Giusto v. Int'l Paper Co.
Decision Date | 03 June 2021 |
Docket Number | Civil Action No. 1:19-cv-00646-SDG |
Parties | NANCY GIUSTO, individually and as surviving spouse, and NANCY GIUSTO, as Administratrix of The Estate of MICHAEL GIUSTO, deceased, Plaintiffs, v. INTERNATIONAL PAPER COMPANY and EVOQUA WATER TECHNOLOGIES LLC, Defendants. |
Court | U.S. District Court — Northern District of Georgia |
This matter is before the Court on separate motions for summary judgment filed by DefendantsEvoqua Water Technologies LLC(Evoqua) and International Paper Company(IP)[ECF 189;ECF 191].IP has also filed a motion to strike or exclude certain affidavits [ECF 213].For the following reasons, and with the benefit of oral argument, Evoqua's motion is GRANTED and IP's motions are DENIED.
IP owns and operates the Flint River Mill located in Oglethorpe, Georgia (the Mill).1The Mill consists of four units and manufactures cellulose fiber that is subsequently incorporated into various downstream products.2Evoqua is an independent company contracted by IP to deliver water demineralization equipment to the Mill.3At all relevant times, Michael Giusto worked for Prim Industrial Contractors (Prim), an independent company contracted by IP to perform environmental cleaning services at the Mill.4
On March 12, 2018, Michael Giusto arrived at the Mill to attend a contractor safety meeting.5After the meeting concluded, he drove his truck to various locations at the Mill.6Eventually, he made his way to the Utilities Unit.7As Michael Giusto walked through the scrubber area of the Utilities Unit, he tripped and fell into a pool of water overflowing from the floor U-drains.There were no witnesses to this fall.8Plaintiffs allege Michael Giusto tripped over a hose—attached to a demineralization trailer owned by Evoqua—laying across the floor U-drains that was submerged in, and camouflaged by, the overflown water.
After his fall, Michael Giusto drove himself home.9Later that evening, his wife—Nancy Giusto—found him with burn injuries and drove him to the hospital.10That same evening, Prim informed IP of a potential incident at the Mill.11The next day, an IP employee located Michael Giusto's hard hat and safety glasses laying on the floor of the scrubber area by the hose.12Michael Giusto was subsequently transferred to a burn unit in Augusta, Georgia with a combination of second and third degree burns to 15% of his body.13Although he was discharged from the hospital on March 22,14he ultimately died on March 25.15
Plaintiffs initiated this action in the State Court of Fulton County, Georgia on January 4, 2019.16Defendants removed the action to this Court on February 7.17On October 6, 2020, IP and Evoqua filed separate motions for summary judgment.18On November 10, IP filed its motion to strike or exclude certain affidavits relied on by Plaintiffs in their responses in opposition to summary judgment.19On May 4, 2021, the Court heard oral argument from the parties on these pending motions.
Summary judgment is appropriate when "the movant 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).The party seeking summary judgment has the initial burden of informing the district court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986).If the movant meets its burden, the non-movant must present evidence showing either (1) a genuine issue of material fact or (2) that the movant is not entitled to judgment as a matter of law.Id. at 324.A fact is considered "material" only if it may "affect the outcome of the suit under the governing law."BBX Cap. v. Fed. Deposit Ins. Corp., 956 F.3d 1304, 1314(11th Cir.2020)(citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986)).A factual dispute is "genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Id.(citingAnderson, 477 U.S. at 248)(punctuation omitted).
In opposing a motion for summary judgment, the non-movant"may not rest upon the mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial."Sears v. Roberts, 922 F.3d 1199, 1207(11th Cir.2019).See alsoMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87(1986).If the non-movant relies on evidence that is "merely colorable, or is not significantly probative, summary judgment may be granted."Likes v. DHL Express (USA), Inc., 787 F.3d 1096, 1098(11th Cir.2015).See alsoTesoriero v. Carnival Corp., 965 F.3d 1170, 1177(11th Cir.2020)().But the Court's role is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."Sears, 922 F.3d at 1205(citingAnderson, 477 U.S. at 249).The Court must "view all of the evidence in a light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."Newcomb v. Spring Creek Cooler Inc., 926 F.3d 709, 713(11th Cir.2019).See alsoStrickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154(11th Cir.2012)()(quotingAnderson, 477 U.S. at 255).
Plaintiffs assert a wrongful death and personal injury negligence claim against both IP and Evoqua."It is well established that to recover for injuries caused by another's negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and damages."Goldstein, Garber & Salama, LLC v. J.B., 300 Ga. 840, 841(2017).Since the claim against each Defendant demands a distinct analysis, the Court addresses the summary judgment motions separately.
IP and Evoqua raise certain evidentiary issues that permeate the summary judgment briefing and are important to their resolution.For example, IP has filed an independent motion to strike certain affidavits submitted by Plaintiffs.IP and Evoqua additionally argue Plaintiffs cannot rely on other evidence that constitutes inadmissible hearsay.
IP seeks to strike or exclude affidavits from four of Michael Giusto's former co-workers—Joshua Youmans, Gerald Ussery, Michael Bridgers, and Michael Wagner—as well as his daughter, Jalyn Giusto.IP argues: (1) all the affidavits were not properly disclosed in violation of Rule 37(c), and (2) the affidavits from Youmans, Ussery, and Bridgers are "sham affidavits."
IP first relies on a failure to disclose theory.Under the federal rules, "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless."Fed. R. Civ. P. 37(c).Rule 26(a), in turn, provides that:
[A]party must, without awaiting a discovery request, provide to the other parties . . . the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.
IP argues Plaintiffs violated these rules by submitting affidavits containing undisclosed facts.According to IP, Plaintiffs should have come forward with this information during the discovery period.The Court concludes, however, that IP should have been on notice since the inception of this case that these individuals possessed relevant knowledge.For example, Plaintiffs filed and served their initial disclosures on March 11, 2019.20These disclosures contained a list of individuals who "are believed to have discoverable information regarding [the] claims."21Youmans, Ussery, Bridgers, Wagner, and Jalyn Giusto are all named.22Then, on June 5, 2019, Plaintiffs served IP with discovery responses that again listed these individuals as persons with knowledge.23That Plaintiffs at least twice alerted IP to these individuals during the discovery period undercuts IP's theory of surprise.
But, avers IP, Plaintiffs did not disclose the very facts these individuals ultimately attested to in their affidavits.IP does not dispute, however, that it possessed the right to depose each of these individuals during the extended fact discovery period.Indeed, IP apparently understood the importance of doing so; it subpoenaed Youmans and Bridgers—and Evoqua subpoenaed Jalyn Giusto—to appear for depositions.Yet all three depositions were unilaterally cancelled by the Defendants and never rescheduled.The Court finds no reason to penalize Plaintiffs now for IP's litigation strategy.What is more, there is no requirement that an individual be deposed before the Court may consider his or her sworn testimony in an affidavit on summary judgment.JVC Am., Inc. v. Guardsmark, L.L.C., No. CIVA 1:05-cv-0681 JOF, 2006 WL 2443735, at *12(N.D. Ga.Aug. 22, 2006)().See alsoFed. R. Civ. P. 56(c)(4);Tippens v. Celotex Corp., 805 F.2d 949, 952(11th Cir.1986)()(punctuation omitted)(emphasis in...
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