Danaher v. Wild Oats Markets Inc.

• Decision Date: 14 March 2011
• Docket Number: Case No. 08–2293–DJW.
• Citation: 779 F.Supp.2d 1198
• Parties: Anne F. DANAHER, Plaintiff,v.WILD OATS MARKETS, INC. et al., Defendants.
• Court: U.S. District Court — District of Kansas

779 F.Supp.2d 1198

Anne F. DANAHER, Plaintiff,

v.WILD OATS MARKETS, INC. et al., Defendants.

Case No. 08–2293–DJW.

United States District Court,D. Kansas.

March 14, 2011.

John G. O'Connor, Robb, Taylor & O'Connor, Kansas City, KS, for Plaintiff.Benjamin H. Fadler, Manz Swanson & Mulhern PC, Bernard T. Schmitt, Kenner Schmitt Nygaard, LLC, Wade Justin Thomas, Abbott, Davidson & Southard, Kansas City, MO, Joseph D. Ryan, Law Offices of Joseph D. Ryan, PC, Highland Park, IL, Jeffrey R. Siegel, Leonard R. Frischer, Frischer & Associates, Chartered, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

DAVID J. WAXSE, U.S. Magistrate Judge.

This matter is before the Court on Defendant Wild Oats Markets, Inc.'s Motion for Summary Judgment and Memorandum in Support of its Motion for Summary Judgment (ECF No. 133). Defendant and Cross–Claim Plaintiff Wild Oats Markets, Inc. (“Wild Oats”) asks the Court to enter summary judgment in its favor on all of Plaintiff's product liability claims based on negligence, gross negligence, strict liability, and breach of implied warranty.

Also pending before the Court is Cross–Claim Defendants Wally's Natural Products, Inc.'s and United Natural Foods, Inc.'s Motion and Memorandum in Support of Their Motion for Summary Judgment (ECF No. 131). Cross–Claim Defendants Wally's Natural Products, Inc. (“Wally's”) and United Natural Foods, Inc. (“United”) ask the Court to enter summary judgment in their favor on Wild Oats' claims for indemnification against them.

For the reasons explained below, the Court will consider the summary judgment motions, and Plaintiff's responses thereto, together.

I. BACKGROUND

This is a negligence/product liability action in which Plaintiff alleges that she sustained an injury to her ear while using an ear candle. According to Plaintiff, she purchased two ear candles from Wild Oats and then hired Defendant Karen Kenney (“Kenney”) to perform an ear candling procedure utilizing the ear candles purchased from Wild Oats. Plaintiff contends that during the ear candling procedure, which took place on June 30, 2006, she suffered a burn to her right inner ear, which caused damage to her ear and resulted in hearing loss. Wild Oats has asserted cross-claims against Wally's (the alleged manufacturer of the ear candle) and United (the alleged distributor of the ear candle) for indemnification.¹

Wally's and United move for summary judgment on Wild Oats' claims for indemnification against them. They explain in their motion that if they can prove that Wild Oats is entitled to summary judgment on Plaintiff's claims against Wild Oats, then they are entitled to summary judgment on Wild Oats' claims for indemnification against them. Wally's and United thus devote all of their summary judgment motion to arguing that Wild Oats is entitled to summary judgment on Plaintiff's claims against Wild Oats. A review of the two motions for summary judgment reveals that they are very similar, in both the lists of allegedly uncontroverted facts as well as their arguments. Plaintiff noted these similarities in her response to Wild Oats' motion for summary judgment: “The issues raised by [Wild Oats'] motion are largely identical to those raised by Cross–Claim Defendants Wally's Natural Products and United Natural Foods, and Plaintiff would therefore adopt and incorporate her response to that motion.” ²

Given the significant similarities, both in the alleged material, uncontroverted facts and in the arguments, between the motions for summary judgment filed by Wild Oats and Wally's and United, and given that Plaintiff incorporated her responses to the motions, the Court finds it is appropriate to consider the two motions together. The Court will refer to Wild Oats, Wally's and United collectively as “the moving parties.”

