United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Motion for
Summary Judgment  and Motion to Strike Plaintiffs'
Supplemental Exhibit Affidavit of Steve Chatfield  and
Plaintiffs' Motion for Summary Judgment on
Defendants' Affirmative Defenses  and Motion to
Exclude/Disregard Declaration of Jon Sell .
August 7, 2012, Plaintiff Kristin Smith was driving her 1997
Toyota 4Runner (“4Runner”) on MO-6. As Ms. Smith
was rounding a curve, she lost control of the vehicle,
crossed the center line to the opposite side of the roadway,
crossed back over to the right, and eventually rolled over in
the vehicle. Parties dispute the facts immediately leading up
to the vehicle roll-over. Two or three months after the
vehicle crash, Plaintiff Lloyd Smith, Ms. Smith's
husband, took the 4Runner to the scrapyard where it was
destroyed. Plaintiffs had purchased the vehicle from a
previous owner approximately five years before the crash and
ten to fourteen years after it was originally sold.
October 28, 2013, Plaintiffs filed a products liability case
in state court, and that case was dismissed by consent and
without prejudice in October 2016. On April 28, 2016,
Plaintiffs filed suit in this Court against Toyota Motor
Corporation and Toyota Motor Sales, U.S.A. (collectively,
“Defendants”). Plaintiffs claim the vehicle crash
was a result of an alleged product defect of the 4Runner
which caused the vehicle to be unreasonably dangerous and
defective. Plaintiffs' Complaint includes strict
liability, negligence, breach of warranty and loss of
consortium causes of action. Defendants deny there was any
defect in the 4Runner. They raise several affirmative
defenses in their Answer, including (1) modification or
alteration of the product; (2) superseding and intervening
acts of negligence of third parties; (3) state of the art;
(4) compliance with regulations; and (5) preemption.
parties have filed motions to strike supplemental exhibit
affidavits filed by the respective opposing party. Defendants
seek summary judgment on all of Plaintiffs' claims,
alleging Plaintiffs have failed to provide sufficient
evidence to support their claims. Plaintiffs likewise seek
summary judgment on Defendants' affirmative defenses,
claiming no genuine issue of material fact exists with
respect to each affirmative defense.
MOTIONS TO STRIKE
Defendants' Motion to Strike Plaintiffs' Supplemental
Exhibit Affidavit of Steve Chatfield 
ask this Court to strike Plaintiffs' Supplemental Exhibit
Affidavit of Steve Chatfield, arguing Plaintiffs failed to
identify Mr. Chatfield as required under Rule 26 of the
Federal Rules of Civil Procedure. Rule 26 states “a
party must, without awaiting a discovery request, provide to
the other parties…the name and, if known, the address
and telephone number of each individual likely to have
discoverable information-along with the subjects of that
information-that the disclosing party may use to support its
claims or defenses, unless the use would be solely for
impeachment.” If a party fails to do so, “the
party 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.” Fed.R.Civ.P. 37(c).
Plaintiffs failed to disclose Mr. Chatfield as a person with
relevant knowledge in this case, which has been pending in
state court and then in federal court since 2013. The amended
discovery deadline for this case was January 5, 2018, and
Plaintiffs had plenty of opportunities to disclose Mr.
Chatfield prior to that date. Instead, Plaintiffs waited
until March 7, 2018 to send an email to Defendants'
counsel, including this affidavit of Mr. Chatfield.
Plaintiffs claim Mr. Chatfield is a friend of Plaintiffs who
helped Plaintiffs take the 4Runner to the scrapyard after the
accident. Thus, this delay is not justified, for Plaintiffs
have known about Mr. Chatfield since before this lawsuit was
filed. Further, it would prejudice Defendants to allow Mr.
Chatfield's affidavit because Defendants have not had the
opportunity to depose Mr. Chatfield or otherwise explore his
purported knowledge of the 4Runner's post-crash
condition. Accordingly, this Court will grant Defendants'
Motion to Strike Plaintiffs' Supplemental Exhibit
Affidavit of Steve Chatfield .
Plaintiffs' Motion to Exclude/Disregard Declaration of
Jon Sell 
ask this Court to exclude Defendants' Declaration of Jon
Sell stating it “does not meet the basic requirements
of Fed.R.Civ.P. 56(c)(4).” That rule states:
An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.
