ROBERT D. MARIANI, District Judge.
Two motions are pending before the Court in the above-captioned matter: Defendants' Motion for Summary Judgment Pursuant to Rule 56 (Doc. 30) and Plaintiff's Motion to Preclude Defendants' Exhibit Number #3 (Doc. 31-3) & Exhibit #4 (Doc. 31-4) to Defendants' Motion for Summary Judgment (Doc. 33).
Plaintiff filed his Complaint in the Court of Common Pleas of Lackawanna County (Doc. 1-1) and Defendants removed the case to this Court on the basis of diversity of citizenship (Doc. 1 ¶ 8). Plaintiff alleges that he was injured when he bit into a hot dog which was manufactured by Defendants Gwaltney/Smithfield and purchased at Walmart. (Doc. 1-1 at ¶¶ 9-11.) The Complaint specifically states that "[w]hen Plaintiff bit into a hot dog, he immediately broke a few teeth and lacerated his tongue due to a sharp mental blade contained inside the hot dog." (Doc. 1-1 ¶ 11.) Plaintiff's Complaint contains four counts: Count I for Negligence against all Defendants; Count II for Negligence, Res Ipsa Loquitor, against all Defendants; Count III for Strict Liability; and Count IV for Breach of Warranty. (Doc. 1-1 at 6-13.)
Defendants' Motion for Summary Judgment Pursuant to Rule 56 (Doc. 30) was filed on August 13, 2019. Plaintiff's Motion to Preclude Defendants' Exhibit Number #3 (Doc. 31-3) & Exhibit #4 (Doc. 31-4) to Defendants' Motion for Summary Judgment (Doc. 33) was filed on August 29, 2019.
On April 14, 2015, Plaintiff purchased a three-pound package of Gwaltney "Great Hot Dogs" from Walmart. (Defendants' Statement of Material Facts, Doc. 32 ¶ 1; Plaintiff's Answer to Defendants' Statement of Material Facts, Doc. 35 ¶ 1.)
At his deposition, Plaintiff testified about the incident as follows:
Regarding his injury, Plaintiff testified that he was injured with his first bite of the hot dog and he broke his dentures and cut his tongue. (Doc. 32 ¶ 10; Doc. 35 ¶ 10.) Plaintiff went to the emergency room to have his tongue examined and he testified about the length of time it took to heal.
The blade fragment at issue measures .85 inches (21.50 MM) in length and .4 inches (10.16 mm) at the widest spot. (Doc. 32 ¶ 14; Doc. 35 ¶ 14.)
Crystal Robinson is the Corporate Food Safety Manager and Division Manager of Smithfield Packaged Meats Corporation in Kinston, North Carolina. (Doc. 32 ¶ 16; Doc. 35 ¶ 16.) She stated in a sworn affidavit that the production of the Gwaltney "Great Hot Dogs" includes the following steps:
(Doc. 32 ¶ 18; Doc. 35 ¶ 18 (quoting Robinson Aff: ¶¶ 4-7 (Doc. 31-3 at 2-3)).) The metal fragment at issue is larger in length and width than .8mm. (Doc. 32 ¶ 15; Doc. 35 ¶ 15.)
Joseph Volansky, is Walmart's Overnight Assistant Manager and attested to being familiar with Walmart's inventory process. (Doc. 32 ¶ 19; Doc. 35 ¶ 19.) He provided a sworn affidavit in which he attested that,
(Doc. 32 ¶¶ 20-21; Doc. 35 ¶ 20-21.)
The CV of Alan Stone, a Principle with Wiss, Janney, Elstner Associates, Inc., indicates that he is a metallurgical engineer. (Doc. 32 ¶ 22; Doc. 35 ¶ 22.) In his Laboratory Report, Mr. Stone states that he performed several examinations of the blade involved in Plaintiff's incident and compared it to a sample of blades provided by Walmart of the box-cutter blades used in the unpacking of the hot dogs. (Doc. 32 ¶ 23; Doc. 35 ¶ 23.) Mr. Stone observed that the blade involved in Plaintiff's incident measured approximately.85 inches, or 21.59 millimeters, and the sample box-cutter blades measured approximately 1.5 inches long. (Doc. 32 ¶¶ 24-25; Doc. 35 ¶¶ 24-25.) Mr. Stone stated that he was able to determine that the box-cutter blades were "devoid of major alloying elements," which placed the blades "in a class of either a carbon or low alloy steel." (Doc. 32 ¶ 26; Doc. 35 ¶ 26.) He also stated that the blade involved in the subject incident was in the "class of a 400 series type stainless steel alloy." (Doc. 32 ¶ 27; Doc. 35 ¶ 27.) Mr. Stone further opined on on the wear patterns of the subject blade. (Doc. 32 ¶ 29; Doc. 35 ¶ 29.)
Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). "As to materiality,.... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986).
The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record ... 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)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S.Ct. 1262, 122 L. Ed. 2d 659 (1993).
