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Major v. Security Equipment Corp.

Supreme Court of Idaho, Boise

August 27, 2013

Billie Jo MAJOR, an individual, Plaintiff-Appellant,
v.
SECURITY EQUIPMENT CORPORATION, a Missouri corporation, Defendant-Respondent.

Page 1226

Jones, Swartz, PLLC, Boise, for appellant.

Darwin L. Overson argued.

Greener, Burke, Shoemaker, Oberrecht, PA Boise, for respondent.

Christopher C. Burke argued.

BURDICK, Chief Justice.

This appeal arises from the Ada County district court's decisions regarding a products liability claim between Billie Jo Major and Security Equipment Corporation (SEC). Major brought an action against SEC alleging that the company failed to provide adequate warning to her employer, the Idaho Department of Corrections (IDOC), on the risks of its oleoresin capsicum (OC) pepper spray. Major alleged that the use of the spray in a training exercise worsened existing bronchial difficulties and caused her permanent injury. On July 19, 2011, the district court granted partial summary judgment to SEC on the grounds that Major failed to create a material issue of fact on whether her injuries were a known or foreseeable risk

Page 1227

prior to March 2008, the date of sale to IDOC. In a motion to reconsider, Major submitted a second affidavit from her expert, Dr. Yost, which was declared a sham affidavit by the district court in its denial of the motion. The district court later granted summary judgment to SEC on the sole remaining issue, the viability of Major's claim under the Federal Hazardous Substances Act (FHSA). We vacate the judgment of the district court and remand for proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Billie Jo Major was employed by IDOC beginning in July 2004. Major was assigned to the Idaho Maximum Security Institution from July 2004 to July 2006 and from August 2007 to March 2008. She worked at the South Boise Women's Correctional Facility in the interim. According to Major, she suffered periodic bouts of respiratory illness before and during her employment at IDOC. While employed at IDOC, Major participated in several training exercises that involved exposure to pepper spray.

Pertinent to this action is the training that occurred on March 3, 2008, where Major was exposed to spray from SEC's MK-9 Fogger pepper spray. The MK-9 Fogger produces a widely dispersed aerosol designed to irritate and inflame the respiratory tract. During the training, bursts of pepper spray were sprayed into a jail cell before trainees would enter to experience the effects of the aerosol. The training lasted approximately two and a half hours. Major alleges that when the training took place she was on light duty and suffering from bronchitis. After the training, Major states that her respiratory problems worsened and she developed a chronic cough. According to Major, her health issues prevented her from working, caring for herself, or engaging in other activities.

Major filed a complaint against SEC on February 24, 2010, that contained three causes of action. Major alleged that: (1) the MK-9 Fogger spray was unreasonably dangerous, the proximate cause of her injuries, and SEC was subject to strict product liability; (2) that the spray's labeling did not provide adequate warnings or instructions for safe use and; (3) SEC breached express warranties to the consumer.

On April 22, 2011, SEC filed a motion for summary judgment on the grounds that Major would be unable to present evidence that SEC knew or should have known of the pepper spray's dangers. Major filed a cross motion for partial summary judgment on June 10, 2011. Major's cross motion contained an affidavit from Dr. Garold Yost, a professor of pharmacology and toxicology. Dr. Yost's affidavit stated that SEC's pepper spray caused Major " to suffer acute adverse health responses and greatly exacerbated her underlying respiratory diseases." SEC filed a motion to strike portions of Dr. Yost's affidavit, which was heard with the cross motions for summary judgment in a hearing on July 14, 2011.

After hearing argument on the motions, the district court issued its Order Re: Pending Motions for Summary Judgment and to Strike Affidavit of Garold Yost. In it, the district court granted SEC's motion for summary judgment on the grounds that Major failed to show a genuine issue of fact regarding chronic injury that resulted from exposure to the pepper spray. The district court also denied Major's cross motion for summary judgment and SEC's motion to strike Dr. Yost's affidavit. The district court did not decide the issue of whether Major has any viable claim under the FHSA.

SEC filed its second motion for summary judgment for the FHSA issue on July 22, 2011. On July 26, 2011, Major filed a motion and memorandum for reconsideration of the district court's summary judgment order. The motion was supported by a second affidavit of Dr. Yost. In response, SEC filed a motion to strike portions of Dr. Yost's second affidavit on the grounds that it directly contradicts the doctor's deposition testimony without explanation. A hearing on these three motions was heard on September 15, 2011. After hearing argument from the parties, the district court granted SEC's second motion for summary judgment and its motion to strike Dr. Yost's second affidavit, and denied Major's motion for reconsideration.

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The district court struck Dr. Yost's second affidavit on the grounds that the second affidavit contradicted the expert's deposition testimony without explanation and denied the motion for reconsideration because it was based on this affidavit.

SEC filed a motion for clarification on September 20, 2011, to determine whether any of Major's issues survived the two grants of summary judgment. Specifically, SEC sought clarity on whether a claim for Major's acute injuries had survived. The district court treated this as a motion for summary judgment. On October 4, 2011, Major filed a second motion for reconsideration on the issue of whether a material issue of fact exists as to the foreseeability of acute injury. Argument on these motions was heard on October 17, 2011. The district court concluded that the undisputed facts in the record led to only one conclusion, that the pepper spray's warning label provided an adequate notice to Major regarding the acute effects of the spray. On these grounds, the district court granted summary judgment to SEC and denied Major's second motion for reconsideration. A final judgment pursuant to these orders was issued on October 20, 2011. Major filed a third motion for reconsideration accompanied by a third affidavit from Dr. Yost, which was denied by the district court. Major timely filed a notice of appeal with this Court on November 23, 2011.

II. ISSUES ON APPEAL

1. Whether the district court erred by granting summary judgment to SEC.
2. Whether the district court erred by striking Dr. Yost's second affidavit as a sham affidavit.
3. Whether either party is entitled to attorney fees and costs on appeal.

III. STANDARD OF REVIEW

When reviewing an order for summary judgment, the standard of review for this Court is the same standard as that used by the district court in ruling on the motion. Summary judgment is appropriate if " the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). Disputed facts should be construed in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party.

Fuller v. Callister, 150 Idaho 848, 851, 252 P.3d 1266, 1269 (2011) (quoting Castorena v. Gen. Elec., 149 Idaho 609, 613, 238 P.3d 209, 213 (2010)). " However, the nonmoving party cannot rely on mere speculation, and a scintilla of evidence is insufficient to create a genuine issue of material fact." Bollinger v. Fall ...


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