Gardner v. Aloha Ins. Servs.

SANDRA JOHNSON GARDNER, Plaintiff,

v.ALOHA INSURANCE SERVICES, et al., Defendants.

Case No. 2:11-CV-3450-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE: March 4, 2013

MEMORANDUM OPINION

Plaintiff filed this action pro se in the Circuit Court of Jefferson County, Alabama. It was removed to this court by Defendant Wal-Mart. (Doc. # 1). On December 19, 2011, Plaintiff filed an Amended Complaint. Plaintiff's Amended Complaint seeks damages from Defendants "[a]s a direct result and proximate result of the product liability by the Defendants" relating to a fire at Plaintiff's residence which she claims originated in a defective ceiling fan. (Doc. # 14). Although Plaintiff's Amended Complaint is somewhat unclear, it appears (and Defendants have presumed) that she has asserted a product liability action against Defendants under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD").

This matter is before the court on the following motions:

1. Defendant Aloha Housewares, Inc.'s Motion for Summary Judgment (Doc. # 28);

2. Defendant Aloha Housewares, Inc.'s Motion to Strike Affidavit of Lewis Gant (Doc. # 37), in which Defendant Wal-Mart joins (Doc. # 56);

3. Defendant Aloha Housewares, Inc.'s Motion to Exclude Plaintiff's Expert Lewis Gant (Doc. # 38), in which Defendant Wal-Mart Stores East, L.P. also joins (Doc. # 57);

4. Plaintiff's Motion for Extension to Allow the Admittance of the April 6, 2012 Submitted Electrical Expert Witness (Doc. # 40);5. Defendant Wal-Mart Stores East, L.P.'s Motion for Summary Judgment (Doc. # 46);

6. Plaintiff's Motion for Production from the Defendants Aloha Housewares, Inc. (Doc. # 51); and

7. Plaintiff's Motion for Summary Judgment (Doc. # 52).

These motions are fully briefed.

I. FACTS¹

In approximately 2007 or 2008, Plaintiff purchased a ceiling fan in a sealed box from the Wal-Mart store located at 9248 Parkway East in Birmingham, Alabama. (Doc. # 1). The fan was manufactured by Aloha Housewares.

Wal-Mart did not manufacture or assemble the fan. It did not have any role in designing, testing, packaging, or labeling the fan. Nor did it make any modifications to the fan. (Doc. # 46-2 at 162-63).

The fan was installed in Plaintiff's bedroom at her mother's home in the light fixture over her bed by Harold Hammonds of Hammonds Construction. (Doc. # 46-2 at 77-80). Hammonds was performing some other work at the home, and Plaintiff gave the fan to him to install. (Doc. # 46-2 at 81-82).

On August 26, 2009, the fan caught on fire and set fire to the bed under the fan. (Doc. # 46-2 at 82, 92-93). Plaintiff was able to put the fire out before the Birmingham Fire Department was ableto respond. (Doc. # 46-2 at 93-94, 98). The Fire Department defined the fire as Incident Type: "440 - Electrical wiring/equipment problem, other." (Doc. # 31 at 102, 170-71; Doc. # 5 at 29).

On November 29, 2011, the court entered a Scheduling Order requiring Plaintiff to disclose any expert reports by January 30, 2012. (Doc. # 12).

At her December 21, 2011 deposition, Plaintiff testified that "I think something happened inside that fan that it caught itself on fire. I think it came from the inside, inner mechanism of that fan." (Doc. # 31 at 102). Plaintiff bases her opinion on the Fire Department's Incident Report. (Doc. # 31 at 102, 170-71; Doc. # 5 at 29).

On January 27, 2012, Plaintiff filed a document designated as "Plaintiff's Reports from Retained 'Expert' Under Fed. R. Civ. P. 26(a)(2)." (Doc. # 20). In that document, Plaintiff disclosed her treating physician, Dr. Ernest A. Claybon, Jr., as an expert and produced an affidavit signed by him indicating that he treated Plaintiff for smoke inhalation secondary to the August 26, 2009 house fire. (Id.).

