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Gasperson v. Plano Synergy Holdings, Inc.

United States District Court, W.D. Missouri, Southern Division

April 3, 2019

DANIEL GASPERSON, ROSALIE GASPERSON, Plaintiffs,
v.
PLANO SYNERGY HOLDINGS, INC., SYNERGY OUTDOORS, LLC, PRIMAL VANTAGE CO., INC., AMERISTEP, INC, Defendants.

          ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT

         Before the Court is Defendants' Motion for Summary Judgment. (Doc. 69.) The Motion for Summary Judgment is fully briefed. (Docs. 70, 77, 81.) For the reasons below, the Motion for Summary Judgment is DENIED.

         Background

         Plaintiffs Daniel and Rosalie Gasperson (“Plaintiffs”) bring this action against Defendants stemming from a fall from the Ameristep Two-Man 15' Ladder Stand (“the Product”). The Product is a vaulted stand with corresponding ladder that is used to allow hunters to reach an aerial position for hunting game. Plaintiff Daniel Gasperson (“Mr. Gasperson”) was injured when he fell from the Product. Plaintiffs argue the design of the Product and corresponding warnings were defective. Defendants argue the Product and corresponding warnings are not defective, and Plaintiffs were injured because they failed to follow the Product's warnings and instructions. Plaintiffs are citizens of Missouri and bring this action against all Defendants for strict liability, negligence, violations of the Missouri Merchandising Practices Act (“MMPA”), breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, and loss of consortium.[1]

         The Complaint provides the following allegations. Defendant Primal Vantage designs, manufactures, assembles, tests, markets, promotes, advertises, and distributes the Product. After manufacture, the Product is sent to Defendant Ameristep for distribution to retailers. Defendant Synergy Outdoors, LLC acquired a controlling ownership interest in Defendant Ameristep. Defendant Plano Synergy Holdings, Inc. acquired all assets of Defendant Synergy Outdoors, LLC. Mr. Gasperson purchased and installed the Product on August 8, 2015. Mr. Gasperson purchased the Product based on the representation that it was new and could be used for its intended purpose. Plaintiff reviewed the instruction manual, safety manual, and watched the safety DVD included with the Product. While installing the Product, the ladder section of the Product (“ladder stand”) failed, and Mr. Gasperson was injured. Mr. Gasperson brings this action to recover damages as a result of his injuries including past and future medical expenses, mental and physical pain and suffering, loss of earnings, impaired earning capacity, permanent disability, disfigurement, and other general and special damages. Plaintiff Rosalie Gasperson (“Mrs. Gasperson”) brings this action to recover damages including loss of consortium, mental anguish and emotional distress, and other general and special damages.

         The Complaint contains the following causes of action: Count I: Strict Liability - Product Defect; Count II: Strict Liability - Failure to Warn; Count III: Negligent Failure to Warn; Count IV: Negligent Design and Manufacture; Count V: Violations of the MMPA; Count VI: Breach of Implied Warranty of Fitness for a Particular Purpose; Count VII: Breach of Implied Warranty of Merchantability; and Count VIII: Loss of Consortium.

         Legal Standard

         Under Fed.R.Civ.P. 56, “[t]he court shall grant summary judgment if 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.” “As to materiality, the substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. “[A] dispute about a material fact is ‘genuine,' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “In considering a motion for summary judgment, the court does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue.” Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citation omitted). “Once the movant fulfills its responsibility of informing the court of the basis for its motion, identifying the portions of the record that demonstrate the absence of a genuine issue of material fact, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial.” Hess v. Union Pac. R.R. Co., 898 F.3d 852, 857 (8th Cir. 2018) (quotation marks and citations omitted).

         Discussion

         A. Validity of Plaintiffs' Expert Bill Munsell

         Before addressing the substantive claims in the motion and its briefing, the Court will address Defendants' assertion that Plaintiffs' expert Bill Munsell's report is invalid. Defendants argue the report is invalid for two reasons. First, Defendants argue the report is unsworn, thus inadmissible. “To be considered on summary judgment, documents must be authenticated by and attached to an affidavit made on personal knowledge setting forth such facts as would be admissible in evidence or a deposition that meets the requirements of Fed.R.Civ.P. 56(e).” Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir. 2005). The Court issued a Show Cause Order presenting this deficiency, and Plaintiffs supplemented the record. (Docs. 89, 90.) Thi s defi ciency is now cured; therefore, Plaintiffs' expert report is admissible at the summary judgment stage. See DG&G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576 F.3d 820, 825-26 (8th Cir. 2009) (“Subsequent verification or reaffirmation of an unsworn expert's report, either by affidavit or deposition, allows the court to consider the unsworn expert's report on a motion for summary judgment.”) (internal quotation marks and citation omitted).

         Next, Defendants seek to exclude or limit Mr. Munsell's opinion testimony because Defendants allege his testing was faulty and fails to reveal any design defect. Defendants have also filed a Motion in Limine to limit or exclude Mr. Munsell's opinion testimony. (Doc. 71.) As discussed in the Court's ruling on Defendants' Motion in Limine, Mr. Munsell is an appropriate expert under Daubert and Fed.R.Evid. 702, and his opinions in support of Plaintiffs' position are proper for the jury to consider. (Doc. 91.)

         B. Count I: Strict ...


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