United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CAROL E. JACKSON, District Judge.
This matter is before the Court on plaintiff's motion for summary judgment. Defendant has filed a response in opposition to the motion and the issues are fully briefed. In addition, defendant moves to strike certain evidence plaintiff submitted in support of its summary judgment motion. This matter is set for jury trial on January 26, 2015.
Plaintiff CoreLink, LLC, brings this action asserting claims for breach of contract and unjust enrichment to recover $493, 780 for medical instruments that were either lost or stolen while consigned to defendant Phygen, LLC. Phygen asserts that it has no liability for the lost instruments and contests the amount CoreLink seeks in damages.
Plaintiff CoreLink, LLC, designs and distributes spinal surgery implants and instruments. On December 31, 2009, CoreLink and defendant Phygen entered into a "non-stocking" distributor agreement, pursuant to which CoreLink agreed to consign surgical instruments and implants to Phygen for use in facilitating sales to Phygen's customers. Agreement [Doc. #1-4]; see also Walter Dep. 64 (Phygen was nonstocking distributor) [Doc. #27-1]. One of CoreLink's products is a set of 80 implants and 66 instruments, called the "PLIF." CoreLink provides distributors with a PLIF and they in turn supply it to hospitals for use during a surgical procedure. Typically, only one or two implants are used during a single surgery. Walter Decl. at ¶5 [Doc. #27-3]. After the surgery, the instruments and unused implants are returned to the distributor, who restocks the set for use in a future surgery. Id.; see also Smart Aff. at ¶6 [Doc. #28-2]. CoreLink provided a PLIF to Phygen (the PLIF-009) pursuant to the parties' agreement.
On January 19, 2012, Austin Maynard of Expo Acquisitions, LLC ("Expo") contacted Phygen seeking its assistance "with a charity spinal procedure on a pediatric patient [at] Children's Hospital in El Paso, Texas." Smart Aff. at ¶3. Although Phygen had not previously done business with Expo, it agreed to provide the PLIF for this surgery. Phygen sent Expo a distribution agreement on January 20th, but the agreement was never executed and returned. Smart Dep. at 36-37, 109. On January 21, 2012, Phygen had the PLIF delivered to Expo. Fed-Ex confirmation. [Doc. #27-4].
On April 2, 2012, Austin Maynard informed Phygen that all the PLIF implants and instruments were in Expo's possession, with the exception of four implants that had been used in the surgery. Email [Doc.#27-6]. In October 2012, Phygen asked Expo to return the PLIF. See emails 10/9/12 to 10/16/12 [Doc. #27-7]. Austin Maynard insisted that he had returned everything to Phygen "months ago, " although he could not supply a date or proof of shipping. Email dated 10/12/12 [Doc. #27-7].
In May 2013, Phygen's then-CFO asked CoreLink what the value of the missing set was "in case we cannot get it back from Expo and have to file an insurance... claim to be made whole." Email [Doc. #27-9]. On June 20, 2013, Corelink sent Phygen an invoice in the amount of $493, 780. Email [Doc. #27-4]. Phygen submitted Corelink's invoice to its insurers, who denied coverage for the loss. Smart Dep. at 49-50, 157-61 [Doc. #27-2].
Additional facts will be included as necessary in the discussion below.
II. Legal Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the moving party shows "that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." In ruling on a motion for summary judgment the court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. Agristor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Once the moving party has met its burden, the non-moving party may not rest on the allegations of his pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed.R.Civ.P. 56(e)). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986).
A. Phygen's Motion To Strike
Phygen moves to strike CoreLink's exhibits 4 through 12 submitted in support of its summary judgment motion, arguing that they are not properly "authenticated by and attached to an affidavit made on personal knowledge."
Under Rule 56(c)(2), "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." When such an objection is made, the burden is on the proponent of the evidence to show that the material is admissible as presented or to explain the admissible form that is anticipated. Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (citing Rule 56 advisory committee's note). "[T]he standard is not whether the evidence at the summary judgment stage would be admissible at trial - it is whether it could be presented at trial in an admissible form." Id. (citing Rule 56(c)(2)).
Exhibit 4 was produced by Phygen's insurance broker, Bowermaster & Associates, in response to a records subpoena from CoreLink, and is accompanied by a declaration of Bowermaster's custodian of records. Decl. Shaun Broeker, Pl. Ex. A [Doc. #33-1]. Exhibit 4 is thus properly authenticated. Exhibits 5 through 9 were produced by Phygen, as indicated by the Bates stamps. "Documents produced in response to discovery requests are admissible on a motion for summary judgment since they are self-authenticating and constitute the admissions of a party opponent." Anand v. BP W. Coast Products LLC, 484 F.Supp.2d 1086, 1092 (C.D. Cal. 2007); see also Architectural Iron Workers Local No. 63 Welfare Fund v. United Contractors, Inc., 46 F.Supp.2d 769, 771-72 (N.D. Ill. 1999). Exhibits 10 and 11 are copies of the complaints Phygen filed in the Texas and California state courts, certified copies of which will be admissible at trial. Fed.R.Evid. 902(4) (certified copies of public records are self-authenticating). Finally, CoreLink's corporate representative testified at deposition as to the authenticity of Exhibit 12. Walter Dep. at 91-92. Proper foundation can certainly be established for these documents if they are admitted at trial and Phygen's motion to strike exhibits will be denied.
Phygen also objects to CoreLink's reliance on excerpts from the testimony of Robert Smart, Phygen's Chief Financial Officer, to the extent that he was asked to testify about matters that require legal conclusions. The Court has not ...