ORDER ON MOTIONS TO EXCLUDE EXPERT TESTIMONY, TO STRIKE REPLY TO ADDITIONAL STATEMENT OF MATERIAL FACT, AND FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

Concluding that there are genuine issues of material fact that preclude relief on dispositive motions, the Court dismisses the Defendants' two motions for summary judgment. The Court also dismisses the parties' motions to exclude the opposing experts concluding there is an insufficient context to adequately judge whether the experts meet Daubert standards. Finally, the Court grants the Plaintiff's motion to strike the Defendants' statement of additional material fact.

I. BACKGROUND AND PROCEDURAL HISTORY

Michael Hinton filed a complaint in Maine Superior Court, Waldo County, on July 18, 2003 concerning an accident that occurred on September 10, 2000. State Ct. R. (Docket # 6). After a series of motions for enlargement and amended complaints complicated by an intervening bankruptcy and difficulties with service of process, on October 30, 2009, OMC Recreational Boat Group, Inc. removed the action to this Court.1 Notice of Removal (Docket # 1). Discovery closed on March 1, 2011, Report of Telephone Conf. and Am. Scheduling Order at 3 (Docket # 23), and the parties began filing motions in earnest.

On March 31, 2011, Mr. Hinton led off with a motion to exclude the testimony of the Defendants' expert witnesses. Pl.'s Mot. in Limine to Exclude or Limit Test. of Defs.' Expert Witnesses (Docket # 48) (Pl.'s Experts Mot.). On April 21, 2011, the Defendants responded to the motion to exclude. Defs.' Opposing Mem. of Law in Resp. to Pl.'s Mot. in Limine to Exclude or Limit Test. of Defs.' Expert Witnesses (Docket # 70) (Defs.' Experts Opp'n). Mr. Hinton replied on April 22, 2011. Pl.'s Reply Mem. in Support of Mot. in Limine to Exclude or Limit Test. of Defs.' Expert Witnesses (Docket # 74) (Pl.'s Experts Reply).

Meanwhile, on April 1, 2011, the Defendants moved to exclude the Plaintiff's expert. Defs.' Mot. to Exclude the Test. of Pl.'s Expert, Robert V. Flynn (Docket # 52) (Defs.' Flynn Mot.). On April 22, 2011, Mr. Hinton responded. Pl.'s Mem. of Law in Opp'n to Defs.' Mot. to Exclude the Expert Test. of Robert Flynn (Docket # 73) (Pl.'s Flynn Opp'n). On May 6, 2011, the Defendants filed a reply. Defs.' Reply Mem. in Support of Their Mot. to Exclude the Test. of Pl.'s Designated Expert, Robert V. Flynn (Docket # 76) (Defs.' Flynn Reply).

On April 11, 2011, the Defendants moved for summary judgment and filed a statement of material facts. Defs.' Mot. for Summ. J. (Docket # 65) (Defs.' Mot. for Summ. J.); Defs.' Statement of Material Facts in Support of Defs.' Mot. for Summ. J. (Docket # 66) (DSMF). On April 22, 2011, Mr. Hinton responded to the motion and the Defendants' statement of material facts. Pl.'s Mem. of Law in Opp'n to Defs.' First Mot. for Summ. J. (Docket # 71) (Pl.'s Opp'n to Summ. J.); Pl.'s Resp. to Defs.' Statement of Undisputed Material Facts and Statement of Additional Facts (Docket # 72) (PRDSMF; PSAMF). On May 6, 2011, the Defendants replied to the Plaintiff's response and to his statement of additional material facts. Defs.' Reply to Pl.'s Opp'n to Defs.' Mot. for Summ. J. (Docket # 77) (Defs.' Summ. J. Reply); Defs.' Reply to Pl.'s Statement of Facts and Defs.' Additional Statement of Undisputed Facts (Docket # 78) (DRPSAMF; DASMF). On May 9, 2011, Mr. Hinton moved to strike the Defendants' statement of additional material facts. Pl.'s Mot. to Strike "Defs.' Statement of Additional Undisputed Facts" (Docket # 79) (Pl.'s Mot. to Strike). On May 31, 2011, the Defendants responded to Mr. Hinton's motion to strike. Defs.' Resp. to Pl.'s Mot. to Strike Defs.' Statement of Additional Undisputed Facts (Docket # 83) (Defs.' Opp'n to Pl.'s Mot. to Strike).

