Kuzmech v. Werner Ladder Co.
Decision Date | 07 December 2012 |
Docket Number | CIVIL ACTION NO. 3:10-cv-266 (VLB) |
Court | U.S. District Court — District of Connecticut |
Parties | RUTH J. KUZMECH, ET AL, Plaintiff, v. WERNER LADDER COMPANY, ET AL Defendants, |
DECEMBER [], 2012
Before the Court is Defendants Werner Co. (DE)1 ("Werner") and Lowe's Home Centers, Inc.'s ("Lowe's") motion to preclude Plaintiffs Ruth J. Kuzmech and John Kuzmech's expert witness and motion for summary judgment. Plaintiffs allege that a ladder manufactured by Werner and distributed by Lowe's was defectively designed and sold without proper or adequate warnings, labels and instructions in violation of the Connecticut Products Liability Act ("CPLA"), Conn. Gen. Stat. §52-572m et seq. Plaintiffs also bring claims for breach of express warranty, breach of implied warranty, violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. §42-110a, et. seq. and loss of consortium on behalf of Plaintiff John Kuzmech. Defendants argue that the Court should preclude the Plaintiffs' expert's testimony as unreliable and that absent expert testimony Plaintiffs' CPLA claims fail as a matter of law as the Plaintiffs cannot demonstrate that the ladder was defective. The Defendants also arguethat Plaintiffs' other claims are preempted by the CPLA. For the foregoing reasons, the Court grants both Defendants' motion to preclude and motion for summary judgment.
The following background and facts relevant to Defendants' motion to preclude and motion for summary judgment are undisputed unless otherwise noted. On July 14, 2009, Ruth Kuzmech, age seventy, was using a stepladder to trim hedges along her driveway when both she and the ladder fell to the ground. [Dkt. #45, Defs. Local Rule 56(a)1 Statement, ¶1]. At the time, Ruth Kuzmech was using an eight-foot Werner aluminum stepladder. Id. at ¶2. Mrs. Kuzmech's son, Clifford Hoxie, purchased the ladder at Lowe's sometime in April 2009, where he was employed, with his employee discount, for Mrs. Kuzmech and her husband, John Kuzmech. Id. at ¶3. The ladder was a 1-A ladder with a 250 pound duty rating. Id. at ¶5. Hoxie did not observe any damage to the ladder when it was purchased. Id. at ¶4. Mr. and Mrs. Kuzmech did not observe any damage to the ladder when Hoxie presented it to them. Id. at ¶¶9-10.
The ladder at the time of purchase had warning labels on it, including the following: one with duty rating on it, one on the side pertaining to the setup of the ladder, one cautioning to use it only on level surfaces, and one on a top step that advises not to stand beyond that point. Id. at ¶6.
At the time of her fall, Mrs. Kuzmech was trimming the side of the hedges facing her lawn, and the ladder was placed on a grassy dirt surface. Id. at ¶11. Mrs. Kuzmech had climbed up to the third rung of the ladder and was trimmingthe hedges when she "just went." Id. at ¶12. She doesn't know what happened to cause her to fall. Id. Mrs. Kuzmech recalls falling over to the left and the next thing she knew she was on the ground. She lost consciousness for a period of time. Id. at ¶13. When Mrs. Kuzmech regained consciousness, her dog was licking her face. She observed that one of her legs was sticking through the rungs of the ladder and her other leg was underneath the left front side rail. She also observed that the ladder was now bent and damaged. Id. at ¶14.
At the time of the fall, the ladder was positioned in an area of a gradual downward slope which Mrs. Kuzmech describes as "not bad." [Dkt. #55, Pl. Local Rule 56(a) 2 Statement, ¶17]. Mrs. Kuzmech is certain that the ladder's four feet did not move at all. They did not sink into the ground or come off of the ground, until the moment the ladder fell over. [Dkt. #45, Defs. Local Rule 56(a)1 Statement, ¶18]. Both of Mrs. Kuzmech's hands were holding the trimmers when the ladder fell over. Id. at ¶19.
