cintas’ motion for
summary judgment as to liability.

III.

A.

Motions for Summary Judgment

Governing Standard

A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(c).

Material facts are

those necessary to establish the elements of a party’s cause of
action.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant.

10

Id.

The

moving party has the burden of showing -- “that is, pointing out
to the district court -- that there is an absence of evidence to
support the nonmoving party’s case.”
477 U.S. 317, 325 (1986).

Celotex Corp. v. Catrett,

If the movant satisfies this burden,

then the non-movant must set forth specific facts as would be
admissible in evidence that demonstrate the existence of a
genuine issue of fact for trial.
322-23.

Fed. R. Civ. P. 56(c); id. at

A party is entitled to summary judgment if the record

as a whole could not lead a rational trier of fact to find in
favor of the non-movant.

Williams v. Griffin, 952 F.2d 820, 823

(4th Cir. 1991).

Conversely, summary judgment is inappropriate if the
evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party.
248.

Anderson, 477 U.S. at

Even if there is no dispute as to the evidentiary facts,

summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute.

Overstreet v.

Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).

A court must neither resolve disputed facts nor weigh
the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239
(4th Cir. 1995), nor make determinations of credibility.
Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986).

Rather,

the party opposing the motion is entitled to have his or her
11

version of the facts accepted as true and, moreover, to have all
internal conflicts resolved in his or her favor.

Charbonnages

de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
Inferences that are “drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing the
motion.”

United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).

B.

Cintas’ Third-Party Claims Against the United States

The United States contends that the court must dismiss
the third-party complaint inasmuch as Cintas’ third-party claims
of contribution and indemnity are subject to the Contract
Disputes Act of 1978 (the “Act”) and thus confined to the
exclusive jurisdiction of the Agency Board of Contract Appeals
or United States Court of Federal Claims.

“The Contract Disputes Act [also “CDA”] is a
comprehensive statutory scheme for resolving contractual
conflicts between the United States and government contractors.”
United States v. J. & E. Salvage Co., 55 F.3d 985, 987 (4th Cir.
1995).

The Act provides for resolution of disputes before the

Agency Board of Contract Appeals or the United States Court of
Federal Claims.

See 41 U.S.C. §§ 601-613.

Our court of appeals

has held that the “review procedures under the CDA are exclusive
12

of jurisdiction in any other forum.”

J. & E. Salvage Co., 55

F.3d at 987 (citing 41 U.S.C. § 605(b)).

“Thus, federal

district courts lack jurisdiction over government claims against
contractors which are subject to the CDA.”

Id.

The issue here

is whether by agreeing to the contract containing express
language subjecting the contract to the Contract Disputes Act,
Cintas has submitted to the exclusive jurisdiction of the
Contract Disputes Act and, as a result, its fora, for “all
disputes arising under or relating to” the contract in this
case.

(Contract § 3.12(b)).

The relevant section of the contract, designated
“CLAIMS AND DISPUTES,” contains the following provisions at
section 3.12:
a.

This contract is subject to the Contract Disputes
Act of 1978 (41 U.S.C. 601-613) (the “Act”).

b.

Except as provided in the Act, all disputes
arising under or relating to this contract must
be resolved under this clause.
***

f.

The Contracting Officer’s decision is final
unless the supplier appeals or files a suit as
provided in the Act.

13

(Id.).4

When faced with identical or similar clauses, other
district courts have concluded that such provisions vest
exclusive jurisdiction in the Agency Board of Contract Appeals
or the United States Court of Federal Claims under the Contract
Disputes Act.

See, e.g., Four Star Aviation, Inc. v. U.S.

Postal Service, 120 F. Supp. 2d 523, 526 (D.V.I. 2000)
(concluding that identical contract provision language “‘selects
the resolution fora provided for under the CDA, i.e., the Agency
Board of Contract Appeals or the United States Court of Federal
Claims, as the exclusive fora in which to bring this action’”
(quoting Spodeck v. United States, 26 F. Supp. 2d, 750, 756
(E.D. Pa. 1998))).

To hold otherwise, “‘the language in the

[contract] referring to the CDA would be mere surplusage.

There

can be no reason to refer to the CDA except to specify the forum
for the resolution of disputes.’”

Id.

The court agrees.

While the Fourth Circuit decision in J. & E. Salvage
Co. does not squarely address the forum selection clause issue
with respect to the Contract Disputes Act, its broad statement
that “district courts lack jurisdiction over government claims
against contractors which are subject to the CDA” also supports
4

Cintas does not claim these provisions suffer from any
contractual infirmity.
14

the conclusion here.

Id. at 987 (emphasis added).

Cintas

plainly agreed that its contract was “subject” to the Contract
Disputes Act and that “all disputes arising under or relating
to” the contract must be resolved under the Act.
3.12(a)-(b)).

