Eaton v . Wal-Mart Stores CV-97-245-SD 07/23/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Catherine Eaton
v. Civil No. 97-245-SD
Wal-Mart Stores, Inc.; Maine Building Specialties Co.; Door Control, Inc.
O R D E R
Plaintiff Catherine Eaton brings this personal injury action
against defendants Wal-Mart Stores, Inc., Maine Building
Specialties Co., and Door Control, Inc., alleging negligence and
strict liability in the operation of an automatic door.
Presently before the court are various pretrial motions.
Background
On May 25, 1996, plaintiff was a patron of defendant Wal-
Mart’s retail store in Seabrook, New Hampshire. As she exited
the store, an automatic door closed on her body, fracturing her
right pelvis and wrist and causing other injuries. Discussion 1. Plaintiff’s Motion for Voluntary Non-suit Without Prejudice
as to Defendant Maine Building Specialties Co. Only (document 17)
Plaintiff has moved for voluntary non-suit without prejudice with respect to defendant Maine Building Specialties Company, which disavowed under oath any relationship whatsoever with the door that allegedly injured plaintiff. Under Rule 41(a)(2), Fed. R. Civ. P., plaintiff’s motion must be and herewith is granted.
2. Plaintiff’s Motion for Leave to Extend the Deadline to
Disclose Liability Expert From March 1, 1998 to April 1 0 , 1998
(document 14)
Plaintiff disclosed her expert witness on April 1 0 , 1998, more than one month after the agreed-upon March 1, 1998, disclosure deadline. Plaintiff then moved to extend the disclosure deadline to April 1 0 , 1998. Defendant Door Control initially objected to the motion to extend, but then withdrew its objection. Accordingly, plaintiff’s motion for leave to extend the deadline from March 1, 1998, to April 1 0 , 1998, is granted.
Wal-Mart and Door Control contend that plaintiff’s expert disclosure is insufficient under Rule 26(a)(2)(B), Fed. R. Civ. P., which requires, in addition to a statement prepared and signed by the expert,
2 a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
All this information is necessary for the expert disclosure to be
considered sufficient. Presently, plaintiff's expert disclosure only includes her expert's analysis and findings, but omits the
other necessary information. Thus plaintiff has tendered an
insufficient expert disclosure and is hereby ordered to augment
that disclosure with the necessary information provided for in
Rule 26(a)(2)(B) by August 2 8 , 1998.
3. Wal-Mart Stores, Inc.’s Motion for Summary Judgment
(document 12)
Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Rule 56 ( c ) , Fed. R. Civ. P.;
Lehman v . Prudential Ins. Co. of Am., 74 F.3d 323, 327 (1st Cir.
1996). The court’s function at this stage is not to “weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Stone & Michaud
Ins., Inc. v . Bank Five for Savings, 785 F. Supp. 1065, 1068
3 (D.N.H. 1992) (quoting Anderson v . Liberty Lobby, Inc., 477 U.S.
242, 249 (1986)).
The moving party has the burden of establishing the lack of
a genuine issue of material fact. Finn v . Consolidated Rail
Corp., 782 F.2d 13, 15 (1st Cir. 1986). The court views the
record in the light most favorable to the nonmoving party,
granting all inferences in favor of the nonmoving party. Caputo
v . Boston Edison Co., 924 F.2d 1 1 , 13 (1st Cir. 1991). To
survive summary judgment, the nonmoving party must make a “showing sufficient to establish the existence of [each] element
essential to that party’s case,” Celotex Corp. v . Catrett, 477
U.S. 317, 322-323 (1986), and cannot merely rely on allegations
or denials within the pleadings. LeBlanc v . Great Am. Ins. Co.,
6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 1018
(1994); Anderson, supra, 477 U.S. at 256. When reviewing a
summary judgment motion, "'the question is not whether there is
literally no evidence favoring the non-movant, but whether there
is any upon which a jury could properly proceed to find a verdict in that party’s favor.'" Caputo, supra, 924 F.2d at 13 (quoting
De Arteaga v . Pall Ultrafine Filtration Corp., 862 F.2d 940, 941
(1st Cir. 1988)).
Defendant Wal-Mart argues that plaintiff cannot prove her
allegations of negligence without an expert witness. In support
thereof, defendant cites Maille v . Wal-Mart Stores, Inc., No. 95-
C-00352-WS (N.H. Super. Ct. Jan. 2 4 , 1996), in which the superior
court held that expert testimony is required to show negligence
4 in a case involving electronic doors. However, plaintiff in the present case disclosed the identity of an expert witness on April 1 0 , 1998. Plaintiff’s evidence indicates that defendant Wal-Mart’s electronic exit door may have been malfunctioning and capable of causing injury. Plaintiff also submitted testimony tending to show that Wal-Mart knew or should have known that the electronic doors were malfunctioning. In any event, plaintiff has presented enough expert testimony regarding defendant's negligence that the case cannot be resolved on summary judgment. Accordingly, defendant’s motion for summary judgment is denied.
