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Glenn v. B&R Plastics, Inc.

United States District Court, D. Idaho

July 17, 2018

SHIRLEY GLENN and WILLIAM GLENN, wife and husband, Plaintiffs,
v.
B & R PLASTICS, INC., a Colorado corporation; and JOHN DOES I - X, Defendants.

          OPINION AND ORDER REGARDING PLAINTIFFS' MOTION TO AMEND COMPLAINT, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY

          MARK W. BENNETT U.S. DISTRICT COURT JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 3

         A. Factual Background ............................................................... 3

         1. The parties ................................................................... 3

         2. The accident ................................................................. 4

         3. The liability experts' opinions ............................................ 5

         B. Procedural Background ........................................................... 8

         1. The Complaint and the Answer .......................................... 8

         2. The pending motions ...................................................... 9

         II. LEGAL ANALYSIS ...................................................................... 10

         A. B&R's Daubert Motion ......................................................... 10

         1. Arguments of the parties ................................................ 11

         2. Applicable standards ..................................................... 13

         3. Application of the standards ........................................... 17

         B. Summary Judgment .............................................................. 20

         1. Scope of the motion ...................................................... 20

         a. Arguments of the parties ....................................... 21

         b. Discussion ......................................................... 21

         2. Summary judgment standards ......................................... 26

         3. The breach of warranty claims ........................................ 28

         4. Failure to establish prima facie claims of products liability ...................................................................... 30

         a. The elements in dispute ......................................... 30

         b. Abnormal use ..................................................... 31

         i. Arguments of the parties ............................... 31

         ii. Discussion ................................................. 33

         c. Reasonable secondary causes .................................. 34

         i. Arguments of the parties ............................... 34

         ii. Discussion ................................................. 36

         5. Insufficient evidence ..................................................... 39

         a. Arguments of the parties ....................................... 40

         b. Discussion ......................................................... 41

         C. Punitive Damages ................................................................ 48

         III. CONCLUSION ............................................................................ 48

         This case arises from an elderly woman's fall while using an allegedly defective plastic stepstool to reach an item on a shelf in an upper cabinet in her kitchen. The injured woman seeks damages for her injuries from the manufacturer of the stepstool on theories of products liability and breach of warranties, and her husband seeks damages for loss of consortium. The plaintiffs now seek leave to amend their complaint to assert a claim for punitive damages, while the defendant seeks summary judgment on the plaintiffs' claims and exclusion of the testimony of the plaintiffs' liability expert.

         I. INTRODUCTION

         A. Factual Background

         This statement of the factual background does not necessarily set out all the parties' factual allegations in support of and resistance to the pending motions. Rather, it focuses on the key facts to put in context the parties' arguments on those motions. Unless otherwise indicated, the following facts are undisputed.

         1. The parties

          The plaintiffs in this action are Idaho citizens Shirley Glenn and her husband, William Glenn. Defendant B&R Plastics is a Colorado corporation not licensed to do business in Idaho. B&R manufactures, inspects, and markets certain plastic housewares, including the 9-inch “E-Z Foldz Folding Step Stool” (stepstool) at issue in this case.

         Mrs. Glenn is 76 years old, 5 feet 2 inches tall, and weighed about 100 lbs. at the time of her accident on December 3, 2014. She contends that, prior to the accident, she was in good health and was able to walk up to two miles per day. In contrast, B&R contends that Mrs. Glenn had a “complex” prior medical history, including arthritis in her right knee and lower back, asthma, osteoporosis, and injuries from a motorcycle accident in 2009. B&R argues that Dr. Ronald Kristensen, an orthopedic surgeon, who performed an “independent” medical examination of Mrs. Glenn and studied her records, opines that Mrs. Glenn's medical history shows that she was “at high risk” for a dizzy or syncopal (fainting) episode at the time of the accident, because of recent diarrhea, which can cause dehydration, hypotension, and dizziness; because she was also taking several medications known to cause dizziness and/or low blood pressure; and because of what Dr. Kristensen opines is “a history of seizure disorder.”

