Sherman v. Sunsong America, Inc.
| Decision Date | 28 February 2007 |
| Docket Number | No. 8:04CV300.,8:04CV300. |
| Citation | 485 F.Supp.2d 1070 |
| Parties | Margaret SHERMAN, and Richard Sherman, Plaintiffs, v. SUNSONG AMERICA, INC., Shiu Fung Fireworks, Co., Ltd., Winco Fireworks, Inc., Winco Fireworks International, LLC, Shangli Jin Xin Export Fireworks Factory, and William Lu, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Danene J. Tushar, David J. Stubstad, Michael F. Coyle, Patrick S. Cooper, Fraser, Stryker Law Firm, Omaha, NE, for Plaintiffs.
Heather H. Anschutz, Robert. M. Slovek, Kutak, Rock Law Firm, Marybeth Frankman, Scott E. Daniel, Mark J. Daly, Brashear Law Firm, North Old Mill, Omaha, NE, for Defendants.
Margaret Sherman and Richard Sherman (collectively referred to as the "Plaintiffs") have filed suit with this Court, bringing nine separate causes of action1 against, among other defendants, Shangli Jin Xin Export Fireworks Factory ("Shangli"); Winco Fireworks, Inc. and Winco Fireworks International, LLC (collectively referred to as "Winco"); and Shiu Fung Fireworks Co. Ltd. ("Shiu Fung").2 (Filing No. 140). The Plaintiffs allege that on July 3, 2002, while they were watching a fireworks display in the backyard of Mrs. Sherman's daughter, one of the fireworks malfunctioned and flew directly into Mrs. Sherman's eye, causing permanent damage. (Filing No. 246, p. 4).
The matters currently before the Court are: (I) the Joint Motion for Summary Judgment by Defendants Winco and Shiu Fung (Filing No. 204); (ii) the Motion for Summary Judgment by Defendant Shangli (Filing No. 223); (iii) the Objection to Index by Defendants Winco and Shiu Fung (Filing No. 267); (iv) the Objection to Index by Defendant Shangli (Filing No. 268); (v) the Motion to Strike Affidavits of Michael Collar and Ralph Apel by the Plaintiffs (Filing No. 269); and (vi) the Motion for Extension of Time to File Application for Attorneys Fees and Costs by the Plaintiffs (Filing No. 298).3 For the reasons set forth below, Filing No. 204 will be granted in part and denied in part; Filing No. 223 will be granted;4 Filing No. 267 will be granted in part and denied in part; Filing No. 268 will be granted; Filing No. 269 will be denied; and Filing No. 298 will be granted.
The parties contest the admissibility of some of the evidence offered in connection with the motions for summary judgment (Filing Nos. 267, 268, 269). As an initial matter, I will address these objections. Defendants Winco and Shiu Fung have filed objections (Filing No. 267) challenging the authentication and foundation for certain exhibits attached to the Cooper (Filing No. 237) and Coyle (Filing No. 260) Affidavits. I find that the copies of Cooper Affidavit Exhibit 12R and Coyle Affidavit Exhibits 13(A-C), which appear to be court documents, have not been certified by the custodian of records or otherwise authenticated. "Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to ... [a] copy of an official record ... or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, ... certified as correct by the custodian or other person authorized to make the certification...." Fed.R.Evid. 902(4); United States v. Darveaux, 830 F.2d 124, 126 (8th Cir.1987) Accordingly, the objections to those documents will be sustained for purposes of the summary judgment motions. In addition, I find that there is insufficient foundation for Cooper Affidavit Exhibit 12G and Coyle Affidavit Exhibit 13E, and the objections to those exhibits will be sustained.
Because printed materials purporting to be periodicals are self-authenticating under Rule 902(6), Cooper Affidavit Exhibit 12F is admissible. The official publications that are identified as Cooper Affidavit Exhibits 12N and 12Y, are self authenticating, and the objections to those documents are overruled. Fed.R.Evid. 902(5).
Defendant Shangli has objected (Filing No. 268) to the Plaintiffs' reliance on Exhibit A to the affidavit of Cara LaForge. The LaForge Affidavit can be found within the index of evidence submitted by Shangli (Filing No. 221, Exhibit F), but has not been presented to the Court by Shangli as reliable evidence, as argued by the Plaintiffs. Rather, Shangli argues that the LaForge Affidavit, relied upon by the Plaintiffs in connection with earlier motions, is inadmissible because it is not based on personal knowledge and the exhibit to the affidavit presents at least two levels of hearsay.
I conclude that the affidavit does not lay proper foundation for the attached report. LaForge states that she is employed by Legal Language Services, in the International Litigation Support Services Department. In that position, she is "in charge or those persons who conducted the research upon which the report, which is marked Exhibit A, is based. She states that pursuant to a request of the Plaintiffs' counsel, her company conducted an investigation, and the report contains the results of that investigation. LaForge fails, however, to confirm that the report is a compilation of data made at or near the time of the investigation by a person with knowledge of the investigation and that such reports are kept in the regular course of Legal Language Services' business activity. Further, as Shangli argues, the report contains hearsay upon hearsay, and is consequently not admissible evidence. For these reasons, I will sustain Shangli's motion.
The Plaintiffs have filed a Notice of Objection to and Motion to Strike the affidavits of Michael Collar and Ralph Apel. (Filing No. 269). The Plaintiffs argue that Collar and Apel make statements in the affidavits that are contradicted by statements made in Defendants' other discovery materials. The objections raised go to the affiants' credibility and the weight the affidavits should be accorded. The issues raised by the contradictions in the evidence may be explored on cross-examination, but they do not present a basis for striking the affidavits themselves. For these reasons, the objection is overruled and the motion to strike will be denied.