4. Defendant Door Control's Motion for Leave to Reply to
Plaintiff's Objection to Door Control's Motion for Summary
Judgment (document 19)
The court grants Door Control's motion for leave to reply
and has fully considered its reply in ruling on the motion for
summary judgment.
5. Defendant Door Control's Motion for Summary Judgment
(document 11)
Defendant Door Control moves for summary judgment, claiming
that plaintiff has failed to disclose an expert to support her
liability claims or, alternatively, that plaintiff's product
liability claim must fail as a matter of law because Door Control
was merely a supplier of services in this case.
5 As to the first claim, the court has granted plaintiff's
motion to extend disclosure deadline. Since plaintiff has made a
valid expert disclosure, defendant Door Control's motion for
summary judgment based on failure to disclose an expert is
denied.
Next, Door Control seeks summary judgment on the ground that
it merely repaired the doors, but did not sell any products.
Section 402-A of the RESTATEMENT OF TORTS (SECOND) (1965), which has
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Eaton v . Wal-Mart Stores CV-97-245-SD 07/23/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Catherine Eaton
v. Civil No. 97-245-SD
Wal-Mart Stores, Inc.; Maine Building Specialties Co.; Door Control, Inc.
O R D E R
Plaintiff Catherine Eaton brings this personal injury action
against defendants Wal-Mart Stores, Inc., Maine Building
Specialties Co., and Door Control, Inc., alleging negligence and
strict liability in the operation of an automatic door.
Presently before the court are various pretrial motions.
Background
On May 25, 1996, plaintiff was a patron of defendant Wal-
Mart’s retail store in Seabrook, New Hampshire. As she exited
the store, an automatic door closed on her body, fracturing her
right pelvis and wrist and causing other injuries. Discussion 1. Plaintiff’s Motion for Voluntary Non-suit Without Prejudice
as to Defendant Maine Building Specialties Co. Only (document 17)
Plaintiff has moved for voluntary non-suit without prejudice with respect to defendant Maine Building Specialties Company, which disavowed under oath any relationship whatsoever with the door that allegedly injured plaintiff. Under Rule 41(a)(2), Fed. R. Civ. P., plaintiff’s motion must be and herewith is granted.
2. Plaintiff’s Motion for Leave to Extend the Deadline to
Disclose Liability Expert From March 1, 1998 to April 1 0 , 1998
(document 14)
Plaintiff disclosed her expert witness on April 1 0 , 1998, more than one month after the agreed-upon March 1, 1998, disclosure deadline. Plaintiff then moved to extend the disclosure deadline to April 1 0 , 1998. Defendant Door Control initially objected to the motion to extend, but then withdrew its objection. Accordingly, plaintiff’s motion for leave to extend the deadline from March 1, 1998, to April 1 0 , 1998, is granted.
Wal-Mart and Door Control contend that plaintiff’s expert disclosure is insufficient under Rule 26(a)(2)(B), Fed. R. Civ. P., which requires, in addition to a statement prepared and signed by the expert,
2 a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
All this information is necessary for the expert disclosure to be
considered sufficient. Presently, plaintiff's expert disclosure only includes her expert's analysis and findings, but omits the
other necessary information. Thus plaintiff has tendered an
insufficient expert disclosure and is hereby ordered to augment
that disclosure with the necessary information provided for in
Rule 26(a)(2)(B) by August 2 8 , 1998.
3. Wal-Mart Stores, Inc.’s Motion for Summary Judgment
(document 12)
Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Rule 56 ( c ) , Fed. R. Civ. P.;
Lehman v . Prudential Ins. Co. of Am., 74 F.3d 323, 327 (1st Cir.
1996). The court’s function at this stage is not to “weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Stone & Michaud
Ins., Inc. v . Bank Five for Savings, 785 F. Supp. 1065, 1068
3 (D.N.H. 1992) (quoting Anderson v . Liberty Lobby, Inc., 477 U.S.
242, 249 (1986)).
The moving party has the burden of establishing the lack of
a genuine issue of material fact. Finn v . Consolidated Rail
Corp., 782 F.2d 13, 15 (1st Cir. 1986). The court views the
record in the light most favorable to the nonmoving party,
granting all inferences in favor of the nonmoving party. Caputo
v . Boston Edison Co., 924 F.2d 1 1 , 13 (1st Cir. 1991). To
survive summary judgment, the nonmoving party must make a “showing sufficient to establish the existence of [each] element
essential to that party’s case,” Celotex Corp. v . Catrett, 477
U.S. 317, 322-323 (1986), and cannot merely rely on allegations
or denials within the pleadings. LeBlanc v . Great Am. Ins. Co.,
6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 1018
(1994); Anderson, supra, 477 U.S. at 256. When reviewing a
summary judgment motion, "'the question is not whether there is
literally no evidence favoring the non-movant, but whether there
is any upon which a jury could properly proceed to find a verdict in that party’s favor.'" Caputo, supra, 924 F.2d at 13 (quoting
De Arteaga v . Pall Ultrafine Filtration Corp., 862 F.2d 940, 941
(1st Cir. 1988)).