         Mrs. Glenn does not recall ever being diagnosed with epilepsy or a seizure disorder and denies experiencing any “dizziness, lightheadedness, vertigo or any other concerning signs or symptoms” when being treated at St. Luke's Hospital on the day of the accident. She asserts that the last time she fell was approximately fifteen years ago. She also contends that her treating physician and non-retained expert, Dr. Michael T. Daines, also an orthopedic surgeon, can corroborate that her medical records from December 3, 2014, lack any indication that dizziness caused her fall. She also points out that Dr. Daines believes that an internal medicine specialist can comment more properly on the potential impact of her general medical history than an orthopedic surgeon, such as Dr. Kristensen.

         2. The accident

         The parties apparently agree that Mrs. Glenn bought the folding stepstool, made by B&R, on which she was standing just before her accident, for $9.99 from Walmart in 2005. She used the stepstool in her home kitchen once or twice a week, opening it each time, then closing it, and storing it in the pantry behind the door. She had never previously had problems or incidents with the stepstool and it had never malfunctioned, been damaged, slipped, or broken. When purchased, the stepstool had two or three warning decals, which Mrs. Glenn testified she read and heeded. Raised plastic letters at each end of the stepstool, still readable, state, “Always lock before use.” Mrs. Glenn stated that her usual procedure was to take out the stepstool, set it down, make sure the sides were locked out, then “[t]ake it, the top, push it down, make sure it's locked good.” At the time of the accident, two of the four guide- and locking-tabs on the stepstool were broken, and all four of the vinyl adhesive “feet” were missing. However, prior to the accident, Mrs. Glenn did not know of these problems with the stepstool or how they occurred. Mrs. Glenn stated that she only used the stepstool on smooth hard surfaces.

         On December 3, 2014, about 1:00 or 1:30 p.m., Mrs. Glenn attempted to get a 5-or 6-pound ceramic bowl from a shelf in her kitchen cabinet about 7 feet above the floor. She got out the stepstool, placed it on the hickory hardwood floor about 6 inches from the base of the counter under the cabinet, opened the stepstool, and made sure its sides were locked. She testified that she stood on the stepstool, flat-footed, evenly distributing her weight and not shifting it, and without leaning against the counter. As she reached up and touched the bowl, however, she suddenly found herself on the floor. She had not heard any noises before her fall or noticed any indications of instability of the stepstool. The stepstool was broken in pieces, and the parties now agree that Mrs. Glenn fell on it, breaking it, rather than the stepstool breaking first and causing Mrs. Glenn to fall, but Mrs. Glenn did not know that at the time of the accident.

         3. The liability experts' opinions

         The Glenns' liability expert, Dr. Robert Stephens, is a mechanical engineer and professor of mechanical engineering, who specializes in fatigue and fracture of metals. As mentioned, above, B&R seeks exclusion of Dr. Stephens's testimony.

         Dr. Stephens was retained to identify the mechanism of failure and to evaluate the stepstool from a mechanics and materials standpoint. He has never designed stepstools, and this is his first case involving a 9-inch plastic stepstool. He did not interview the Glenns prior to rendering his opinions, but relied on their depositions, instead. He also did not review Mrs. Glenn's medical records, interview her treating physician, Dr. Daines, read any witness interviews, inspect the scene of the accident, or learn the height of the cabinet or counter near which the accident occurred. Dr. Stephens did not do a direct accident reconstruction or use computer software for accident reconstruction. He did, however, inspect the stepstool in July 2015.