On April 11, 2011, the Defendants separately moved for summary judgment on the ground that the boat that is the subject of the litigation was manufactured by Four Winns, Inc., a separate corporation not named as a defendant. Defs.' Mot. for Summ. J. on the Identity of the Mfr. of the Accident Boat (Docket # 67) (Defs.' Four Winns Mot.). On the same day, the Defendants filed a separate statement of material facts in support of the motion. Defs.' Statement of Material Facts in Support of Defs.' Second Mot. for Summ. J. (Docket # 68) (DSMF — Four Winns). Mr. Hinton responded on July 8, 2011. Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. on the Identity of the Mfr. (Docket # 93) (Pl.'s Four Winns Opp'n). He also filed a response to the Defendants' statement of material fact and a statement of additional facts. Pl.'s Opposing Statement of Material Facts and Statement of Additional Facts (Docket # 92) (POSMF — Four Winns; PSAMF — Four Winns). On July 22, 2011, the Defendants replied to the Plaintiff's opposition and to his statement of additional material facts. Defs.' Reply to Pl.'s Resp. to Defs.' Mot. for Summ. J. on the Identity of the Mfr. (Docket # 95) (Def.'s Four Winns Reply); Defs.' Reply Statement in Support of Defs.' Second Mot. for Summ. J. (Docket # 96) (DRPSAMF — Four Winns).

II. THE PENDING MOTIONS

A. The Plaintiff's Motion to Exclude Experts

1. The Defendants' Experts and the Parties' Positions

In his motion, Mr. Hinton says that the Defendants designated three expert witnesses, Robert Taylor, Wendy Sanders, and Robert MacNeill. In general, Mr. Hinton asserts that the opinions of these experts are faulty because the opinions lack foundation, place an expert patina on common sense observations, express legal conclusions, amount to legal argument, and are irrelevant. Pl.'s Experts Mot. at 1-14.

In response, the Defendants contend that Mr. Hinton's position is "without foundation or basis." Defs.' Experts Opp'n at 1. They criticize Mr. Hinton for having failed to undertake any expert discovery and filing his motion "one day before the discovery cutoff." Id. They say that Mr. Hinton engaged in an unwarranted "piecemeal attack" of their experts and has taken their opinions "entirely out of context." Id. at 4. The Defendants further argue: 1) that the Court must not accept mere argument of counsel as evidence; 2) that Mr. Hinton's motion does not comply with Rule 11 because the arguments do not have a reasonable basis; 3) that his motion violates Local Rule 7 because it is not supported by affidavits or other documents; 4) that the proffered expert opinions would aid in the jury's understanding of the evidence; and, 5) that his asserted troubles with their experts' opinions are matters for cross-examination, not admissibility. Id. at 5-14.

In reply, Mr. Hinton accuses the Defendants of making "numerous false statements about the facts and procedural history of this case." Pl.'s Experts Reply at 1. Mr. Hinton is especially annoyed with the Defendants' citation of Rule 11, noting that "Defendants cite no rule or case law in support of their inflammatory claim that the Plaintiff's decision not to depose Defendants' experts, but instead to move to exclude their opinions, is a Rule 11 violation." Id. Mr. Hinton then notes that some of the Defendants' arguments are directed to a theory of the case the Plaintiff is not pursuing. For example, Mr. Hinton observes that expert testimony about the warning on the boat addresses a "failure to warn" but that he is not pursuing a failure-to-warn theory; rather, he is claiming defective design. Id. at 4. Mr. Hinton reiterates the position that the defense's expert opinions will not be helpful to the factfinder and instead will "do nothing more than tell the jury what result to reach." Id. at 4-5.

2. Discussion

First, the Court agrees with Mr. Hinton that the Defendants' Rule 11 argument is unwarranted on these facts. Reference to Rule 11 raises the stakes for the opposing attorney because it presents the specter of attorney misconduct and sanctions. See Defs.' Experts Opp'n at 5 (citing Fed. R.Civ.P. 11(b)(3)). Here, the Defendants assert that before filing the motion, Mr. Hinton failed to make "a reasonable inquiry under the circumstances" and to assure that his "factual contentions" have evidentiary support because he failed to depose the Defendants' experts. Id.

