Scott v. Dorel Juvenile Group Inc.

• Citation: 773 F.Supp.2d 664
• Decision Date: 07 March 2011
• Docket Number: Civil Action No. 3:09–CV–0799–K.
• Parties: DeLain SCOTT, Individually and as Next Friend for K.A., Plaintiffs,v.DOREL JUVENILE GROUP, INC., and S.C. Johnson & Son, Inc., Defendants.
• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas

773 F.Supp.2d 664

DeLain SCOTT, Individually and as Next Friend for K.A., Plaintiffs,

v.DOREL JUVENILE GROUP, INC., and S.C. Johnson & Son, Inc., Defendants.

Civil Action No. 3:09–CV–0799–K.

United States District Court, N.D. Texas, Dallas Division.

March 7, 2011.

John Dale Sloan, Jr., Laureen Furey Bagley, Sloan Bagley Hatcher & Perry Law Firm, Longview, TX, Kirk L. Pittard, Durham & Pittard LLP, Dallas, TX, Patrick Karl Short, Law Firm of Patrick Short, Rockwall, TX, for Plaintiffs.Anthony A. Avey, Jeremy Robert Sloan, Prichard Hawkins McFarland & Young LLP, San Antonio, TX, Daniel C. Steppick, Shipman Steppick PC, Denton, TX, Jonathan Judge, Matthew G. Schiltz, Schiff Hardin LLP, Chicago, IL, Paul D. Schoonover, Kleiman Lawrence Baskind & Fitzgerald LLP, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

ED KINKEADE, District Judge.

Before the court is Defendant Dorel Juvenile Group, Inc. (“Dorel”)'s Motion for Summary Judgment, filed July 27, 2010, and Defendant Dorel Juvenile Group, Inc.'s Objections to Evidence Submitted in Support of Plaintiff's Response to Defendant Dorel Juvenile Group, Inc.'s Motion for Summary Judgment, filed September 2, 2010. After consideration of the motion, response, reply, summary judgment record, and the applicable law, the court grants Dorel's Motion for Summary Judgment. Dorel's objections related to certain portions of Bobbie Scott's declaration are sustained, and the remaining objections are overruled.

I. Factual and Procedural Background

The facts set forth herein are largely undisputed, however, where they are disputed they are presented in the light most favorable to Plaintiff. This product liability case arises from an accident that occurred on April 12, 2007. Plaintiff DeLain Scott and her mother Bobbie Scott were preparing dinner in the kitchen of Bobbie Scott's home. K.A., Plaintiff's then–11 month old daughter, was also in the kitchen. Plaintiff and Bobbie Scott both lost sight of K.A. for 30–60 seconds, and then discovered her foaming at the mouth, with an open container of Drano Kitchen Crystals on the floor beside her. Because she ingested the crystals, K.A. has suffered severe and permanent injuries to her mouth and pharyngeal region.

Prior to the accident, Bobbie Scott installed a “Safety 1st” brand spring latch manufactured by Dorel on the kitchen cabinet where the Drano Crystals were stored. The Safety 1st latches can be used with or without a catching device. Scott installed the latch without using the catching device included with it. Scott's testimony is that she purchased the latch approximately five or six months before the accident. Bobbie Scott installed the latch without difficulty, and states that it seemed to be working properly up until the time of the accident.

Bobbie Scott testified in her deposition that she did not read the instructions or warnings on the back of the package prior to installing the latch, because she thought she could just figure out how to install it on her own. In a subsequently-filed declaration, Bobbie Scott's story is altered. She still acknowledges that she did not read the instructions and warnings in 2006, but states that she “believes” she read the warnings on a package of latches she installed on the cabinets of a prior residence in 2002. Although Bobbie Scott states that she was looking to purchase the same latches when she went shopping for them in 2006, her declaration does not establish that the latches she purchased in 2002 actually were the same “Safety 1st” latches she purchased and installed in 2006. Moreover, the court finds her later-filed declaration to be inconsistent with her previous deposition testimony. In her deposition she merely stated that she did not read the instructions and warnings in 2006 because she thought she could just figure out how to install the latches. She did not state that she did not read the instructions and warnings because she had already read them in 2002.

The warnings that Bobbie Scott did not read prior to installing the latches at issue in 2006 state that: the spring latch is only a deterrent, and not a substitute for adult supervision; the latch should be discarded when a child becomes old enough to defeat it; and that toxic and dangerous substances as well as sharp edges or pointed objects should always be placed high up or totally inaccessible to small children. Bobbie Scott is not aware of any false representations or statements made to her by Dorel.