         B&R points out that Dr. Stephens first did what B&R calls undocumented “extreme standing” tests with an exemplar stepstool. Dr. Stephens admits that these initial undocumented tests were unscientific and characterized them as “playing around, ” but he said in his deposition that he did not want to call them “extreme.” He did not photograph these initial tests, measure forces, or document them in any way, and B&R points out that he admitted that he intentionally did not do so to avoid cross-examination on this sort of accident reconstruction process. Dr. Stephens explained that these undocumented tests involved stepping on one edge of the stepstool, then another, and purposely trying to kick out the stepstool from under him. Dr. Stephens is 5 feet 9 inches tall and weighs 170 lbs., so that he is both taller and heavier than Mrs. Glenn was at the time of the accident. Dr. Stephens did these undocumented tests some thirty or forty times on the vinyl floor in his kitchen, not on a hickory hardwood floor like the one in the Glenns' kitchen. The undocumented tests dealt primarily with tipping, not sliding, and tipping turned on where Dr. Stephens positioned his feet on the stepstool and the location of the lateral force, specifically, whether he was pushing on the wall, on the counter, or on the cabinet. Dr. Stephens explained that he succeeded in kicking the stepstool out from under him, but the distance it traveled varied with the way in which and the location where he applied forces. He did not collect data on the direction of the stepstool's travel, where it came to rest, or the amount of force he had applied in each repetition. Dr. Stephens contends that he did not rely on these undocumented tests in reaching his opinions, but B&R disputes that.

         Dr. Stephens did a documented coefficient of friction test, which showed that some 17 to 19 pounds of horizontal/lateral force would be required to cause the stepstool to slide sideways while vertically loaded with 119 lbs. The Glenns clarify that Dr. Stephens also concluded that 15 lbs. of horizontal/lateral force would be required to shift, tip, or slide the stepstool with a 100 lb. load, which is what Mrs. Glenn weighed at the time of her accident. Dr. Stephens hypothesizes that, to create that lateral force, Mrs. Glenn was pushing on the counter and/or pushing on the cabinet. He adds that reaching up and forward necessarily changed Mrs. Glenn's center of gravity, so that lateral forces, not just vertical ones, were at play. He also performed three videotaped tests that show the stepstool sliding, tipping, and buckling, although those videotaped tests did not involve any recording of forces. The Glenns assert, however, that Dr. Stephens explained how to duplicate those tests in his Rebuttal Report.

         From Dr. Stephens's 30 years of mechanical engineering experience, his observations of the subject stepstool and exemplar stepstools, and the tests he performed and documented, he opines, to a reasonable degree of engineering certainty, that “Mrs. Glenn fell because the folding step stool was defective in design.” Dr. Stephens opines that the stepstool had a design defect that focuses on (a) the width and height of the plastic tabs underneath the top of the stepstool, which guide the opening maneuver, and (b) the “feet” material attached to the bottom of each of the four legs. One of Dr. Stephens's proposed alternative designs is the one that B&R actually used in and after 2010, which has strengthened tabs and different material for the “feet.” Dr. Stephens does not criticize the polypropylene material from which the stepstool was made and does not opine that there is a manufacturing defect.

         B&R's expert is Dr. Jericho Moll, a specialist in polymer science and materials chemistry. She conducted tests with 10 exemplar stepstools and modified them to match the stepstool at issue. Through an independent, third-party laboratory, she tested the stepstools with a load of 300 lbs. for five minutes on a level hickory floor. Five stepstools had side panels in the proper fully-locked position, and five were only partially extended, but all passed the test. Dr. Moll agrees with Dr. Stephens that the “feet” had been missing from Mrs. Glenn's stepstool a fair amount of time, but neither expert knows how or when they came off, and whether they came off separately or all at the same time. Dr. Moll opines that the broken tabs and missing feet constituted a “damaged state, ” and the stepstool should not have been used, but she also opines that the missing tabs and feet do not compromise the stated load capacity of the stepstool (300 lbs.) in a manner that would have caused it to break apart or collapse under Mrs. Glenn's weight of approximately 100 lbs.

         Additional factual allegations may be relevant, in the analysis of other specific issues or if I reach the question of whether or not the Glenns should be allowed to amend their Complaint to seek punitive damages. For now, however, I turn to the procedural background of the case.

