MEMORANDUM AND ORDER

MORRISON C. ENGLAND, Jr., Chief District Judge.

In this product liability case, Defendant Louisville Ladder, Inc. ("Louisville") moves for summary judgment, or alternatively for summary adjudication, on grounds that Plaintiff has failed to proffer sufficient evidence to support his claims. Jurisdiction is premised on diversity of citizenship pursuant to 28 U.S.C. § 1441(b). As set forth below, Louisville's Motion is GRANTED.1

BACKGROUND

On June 16, 2009, Plaintiff Christopher Binning ("Plaintiff") was injured while installing a steel rolling curtain overhead door at a residence located in Groveland, California. Def.'s Statement of Undisputed Fact ("SUF") No. 4. Plaintiff was working as an overhead door installer for Barton Overhead Door, Inc. Id. at No. 1. In that capacity, he used ladders every day and considered himself an experienced ladder user. Id. at No. 2.

The door being installed by Plaintiff and his fellow installer, Tom Oliva, on the day of the incident was a Janus Model 2000 door which measured some 8 feet tall by 9 feet wide and weighed approximately 90 pounds. Id. at 9. In performing the installation, Plaintiff was using a 6 foot fiberglass step ladder manufacturer by Louisville that he had used without incident every day for about a year and a half. Id. at 5-6. It is undisputed that Plaintiff realized that installing overhead doors could be dangerous. Id. at No. 3.

In preparing to place the door, Plaintiff and Oliva installed "L-brackets" on either side of the door opening from which to hang the steel curtain door. Id. at No. 8. After affixing those brackets, both Plaintiff and Oliva positioned their ladders on either side of the door opening so that the door could be lifted onto the brackets. Id. at No. 10. Once they lifted the door such that it was sitting on the top of both ladders, Plaintiff climbed to the third step of the ladder and both men picked up the door so that they could it hoist it to the brackets. Id. at 12-13. Plaintiff was not holding on to the ladder as he lifted the door forward to a point about three feet above the top of the ladder and approximately six inches over his head in order to access the brackets. Pl.'s Dep., Ex. A. to the Decl. of Jonathan R. Murphy in Support of Summ J., 62:22-63:25. According to Plaintiff, he was looking up at the brackets where the door was going to be placed when he felt the door "give way." Id. at 15-16. As the ladder tipped, Plaintiff went left and the ladder went right, towards the door opening. Id. at 17. He grabbed the truss to the left of the door opening with his left arm, and remained suspended in that manner until Oliva helped him down. Id. at 20. Neither Plaintiff nor Oliva observed the ladder "break." Id. at 16. Plaintiff also did not see whether the steel door hit the ladder as both items fell to the ground. Pl.'s Dep., 17:4-6.

After the incident, Plaintiff observed that one of the legs of the ladder was bent, and a support brace was broken. Id. at 21. Plaintiff claims to have suffered a separated shoulder as a result of the accident and filed suit in state court on June 14, 2011, alleging causes of action for strict product liability, negligence, and breach of implied warranty. As indicated above, Louisville subsequently removed the action to this Court on diversity grounds.

Plaintiff propounded no discovery on Louisville before the discovery period closed. Nor did he designate any expert witness to opine with regard to any alleged defects in the ladder that caused or contributed to the accident. Louisville, for its part, designated Thomas Schmitt, its Director of Product Safety and Engineering, as an expert witness. Schmidt inspected the damage to the ladder at the accident site on June 25, 2013, and subsequently prepared an expert report dated November 17, 2013. See Report, Ex. 1 to Louisville's Expert Witness Disclosure, Ex. E to Murphy Decl. Schmitt noted that one of the ladder's rear legs had bent inward, causing a support brace to snap. He opined that this damage could not have occurred during normal use of the ladder, when any force exerted is transferred down the rails and to the ground, without any lateral force exerted on the ladder's legs. Id. at 38-39. Instead, according to Schmitt, the damage he observed could only have resulted from a force striking the outside of the rear leg of the ladder, such as the overhead door falling on the ladder as it tipped and fell forward towards the door opening. Id. at 40.

Louisville now moves for summary judgment, or alternatively for summary adjudication as to Plaintiff's various claims, on grounds that Plaintiff has failed to identify any triable issues of material fact to counter Louisville's showing that the accident was not caused by any design defect.