On March 8, 2012, Defendant Aloha Housewares moved for summary judgment. (Doc. # 28). In response to Defendant Aloha Housewares' Motion, Plaintiff submitted an affidavit from Lewis Gant, a purported expert, which had not previously been produced to Defendants in advance of Plaintiff's deadline for expert disclosures. (Doc. # 36 at 19-20).

Mr. Gant's affidavit states that he is a Certified Licensed Electrical Instructor for Lawson State Junior College. (Doc. # 36 at 19). Mr. Gant states that he examined the electrical wiring at Plaintiff's mother's house and found no problems with the wiring. (Doc. # 36 at 19). Mr. Gant did not examine the ceiling fan at issue which had already been removed when Mr. Gant performed his inspection. (Doc. # 36 at 19-20). However, he states that he is "in agreement with the BirminghamFire Department's assessment; which was that the fire was caused by the electrical wiring/equipment problem which was the defected ceiling fan they removed." (Doc. # 36 at 19-20). He further states that he will testify "that the Birmingham Fire Department's statement: 'Incident Type 44 - Electrical wiring/equipment problem' was the way that they defined the inter defected mechanisms of the ceiling fan which they rightfully immediately removed." (Doc. # 36 at 19-20).

On August 28, 2009, Defendant Aloha Housewares wrote to Plaintiff in response to her claim regarding the ceiling fan. (Doc. # 36 at 23). Defendant Aloha provided Plaintiff with a UPS Call Tag and "Call Tag Information" form to enable Plaintiff to return the fan to them for inspection. (Doc. # 36 at 22-23). The document titled "Procedure for UPS Call-Tags" instructs a consumer to "place the defective item or items" in packaging for return. (Doc. # 36 at 22). Plaintiff took the fan to UPS and had them send the fan to Aloha Housewares. (Doc. # 46-2 at 173-74).

II. SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. See id. at 324.

The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. 249.

"To be admissible in support of or in opposition to a motion for summary judgment, a document must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Saunders v. Emory Healthcare, Inc., 360 F. App'x 110, 113 (11th Cir. 2010) (citing 10 A Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2722, at 382-84 (3d ed.1998)).

IV. DISCUSSION

The Alabama Supreme Court adopted the AEMLD to alleviate the "almost impossible burden" plaintiffs sometimes bore in attempting to establish negligence in a products-liability action under the traditional negligence theories. McMahon v. Yamaha Motor Corp., U.S.A., 95 So.3d 769, 772 (Ala. 2012). There is, however, "a measure of commonality" between AEMLD and negligence claims. McMahon, 95 So.3d at 772.

Specifically, a plaintiff pursuing a products-liability claim against a manufacturer under either theory can succeed only if the plaintiff establishes that the product at issue is sufficiently unsafe so as to render it defective. In an AEMLD case, this is done by proving that a safer, practical, alternative design was available to the manufacturer at the time it manufactured the allegedly defective product. GeneralMotors Corp. v. Jernigan, 883 So.2d 646, 662 (Ala. 2003). Once established, that is sufficient to succeed on the AEMLD claim. In a negligence case, the plaintiff must establish not only that the product at issue is defective, but also that the manufacturer failed to exercise due care in the product's manufacture, design, or sale. [Atkins v. American Motors Corp., 335 So.2d 134, 139 (Ala. 1976)].

McMahon, 95 So.3d at 772.

To establish an actionable AEMLD claim, Plaintiff must prove:

1. she suffered injury or damage to herself or her property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if

a. the seller is engaged in the business of selling such a product, and

b. the product is expected to and does reach the user or consumer without substantial change in the condition in which it was sold.

Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1049-50 (Ala. 2007); Kirk v. Garrett Ford Tractor, Inc., 650 So.2d 865, 866 (Ala. 1994); Yamaha Motor Co. v. Thornton, 579 So.2d 619, 621 (Ala. 1991); Casrell v. Altec Indus., Inc., 335 So.2d 128, 132-33 (Ala. 1976).

"In an AEMLD action, 'the plaintiff must affirmatively show that the product was sold with a defect or in a defective condition.'" Tanksley, 982 So.2d at 1051 (quoting Jordan v. General Motors Corp., 581 So.2d 835, 836-37 (Ala. 1991). "'Without evidence to support the conclusion that the product...