Mrs. Kuzmech had used the ladder prior to the date of her fall, without incident. Id. at ¶21. Mrs. Kuzmech's daughter also used the ladder twenty to twenty-five times before without incident. Id. at ¶22.
Plaintiffs allege in their complaint that the ladder was defective in several ways. First, Plaintiffs allege that the stepladder's rear legs were no longer lined up with the front-legs, leaving the ladder racked and unstable. [Dkt. #1, Compl., ¶9]. In the racked position, the stepladder had only three legs on the ground, the fourth leg was off of the ground causing the ladder's support to cave in. Id. Plaintiffs also allege that one of the bolts that held the upper frame of the laddercame out, which contributed to the caving in of the ladder. Id. at ¶10. Plaintiffs also allege that the Defendants breached the express warranty that the ladder was safe for its intended uses and the implied warranty of merchantability because Mrs. Kuzmech was injured as a result of the ladder's defects. Id. at ¶¶ 14-16. Plaintiffs further allege that Defendants violated CUTPA by failing to correct the defect and to accurately, completely and truthfully warn that the ladder's defects posed a danger to the public at large. Id. at ¶30. Plaintiffs contend that as a direct and proximate result of the deceptive acts or practices of the Defendants, Mrs. Kuzmech suffered severe painful and serious injuries. Id. at ¶32. Lastly, Mr. Kuzmech alleges that he has suffered a loss of affection, care, companionship and consortium of his wife as a result of the carelessness and negligence of Defendant Werner. Id. at p.17.
Plaintiffs have offered the testimony of Dr. Harold Larson as an expert witness in support of their opposition to Defendants' motion for summary judgment. Based on the testimony of Dr. Larson, Plaintiffs contend in opposition to summary judgment that the ladder was defectively designed such that the diagonal strut which connects to the side rail was not strong enough to support the load of the ladder during a reasonably foreseeable use and such that the diagonal strut should have connected to the side rail at a lower point, offering more support for the load of the ladder. [Dkt. #55, Pl. Local Rule 56(a) 2 Statement, Disputed Issue of Material fact, ¶¶1-2].
Dr. Larson is a metallurgical engineer. He holds a bachelors of science in chemical engineering from Tufts University and a doctorate in metallurgy fromthe Massachusetts Institute of Technology ("MIT"). . He was employed as a Superintendent of Process Metallurgy Research by ASARCO INC. from 1966-1980. Id. After ASARCO, Dr. Larson worked as a Manager of Metals Research and Headquarters Staff Engineer at Exxon Mineral Company from 1980-1984 and then as a General Manager and Director of Engineering at Prototech Inc. from 1984-1988. Id. From 1989-2006, Dr. Larson was employed as a Research Associate at MIT and then as a Research Affiliate at MIT from 2006-present. Id. Dr. Larson has authored several peer reviewed articles in the fields of chemical and metallurgical engineering. Dr. Larson is not a licensed engineer in any state.
Dr. Larson's expert report submitted pursuant to Fed. R. Civ. P. 26(a)(2) consists of a four paragraph letter dated September 7, 2011 addressed to Plaintiffs' counsel. In that letter, Dr. Larson writes:
Defendants have submitted a complete copy of Dr. Larson's deposition transcript for this Court's review. Dr. Larson testified that while he doesn't claim to be a ladder expert nor has he designed a ladder, he has examined and worked on several ladder cases in collaboration with MIT Professor Tom Eagar. [Dkt. #57, Ex. B., Larson Dep., p. 30-32]. In those past cases, Dr. Larson has completed testing on ladders including determining the kind of force it takes to break something loose on the subject ladder as well as some "analytical work on the type of aluminum from an aluminum ladder, hardness measurements, chemical analysis, SEM work, and grain structure...
To continue reading
Request your trial