The Court disagrees with the Defendants that Mr. Hinton's motion to exclude their experts without first deposing them constitutes a Rule 11 violation. The Plaintiff's motion is based on the Defendants' own expert witness disclosures so the Defendants are not in a position to claim their own disclosures lack evidentiary support. Furthermore, as Mr. Hinton pointed out, Rule 26 was amended in 1993 to require automatic expert disclosures and the Civil Rules Committee noted that "[t]he requirement under subdivision (a)(2)(B) of a complete and detailed report of the expected testimony of certain forensic experts may, moreover, eliminate the need for some such depositions or at least reduce the length of the depositions." FED.R.CIV.P. 26 advisory committee's note (1993).

Courts have uniformly rejected the Defendants' position: that the failure to depose an expert affects the right to object to the expert's testimony. Bolton v. WJV Miss., Inc., No. 08-0310-WS-M, 2011 WL 206171, *4, 2011 U.S. Dist. LEXIS 6142, *14 (S.D.Ala. Jan. 20, 2011) ("[T]he defendant argues that any harm to the plaintiff is its own fault, because he did not demand a supplemental report or depose Dr. Graham. The defendant would shift the responsibility for an inadequate report from itself to the plaintiff, forcing the plaintiff to ferret out what the defendant, in violating Rule 26(a)(2), failed to provide and penalizing the plaintiff for not rescuing the defendant from the consequences of its omission"); New Colt Holding Corp. v. RJG Holdings of Fl., Inc., No. 3:02cv173 (PCD), 2003 WL 23508131, *1 n. 2, 2003 U.S. Dist. LEXIS 25309, *4 n. 2 (D.Conn. Aug. 11, 2003) ("As [expert] reports may obviate the need to depose the expert, defendant's standing argument, i.e., that plaintiffs may not move to exclude unless proposed experts are first deposed, is without merit"); Bonesmo v. The Nemours Found., 253 F.Supp.2d 801, 811 (D.Del.2003) ("Contrary to plaintiffs' argument, the opposing party is not required to depose the expert to develop what his opinion is or the reasons for it"); SEC v. Lipson, 46 F.Supp.2d 758, 763 n. 3 (N.D.Ill.1999) ("One of the purposes of the expanded disclosure requirement for expert reports ... was to provide in substance the expert's direct testimony at trial. This was intended to allow the opposing party, if he or she so chose, to dispense with the expert's deposition"). This Court concludes that Mr. Hinton's failure to depose the Defendants' expert witnesses does not affect his right to move to exclude the expert testimony and does not constitute a Rule 11 violation.

At the same time, although Mr. Hinton plausibly asserts that portions of the proposed testimony address legal theories he is not pressing or amount to argument, the Defendants plausibly respond that Mr. Hinton has taken the opinions out of context. Without a more complete context, the Court is reluctant to issue a fiat based on a limited glimpse of the evidence and its significance. If it is essential to obtain a pretrial ruling, the parties might request the Court to schedule a Daubert hearing to present a more complete understanding of the issues in the case and the context of the proposed testimony.

At this point, the Court dismisses the motion in limine without prejudice. The motion was useful in highlighting issues that counsel believe are at play in this case but, from the Court's perspective, those issues are not fully formed.

B. Defendants' Motion to Exclude the Testimony of Robert Flynn

1. Mr. Flynn's Proposed Testimony and the Parties' Positions

On October 15, 2010, Mr. Hinton designated Robert V. Flynn as a liability expert. Defs.' Flynn Mot. Ex. 2 (Letter from Arthur J. Greif to Phillip S. Bixby) at 3 (Docket # 52). According to the Plaintiff, Mr. Flynn is a safety engineer and would express the opinion that the swim ladder in this case "was unreasonably dangerous, defective and in breach of implied warranties in the manner in which it was attached to the boat." Id. The Defendants move to exclude the testimony of Mr. Hinton's expert witness Robert V. Flynn on the grounds that he is not qualified to express the opinions for which he has been designated and that his methodology and opinions fail to meet Daubert standards for admissibility. Defs.' Flynn Mot. at 1-18. Naturally, Mr. Hinton takes an opposing position. Pl.'s Flynn Opp'n at 1-9.