STANDARD

The Federal Rules of Civil Procedure2 provide for summary judgment when "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325.

Rule 56 also allows a court to grant summary judgment on part of a claim or defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) ("A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought."); see also Allstate Ins. Co. v. Madan, 889 F.Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a motion for partial summary judgment is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary judgment standard to motion for summary adjudication).

In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portions in the record "which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

In attempting to establish the existence or non-existence of a genuine factual dispute, the party must support its assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits[,] or declarations . . . or other materials; or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also demonstrate that the dispute about a material fact "is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In other words, the judge needs to answer the preliminary question before the evidence is left to the jury of "not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule [56(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Therefore, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Id. 87.

In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).

ANALYSIS

Federal district courts sitting in diversity, as this Court does here, apply state law to product liability claims. Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1193-94 (9th Cir. 2007). Plaintiff's complaint in this matter is specifically denominated as a products liability action (Pl.'s Compl, ECF No. 1-1). As stated above, the complaint includes claims for strict product liability, negligence and breach of implied warranty, all stemming from an alleged defect in the ladder manufactured by Defendant and being used by Plaintiff at the time the subject accident occurred.

To succeed on any strict product liability claim under California law, a plaintiff must prove: (1) that the product was defective; and 2) that the defect existed when the product left the hands of the manufacturer. Daly v. General Motors Corp., 20 Cal.3d 725, 758 n.1 (1978). A negligence claim rooted in products liability must include, along with the two elements discussed above, an additional element that the product defect was due to the defendant's negligence. Id. In addition to establishing the defective nature of the product, Plaintiff must also show a substantial probability that the design defect, and not something else, caused the plaintiff's injury. Stephen v. Ford Motor Co., 134 Cal.App.4th 1363, 1373 (2005). In the absence of such a showing, Plaintiff's product liability claims, whether premised on strict liability or negligence, fail. Daly, 20 Cal. 3d at 758 n.1; Stephen, 134 Cal.App.4th 1373; see also Merrill v. Navegar, Inc., 26 Cal.4th 465, 479 (2001) (product liability under a negligence theory requires proof of both defect and causation).

With respect to strict liability in particular, California law allows a plaintiff to recover only when "there is something `wrong' with a product's design." Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 432 (1978). This standard prevents a manufacturer from Louisville from becoming the "insurer of all injuries which may result from use of its product." Id. A plaintiff can therefore not recover under a product defect theory "simply because an accident has occurred." Henderson v. Harnischfeger Corp., 12 Cal.3d 663, 676 (1974). Nor is a manufacturer strictly liable merely because use of its product carries some risk of harm. Id. Instead, plaintiff must identify evidence that he was injured due to a defect in the product. Milwaukee Elec. Tool Corp. v. Superior Court, 15 Cal.App.4th 547, 556 (1993).

Plaintiff's claim fails on the first prerequisite for establishing a products liability and/or negligence claim, as enumerated above. Plaintiff concedes he has no factual basis to support a defect theory against Louisville in any manner, whether through mandatory Rule 26 disclosures, by way of interrogatory responses, or otherwise. PUF No. 36. It is further undisputed that Plaintiff has hired no expert to opine with regard to any alleged defect in the Louisville ladder. Id. at No. 26. Instead, Plaintiff indicates only that he wants to reopen expert discovery, since he "may now be able to hire an expert." See Pl.'s Response to PUF No. 26. Plaintiff further states that he may be able to prove his case "partially through cross-examination of Defendant's Expert Witness." Id.

First, with respect to Plaintiff's ostensible claim that he be permitted to reopen expert discovery, the time for seeking such relief on a timely basis has long since passed. The Amended Pretrial Scheduling Order ("PTSO") in this matter, filed nearly a year and a half ago on March 19, 2013, established a fact discovery deadline of October 4, 2013, to be followed by the designation of expert witnesses by December 4, 2013. ECF No. 22. The instant motion for summary judgment was filed in accordance with the April 3, 2014 deadline for hearing dispositive motions. Id. Plaintiff's request to reopen expert discovery therefore comes at a point some four and a half months after expert designations were supposed to have been made, and was only made after Louisville's motion for summary judgment had already been filed. Moreover, Plaintiff's request comes at a time when the case only awaits the Final Pretrial Conference and trial itself. Plaintiff has demonstrated no good cause to excuse his compliance with the above enumerated disclosure deadlines aside from speculating that he "may now be able to borrow some money to hire an expert." Such speculation, without more, is plainly insufficient to justify the significant deviation from long-expired deadlines that Plaintiff now appears to request.

