Eiben v. Gorilla Ladder Co.
| Decision Date | 22 April 2013 |
| Docket Number | No. 11-CV-10298,11-CV-10298 |
| Parties | DOUGLAS EIBEN, Plaintiff, v. GORILLA LADDER COMPANY, TRICAM INDUSTRIES, INC., and THE HOME DEPOT, U.S.A., INC., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Hon. Gerald E. Rosen
MOTION FOR SUMMARY JUDGMENT, MOTION IN LIMINE,
This product liability action is presently before the Court on three motions filed by Defendants Tricam Industries, Inc. and The Home Depot, U.S.A., Inc., specifically (1) Defendants' Motion for Summary Judgment; (2) Defendants' Motion in Limine to bar the opinions of Plaintiff's proffered expert, John Morse, and (3) Defendants' Motion to Strike the Affidavits of John Morse and Plaintiff Douglas Eiben. Plaintiff has responded and Defendants have replied. Having reviewed the parties' briefs in support of, and in opposition to, the various motions, as well as the accompanying exhibits and the remainder of the record, the Court finds that the relevant allegations, facts, and legal issues are sufficiently presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendants' motions "on the briefs." See Eastern District of Michigan Local Rule 7.1(f)(2). This Opinion and Order sets forth the Court's rulings.
On November 3, 2007, Plaintiff, Douglas Eiben ("Eiben"), fell while attempting to descend from the roof of his neighbor's home on a Gorilla Ladder "AL-13" 13-foot articulating ladder.1 The ladder was manufactured by Defendant Tricam Industries, Inc. ("Tricam"), and sold by Defendant Home Depot U.S.A., Inc. ("Home Depot").2 Eiben purchased the ladder in 2003 from Home Depot. See Plaintiff's Dep., Defendant's Ex. 3, p. 14. Eiben testified that he had no conversations with any Home Depot personnel concerning the ladder's purchase. Id. at p. 15. He further testified that he received and read the user's manual that came with the ladder at the time of the purchase, and that he understood, and was not confused by, the instructions and warnings contained in the manual. Id. at pp. 19-20.
The manual sets forth cautionary instructions and specific items of required maintenance. The first page of text of the manual states in large bold-face print, "Failure to read and follow all instructions on this ladder, including those under the steps, may result in injuries or death." See Defendant's Ex. 10. Under the heading of "Maintenance" the manual provides, "Replace inner and outer feet as required to ensure safety." Id. The manual also provides under the heading, "Inspection": "Inspect upon receipt and before each use," and "destroy ladder if broken [or] worn." [See 9/23/11 Expert Report of John Morse, p. 13, Plaintiff's Response Ex. C and Ex. Ato Defendants' Motion in Limine, Dkt # 15-2 Dkt. # 15-2 (incorporated by reference in Defendants' Summary Judgment Brief)]. Additionally, there are a number of warning labels on the ladder itself. Id. One of these labels contains an instruction not to set the ladder up on a slippery surface. Id.
Eiben testified that he used the ladder some 500 times in his work as a heating and air conditioning installer during the four years prior to the accident. However, prior to November 3, 2007, Eiben had used the ladder exclusively in the "step ladder" (i.e., A-frame) mode; November 3, 2007 was the first time that he used the ladder in the "straight" ladder mode. Id. at pp. 17-19. Eiben admitted he did not read the instructions or warnings on the ladder concerning use of the ladder in the straight mode on the day of the accident because he did not believe it was necessary. Id. at pp. 20-21. Eiben testified that he was familiar with setting up extension ladders from using them in his work, and he further testified that he also carried with him and used in his work "standard" extension ladders in addition to the Gorilla A-13 ladder at issue in this case. See Plaintiff's Dep., pp. 30-31.
On the day in question, Eiben and his brother, Michael, set up the Gorilla ladder in a fully-extended mode, leaning it against the house at an incline, with the top against the gutter at the roof line. Id. at 27-28. Eiben then climbed the ladder and attached a bungee cord around the ladder's rails and affixed the cord to the gutter so the ladder would not move. Id. at p. 40. Eiben testified that the ladder was stable but that asphalt surface upon which it was set was wet with "a light coating [of moisture] like a dew." Id. at pp. 41.3 Eiben's brother, Michael, thenclimbed the ladder to the roof. Id. at 43. Douglas Eiben did not hold the ladder for his brother. Id.