2. Discussion

Rule 702 provides:

FED.R.EVID. 702. The First Circuit has noted that experts "come in various shapes and sizes" and there "is no mechanical checklist for measuring whether an expert is qualified to offer opinion evidence in a particular field." Santos v. Posadas De P.R. Assocs. Inc., 452 F.3d 59, 63 (1st Cir.2006) (citing United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir.1987) ("Expertise is not necessarily synonymous with a string of academic degrees or multiple memberships in learned societies")). At the same time, a testifying expert "`should have achieved a meaningful threshold of expertise' in the given area." Levin v. Dalva Bros. Inc., 459 F.3d 68, 78 (1st Cir.2006) (quoting Prado Alvarez v. R.J. Reynolds Tobacco Co., Inc., 405 F.3d 36, 40 (1st Cir.2005)). "The test is whether, under the totality of the circumstances, the witness can be said to be qualified as an expert in a particular field through any one or more of the five bases enumerated in Rule 702 — knowledge, skill, experience, training, or education." Santos, 452 F.3d at 64.

Here, Mr. Flynn is qualified to express expert opinions. Mr. Flynn is a graduate of Maine Maritime Academy who majored in nautical science. Defs.' Flynn Mot. Ex. 4 (Biography of Robert V. Flynn). He served as a deck officer in the United States Navy. Id. He has been employed as a safety engineer and safety director. Id. He is a professional member of the American Society of Safety Engineers and he has been self-employed as a safety consultant and expert witness since 1978. Id. Mr. Flynn has withstood similar challenges to his qualifications in both state and federal court. In Hall v. Home Depot USA, Inc., 752 F.Supp.2d 58, 60-64 (D.Me.2010), this District accepted Mr. Flynn as an expert witness. He has also testified as an expert in Maine state court. Burns v. Wayne-Dalton Corp., No. CV-07-282, 2009 WL 3754132, at *, 2009 Me.Super. LEXIS 155, at *1-17 (Me.Super.Ct. Sept. 11, 2009). Accordingly, this Court will not exclude Mr. Flynn as an expert witness based on his qualifications alone.

The Defendants are free to explore on cross-examination the limits of Mr. Flynn's expertise and to offer countervailing expert opinions, if available, from witnesses with equal or more extensive training. Under standard jury instructions in this Circuit, the jury is instructed that it should consider the relative expertise of each expert in evaluating how much weight to give the expert's testimony. The Court declines to exclude Mr. Flynn's expert opinions based on his supposed lack of expertise; it is the function of the jury in this case to measure the convincing power of Mr. Flynn's expert opinions against the other evidence in this case and to arrive at a verdict.

Whether his proposed testimony meets Daubert standards is another matter. As it determined with the proposed testimony of the Defendants' experts, the Court is reluctant on this record to issue a definitive order. Instead, the Court would benefit from further development of the facts so that it can place Mr. Flynn's opinions in a more concrete context. For now, the Court will dismiss without prejudice the Defendants' motion in limine to exclude Mr. Flynn's testimony.

C. Defendants' Motion for Summary Judgment

1. Plaintiff's Motion to Strike Defendants' Statement of Additional Undisputed Facts

In accordance with Local Rule 56, the Defendants filed a statement of material fact with their motion for summary judgment. DSMF; D. ME. LOC. R. 56(b). The Plaintiff responded with an opposing statement and with a set of additional facts. PRDSMF; PSAMF; D. ME. LOC. R. 56(c). The Defendants filed a reply statement of facts. DRPSAMF; D. ME. LOC. R. 56(d). However, the Defendants also filed ten additional facts. Defs.' Statement of Additional Undisputed Facts (Docket # 78).

The Plaintiff moved to strike the Defendants' ten additional facts on the ground that "Local Rule 56 does not permit such a filing." Pl.'s Mot. to Strike at 1. The Defendants insist that, under Local Rule 56(d), they are entitled to file additional statements of material facts "limited to the additional facts submitted by Plaintiff." Defs.' Opp'n to Pl.'s Mot. to Strike at 1 ("A party replying to the opposition to a motion for summary judgment shall submit with its reply a separate, short, and concise statement of material facts which shall be limited to any additional facts submitted by the opposing party") (emphasis in Defs.' Opp'n). They justify the additional statement of facts by observing that when they filed their motion for summary judgment, not all the witnesses had been deposed, which "thereby allow[ed] Defendants to utilize their testimony by incorporating it into their subsequently filed Statement of Undisputed Facts." Id. Finally, they say that the Local Rules do not permit motions to strike and therefore the "Court should strike Plaintiff's Motion to Strike Defendants' Statement of Additional Undisputed Facts." Id. at 2.