However, "facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,
Id. (internal quotations, citations, and alterations omitted).
"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of evidence." Anderson, 477 U.S. at 255. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may be in issue, or when conflicting evidence must be weighed, a full trial is usually necessary.
Defendants assert that they are entitled to summary judgment on several bases. First, they maintain that Plaintiff has failed to meet his burden of demonstrating a genuine issue of material fact that Defendants' product was defective at the time it left their care, custody, and control because Plaintiff has taken no discovery and offers only his own deposition testimony; he has not rebutted evidence that the metal in question could not have come from the hot dog manufacturing facility; he has failed to rebut evidence that the metal in question did not come from the Walmart retail facility; and he has failed to rebut evidence that the metal in question is that of a standard kitchen knife. (Doc. 31 at 16-22.) Second, Defendants contend that Plaintiff has failed to meet his burden of showing a genuine issue of material fact regarding liability under the doctrine of res ipsa loquitor. (Id. at 22-29.) The Court will first consider liability under the doctrine of res ipsa loquitor.
Defendants argue that Plaintiff cannot satisfy a necessary element of showing liability pursuant to the doctrine of res ipsa loquitor and, therefore, res ipsa loquitor is not applicable here and the Court should enter judgment in their favor. (Doc. 31 at 22-29.) Plaintiff responds that the facts of this case show that a jury may be permitted to infer that his injury was due to Defendants' negligence under the res ipsa loquitor doctrine and the Restatement (Second) of Torts § 328D (1965), which Pennsylvania has adopted as the law of the Commonwealth. (Doc. 36 at 7.) The Court concludes that Defendants have not shown they are entitled to judgment as a matter of law on Plaintiff's claims of negligence when the claims are considered under the doctrine of res ipsa loquitor.
There is no dispute that Pennsylvania substantive law applies in this diversity case. In Gilbert v. Korvette, Inc., 327 A.2d 94 (Pa. 1974), the Pennsylvania Supreme Court adopted the Restatement (Second) of Torts § 328D, titled Res Ipsa Loquitur, as the law of the Commonwealth. Section 328D provides as follows:
Restatement (Second) of Torts s 328D (1965).
Defendant specifically argues that
(Doc. 31 at 24-26.)
With this argument, Defendants ask the Court to find that different conclusions could not be reached as to whether a Defendant caused Plaintiff's harm or Plaintiff himself or a third person caused the harm. Given the facts of this case, such a conclusion would require the Court to determine that Plaintiff is not credible. This the Court cannot do when considering a motion for summary judgment. Anderson, 477 U.S. at 255.
While Defendants view their evidence as irrefutable, the Court takes a different view. The Court finds the Robinson and Volansky Affidavits and the Stone Opinion insufficient to support the conclusion that "Defendants have excluded any connection between the metal fragment in question and either the Smithfield's manufacturing facility or Walmart's retail facility" (Doc. 31 at 25). First, the Court does not find that the Robinson and Volansky Affidavits eliminate the possibility that the type of metal fragment at issue could be present at the relevant facility. Second, the Affidavits and Stone opinion do not rule out a system failure or other event which could have allowed the presence of the metal fragment in the hot dog to occur and go undetected.
Importantly, Defendants conclusory assertion that Plaintiff has not excluded all causes of his alleged injury other than Defendants misrepresents what must be shown at the summary judgment stage, i.e., whether there is sufficient evidence that the inference "that harm suffered by the plaintiff is caused by negligence of the defendant ... may reasonably be drawn by the jury." Restatement (Second) of Torts s 328D(1)-(2). In determining whether the inference may reasonably be drawn, the Court looks to whether there is sufficient evidence to find that this is a case where "different conclusions may reasonably be reached." Restatement (Second) of Torts § 328D(3).
Restatement (Second) of Torts § 328D, cmt. d. The Illustrations of this comment include the following:
Restatement (Second) of Torts § 328D, cmt. d Illustration #1.
In considering whether a plaintiff has satisfactorily eliminated his own conduct as the cause of harm, the Restatement provides the following guidance and illustration:
Restatement (Second) of Torts § 328D, cmt. i and Illustration #11.
The Restatement's illustrations are informative: the piece of glass which a plaintiff alleged to have found in a can of spinach in Illustration #1 is analogous to the knife piece found in the hot dog here; the testimony that the injured party did nothing to cause the incident leading to harm in Illustration #11 is analogous to Plaintiff's testimony that he did nothing which could have introduced the knife point into the hot dog—he prepared a hot dog from a sealed package and did not use a knife in the preparation and, upon biting into the hot dog he had prepared for himself, he was injured by a piece of metal that was the tip of a knife. (See Doc. 32 ¶¶ 5-11; Doc. 35 ¶¶ 5-11.) With their arguments in support of summary judgment, Defendants implicitly question the veracity of Plaintiff's version of events, but it is not for the Court to make credibility determinations, it is for the jury. Considered in the proper legal context, Plaintiff's deposition testimony is sufficient to preclude a determination at this stage of the proceedings that he will be unable, as a matter of law, to put forward evidence at trial that would allow the Court to submit the question of negligence under the doctrine to the jury.