Defendant Wal-Mart argues that plaintiff cannot prove her
allegations of negligence without an expert witness. In support
thereof, defendant cites Maille v . Wal-Mart Stores, Inc., No. 95-
C-00352-WS (N.H. Super. Ct. Jan. 2 4 , 1996), in which the superior
court held that expert testimony is required to show negligence
4 in a case involving electronic doors. However, plaintiff in the present case disclosed the identity of an expert witness on April 1 0 , 1998. Plaintiff’s evidence indicates that defendant Wal-Mart’s electronic exit door may have been malfunctioning and capable of causing injury. Plaintiff also submitted testimony tending to show that Wal-Mart knew or should have known that the electronic doors were malfunctioning. In any event, plaintiff has presented enough expert testimony regarding defendant's negligence that the case cannot be resolved on summary judgment. Accordingly, defendant’s motion for summary judgment is denied.
4. Defendant Door Control's Motion for Leave to Reply to
Plaintiff's Objection to Door Control's Motion for Summary
Judgment (document 19)
The court grants Door Control's motion for leave to reply
and has fully considered its reply in ruling on the motion for
summary judgment.
5. Defendant Door Control's Motion for Summary Judgment
(document 11)
Defendant Door Control moves for summary judgment, claiming
that plaintiff has failed to disclose an expert to support her
liability claims or, alternatively, that plaintiff's product
liability claim must fail as a matter of law because Door Control
was merely a supplier of services in this case.
5 As to the first claim, the court has granted plaintiff's
motion to extend disclosure deadline. Since plaintiff has made a
valid expert disclosure, defendant Door Control's motion for
summary judgment based on failure to disclose an expert is
denied.
Next, Door Control seeks summary judgment on the ground that
it merely repaired the doors, but did not sell any products.
Section 402-A of the RESTATEMENT OF TORTS (SECOND) (1965), which has
been adopted by the New Hampshire Supreme Court, Buttrick v .
Lessard, 110 N . H . 36, 37-38 (1969); see, e.g., Chellman v . S A A B -
Scania A B , 138 N . H . 7 3 , 7 7 , 637 A.2d 148, 150 (1993) ("We adopted
the doctrine of strict products liability as expressed in the
RESTATEMENT (SECOND) OF TORTS § 402-A (1965) in Buttrick v .
Lessard."), "applies to any person engaged in the business of
selling products for use or consumption. It therefore applies to
any manufacturer of such a product, [or] to any wholesale or
retail dealer or distributor . . . ." RESTATEMENT, supra, cmt. f;
see, e.g., Bolduc v . Herbert Schneider Corp., 117 N . H . 566, 569,
374 A.2d 1187, 1189 (1977) ("Persons in the business of selling
products may be held strictly liable in tort . . . . " ) .
Moreover, strict liability can be applied when persons both
provide a product and perform a service. See 63A A M . JUR. 2D §
1302 (1977). A hybrid sales-service transaction can give rise to
a cause of action for strict liability if the sales aspect of the
6 transaction predominates and the service aspect is incidental.
Id. at § 1301. Defendant Door Control admits providing
replacement parts, but argues that its main task was to repair
the doors.
However, the evidence establishes that the sales aspect of
the transaction between Door Control and Wal-Mart predominated
over the repair aspect. Door Control's invoices state that the
company is in the business of providing sales, service, and
rebuilding. In testimony, the president of Door Control, Joe
McCune, Jr., stated that the company is a dealer and
representative for several different automatic door
manufacturers. Attachment to Plaintiff's Objection to Wal-Mart's
Motion for Summary Judgment. Also, the invoices provided by
plaintiff tend to show that Door Control's business depends
predominantly on sales, not service. Id. The invoices provide
that on three service calls to the Seabrook Wal-Mart store, Door
Control billed Wal-Mart a combined $1,609 for parts, but only
$324 for labor. Id. This evidence supports the argument that
the transaction was
predominantly a sale, so Door Control's motion for summary
judgment therefore must be denied.
7 6. Assented-To Motion to Extend Defendants' Expert Disclosure
Deadlines From June 15, 1998 Until August 2 8 , 1998 (document 22)
Defendants' request for a commensurate amount of time to
file their expert disclosures is granted. Defendants' experts
must be disclosed on or before August 15, 1998.
Conclusion To summarize, the court has granted plaintiff's motion for voluntary non-suit regarding defendant Maine Building Specialties Co. (document 1 7 ) . The court also has granted plaintiff's motion for leave to extend deadline to disclose liability expert (document 1 4 ) , but has found that said disclosure is insufficient and has given plaintiff until August 2 8 , 1998, to augment same. Defendants also moved to extend time to disclose their experts (document 2 2 ) ; the motion is granted, and said disclosures are due on or before August 15, 1998. The court has granted Door Control's motion for leave to reply to plaintiff's objection to motion for summary judgment (document 1 9 ) . Finally, the court
8 has denied Wal-Mart's and Door Control's motions for summary
judgment (documents 12 and 1 1 , respectively).
SO ORDERED.
Shane Devine, Senior Judge United States District Court July 23, 1998
cc: Robert I . Mekeel, Esq. George R. Moore, Esq. James C . Wheat, Esq.