The Defendants are wrong. First, the Defendants quote only a portion of Local Rule 56(d); the full text of Local Rule 56(d) reads:

D. ME. LOC. R. 56(d). "The clear language of Local Rule 56(d) requires the movant to limit its reply statement to admitting, denying or qualifying the responsive statement. It does not allow the movant to add new facts at this late stage." Knowlton v. Shaw, No. 09-cv-334-JAW, 2011 U.S. Dist. LEXIS 94954, at *18 (D.Me. Aug. 24, 2011). The Court addressed the rationale for this rule in Knowlton:

Id. at *18-19; Brooks v. Local S7, Int'l Ass'n of Machinists and Aerospace Workers, AFL-CIO, No. 07-30-P-S, 2008 WL 4516363, at *4 n. 2, 2008 U.S. Dist. LEXIS 82585, at *11 n. 2 (D.Me. Oct. 3, 2008) ("The summary judgment factual exchange stops at the second round, when a nonmoving party admits, denies, or qualifies each entry in the moving party's statement of material facts. The exchange does not, and cannot, extend indefinitely").

In addition to rejecting their misinterpretation of the language of the local rule, the Court rejects the Defendants' further arguments. The Court turns first to the Defendants' contention that further discovery justified an additional statement of material facts. Under the Court's amended scheduling order, the discovery deadline was March 1, 2011 and the initial deadline for filing dispositive motions was April 1, 2011. Report of Telephone Conference and Am. Scheduling Order (Docket # 23). The Defendants filed their motions on April 1 but the motions failed to comply with Local Rule 56 and there were problems obtaining the deposition of one of the witnesses; these issues led to a conference with the Court on April 8, 2011. Report of Telephone Conference and Order (Docket # 63). At the conference, the Court remedied the witness problem, struck the motions for summary judgment, and extended the time for Defendants to file dispositive motions to April 11, 2011. Id. at 2-3. The Defendants filed their motion for summary judgment on April 11, 2011.

The Defendants assert that "at the time of the original filing of Defendants' Motion for Summary Judgment and statements of facts incorporated therein, Justin Hinton and Terri Paquin had not yet been deposed, thereby allowing Defendants to utilize their testimony by incorporating it into their subsequently filed Statement of Undisputed Facts." Defs.' Opp'n to Pl.'s Mot. to Strike at 1. This statement is an act of legerdemain. Mr. Hinton and Ms. Paquin were deposed on April 6, 2011. DRPSAMF and DSAMF at Exs. 1, 3. It is technically true, as Defendants assert, that these witnesses were deposed after the "the time of the original filing of Defendants' Motion" but the Court struck those motions and extended the time for the filing of the Defendants' dispositive motions to April 11, 2011. Defs.' Opp'n to Pl.'s Mot. to Strike at 1 (emphasis supplied). These witnesses were deposed on April 6, 2011 — five days before the filing deadline for the pending motions for summary judgment. To say that because these witnesses were not deposed before April 1, 2011, the Defendants could not incorporate their April 6th depositions into their April 11, 2011 motion is misleading and frivolous.

Second, if the Defendants wished additional time to depose these witnesses to ensure the incorporation of their testimony in their contemplated dispositive motion, they should have asked the Court to authorize the depositions beyond the discovery deadline and to extend the time for filing dispositive motions. They did not — perhaps because they knew the depositions would be completed on Wednesday, April 6, 2011, well in time for the Monday, April 11, 2011 deadline. Instead, the Defendants held back, failed to incorporate the Hinton and Paquin depositions into their April 11th statement of material facts, and attempted to place their testimony before the Court on May 6, 2011, in violation of the Local Rule.