         B. Procedural Background

         1. The Complaint and the Answer

         The Glenns filed their Complaint against B&R on November 23, 2016, seeking damages on seven causes of action. Their causes of action are the following: (1) “negligence, ” alleging that “B&R negligently failed to remove/recall the defective Original Step Stool from Defendants' distributors” and that “B&R negligently designed, tested, manufactured, inspected, marketed, distributed, and/or promoted the Original Step Stool and its component parts, and failed to exercise reasonable care in designing, testing, manufacturing, inspecting, marketing, distributing, and/or promoting the Original Step Stool and its component part, ” Complaint, ¶¶ 16-17; (2) breach of “express warranty, ” premised on B&R's alleged breach of a warranty that “the Original Step Stool was ‘sturdy' and ‘stable,' that it had a ‘300 lbs. capacity,' that it was meant to be used for reaching items on high shelves in kitchens, that it was fit for the ordinary purposes for which it was marketed, sold, and/or distributed, that it was reasonably safe, that it was merchantable quality, and that it was reasonably fit for the purpose of being stood upon to elevate its user, ” Complaint at ¶ 23; see also Id. at ¶ 26; (3) breach of “implied warranty, ” premised on B&R's alleged breach of warranty that “the Original Step Stool was fit for the ordinary purposes for which it was sold, was reasonably safe, was of merchantable quality, and reasonably fit for the purpose of being stood on to elevate its user, ” Complaint at ¶ 32; see also id. at ¶ 35; (4) “strict liability, ” premised on B&R's alleged designing, testing, manufacturing, inspecting, marketing, distributing, and/or promoting the Original Step Stool, which was “defective and unreasonably dangerous for reasons including, but not limited to, (a) the sidewall tabs, hinges, and ramps of the Original Step Stool as manufactured were not safe for use; (b) the sidewall tabs, hinges, and ramps of the Original Step Stool as manufactured deviated from reasonable design, manufacture and/or performance standards in that they did not provide the stability and support needed by Plaintiff Shirley Glenn; and (c) Defendants failed to warn and/or gave inadequate warnings regarding the hazards of using the product, ” Complaint at ¶ 38; (5) “joint and several liability” of B&R and “Defendant Doe, ” “in accordance with Idaho Code § 6-803(5), ” Complaint, ¶¶ 42-44; (6) “willful and reckless” conduct by B&R, Complaint at ¶¶ 45-49; and (7) “loss of consortium, ” Complaint at ¶¶ 50-51. B&R filed its Answer on February 14, 2017, denying the Glenns' claims and asserting various defenses. On November 17, 2017, B&R filed an Amended Answer asserting two additional statutory defenses.

         2. The pending motions

         On April 26, 2018, the Glenns filed the first motion now before me, their Motion For Leave To Amend Complaint To Include A Claim For Punitive Damages, pursuant to Idaho Code § 6-1604. B&R filed its Opposition to that motion on May 17, 2018, and the Glenns filed their Reply on May 31, 2018. On May 21, 2018, B&R filed the second motion now before me, its Motion For Summary Judgment. The Glenns filed their Opposition on June 11, 2018, and B&R filed its Reply on June 22, 2018, along with additional evidence and objections to some of the Glenns' evidence. On May 25, 2018, B&R filed the third and last motion now before me, its Daubert Motion In Limine To Exclude Engineer Stephens. The Glenns filed their Opposition on June 15, 2018, and B&R filed its Reply on June 29, 2018.

         By Order filed June 1, 2018, I set telephonic oral arguments on these three motions for June 26, 2018. At the oral arguments on June 26, 2018, however, B&R requested that I delay oral arguments on its Daubert Motion until after it had filed its Reply concerning that Motion. Therefore, I heard oral arguments on June 26, 2018, only on the Glenns' Motion To Amend and B&R's Motion For Summary Judgment. I heard separate telephonic oral arguments on B&R's Daubert Motion on July 2, 2018.

         All three motions are now fully submitted.

         Throughout this litigation counsel on both sides have been a pleasure to work with. They have been extremely well prepared, consummate professionals, always demonstrating extraordinary civility with each other and me. They are a model of how lawyers should work to together while still being zealous advocates for their clients. Their depositions are also a model of efficiency with zero ...


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