Killick v. Harbor Freight Tools U.S. Inc.

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ADAM KILLICK, Plaintiff, v. HARBOR FREIGHT TOOLS USA INC, Defendant.

No. 5:21-cv-111-MW-MJF

United States District Court, N.D. Florida, Panama City Division

January 9, 2023

REPORT AND RECOMMENDATION

MICHAEL J. FRANK, UNITED STATES MAGISTRATE JUDGE

In this product-liability case, Plaintiff alleges a “cut-off wheel” he purchased from Defendant caused injuries to Plaintiff's hand. Doc. 1-1 ¶ 1. Plaintiff asserts three claims: (1) “Strict Liability”; (2) “Design Defect”; and (3) “Strict Liability Failure to Adequately Warn.” Id. at 2, 3, 5. Defendant moved for summary judgment on Plaintiff's three claims because Plaintiff failed to disclose an expert witness who would support Plaintiff's claims, and thereby failed to create a genuine issue of material fact as to essential elements of his claims. Doc. 78. Plaintiff responded in opposition. Doc. 80. Defendant filed a reply. Doc. 81. Plaintiff then filed a document, which purports to be an affidavit. Doc. 86. Because Plaintiff has failed to create a genuine issue of material fact as to at least one essential element of each claim, the District Court should grant Defendant's motion for summary judgment.

I. Background

A. Procedural History

On March 23, 2021, Plaintiff, then represented by counsel, filed his complaint in the Circuit Court of the Fourteenth Judicial Circuit in and for Bay County, Florida. Doc. 1 at 1; Doc. 1-1 at 11. On April 22, 2021, Plaintiff served Defendant with the summons and complaint. Doc. 1-1 at 16. On May 24, 2021, Defendant timely filed its notice of removal. Doc. 1.

On June 29, 2021, the parties filed their joint Rule 26(f) Report. Doc. 10. On June 30, 2021, the District Court entered the scheduling and mediation order. Doc. 11. Plaintiff's deadline to disclose his expert witness was September 20, 2021. Doc. 10 at 3; see Doc. 11 ¶ 3.

On September 22, 2021, Defendant file a discovery status update noting: “Plaintiff's expert disclosures and reports were due September 20, 2021. Plaintiff has not served these nor requested an extension to do so.” Doc. 22 at 2.

Also on September 22, 2021, Plaintiff's counsel moved to withdraw. Doc. 21. The District Court denied this motion. Doc. 23. On October 7, 2021, Plaintiff's counsel filed an amended motion to withdraw. Doc. 32. After conducting a hearing on the motion, the District Court permitted Plaintiff's counsel to withdraw. The District Court also stayed the case for thirty days to allow Plaintiff to find substitute counsel. Docs. 39, 40.

On November 15, 2021, Plaintiff filed an appeal. Doc. 44. On November 17, 2021, the District Court stayed the case pending Plaintiff's appeal. Doc. 47. On March 14, 2022, the Eleventh Circuit dismissed the appeal for lack of jurisdiction. Doc. 66.

On March 15, 2022, the District Court lifted the stay. Doc. 67. On April 1, 2022, the parties submitted a supplemental joint report of the Rule 26 conference. Doc. 72. In that joint report, the parties acknowledged that “Plaintiff did not disclose any experts” by the deadline set by the court's scheduling and mediation order. Id. at 5; see Doc. 74. Defendant, however, renewed its motion for an extension of its deadline to disclose expert witnesses. Doc. 72; see Doc. 34.

On April 5, 2022, the District Court entered an amended scheduling order, which adopted Defendant's request for an extension of its deadline to disclose its expert as requested in the joint report filed on April 1, 2022. Doc. 73. Plaintiff did not request an extension of his deadline to disclose expert witnesses, so the amended scheduling order did not modify Plaintiff's deadline to disclose his expert witnesses.

On April 14, 2022, Plaintiff filed a motion for “Adopting of Original joint Report Agreed by Attorneys Drumm and Roane of 6.16.21 Set Aside Report of 4/1/22 ....” Doc. 74. On April 15, the District Court denied this motion and explained that if Plaintiff needed “additional time or other relief to complete discovery, he must file the appropriate motion.” Doc. 75 at 1.

On April 28, 2022, Defendant moved for summary judgment on each of Plaintiff's three claims. Doc. 78.

On April 25, 2022, Plaintiff filed a motion for clarification regarding the District Court's April 1 order. Plaintiff asked the court to “spell out in plain English exactly what plaintiff is entitled to move for if he is allowed to prosecute his case.” Doc. 76. On May 2, 2022, the District Court granted Plaintiff's motion for clarification in part and explained:

[T]his Court in no way limits Plaintiff in making discovery requests and moving to compel responses to such requests in the event a motion is warranted under Federal Rule of Civil Procedure 37. Plaintiff is allowed to seek an extension of deadlines in the event a motion is supported by good cause pursuant to Federal Rule of Civil Procedure 16.