Even more significantly, however, Plaintiff has failed to point to any likelihood that a renewed opportunity to seek an expert opinion would produce any evidence sufficient to meet his burden in opposing summary judgment in any event. As set forth above, the Supreme Court has made it clear that to meet this burden, Plaintiff must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.

The defense expert, Thomas Schmitt, makes a strong case in his marshaling of evidence pointing to the propriety of granting summary judgment in Louisville's favor. First, Mr. Schmitt's report points out that the subject ladder's design met all applicable specifications for fiberglass stepladders set forth by the American National Standards Institute ("ANSI'). Schmitt Report, p. 12. Schmitt also found that the ladder met all federal and state Occupational Safety and Health Administration ("OSHA") standards as well, explaining that OSHA recognizes the ANSI standards as the national consensus safety standards for ladders. Id. While Plaintiff argues that compliance with these standards "does not guarantee there will not be defects in the subject ladder," the law is clear that evidence of industry safety standards is relevant in a product liability action. In Howard v. Omni Hotels Mgmt. Corp., 203 Cal.App.4th 403, the plaintiff slipped and fell in a bathtub while staying at the Omni Hotel. Plaintiff sued Kohler, the manufacturer of the bathtub, on theories of both negligence and strict liability. In support of its motion for summary Judgment, Kohler proffered evidence showing that the tub complied with applicable industry safety standards on grounds that such compliance met Kohler's initial burden in moving for summary judgment. The trial court considered those standards and entered summary judgment in Kohler's favor. On appeal, the plaintiff argued that the court erred in considering such standards. In rejecting that argument, the California Court of Appeals confirmed that industry standards were indeed relevant on the issue of design defect:

Id. at 426.

Howard further makes it clear that industry standards are also relevant in a product liability action where negligence on the part of the manufacturer is also alleged, as Plaintiff asserts here:

Id. at 420-21.

Consequently, evidence of such compliance, as Mr. Schmitt outlines in his expert report, is indeed relevant both with respect to Plaintiff's strict liability and negligence claims rooted in products liability and asserted against Louisville. More important, however, is evidence that the ladder in question had a design defect and that said defect was the cause of Plaintiff's injury. As set forth above, Plaintiff has to counter Louisville's claim that no such defect was present, and that it was Plaintiff's own conduct that caused the ladder to fall as opposed to any design shortcoming on Louisville's part in making the ladder.

Plaintiff cannot meet this burden. Mr. Schmitt's report is unequivocal that the ladder failure suggested by Plaintiff, an inward bend of one of the ladder's rear legs, is impossible during normal use of the ladder since it is inconsistent with basic principles of physics. Instead, as Schmitt explains, the damage which occurred to the ladder could only have resulted from a force striking the outside of the rear leg of the ladder as it fell, such as the overhead door which Plaintiff pushed outwards towards the garage door opening, in the same direction the ladder fell. Schmitt's report states as follows:

Schmitt Report, Ex.t 1 to Defendant Louisville's Expert Disclosures, p. 12, attached as Ex. E to the Murphy Decl.