The Defendants' citation of Local Rule 56(e), which forbids the filing of motions to strike, is ironic. By filing a statement of additional material facts, the Defendants have violated Local Rule 56 and, when challenged, claim the protection of the Rule. If the prohibition against filing a motion to strike were taken to its extreme, a party could cavalierly violate the rules, yet punctiliously insist that the rules prevent a remedy. The Court is authorized to relax the Local Rules "in exceptional circumstances when justice so requires." D. ME. LOC. R. 1(a). Here, where the most logical means for the opposing party to bring a Rule 56 violation to the attention of the Court is a motion to strike, the Court relaxes the Local Rule 56(e) prohibition to allow the Plaintiff in this case to bring Defendants' Rule 56(d) violation to its attention.

In sum, the Defendants' position on this issue is not well taken. The Court STRIKES the Defendants' Additional Statement of Undisputed Facts (Docket # 78).

2. The Facts2

Michael Hinton admitted to "`vaulting' over the boat's transom onto the boat's swim deck while the boat's engine was on and propeller spinning in an effort to retrieve his son's hat."3 DSMF ¶ 1; PRDSMF ¶ 1. Mr. Hinton stated:

DSMF ¶ 2; PRDSMF ¶ 2. Mr. Hinton testified he twice went onto the swim platform while the speedboat was under power in his effort to retrieve the hat; the first time he could not successfully hold onto the wet transom railing while reaching for the hat floating in the water. DSMF ¶ 3; PRDSMF ¶ 3. Mr. Hinton testified:

DSMF ¶ 4; PRDSMF ¶ 4. As to the first time over the transom, Mr. Hinton testified:

DSMF ¶ 5; PRDSMF ¶ 5. Mr. Hinton further testified:

DSMF ¶ 6; PRDSMF ¶ 6. Mr. Hinton further described his position:

DSMF ¶ 7; PRDSMF ¶ 7. Mr. Hinton testified further:

DSMF ¶ 8; PRDSMF ¶ 8. The boat contained a warning sign that read:

DSMF ¶ 9; PRDSMF ¶ 9.5 Robert Flynn, the Plaintiff's liability expert, acknowledged at his deposition that "it says, essentially in black and white, make sure the engine is off and propeller stopped before using boarding ladder."6 DSMF ¶ 10; PRDSMF ¶ 10.

Mr. Hinton testified:

DSMF ¶ 12; PRDSMF ¶ 12.

Robin Sprague, an eyewitnesses and the Plaintiff's financée at the time, testified that Michael Hinton fell overboard from the port side of the speedboat while reaching for his son's hat. DSMF ¶ 13; PRDSMF ¶ 13. Ms. Sprague testified:

DSMF ¶ 14; PRDSMF ¶ 14. She further testified:

DSMF ¶ 15; PRDSMF ¶ 15. Ms. Sprague testified that, at the moment Mr. Hinton fell into the water over the port side of the boat, the hat was six to eight feet away. DSMF ¶ 16; PRDSMF ¶ 16. She further testified:

DSMF ¶ 16; PRDSMF ¶ 16.

The warnings on the boat were very small and the color was such that Robert Flynn does not believe that they would meet the standard for warnings.7 PSAMF ¶ 17; DRPSAMF ¶ 17. Michael Hinton did not see any warning labels on the boat. PSAMF ¶ 18; DRPSAMF ¶ 18. Mr. Hinton fell out of the boat because the swim ladder gave way under his grasp.8 PSAMF ¶ 19; DRPSAMF ¶ 19. At the time the ladder snapped and Michael Hinton fell into the water, Justin Hinton was approximately three feet away from Michael Hinton and had Michael Hinton in full view.9 PSAMF ¶ 20; DRPSAMF ¶ 20. Justin Hinton testified that Michael Hinton fell out of the boat and was completely submerged underwater for about four seconds. When Michael Hinton resurfaced and his face broke the plane of the water, Justin Hinton immediately observed blood in a five to six foot radius around Michael Hinton.10 PSAMF ¶ 21; DRPSAMF ¶ 21. Within about fifteen seconds after Justin Hinton saw blood around Michael Hinton as he resurfaced, Justin Hinton had pulled Michael Hinton back into the boat; the entire event took only 25 to 30 seconds.11 PSAMF ¶ 22; DRPSAMF ¶ 22. Michael Hinton never retrieved Justin Hinton's hat that had blown into the water.12 PSAMF ¶ 23; DRPSAMF ¶ 23. Terri Paquin testified that she saw Michael Hinton fall into the water and the next thing she saw was Justin Hinton and Robin Sprague pulling Michael Hinton out of the water; Ms. Paquin does not remember seeing Michael Hinton swimming to get a hat or swimming toward the boat. PSAMF ¶ 24; DRPSAMF ¶ 24.