The parties have submitted briefs in support of and in opposition to the motions for summary judgment, in compliance with NECivR 56.1. The following facts are those stated in the Defendants' briefs (Filing Nos. 205, 214), supported with pinpoint citations to the Defendants' indices of evidence, and specifically acknowledged to be true in the Plaintiffs' brief (Filing No. 246).
The Plaintiffs Margaret Sherman and Richard Sherman are husband and wife, and are residents of Omaha, Nebraska. (Filing No. 205, p. 4 ¶ 1; Filing No. 246, app. 1 ¶ 1). Shangli is a business entity located within China. (Filing No. 214, p. 2 ¶ 2; Filing No. 246, app. 2 ¶ 2). Shiu Fung is a company with its principal place of business in Kowloon, Hong Kong. (Filing No. 205, p. 4 ¶ 2; Filing No. 246, app. 1 ¶ 2). The Winco Defendants are related entities and have a principal place of business in Prairie Village, Kansas. (Filing No. 205, p. 4 ¶ 3; Filing No. 246, app. 1 ¶ 3).
During the summer of 2002, prior to July 3, Mrs. Sherman's son-in-law, Stan Kapustka, purchased fireworks in Nixa, Missouri, including approximately two loose individual products known as "Saturn Missiles with Crackers," for use at a family event at his home. (Filing No. 205, p. 5 ¶ 7; Filing No. 246, app. 1 ¶ 7; Filing No. 214, p. 2 ¶ 4; Filing No. 246, app. 2 ¶ 4). On July 3, 2002, Mrs. Sherman was in the backyard of her daughter and son-in-law, observing fireworks. Mrs. Sherman's grandson, Nate, ignited a firework (the "Product"), that struck Mrs. Sherman, injuring her eye. (Filing No. 205, p. 5 ¶¶ 5-6; Filing No. 246, app. 1 ¶¶ 5-6).
Hale Fireworks, LLC, is a wholesaler and retailer of fireworks. (Filing No. 205, p. 4 ¶ 4; Filing No. 246, app. 1 ¶ 4). Hale was contractually required to purchase all of its fireworks from Winco since 2001. When Winco placed orders with Shiu Fung for fireworks for Hale, approximately 90% of the fireworks were shipped directly from the manufacturer to Hale. Winco does not receive or view such fireworks in any way prior to shipment to Hale. Further, Shiu Fung does not open any containers of non-"Black Cat" or "Zebra" products to view the fireworks prior to their shipment to Hale. No one from Winco or Shiu Fung was present when Hale received or inventoried the fireworks. (Filing No. 205, p. 11-12 ¶ 29; Filing No. 246, app. ¶ 29). For the years 2000, 2001, and 2002, Winco received about 70% of its fireworks from Shiu Fung and the remaining 30% from other entities. (Filing No. 205, p. 11 ¶ 33; Filing No. 246, app. ¶ 33).
Both Shiu Fung and Winco are members of the American Fireworks Standards Laboratory ("AFSL"), an organization made up of participants in the fireworks industry. (Filing No. 205, p. 12 ¶ 35; Filing No. 246, app. 1 ¶ 35).
The Plaintiffs assert the following facts in their brief in opposition to summary judgment (Filing No. 246).
Kapustka bought the Product from Hale in Nixa, Missouri. Before purchasing the Product, Kapustka read the Product's label, including the following warning:
SATURN MISSILE WITH CRACKERS. WARNING. Flammable missile with report. Use only under close adult supervision. For outdoor use only, place on hard, open surface. Do not hold in hand. Light fuse and get away. This missile travels at high speed and can travel long distances. Misuse may result in injury or fire.
(Filing No. 246, pp. 6-7, ¶¶ 5-11). Hale obtained the Product from Winco, the exclusive supplier of fireworks for Hale since 2000. (Filing No. 246, pp. 7-8 ¶¶ 12-17). Winco, Shiu Fung's biggest customer, processed all of Shiu Fung's sales to Hale, and consequently Winco obtained the Product from Shiu Fung. (Filing No. 246, pp. 8-9 ¶¶ 18-24).5 Ultimately, Shangli Jin Xin, doing business...
To continue reading
Request your trial
-
Germain v. Teva Pharms., United States, Inc. (In re Darvocet)
...Nebraska law). Characterized as product liability actions, Plaintiffs' claims would fail for lack of product identification. See Sherman, 485 F.Supp.2d at 1078. However, if the Nebraska Supreme Court were to characterize Plaintiffs' misrepresentation as actionable under the common law, the ......
-
In re Conagra Foods, Inc.
...judgment,’ ” citing Overstreet v. Norden Laboratories, Inc., 669 F.2d 1286, 1290–91 (6th Cir.1982)). Compare Sherman v. Sunsong America, Inc., 485 F.Supp.2d 1070, 1088 (D.Neb.2007) (“In this case, the Plaintiffs argue that the label on the Product—specifically, the words ‘Misuse may result ......
-
Reiss v. Komatsu Am. Corp.
...it did the doctrine would not apply because Goodyear was not the seller of the tire) (applying Arizona law); Sherman v. Sunsong Am., Inc., 485 F.Supp.2d 1070, 1080 (D.Neb.2007) (finding the apparent manufacturer doctrine inapplicable where the name of the company did not appear on the produ......
-
Rublee v. Carrier Corp., 75009-7-I
...240, 243 (D. Mass. 2010) ; Stones v. Sears, Roebuck & Co. , 251 Neb. 560, 558 N.W.2d 540, 545 (1997) ; Sherman v. Sunsong Am., Inc. , 485 F.Supp.2d 1070, 1080 (D. Neb. 2007).52 Stein , 137 A.3d at 297.53 Stein, 137 A.3d at 299.54 Stein , 137 A.3d at 297 & n.25 (alteration in original) (quot......