United States District Court, W.D. Missouri, Southern Division
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT
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.
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.
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.
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
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).
Validity of Plaintiffs' Expert Bill Munsell
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).
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.
Count I: Strict ...