Defendants assert that Plaintiff has failed to rebut evidence presented by way of Affidavits from Crystal Robinson and Joseph Volansky, and the report of metallurgy engineer Alan Stone, and he, therefore, has failed to meet his burden of demonstrating a genuine issue of material fact that Defendants' product was defective at the time it left their care, custody, and control. (Doc. 31 at 16-22.) In response to Defendants' argument, Plaintiff avers that he need not proffer more than his own testimony to survive summary judgment. (Doc. 31 at 16-22; Doc. 36 at 9-13.) Plaintiff relies on the doctrine of res ipsa loquitor and the Illustrations provided in § 328D in support of his argument. (Doc. 36 at 10-13.) For the reasons discussed in the preceding section of this Memorandum Opinion, the Court concluded that Defendants have not shown as a matter of law that Plaintiff cannot rely on the doctrine. The Court found that Defendants' evidence does not show that the metal in question could not have come from the hot dog manufacturing facility, or the Walmart retail facility or that the metal fragment could not have become embedded in the hot dog and escaped detection by the systems in place at the manufacturing facility. See supra pp. 11-12. The Court also found that Plaintiff's testimony was sufficient to preclude summary judgment. Therefore, the Court finds that Defendants' argument that summary judgment is warranted because Plaintiff has not demonstrated a genuine issue of material fact that Defendants' product was defective at the time it left their care, custody, and control is without merit. Thus, Defendants' Motion for Summary Judgment Pursuant to Rule 56 (Doc. 30) is properly denied.
As stated at the outset and discussed above, the Court determined that consideration of the exhibits identified in Plaintiff's Motion to Preclude Defendants' Exhibit Number #3 (Doc. 31-3) & Exhibit #4 (Doc. 31-4) did not support Defendants' assertion that the evidence showed they were entitled to summary judgment and, therefore, the Court stated that it will deny Plaintiff's motion. The Court adopted this approach in an attempt to expeditiously move this case forward.
In the brief in support of his motion, Plaintiff also requests that the Court preclude Robinson and Volansky from testifying at trial. (Doc. 34 at 7.) He does so pursuant to Federal Rule of Civil Procedure 37(c)(1) which provides that a party who fails to provide information or identify a witness as required by Federal Rule of Civil Procedure 26(a) or (e) is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. (Doc. 34 at 2.)
It is well recognized in the Third Circuit that "`the exclusion of critical evidence is an extreme' sanction, not normally to be imposed absent a showing of willful deception or flagrant disregard of a court order by the proponent of the evidence.'" Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997) (quoting Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904 (3d Cir. 1977)); see also Dudley v. South Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir.1977)).
Here Defendants' failure to disclose the identities of Robinson and Volansky prevented Plaintiff from deposing these individuals before the fact discovery deadline. (Doc. 34 at 3.) Plaintiff declined Defendants' suggestion that Plaintiff depose Robinson and Volansky before responding to the summary judgment motion (Doc. 34 at 6-7), rejecting any assertion that the identified deficiency could be cured by the late deposition of the individuals because Defendants placed the burden on Plaintiff to seek an extension of discovery after the close of discovery and within the limited time allowed for response to the summary judgment motion (id. at 7). In determining the appropriateness of the requested sanction, the Court is also cognizant of the facts that Plaintiff never served Defendants with a notice regarding the deposition of a corporate designee under Federal Rule of Civil Procedure 30(b)(6) and did not serve them with any interrogatories. (Doc. 38 at 3-4.) More importantly, given the Court's determination that Defendants are not entitled to summary judgment, Defendants' failure to disclose these witnesses is harmless in the context of the summary judgment motion. Therefore, at this stage of the proceedings, the Court concludes that the sanction of precluding Robinson and Volansky from testifying at trial would be extreme and unwarranted.
Notwithstanding this determination, the importance of a litigant's opportunity to discover relevant evidence is an ongoing process, and Federal Rule of Civil Procedure 26(e) specifically provides for supplementation or correction of a previous disclosure or response. In keeping with the philosophy that that "[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation," Hickman v. Taylor, 329 U.S. 495, 507 (1947); see also Herbert v. Lando, 441 U.S. 153, 177 (1979), this Court will grant a motion made by Plaintiff to depose Robinson and Volansky.
For the reasons discussed above, Plaintiff's Motion to Preclude Defendants' Exhibit Number #3 (Doc. 31-3) & Exhibit #4 (Doc. 31-4) to Defendants' Motion for Summary Judgment (Doc. 33) will be DENIED and Defendants' Motion for Summary Judgment Pursuant to Rule 56 (Doc. 30) will be DENIED. An appropriate Order is filed simultaneously with this Memorandum Opinion.