II. SUMMARY JUDGMENT STANDARD ³

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it “is entitled to judgment as a matter of law.” ⁴ In applying this standard, the court views the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the nonmoving party.⁵ “An issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” ⁶ “An issue of fact is ‘material’ if under the substantive law it is essential to the proper disposition of the claim.” ⁷ When examining the underlying facts of the case, the Court is cognizant that all inferences must be viewed in the light most favorable to the nonmoving party ⁸ and that it may not make credibility determinations or weigh the evidence.⁹

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. ¹⁰ In attempting to meet that standard, a moving party that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the moving party need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.¹¹ In such cases, “[t]he moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” ¹²

If the moving party carries this initial burden, then the nonmovant that would bear the burden of persuasion at trial may not simply “rest upon his or her pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which he or she carries the burden of proof.” ¹³ To accomplish this, “sufficient evidence [ ] pertinent to the material issue [ ] must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” ¹⁴

Finally, the court notes that summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” ¹⁵

Because jurisdiction over this matter is based on diversity of citizenship between the parties, the court will apply the substantive law of the forum state.¹⁶ The parties agree that Kansas law governs this dispute. Thus, in resolving the motions for summary judgment, the Court will apply Kansas law.

III. EVIDENTIARY ISSUES

The parties raise several evidentiary issues in their briefing on the summary judgment motions. These issues concern the Affidavit of Margot Roth, and two letters that appear to be from the Food and Drug Administration (“FDA”), one dated November 18, 1998, and the other dated February 17, 2010. The Court will address each of these issues below.

A. Affidavit of Margot Roth

In support of their motions for summary judgment, the moving parties rely on the Affidavit of Margot Roth (the “Roth Affidavit”). The Roth Affidavit provides, in pertinent part:

The affiant, Margot Roth, being duly sworn upon oath, states and deposes as follows:

1. If called as a witness, I could competently testify to the matters set forth in this affidavit.

2. I am Global Director of Risk Management for the subsidiaries of Whole Foods Market, Inc., including but not limited to, Wild Oats Markets, Inc. (hereinafter “Wild Oats”).

3. I have been the Global Director of Risk Management for approximately ten years.

4. In my duties as the Global Director of Risk Management, I am responsible for and participated in the review of claims involving Wild Oats.

Ms. Roth then goes on to make claims that Wild Oats lacked knowledge of any defect of the ear candle and that Wild Oats did not design or manufacture the ear candle that injured Plaintiff.

Under Fed.R.Civ.P. 56(e), “[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” ¹⁷ Plaintiff argues that the Roth Affidavit relied upon by the moving parties is not admissible because it is not based on personal knowledge. According to Plaintiff, Ms. Roth is the Global Director of Risk Management for Whole Foods Market, Inc., which is a successor entity to Wild Oats. Plaintiff claims that Wild Oats was not acquired by Ms. Roth's employer, Whole Foods Market, Inc., until 2007, which was four years after Wild Oats sold the ear candle to Plaintiff. Plaintiff thus argues that the Roth Affidavit does not demonstrate that it is based on Ms. Roth's personal knowledge.

The moving parties do not defend Plaintiff's allegations. Instead, they state that the Roth Affidavit speaks for itself and defends itself and therefore nothing else needs to be added in defense of the Roth Affidavit.

The Court has considered the Roth Affidavit and concludes that, on its face, it is not shown to be based on personal knowledge. Indeed, nothing in the Roth Affidavit claims that it is based on personal knowledge. Rather, Ms. Roth simply averred that if called as a witness, she would “competently testify” to the matters set forth in the Roth Affidavit. This does not equate to a declaration that the Roth Affidavit is based on personal knowledge. In addition, the Roth Affidavit does not explain how it is that Ms. Roth has personal knowledge of the matters sworn to in the affidavit. In short, the Roth Affidavit does not provide sufficient information which would allow the Court to conclude that it is based on personal knowledge. Consequently, the Court concludes that the Roth Affidavit does not satisfy the Rule 56(e) requirements, and the Court will not consider the Roth Affidavit in support of Plaintiff's oppositions to the motions for summary judgment. In so concluding, the Court need not determine whether Plaintiff's allegations concerning the acquisition of Wild Oats in 2007 by Whole Foods Market, Inc. are true. ¹⁸

B. The Letters

Plaintiff relies on two...