Sell was disclosed as a prior owner with knowledge of the
history and condition of the subject vehicle over three years
ago. Mr. Sell's declaration confirms he was the prior
owner of the 4Runner and he believes, to the best of his
recollection, he installed larger tires and “leaf
spring spacers” to the vehicle. Though Mr. Sell may not
be completely certain of his memories, these are not
“subjective beliefs” that warrant exclusion under
Rule 56(c)(4). They are based on his personal knowledge and
recollection. Accordingly, this Court will deny
Plaintiffs' Motion to Exclude/Disregard Declaration of
Jon Sell .
MOTIONS FOR SUMMARY JUDGMENT
shall grant a motion for summary judgment only if the moving
party shows “there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment
as a matter of law.” Fed.R.Civ.P. 56(a); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). By
definition, material facts “might affect the outcome of
the suit under the governing law, ” and a genuine
dispute of material fact is one “such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). If the non-moving party has failed to “make a
showing sufficient to establish the existence of an element
essential to that party's case, . . . there can be
‘no genuine issue as to any material fact, ' since
a complete failure of proof concerning an essential element
of the non-moving party's case necessarily renders all
other facts immaterial.” Celotex, 477 U.S. at
moving party bears the initial burden of proof in
establishing the non-existence of any genuine issue of fact
that is material to a judgment favorable to the non-moving
party. City of Mt. Pleasant, Iowa v. Associated Elec.
Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the
moving party meets this initial burden, the non-moving party
must then set forth affirmative evidence and specific facts
demonstrating a genuine dispute on the specific issue.
Anderson, 477 U.S. at 250. When the burden shifts,
the non-moving party may not rest on the allegations in its
pleadings, but, by affidavit and other evidence, must set
forth specific facts showing a genuine dispute of material
fact exists. Fed.R.Civ.P. 56(c)(1); Stone Motor Co. v.
Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002).
The non-moving party must demonstrate sufficient favorable
evidence that could enable a jury to return a verdict for it.
Anderson, 477 U.S. at 249. 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, 477 U.S. at 322.
ruling on a motion for summary judgment, the Court may not
“weigh the evidence in the summary judgment record,
decide credibility questions, or determine the truth of any
factual issue.” Kampouris v. St. Louis Symphony
Soc., 210 F.3d 845, 847 (8th Cir. 2000). The Court
instead “perform[s] only a gatekeeper function of
determining whether there is evidence in the summary judgment
record generating a genuine issue of material fact for trial
on each essential element of a claim.” Id. The
Court must view the facts and all reasonable inferences in
the light most favorable to the nonmoving party. Reed v.
City of St. Charles, 561 F.3d 788, 790 (8th Cir. 2009).
Defendants' Motion for Summary Judgment
Strict Liability and Negligent Design Defect - Rollover
allege Plaintiffs cannot show the 4Runner was
“defectively designed in terms of its rollover
resistance characteristics” because their experts
cannot reliably render an opinion the design defect was the
cause of the accident. A manufacturer is liable under a
strict liability product defect claim “if the product
was in an unreasonably dangerous defective condition when put
to a reasonably anticipated use, and the plaintiff was
damaged as a direct result of such defective condition as
existed when the product was sold.” Richcreek v.
General Motors Corp., 908 S.W.2d 772, 775 (Mo. App.
1995). Defendants admit genuine issues of material fact exist
as to whether the 4Runner was defectively designed as alleged
by Plaintiffs. However, largely relying on arguments also
included in their Motion to Exclude Expert Testimony ,
Defendants state because the 4Runner was destroyed before
Plaintiffs filed suit, no expert can determine whether an
alleged defect in its rollover resistance characteristics
caused Plaintiffs' damages or whether it was caused by
something else, such as modifications to the vehicle.
Court has already ruled both parties' experts are allowed
to testify as to whether or not they believe a design defect
in Plaintiffs' rollover characteristics contributed to
the accident and damages . Specifically, Plaintiffs'
expert, Mr. Arndt, relied on his own vehicle testing, vehicle
testing and records produced by Toyota, the inspection and
testing of exemplar vehicles and components, and his own
reconstruction of the accident. Defendants are free to submit
their own expert testimony countering Plaintiffs'
evidence. However, genuine issues of material fact remain,
and thus this Court finds this issue must be left for the
jury to decide. See Hartford Acc. & Indem. Co. v.
Stauffer Chemical Co., 741 F.2d 1142, 1144 (8th Cir.
1984) (“[T]here must be nothing left for the jury to
decide with respect to the matters presented in the motion
for summary judgment.”).
Strict Liability and Negligent Design Defect ...