Doc. 79 at 1.

On May 11, 2022, Plaintiff filed his response in opposition to Defendant's motion for summary judgment. Doc. 80. In his response, Plaintiff acknowledged that he did not provide Defendant with any expert-witness reports. See Doc. 80 at 1.

On June 13, 2022, Plaintiff filed another document, which he titled “Affidavit of Plaintiff Adam Killick to Dispute the Material Facts Presented by the Defendant and Provide Evidence with a Degree of Credibility and Accuracy to Petition This Court to Issue an Order of Summary Judgdgement [sic] in favor of the Defendant.” Doc. 86. This document purports to establish Plaintiff as an expert witness as to the design and operation of the product at issue. Id. at 2-3.

B. Undisputed Facts

For purposes of the summary-judgment motion, Defendant did not dispute the following facts drawn from Plaintiff's complaint. On December 2, 2019, Plaintiff purchased a “‘Warrior' brand 4-1/2 In. Aluminum Oxide 60 Grit Metal 13,300 Max RPM Thin Cut-Off Wheel 10 Pk” (the “cut-off wheel”) from Defendant. Doc. 1-1 ¶ 5. On January 25, 2020, Plaintiff was using a “Hyper Tough” 6-AMP Angle Grinder with the cut-off wheel attached. Id ¶ 6. When Plaintiff turned the angle grinder on, the cut-off wheel shattered. Id. ¶ 8. A piece of the shattered cut-off wheel hit Plaintiff's left hand and caused severe lacerations. Id. ¶ 9.

II. Standard

Rule 56 of the Federal Rules of Civil Procedure states that a “court shall grant summary judgment if 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). A “genuine” dispute exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). An issue of fact is “material” if it could affect the outcome of the case. Anderson, 477 U.S. at 248; Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995). At “the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. In evaluating a summary-judgment motion, all “justifiable inferences” must be resolved in the nonmoving party's favor so long as there is a genuine dispute as to those facts. Beard v. Banks, 548 U.S. 521, 529 (2006); see Scott v. Harris, 550 U.S. 372, 380 (2007).

III. Discussion

Defendant argues that it is entitled to summary judgment on Plaintiff's three claims because Plaintiff failed to offer admissible expert testimony to establish that the cut-off wheel was defective and that the alleged defects caused Plaintiff's injuries. Doc. 78 at 11-13. Plaintiff does not dispute that he was required to offer evidence from an expert. See Docs. 80, 86. Rather, as discussed more fully below, Plaintiff attempts to disclose untimely two expert witnesses. In addition to being untimely, Plaintiff's attempted disclosures fail to comply with Rule 26(a)(2)(B).

A. Florida Law Requires an Expert Witness to Create a Genuine Issue

1. Plaintiff's Lack of Expert Evidence Regarding Defects

Under Florida law, when a claim requires a plaintiff to establish a fact that involves “complex medical or scientific issues outside the scope of a layperson's knowledge, an expert's testimony is required. . . . Without expert testimony, the plaintiff's claim fails as a matter of law.” Small v. Amgen, Inc., 723 Fed.Appx. 722, 726 (11th Cir. 2018) (citing Guinn v. AstraZeneca Pharm. LP, 602 F.3d 1245, 1256 (11th Cir. 2010)); Cooper v. Old Williamsburg Candle Corp., 653 F.Supp.2d 1220, 1225 (M.D. Fla. 2009) (holding that a defect in a product “must be proven by expert testimony”). Under Florida law, the three claims asserted by Plaintiff-“Strict Liability,” “Design Defect,” and “Strict Liability Failure to Adequately Warn”- require a plaintiff to establish through expert testimony that the product was defective. See Knepfle v. J-Tech Corp., 48 F.4th 1282, 1297 (11th Cir. 2022); House v. DePuy Synthes Sales, Inc., No. 21-12897, 2022 WL 1749201, at *3 (11th Cir. May 31, 2022); Ojeda v. Louisville Ladder Inc., 410 Fed.Appx. 213, 215 (11th Cir. 2010); Bodner v. Thunderbird Prod. Corp., No. 5:19-CV-351-TKW-MJF, 2022 WL 1131734, at *2 (N.D. Fla. Mar. 14, 2022); Cates v. Zeltiq Aesthetics, Inc., 535 F.Supp.3d 1222, 1229 (M.D. Fla. 2021); Citizens Prop. Ins. Corp. v. Simkar LLC, 813 F.Supp.2d 1356, 1362 (M.D. Fla. 2011);

Beauregard v. Cont'l Tire N. Am., Inc., 695 F.Supp.2d 1344, 1356 (M.D. Fla. 2010), aff'd, 435 Fed.Appx. 877 (11th Cir. 2011).

It is undisputed, however, that Plaintiff did not offer any evidence from an expert that:

• the cut-off wheel was defectively designed;

• a warning regarding these purported defects was necessary; and

• Defendant's warning regarding the

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