(Contract §

Still, Cintas denies that its third-party claims

for contribution and indemnity “aris[e] under or relat[e] to”
the contract inasmuch as they assert that the contract “does not
provide for Cintas to be indemnified” by the United States.
(Cintas’ Response at 2).

Cintas interprets this provision too narrowly.

The

contract required Cintas to “[t]ake all proper precautions to
protect the safety and health of the supplier’s employees,
Postal Service employees, and the public.”
§ 3.19(a)(3)).5

(Contract at

Moreover, the contract states that “[Cintas] is

responsible for all damage to persons or property . . . that
occurs as a result of its omission(s) or negligence.

[Cintas]

must take proper safety and health precautions to protect the
work, the workers, the public, the environment, and the property
of others.”

(Id. at § 3.21(a)).

In the third-party complaint,

Also pursuant to the contract, Cintas’ “[m]aterials,
supplies, articles, or equipment . . . furnished under this
contract . . . must conform to the Occupational Safety and
Health Standards (29 CFR 1910) pursuant to the authority in the
Occupational Safety and Health Act of 1970 (OSHA), and to other
safety and health requirements specified in the contract. . . .”
(Id. at § 3.20(a)).
5

15

Cintas alleges that the United States had, inter alia, a duty to
maintain the premises of the Clendenin Post Office in a
reasonably safe condition and to “detect, repair, remedy, and/or
report unsafe conditions in the mats and rugs” in the post
office.

(See Third Party Complaint at ¶¶ 6-8).

Perhaps so.

In

any event, the question of whether Cintas has a right of
contribution from the United States is “related to” the contract
between them.

Having found that Cintas’ third-party claims
constitute “disputes arising under or related to” the underlying
contract, and that such claims are subject to the Contract
Disputes Act and the exclusive jurisdiction of the Agency Board
of Contract Appeals or the United States Court of Federal
Claims, Cintas’ third-party claims must be dismissed for want of
jurisdiction.

C.

Plaintiffs’ Claims Against Cintas

As an initial matter, plaintiffs do not set forth
their claims against Cintas in separate counts, making somewhat
ambiguous the precise nature of the claims they are pursuing.
Defendant Cintas, in its motion, characterizes plaintiffs as
advancing two theories of liability against Cintas: premises
liability and products liability.
16

However, plaintiffs expressly

abandon the premises liability theory in their response
memorandum.

(See Pl.’s Response to Def.’s Mot. for Summary

Judgment on Liability at 9).

Instead, plaintiffs contend that they are proceeding
on negligence and products liability theories of recovery.
Plaintiffs state that they advance at least two discrete
negligence claims: 1) Cintas failed to provide a floor mat free
of hazards to the Clendenin Post Office; and 2) Cintas failed to
establish and maintain a formal inspection process to determine
the need for replacement of its floor mats.

The products

liability claim asserts that the floor mat in question was
hazardous or defective when Cintas delivered it on October 16,
2008.6

6

In their response memorandum, plaintiffs’ assert that they
seek recovery for Cintas’ breach of an implied warranty of
merchantability. (Pl.’s Response to Def.’s Mot. for Summary
Judgment on Liability at 14-15). Nowhere in plaintiffs’ amended
complaint is this assertion alleged.
As to the raising of new claims in responsive memoranda,
our court of appeals, as well as other district courts in our
circuit, has looked favorably upon a decision of the Eleventh
Circuit, which has held that such efforts are improper without
amendment of the complaint. See Barclay White Skanska, Inc. v.
Battelle Mem. Inst., 262 Fed. Appx. 556, 563, 2008 WL 238564, at
*6 (4th Cir. 2008) (“‘At the summary judgment stage, the proper
procedure for plaintiffs to assert a new claim is to amend the
complaint in accordance with Fed. R. Civ. P. 15(a). A plaintiff
may not amend her complaint through argument in a brief opposing
judgment.’” (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004))). Barclay observed that other
(Cont.).
17

The crux of the dispute between the Boggs and Cintas
is whether the floor mat Cintas delivered to the Clendenin Post
Office on October 16, 2008, was defective.

Plaintiffs assert

that sufficient evidence exists to preclude summary judgment on
this central question.

The court agrees.

Plaintiffs concede that they have no direct evidence
that the floor mat in question had curled edges at the time it
was delivered to the Clendenin Post Office.

Rather, plaintiffs

direct the court to a lengthy discussion of what they describe
as circumstantial evidence of Cintas’ tortious conduct.

