Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION
TIMOTHY A. THOMPSON PLAINITFF v. CIVIL ACTION NO.: 1:11-CV-137-SA-DAS DIRECT OUTDOOR PRODUCTS,
a/k/a DOP, LLC DEFENDANT
MEMORANDUM OPINION
In this products liability case, Plaintiff Timothy Thompson seeks recovery for injuries sustained after falling from a treestand manufactured and sold by Defendant Direct Outdoor Products (“DOP”). Thompson asserts that the treestand failed to conform to express and implied warranties. DOP has filed a Motion to Exclude [64] Thompson’s Liability Expert, A.K. Rosenhan. Defendant has additionally filed a Motion for Summary Judgment [66], contending that without expert testimony, Plaintiff is unable to establish the essential elements of his claim. However, because there is no requirement under Mississippi law for expert testimony to prove a breach of warranty, the Court denies the Motion the Motion for Summary Judgment.
BACKGROUND FACTS & PROCEDURAL HISTORY
In October 2010, Plaintiff Timothy Thompson purchased a “Guide Gear 17.5' Deluxe 2 Man Ladder Stand” from an online catalogue. [2] The stand consists of a platform designed to seat two hunters which is secured against a tree and accessed by climbing an attached steel ladder. Thompson purchased the stand intending to use it to go deer hunting with his stepson. The stand was shipped directly from DOP’s warehouse to Thompson’s house via the United States Parcel *2 Service. The box arrived сontaining the stand components, an instruction manual, which Thompson read in its entirety, and a safety DVD.
The first page of the instruction manual states: THE MAXIMUM WEIGHT CAPACITY OF THIS STAND IS 500 POUNDS* *The maximum carrying capacity of 500 lbs is defined as the total combined weight of the
hunter, weapon, backpack, and any other gear carried aloft.
There is evidence in the record that the ladder—as opposed to the platform itself—was only tested to safely support 300 pounds. However, this was not disclosed to the consumer in the materials accompanying the stand. In fact, the ladder was affixed with a warning sticker which stated: “WARNING, DO NOT exceed the 500 lb maximum weight limit that includes the weight of the hunter [singular], clothing, and all gear carried aloft.”
On the morning that Thompson intended to assemble the stand, he and his father, Harvey Allen “Skip” Thompson (Skip), watched the safety DVD at Skip’s house. Thompson and Skip brought the box contаining all the stand components to the woods where they intended to erect the stand. After arriving at the site, Thompson and Skip opened the box and inspected its contents to determine that there were no missing or damaged parts. Thompson selected a tree which was level, “not dead in any way,” and that “had a nice, big structure to it,” and began assembling and ereсting *3 the ladder stand according to the included directions.
After the stand was assembled and secured against the tree, Thompson, who weighed approximately 308 pounds, began ascending the ladder to the top of the platform. Thompson reached the platform at the top of the ladder, but before he could secure his safety tether, the ladder buckled and bent inward, causing Thompson to fall. The last thing Thompson rеmembers is placing his knees on the foot platform. In Thompson’s words:
The last thing I remember is I was up there, my – I put my knees up there, and about the time my knees hit, I heard my dad holler. I don’t know what he hollered; I just heard him holler. And then, the next thing I remember I was on the ground . . . . Skip, who was holding the base of the ladder at the time, described the accident as follows: He went up the stand. There were no problems at all. And I remember as he got almost to the platform, about where his knees would be at the platform, he pushed down to reach for the tree, and when he did, where the top section and the second section are put together, it bowed in. . . . And after that, the top pivoted to the left. And when it pivoted, it was gone.
According to Skip, after the ladder buckled, the top section of the stand came away from the tree and “it dumped him [Thompson] straight down.” Thompson fell to the ground and sustained serious injuries. Thompson commenced the instant suit, asserting in his Complaint that the stand breached an express warranty that it could support five hundred pounds, as well as the implied warranty of merchantability.
SUMMARY JUDGMENT STANDARD
“A party may move for summary judgment, identifying each claim or defense—or the part
of each claim or defense—on which summary judgment is sought.” F ED . R. C IV . P. 56(a). “The
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.” Id. “An issue of material
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fact is genuine if a reasonable jury could return a verdict for the nonmovant.” Agnew v. Washington
Mut. Fin. Group, LLC,
“A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) 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.” F ED . R. C IV . P. 56(c)(1).
“Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts showing a
genuine issue for trial.” Oliver v. Scott,
The Court is not to weigh the evidence or engage in credibility determinations. Anderson,
DISCUSSION
I. Breach of Express Warranty
The Mississippi Products Liability Act (“MPLA”) provides that: (a) The manufаcturer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) 1. The product was defective because it deviated in a material way from the manufacturer’s specifications or from otherwisе identical *5 units manufactured to the same manufacturing specifications, or 2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or 4. The product breached an express warranty or failed to conform to express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.
Actions brought under section 11-1-63(a) require that the plaintiff “prove (ii), (iii), and at least one
of four elements of a claim under (i).” Forbes v. Gen. Motors Corp.,
DOP premises its motion on the proposition that without expert testimony, Thompson is
unable to establish that the product was defective or establish that the defect proximately caused his
injuries. It is true that, as a general rule, claims of manufacturing or design defects must be
supported by expert testimony. See e.g. Cothren v. Baxter Healthcare Corp.,
In Forbes, a plaintiff sued an automobile manufacturer after her airbag failed to deploy in
an collision. The plaintiff asserted that the failure of the airbag to deploy breached an express
warranty in the owner’s manual of the car, which stated that if a front-end collision was “hard
enough, the ‘air bag’ inflates in a fraction of a second.” Id. at 874. The plaintiff in Forbes offered
some expert testimony regarding whether the amount of force sustained in the crash was “hard
enough” such that the airbag should have deployed. Id. at 876. However, the trial court sustаined
the defendant’s motion for a directed verdict, specifically citing the plaintiffs’ failure to present a
qualified expert to opine that the air bag system in the car was somehow deficient. