Smith v. Union Tools, Inc.

• Court: Superior Court of Maine
• Decided: March 17, 2017
• Docket: CUMcv-16-93
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKETNO. CV-16-93

JEFFREY SMITH,

Plaintiff v. ORDER STrffF '"'c:- MAINE ·~.~~ Cumb,... · :'lerk's Office

!•, . ·. 'j 7 I, ..:· , I L "0~7I UNION TOOLS INC., et al., . . . Vr- D Rt:. . . .'-"-, Cl ! t: Defendants

Before the court is a motion for summary judgment by defendants UnionTools Inc. and

the Ames Companies Inc. (collectively "UnionTools").

Surrunary judgment should be granted if there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law. In considering a motion for

summary judgment, the court is required to consider only the portions of the record referred to

and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil,

2002ME991 8, 800 A.2d 702. The facts must be considered in the light most favorable to the

non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be

resolved against the movant. Nevertheless, when the facts offered by a party in opposition to

summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment

as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ,r

8, 694 A.2d 924.

In this case summary judgment turns on whether plaintiff Jeffrey Smith has controverted

the factual assertions in the statement of materials fact submitted by UnionTools by offering

expert opinions that were not previously designated and should therefore be disregarded.

Smith's complaint alleges that he was injured "by a defective wheel barrel" [sic]

manufactured by UnionTools. Complaint ~1 1~2. It is now understood that "wheel barrel" should

have read "wheelbarrow," but the term "wheel baiTel" is repeated throughout the complaint. Id.

~~ 1-3, 7, 9-10, 12, 16-21 , 23-25, 27-28, 30, 34-39, 41-43. Only one paragraph in the complaint contains an allegation as to how Smith was injured, and that merely states that the "wheel barrel

wheel" exploded while Smith was inflating the tire. Id. 13.

At his deposition on July 7, 2016 Smith testified that he had removed the wheel from the

wheelbarrow to replace a flat tire. After he had put a new tire on the wheel, he was in the process

of inflating the new tire "when the tire just blew up. It just exploded like there was a stick of

dynamite in it." Smith Dep. 72 (emphasis added). Smith further testified that immediately

afterward, the wheel separated and half of the wheel struck his right hand and seriously injured

two·ofhis fingers. SmithDep. 75~76.

In August 2016, subsequent to Smith's deposition, counsel for Smith provided a second

amended designation of expert witnesses. In addition to medical providers, counsel for Smith

designated Patrick Chevalier to offer opinions that the welding of the wheel was defective and

should not have come apart. 1 Chevalier's designation did not state that the improper welds were

the cause of the separation of the wheel that caused Smith's injuries.

The summary judgment motion by UnionTools relied on Smith's testimony that the tire

blew up and the absence of any designated opinion as to causation from Chevalier, particularly

the absence of any opinion tying the explosion of the replacement tire (not manufactured by or

purchased from defendants) to Smith's injuries. In response, Smith asserted that he is actually

alleging that it was the wheel, not the tire, that failed. Smith also submitted an affidavit from

Chevalier that repeated his prior criticisms of the welding and added the following opinions: ( 1)

the improper welds failed to adequately join the two halves of the wheel and that failure caused

the separation of the wheel that caused injury to Smith; (2) properly welded wheels would not

separate at nonnal and expected pressures; and (3) the tire would explode long before the air

pressure would have been great enough to cause a separation of the wheel if the wheel had been

properly welded. November 10, 2016 Chevalier Affidavit ~13-5.

1 With respect to plaintiff's expert designations, the record contains only the second amended designation from August 2016 and does not reveal what may have been disclosed about Chevalier's anticipated testimony in any prior designation.

2 UnionTools argues that the Chevalier affidavit offers new opinions that were not properly

designated and should therefore be disregarded. See Estate ofSmith v. Salvesen, 2016 ME 100 ~1

15-16, 143 A.3d 780. The court agrees that the Chevalier affidavit offers new opinions and

significantly elaborates on Chevalier's existing opinions. However, even if the Chevalier

affidavit were to be disregarded, the court concludes that there is sufficient evidence in the

record to generate a disputed issue for trial as to causation.

Although he testified that the "tire" blew up, Smith testified at his deposition that the

injury to his hand was caused by the half of the wheel that separated while he was inflating the

new tire. Given the proposed opinion in Chevalier's expert designation - repeated in his affidavit

- that the welding was defective and the wheel should not have come apart, a jury would be

entitled to infer that the defective weld caused Smith's injuries. This follows from the rule that

on a motion for summary judgment, all inferences should be drawn in favor of the party

opposing summary judgment.

At the same time, the court recognizes that Smith's testimony that 'the tire just blew up"

may have misled UnionTools as to the alleged mechanism of injury and that Chevalier's affidavit

significantly expands on his prior designation and offers new opinions. Counsel for UnionTools

chose not to depose Chevalier) apparently in reliance on Smith's testimony, on Chevalier's

August 2016 designation, and on the absence of any express causations opinion. If UnionTools

now wishes to reopen discovery in order to depose Chevalier and/or to supplement its own

expert designations or if UnionTools seeks other relief, counsel shall promptly request a Rule

26(g) conference.

The entry shall be:

1. Defendants' motion for summary judgment is denied.

2. If defendants seek to reopen discovery or other relief in light of the new infonnation provided in Chevalier's affidavit, a Rule 26(g) conference shall be promptly scheduled.

3. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

3 Dated: March _r]__, 201 7 Thomas D. Warren Justice, Superior Court