To be specific, plaintiffs marshal the following
circumstantial evidence in their effort to prove that the floor
mat was hazardous or defective when Cintas delivered it to the
Clendenin Post Office on October 16, 2008:

1) Cintas’ branch

office in West Virginia, which had the responsibility of
providing the mats to the Clendenin Post Office, received
multiple, similar complaints about their floor mats curling up
and causing injury in the years preceding Mrs. Boggs’ fall; 2) a
discussion between Cintas personnel and the Clendenin
postmaster, Mr. Creel, regarding a change in Cintas’ laundering
process causing the mats to curl; 3) Cintas delivered the floor
circuits have taken similar positions. Id. at 563 (citing
decisions of the Fifth, Sixth, and Seventh circuits).
18

mat to the post office on October 16, 2008, four days before
Mrs. Boggs’ fall; 4) photographs demonstrate the floor mat had
curled up on the edges at the time of Mrs. Boggs’ fall; 5)
deposition testimony from the postmaster and plaintiff indicated
the floor mat was curled up at the edges at the time of the
fall; 6) an email from the Clendenin postmaster to another USPS
official stated that “the carpets from Cintas appeared to be
curled and could be causing a safety hazard if not corrected”;
7) an affidavit from the custodian Marcine Mullins in which she
avers that prior to Mrs. Boggs’ fall, the post office had made
Cintas aware of issues with its floor mats curling up; and 8)
the floor mat in question was never made available by Cintas,
despite plaintiffs’ requests.

Without comment as to the weight and credibility of
the foregoing evidence and taking all inferences in plaintiffs’
favor as the nonmoving party, the court is unable to conclude at
this stage that there is no dispute of material fact and that
judgment is appropriate as a matter of law for defendants.

In

short, the inferences that may be drawn from this evidence are
sufficient to preclude summary judgment.

Accordingly, Cintas’s

motion for summary judgment on liability is denied.

Finally, Cintas also moves for summary judgment as to
Mrs. Boggs’ assertion of damages.
19

Cintas relies on statements

by Mrs. Boggs’ treating orthopedic surgeon, Dr. Jeffrey Cumming,
who defendant concedes “testified that a combination of Mrs.
Boggs’ osteoarthrosis, obesity, prior surgeries, and her fall
necessitated her knee replacement surgeries.”

(Cintas’ Mem. at

4 (citing Cummings dep. at 45:18-47:8, 51:7-15, 58:24-59:12)).
Defendant argues that Dr. Cumming’s testimony does not
“establish that Mrs. Boggs’ knee replacement surgeries were
necessitated by her fall” inasmuch as he was unwilling to
ascribe certain percentages to each possible causation factor
(Id.).

As plaintiffs correctly observe, Mrs. Boggs’ fall need
not be the sole cause of her injuries for her to recover.

See

Mays v. Chang, 579 S.E.2d 561, 565 (W. Va. 2003) (“To be clear,
a plaintiff’s burden of proof is to show that a defendant’s
breach of a particular duty of care was a proximate cause of the
plaintiff’s injury, not the sole proximate cause.” (emphasis in
original)); Syl. pt. 2, Everly v. Columbia Gas of W. Va., 301
S.E.2d 165 (W. Va. 1982) (“A party in a tort action is not
required to prove that the negligence of one sought to be
charged with an injury was the sole proximate cause of an
injury.”).

Here, Cintas itself acknowledges that Dr. Cumming

“did testify to a reasonable degree of medical probability that
the fall was a cause of Mrs. Boggs’ knee surgeries.

20

(Id. at 2

(citing Cummings dep. at 55:3-17)).

Inasmuch as some evidence

indicates that Mrs. Boggs’ fall was a cause of her knee
surgeries, Cintas’ motion for summary judgment concerning Mrs.
Boggs’ knee surgeries must be denied.

IV.

Conclusion

Based on the foregoing discussion, it is ORDERED as
follows:
1)

That the motion of the United States to dismiss or
for summary judgment be, and it hereby is, granted;

2)

That the third-party complaint be, and it hereby is,
dismissed without prejudice, and the United States
as the third-party defendant is dismissed from this
action;

3)

That the motion of the United States to strike the
jury demand of third-party plaintiff be, and it
hereby is, denied as moot;

4)

That the “joint stipulation and motion concerning
the US motion to strike” be, and it hereby is,
denied as moot;

5)

That the motion of Cintas for leave to amend its
third-party complaint be, and it hereby is, denied
as moot;

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6)

That the motion of Cintas to exclude from evidence
the affidavit of Marcine Mullins be, and it hereby
is, denied;

7)

That the motion of Cintas for summary judgment on
its liability for plaintiffs’ injuries be, and it
hereby is, denied;

8)

That the motion of Cintas for summary judgment
concerning Mrs. Boggs’ knee surgeries be, and it
hereby is, denied; and,

9)

That plaintiffs’ motion to add exhibit 18 to their
response in opposition to Cintas’ motion for summary
judgment on liability be, and it hereby is, denied
as moot.

The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and any
unrepresented parties.

Enter: April 9, 2012

John T. Copenhaver, Jr.
United States District Judge

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