Lindholm v. BMW of N. Am., LLC, 3:15–CV–03003–RAL

202 F.Supp.3d 1082

Bruce LINDHOLM, individually and as personal representative of the Estate of Alexander Nels Lindholm, and Vanoosheh Lindholm, individually, Plaintiffs,

v.BMW OF NORTH AMERICA, LLC, Defendant.

3:15–CV–03003–RAL

United States District Court, D. South Dakota, Central Division.

Signed August 17, 2016

Mark A. Schwab, Grande, Frisk & Thompson, Fargo, ND, for Plaintiffs.

Jeffrey Thomas Gorcyca, Thomas P. Branigan, Zlatina Georgieva, Bowman and Brooke LLP, Bloomfield Hills, MI, Robert B. Anderson, May, Adam, Gerdes & Thompson, Pierre, SD, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

This case is a products liability and wrongful death action brought by Bruce Lindholm, individually and as personal representative of the Estate of Alexander Nels Lindholm, and Vanoosheh Lindholm (collectively "Plaintiffs") against BMW of North America, LLC ("Defendant"), stemming from a tragic accident that occurred on July 5, 2013. Doc. 1–1. Plaintiffs seek monetary relief, including attorney's fees and punitive damages. Doc. 1–1. Defendant moved for summary judgment on all claims, Doc. 28, which Plaintiffs oppose, Doc. 32. For the reasons explained below, Defendant's motion is granted.

I. PRELIMINARY ISSUES

Defendant complied with Local Rule 56.1(A) of the Civil Local Rules of Practice of the United States District Court for the District of South Dakota by filing a statement of material facts along with their motion for summary judgment. Doc. 42. Local Rule 56.1(B) requires the party opposing a motion for summary judgment, to "respond to each numbered paragraph in the moving party's statement of material facts with a separately numbered response and appropriate citations to the record." D.S.D. Civ. LR 56.1(B). All material facts set forth by the moving party are deemed admitted "unless controverted by the opposing party's response to the moving party's statement of material facts." D.S.D. Civ. LR 56.1(D). Plaintiffs filed their own statements of undisputed facts, Doc. 33, but did not file a response under Local Rule 56.1(B). Nevertheless, to ensure that the facts are viewed in the light most favorable to Plaintiffs as the non-moving party, this Court draws the facts not only from Defendant's Statement of Undisputed Material Facts, but also from documents supporting Plaintiffs' Brief in Opposition to Defendant's Motion for Summary Judgment where appropriate.

This Court heard oral argument from counsel on June 1, 2016. Docs. 49, 50. At the close of that hearing, this Court stated that because additional discovery was ordered after Defendant filed its motion for summary judgment and in order for the record to be complete, both parties would be permitted to supplement the record with any affidavits or other materials that the parties believed to be important in the Court's consideration of whether there is a genuine issue as to any material fact. Doc. 50 at 40–42; see also Docs. 37, 48. Neither party objected to the Court's acceptance of additional materials at that time. See Doc. 50 at 40–42. Thereafter, Plaintiffs' counsel submitted additional materials opposing Defendant's motion for summary judgment, including an affidavit and "Analysis Summary" from Plaintiffs' expert, Aaron Lalley ("Lalley"), and information surrounding two prior incidents of Storz cantilever jacks apparently failing. Docs. 53, 55–1, 55–2, 55–3, 55–4, 55–5. Defendant now objects to this Court's consideration of that additional information. Defendant first maintains that Plaintiffs failed to submit an affidavit or declaration pursuant to Federal Rule of Civil Procedure Rule 56(d) stating why they could not present the supplemental material earlier. Doc. 57 at 2. Defendant second argues that Lalley's "Analysis Summary" and affidavit should be excluded from the record because the "Analysis Summary"—which Defendant characterizes as a fourth report—was untimely produced and the affidavit is inconsistent with Lalley's previous testimony. Doc. 57 at 1–10.

Rule 56(d) provides that "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Fed. R. Civ. P. 56(d). Plaintiffs' counsel submitted an adequate Rule 56(d) declaration in their Brief Pursuant to Federal Rule 56(d) in Further Opposition to Defendant's Motion for Summary Judgment, Doc. 55, and at the oral argument hearing, this Court allowed both parties time to submit additional materials to complete the record before this Court ruled on Defendant's motion for summary judgment, including expert materials. District courts are afforded "great discretion in determining whether to strike expert testimony that is either undisclosed or disclosed in contravention of the court's scheduling order," Sheesley v. Cessna Aircraft Co. , No. 02–4185 KES, 2006 WL 3042793, at *4 (D.S.D. Oct. 24, 2006), and the Federal Rules of Civil Procedure "should be construed, administered, and employed by the court ... to secure the just, speedy, and inexpensive determination of every action and proceeding," Fed. R. Civ. P. 1. Thus, under Rule 56(d) and in an effort to provide a "just" consideration of Plaintiffs' case, Defendant's objection is overruled, and this Court will consider the supplemental materials submitted by Plaintiffs.