Neither Plaintiff nor Bobbie Scott had any problems with the functioning of the spring latch prior to the accident. They never saw K.A. operate the spring latch prior to that night, and believed at that time that she was incapable of doing so. On the night of the accident, no one saw K.A. operate or overcome the latch, and no witness saw her access the Drano crystals. Bobbie Scott discarded the latch following the accident. Therefore, the actual latch involved is not in evidence, and has not been examined by any of the experts engaged by the parties in this case. Plaintiff's engineering expert, John Scates, is unable to testify with any degree of certainty how K.A. actually accessed the cabinet. However, he contends that the design of the latch system is defective because the upslope on the levers was too great, and because it can be installed without a catch piece. Although Scates offers additional opinions related to the use of the latches with a catch piece, it is undisputed that Bobbie Scott did not use a catch piece when she installed the latch at issue. Scates does not contend that the latch did not comply with relevant governmental standards.

Plaintiff brought suit in state court against Dorel and S.C. Johnson & Son, Inc. (the manufacturer of the Drano crystals) in April 2009, bringing claims against both Defendants individually and on behalf of K.A. Defendants eventually removed the case to this court, and Dorel now moves for summary judgment on all of Plaintiff's claims.

II. Dorel's Objections to Plaintiff's Summary Judgment Evidence

Dorel has lodged numerous objections to Plaintiff's summary judgment evidence. Many of those objections are related to the lack of verification and authentication by Plaintiff of her summary judgment proof. Although the court previously denied Plaintiff's motion to supplement her summary judgment proof to provide the needed verifications, it now finds that the inclusion of this information in the summary judgment record does not alter the court's determinations regarding the viability of Plaintiff's claims against Dorel. Accordingly, the court hereby vacates its order denying Plaintiff's Motion for Leave to file her second amended summary judgment response, and instead hereby orders that the motion is granted.

However, Dorel's objections regarding Bobbie Scott's inconsistent statements in her declaration are sustained. Finally, the court has reviewed the remaining evidentiary objections, and even if the court considers the evidence Dorel objects to, it reaches the same conclusions with respect to Dorel's summary judgment motion. The balance of Dorel's objections are overruled.

III. Summary Judgment Standard

Summary judgment is appropriate when the pleadings, affidavits and other summary judgment evidence show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551, 91 L.Ed.2d 265 (1986). The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322–25, 106 S.Ct. at 2551–54. Once a movant makes a properly supported motion, the burden shifts to the nonmovant to show that summary judgment should not be granted; the nonmovant may not rest upon allegations in the pleadings, but must support the response to the motion with summary judgment evidence showing the existence of a genuine fact issue for trial. Id. at 321–25, 106 S.Ct. at 2551–54; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255–57, 106 S.Ct. 2505, 2513–14, 91 L.Ed.2d 202 (1986). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

IV. Dorel's Motion for Summary Judgment

In accordance with the above standards for summary judgment, Dorel asserts that there is no genuine issue of material fact whether Plaintiff should be allowed to recover on her claims against it, and thus Dorel is entitled to judgment as a matter of law. The court analyzes each of Plaintiff's claims as follows:

A. Marketing Defect/Failure to Warn

Plaintiff contends that Dorel failed to provide adequate warnings that the danger of storing hazardous chemicals in their cabinets is not completely eliminated by the use of its latches. Plaintiff also states that Dorel did not warn that when installed without a catch, the latches are not nearly as effective in preventing a child from gaining access to a cabinet as they are when they are installed using a catch piece.

“[A] marketing defect occurs when a defendant knows or should know of a potential risk of harm presented by a product but markets it without adequately warning of the danger or providing instructions for safe use.” Wright v. Ford Motor Co., 508 F.3d 263, 274–75 (5th Cir.2007), citing Sims v. Washex Machinery Corp., 932 S.W.2d 559, 562 (Tex.App.-Houston [1st Dist.] 1995, no writ). To sustain a marketing defect claim, a plaintiff must show: 1) a risk of harm inherent in the product or which may arise from the intended or reasonably anticipated use of the product; 2) the product supplier actually knew or should have reasonably foreseen the risk of harm at the time the product was marketed; 3) the product contains a marketing defect; 4) the absence of a warning renders the product unreasonably...