3. The Parties' Positions

The Defendants base their motion for summary judgment on two theories: (1) that there is "no cause in fact or proximate cause between Plaintiff's product liability ladder claims and Plaintiff's injury accident"; and (2) that "Plaintiff's fault is greater than any he has alleged against Defendants and his claim is barred thereby." Defs.' Mot. for Summ. J. at 13, 15.

The Plaintiff responds by saying that these issues are matters for jury resolution. Pl.'s Resp. to Defs.' Mot. for Summ. J. at 2-6.

4. Summary Judgment Standard

Summary judgment is appropriate 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). For summary judgment purposes, "genuine means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a material fact is one which might affect the outcome of the suit under the governing law." Buchanan v. Maine, 469 F.3d 158, 166 (1st Cir.2006) (quoting Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-19 (1st Cir.2004)) (internal quotation marks omitted). "Neither conclusory allegations nor improbable inferences are sufficient to defeat summary judgment." Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir.2002) (citation and internal quotation marks omitted).

5. Discussion

The Defendants' motion for summary judgment is hopeless on these facts. First, as the Defendants themselves acknowledge, not all the witnesses agree about the details of this accident. Defs.' Mot. for Summ. J. at 8 ("Bizarrely, in the deposition of Plaintiff's fiancée and eyewitness to this accident, Robin Sprague, Ms. Sprague describes an entirely different accident than the one testified to by Michael Hinton"). Where there are manifest differences — amounting to the bizarre or not — as to what actually happened, only a jury can resolve those differences.

Second, the Defendants' proximate cause contention is that Mr. Hinton was injured because he became disorientated after he tumbled into the water, and the boat operator failed to cut power to the propeller, thereby causing the injuries to Mr. Hinton's leg. According to the Defendants, Mr. Hinton's injuries were thus a result of his own negligence and the negligence of the boat operator. Id. at 13-14.

But under Maine law, proximate cause "is that cause which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred." Merriam v. Wanger, 2000 ME 159, ¶ 8, 757 A.2d 778, 780 (citations omitted). The Merriam Court explained:

Id. ¶ 8, 757 A.2d at 780-81.

Here the question narrows to whether there is a genuine issue of material fact as to whether the manufacturer of a defective swim ladder on a boat should anticipate that a person who falls into the water as a result of the defect is at risk of becoming disoriented and that a boat operator, attempting to rescue a man overboard, could fail to cut the propeller in time to avoid injury.

As the Maine Supreme Judicial Court has pointed out, "[t]he question of whether a defendant's acts or omissions were the proximate cause of a plaintiff's injuries is generally a question of fact, and a judgment as a matter of law is improper if any reasonable view of the evidence could sustain a finding of proximate cause." Houde v. Millett, 2001 ME 183, ¶ 11, 787 A.2d 757, 759. See Dyer v. Me. Drilling & Blasting, Inc., 2009 ME 126, ¶ 32, 984 A.2d 210, 219 ("The question of causation is generally one of fact to be determined by the fact-finder").

Regarding the Defendants' contention that the boat operator caused the injury by failing to cut the power to the propeller, the argument assumes that a fact-finder would conclude that the boat operator was in fact negligent in his operation of the boat, a fact that the Court cannot determine on this record. Furthermore, if the boat operator's negligence did contribute to Mr. Hinton's injury, this would not necessarily absolve the Defendants. Maine law has long held that "[a]n injury ... may have more than one legal cause. Two or more persons or things may act either independently or together to cause injury or damage, and in such a case each may be a legal cause." Donald G. Alexander, MAINE JURY INSTRUCTION MANUEL § 7-81 (4th ed.2003).