II. FACTS PERTINENT TO MOTION

On July 5, 2013, twenty-four-year old Alexander Lindholm ("Alex") was attempting to repair an exhaust leak on his 1997 BMW 540i Sedan ("the car"). Doc. 30 at ¶ 1; Doc. 33 at ¶¶ 1–2. The car was inside a storage unit that Alex's father, Bruce Lindholm ("Bruce"), had rented in Pierre, South Dakota for use in repairing and restoring automobiles. Doc. 30 at ¶ 1; Doc. 32–1 at 15; Doc. 32–3 at 32–34; Doc. 33 at ¶ 1. Alex used the jack provided with the car ("Storz cantilever jack")¹ to lift the car and gain access to a hanger that was supporting and securing the exhaust system. Doc. 30 at ¶ 2; Doc. 33 at ¶¶ 2, 5. The exhaust hanger and related components are located underneath and toward the center of the car, not near any of the car's tires. Doc. 30 at ¶ 13.

That afternoon, Alex's friend, Daniel Neugebauer ("Neugebauer"), picked Alex up from the storage unit and the two of them made various stops around town in attempt to find parts to fix the exhaust system. Doc. 32–1 at 18–21; Doc. 33 at ¶¶ 2–3. When Neugebauer picked Alex up from the storage unit, Neugebauer observed that the car was lifted in the back passenger area of the car with the Storz cantilever jack. Doc. 32–1 at 26. Neugebauer testified that Alex said he wanted to use the Storz cantilever jack because it was the manufacturer's jack. Doc. 32–1 at 29. Neugebauer testified that other hydraulic jacks and jack stands were in the storage unit, but on that day, only the Storz cantilever jack was being used to lift the car and that there were no wheel chocks around any of the wheels. Doc. 32–1 at 30, 53. When Neugebauer dropped Alex off at the storage unit after obtaining parts, Neugebauer testified that the car was still supported only by the Storz cantilever jack and that no hydraulic jacks or jack stands were being used. Doc. 32–1 at 34–35. Neugebauer dropped Alex off at the storage unit to make the repairs himself. Doc. 32–1 at 21, 32.

Alex had used only the Storz cantilever jack to lift the car in order to work underneath it on the exhaust system. See Doc. 32–1 at 26–30, 34–35; Doc. 32–3 at 33–34, 37. While Alex was under the lifted car making repairs, the Storz cantilever jack somehow tipped, and the car fell on top of Alex. Doc. 32–3 at 32–33; Doc. 33 at ¶ 5. Alex died from asphyxia under the weight of the car. Doc. 32–4. Later that evening, Bruce went to the storage unit to check on Alex. Doc. 32–3 at 32–33. Bruce discovered that the Storz cantilever jack had tipped over and that Alex's body was underneath the car. Doc. 32–3 at 32–33. Bruce used a nearby hydraulic floor jack to lift the car off of Alex's body. Doc. 32–3 at 33. Bruce testified that there were other hydraulic jacks and jack stands in the storage unit, but when he arrived at the unit on July 5, 2013, it did not appear as if Alex had used anything to support the car other than the Storz cantilever jack. Doc. 32–3 at 33–34, 37.

The day before the accident, Bruce had helped Alex work on the car's exhaust issue in the storage unit.² Doc. 32–3 at 24–25. On that day, Alex jacked up the car with the Storz cantilever jack and Bruce asked Alex why he was using the Storz cantilever jack. Doc. 32–3 at 24–25. Bruce testified that Alex said the Storz cantilever jack was the "proper jack for the job," and BMW had designated locations or receptacles for the Storz cantilever jack to be used to lift the car off the ground. Doc. 32–3 at 24–25. After jacking the car up with the Storz cantilever jack on the day before the accident, Alex had placed a jack stand under the car and both Alex and Bruce proceeded to work on the car's exhaust issue. Doc. 32–3 at 25.

The Storz cantilever jack was provided with the car to be used for tire repair or replacement and not for work underneath the car. Doc. 30 at ¶ 4. The owner's manual provided with the car instructs that the Storz cantilever jack "is designed for changing tires only" and that one should "[n]ever lie beneath the vehicle or start the engine while the car is supported by the jack—risk of fatal injury!" Doc. 30 at ¶ 5; Doc. 29–2 at 1–2. An illustration depicted on the Storz cantilever jack warns that one should not lie under the vehicle while using the Storz cantilever jack. Doc. 31 at 3. Alex was disregarding the instructions in the owner's manual and the illustration on the Storz cantilever jack on July 5, 2013. Doc. 30 at ¶ 7; see also Doc. 32–3 at 53; Doc. 32–10 at 22–25.

Defendant is the...