Glenn v. B & R Plastics, Inc.
| Decision Date | 17 July 2018 |
| Docket Number | No. 1:16-CV-00508-MWB,1:16-CV-00508-MWB |
| Citation | 326 F.Supp.3d 1044 |
| Court | U.S. District Court — District of Idaho |
| Parties | Shirley GLENN and William Glenn, wife and husband, Plaintiffs, v. B & R PLASTICS, INC., a Colorado corporation; and John Does I–X, Defendants. |
Matthew R. Comstock, David E. Comstock, Law Offices of Comstock & Bush, Boise, ID, for Plaintiffs.
Stephen R. Thomas, Peter Eugene Thomas, Hawley Troxell Ennis & Hawley LLP, Boise, ID, for Defendants.
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.
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.
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.
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.
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...
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