As already indicated, Plaintiff concedes he has no evidence to discount Mr. Schmitt's conclusion that the Louisville ladder being used by Plaintiff was not defective in design. See Pl.'s Response to SUF No. 36, 26. Aside from indicating that he "may be requesting that expert discovery be reopened," a request the Court has already considered and rejected above, Plaintiff states only vaguely that he "plans on proving his case partially during cross-examination" of Mr. Schmitt. Id. at No. 26. That statement is not evidence, however, and provides no clue on even how Plaintiff intends to discredit Mr. Schmitt's opinion. It is not sufficient to meet Plaintiff's burden in opposing Defendant's request for summary judgment on the basis of the Schmitt report. To meet that burden and show that a triable issue of fact exists with regard to defective design, expert testimony is required. Howard, 203 Cal. App. 4th at 426. Expert testimony is also required to establish causation and to rebut Schmitt's conclusion that no design defect caused Plaintiff's injury. Stephen, 134 Cal. App. 4th at 1373. Plaintiff has failed to disclose any expert to provide such testimony and, as discussed above, offers no clue as to how an expert could discount Mr. Schmitt's opinion were one to be retained and permitted to testify. Significantly, too, it is undisputed that Plaintiff did not initiate any discovery directed towards Louisville before the discovery period closed. He did not serve written discovery requests, did not depose any Louisville representative, and has disclosed no factual basis to support a defect theory in his mandatory Rule 26 disclosures, in responses to written interrogatories served by Louisville, or in any other manner. Def.'s SUF Nos. 27, 36.

The only specific factual averment made by Plaintiff is that had the door fallen on the ladder, "there would have been visible scratches, dents, or cuts in the ladder at the site where the ladder snapped apart." Opp'n, 2:19-21.3 That argument, however, fails to present any triable issue of fact. Examination of numerous photographs taken by Mr. Schmitt of the damaged areas of the ladder in fact reveal numerous scratches, dents and cuts in the damaged areas, such that impact from the steel door would not necessarily be discernible from other marks made during normal use of a ladder utilized by Mr. Binning on a daily basis for about a year and a half before the accident. See photographs attached as Ex. D. to the Murphy Decl.' see also Pl.'s Response to SUF No. 6.

Plaintiff concedes that he climbed to the third step of the ladder before lifting the door in tandem with Tom Oliva onto a bracket where the door would hang. In order to execute this maneuver, Plaintiff had to hold the door over his head and was not holding onto the ladder when he felt it "give way." Plaintiff was looking up at the bracket, where the door was going to be placed, when this happened, and neither Plaintiff nor Mr. Oliva were looking at the ladder. Aside from speculating that something, other than the danger implicit in lifting a 90 pound door over Plaintiff's head without hanging on to the ladder, caused the ladder to tip over, Plaintiff cannot point to any evidence that it was the ladder as opposed to the dangerousness of his own conduct that caused the accident.

Given all of the above, Plaintiff has not met his burden of coming forward with "specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587. Summary judgment in Louisville's favor is therefore appropriate as to Plaintiff's product liability claims premised on strict liability and in negligence.

While Plaintiff also alleges one additional claim for breach of implied warranty, the elements of that claim under California law also include a requirement that the quality of the product, here Louisville's ladder, "was a substantial factor in causing [Plaintiff's] harm. Judicial Council of California Civil Jury Instructions ("CACI") 2013, No. 1231. Because Plaintiff's breach of implied warranty also contains a claim that a quality defect "caused" Plaintiff's harm, the same causation requirement discussed above with regard to the strict product liability and negligence claims also bars that claim. Additionally, in order to bring an action for implied warranty under California law, the general rule is that privity of contract is required. In order to establish such privity, the aggrieved consumer, here Plaintiff, must have purchased the product directly from the manufacturer. See All west Electronics, Inc. v. M-B-W, Inc., et al., 64 Cal.App.4th 717, 725 (1998); Blanco v. Baxter Healthcare Corp., 158 Cal.App.4th 1039, 1058-59 (2008). It is undisputed that Plaintiff's employer, Barton Overhead Doors, purchased the ladder involved in the subject accident, and not Plaintiff. SUF No. 42. Plaintiff therefore lacks privity and his breach of implied warranty fails as a matter of law on that basis. Significantly, Plaintiff does not appear to oppose Louisville's request for summary adjudication as to the implied warranty claim in any event.

CONCLUSION

Based on the foregoing, Plaintiff has failed to rebut Defendant Louisville's prima facie showing that it is entitled to judgment as a matter of law given the undisputed facts of this matter. In attempting to meet that burden, Plaintiff offers no more than unsubstantiated assumptions not backed by any evidence sufficient to create a triable issue of fact. Plaintiff admits that he has done no discovery or obtained any expert opinion pointing to any such evidence. Louisville's Motion for Summary Judgment (ECF No. 23) is thus GRANTED. The Clerk of Court is directed to close the file.

IT IS SO ORDERED.