After Michael climbed onto the roof, Douglas got on the ladder. Douglas Eiben testified that he first "tested" the ladder's stability by "hopping" on the first rung of the ladder. Id. at p. 45. He further testified that there was no movement of the ladder as he climbed to the roof. Id.
A short while later, Eiben had to return to his truck to get a tape measure. His brother, meanwhile, remained on the roof. According to Plaintiff, when he attempted to remount the ladder from the roof to return to the ground to retrieve a tape measure, the ladder "slid out" and he fell to the ground.
Eiben testified that as he began to descend the ladder, his hands were on the ladder's vertical rails and his left foot was on a ladder rung. He was facing the ladder and bringing down his right foot when the ladder allegedly "slid out." [Plaintiff's Dep., p. 49-50].4 He testified that he did not see the bungee cord moving but he had the "sensation" that the ladder was moving away from the house. Id. At 51-52. As he sensed that he was starting to fall, Eiben said he grabbed onto the gutter with his right hand to prevent the fall, but kept his left hand on theladder. Id. at 52-53. 5 Eiben fell onto his back, hitting his head on the driveway; the ladder fell on top of him. Id., pp. 52, 55.6
Michael Eiben did not see or hear the fall, as he was on the other side of the roof at the time. [Michael Eiben Dep., Defendant's Ex. 6, p. 21.] He only discovered that his brother had fallen when he went up to the peak of the roof where he could view the driveway to find out what was taking Douglas so long to retrieve the tape measure. Id. at p. 22. He then jumped off the roof, removed the ladder from on top of his brother, and called 911. Id. at pp. 31-32. Eiben was subsequently transported by ambulance to Botsford Hospital where he underwent surgery for his back injury. Id., pp. 32-33, 35; Plaintiff's Dep., p. 24..7
Plaintiff thereafter initiated the instant action in Oakland County Circuit Court. The action was timely removed by Defendants to this Court. In his one-count Complaint, Plaintiff asserts that Defendants are liable for his injuries because the Gorilla ladder in question was negligently designed and/or manufactured, and Defendants failed to warn of the hazard that theladder could "slide-out" from under a user. Plaintiff further asserts that Defendants are liable for breach of express and implied warranties.
To establish his claims of negligent design and negligent failure to warn, Plaintiff retained John S. Morse, a mechanical engineer, to offer an expert opinion. Defendants were provided with Morse's expert report on September 23, 2011.8 Claiming that Morse's opinions in his expert report lack the reliability required by Fed. R. Evid. 702 and Daubert, 9 on October 21, 2011, Defendants filed the instant motion for summary judgment on all of Plaintiff's claims based upon the lack of reliable and admissible expert testimony necessary to support Plaintiff's allegations of negligent design, negligent failure to warn, and the alleged causal connection between the alleged negligence and Plaintiff's fall.10 (They also filed a motion in limine seeking to bar Morse's testimony at trial for these same reasons.)
Plaintiff responded to Defendants' Summary Judgment Motion and in support of that response, Plaintiff submitted a new Affidavit from John Morse. This affidavit, prepared and submitted after the submission of Morse's Expert Report and after Defendants had filed their motion for summary judgment, contains information not contained in Morse's September 23, 2011 Expert Report. Defendants, therefore, moved to strike that affidavit.11
Summary judgment is proper if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As the Supreme Court has explained, "the plain language of Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding a motion brought under Rule 56, the Court must view the evidence "in a light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences." Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir.2007). Yet, the non-moving party "may not rely merely on allegations or denials in its own pleading," but "must -- by affidavits or as otherwise provided in [Rule 56] -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). Moreover, any supporting or opposing affidavits "must be made on personal knowledge, set out facts that would beadmissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1). Finally, "[a] mere scintilla of evidence is insufficient" to withstand a summary judgment motion; rather, "there must be evidence on which the jury could reasonably find for the non-moving p...
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