The analysis of comparative negligence is similar. Under Maine law, comparative negligence under 14 M.R.S. § 156 is available as a defense to a strict liability action under 14 M.R.S. § 221. Austin v. Raybestos-Manhattan, Inc., 471 A.2d 280, 283 (Me.1984). But the Maine Supreme Judicial Court also limited the type of negligence available as a defense to a strict liability action:

Id. at 286. As the authors of MAINE TORT LAW explained, "[t]o place a responsibility on a consumer to discover product defects places a burden on the consumer which strict liability was intended to remove." Jack H. Simmons, Donald N. Zillman, David D. Gregory, MAINE TORT LAW § 12.09 (2004 ed.). Although the Defendants have a strong argument that Mr. Hinton "voluntarily and [unreasonably proceeded] to encounter a known danger," a jury could also conclude that Mr. Hinton did not know about the defect in the swim ladder. The resolution of this question depends on a fact-finder.

Moreover, as the Maine Law Court made clear in Austin, the jury's task under section 156 is to "compare the conduct of the seller of an unreasonably dangerous product with the contributorily negligent conduct of the plaintiff." 471 A.2d at 285. On this record, which contains virtually no information about the nature of the defect, the Court is in no position to make that evaluation — and to compare degrees of negligence — and is certainly in no position to rule that, as a matter of law, Mr. Hinton's negligence was equal to or greater than the Defendants' liability. The Court dismisses the motion for summary judgment without prejudice.

D. Defendants' Four Winns Motion

1. The Parties' Positions

The Defendants have also moved for summary judgment on the ground that Mr. Hinton has sued the wrong parties, saying that neither Outboard Marine Corporation nor OMC Recreational Boat Group, Inc. designed or manufactured the boat involved in this accident and that the actual designer is Four Winns, Inc., a party the Plaintiff dismissed on March 26, 2009. Defs.' Four Winns Mot. at 1-4. Further, the Defendants contend that the statute of limitations has run as to Four Winns. Id. at 5. Mr. Hinton vigorously disputes the factual underpinnings of the Defendants' motion. Pl.'s Four Winns Opp'n. at 1-5.

2. Discussion

Based on this highly contested record, the Court cannot begin to determine whether Four Winns is the proper Defendant. Not surprisingly, in his responsive statement of material facts, Mr. Hinton denied the Defendants' critical assertions.13 In their responsive statement of material facts, the Defendants admitted only one of Mr. Hinton's ten statements of material fact. DRPSAMF ¶ 25. The parties agree only on the most incontestable facts, such as that the Plaintiff originally filed the Complaint in state court. The parties flatly dispute whether the Plaintiff is entitled to rely on representations made by the bankruptcy trustee for Outboard Marine Corporation during the bankruptcy process and what those representations were. For example, the Plaintiff says that the attorneys for the trustee of Outboard Marine Corporation represented that Four Winns was "a division of OMC" and "had been in bankruptcy since December 22, 2000." PSAMF — Four Winns ¶ 20. The Defendants declaim this statement as "false," affirmatively stating that Four Winns, Inc. had been dissolved since 1995. DRPSAMF — Four Winns ¶ 20. The Court is also unclear about the significance, if correct, of the bankruptcy court's lifting of the bankruptcy stay in the Outboard Marine Corporation bankruptcy to allow Mr. Hinton to proceed in a lawsuit so long as the recovery was limited to insurance proceeds. DRPSAMF — Four Winns ¶ 21.

To grant a motion for summary judgment, the Court is required to determine that there is "no genuine dispute as to any material fact." FED.R.CIV.P. 56(a). On whether Four Winns is the appropriate defendant, there appears virtually no agreement as to any material fact. This case with its series of shifting corporate identities, successor corporations, dismissals, service of process defenses, and an intervening bankruptcy, seems particularly refractory to summary disposition.

The Court dismisses the motion without prejudice.14

III. CONCLUSION

The Court DISMISSES without prejudice the Plaintiff's Motion in Limine to Exclude or Limit Testimony of Defendants' Expert Witnesses (Docket # 48), the Defendants' Motion to Exclude the Testimony of Plaintiff's Expert, Robert V. Flynn (Docket # 52), Defendants' Motion for Summary Judgment (Docket # 65), and Defendants' Motion for Summary Judgment on the Identity of the Manufacturer of the Accident Boat (Docket # 67). The Court GRANTS the Plaintiff's Motion to Strike "Defendants' Statement of Additional Undisputed Facts" (Docket # 79).

SO ORDERED.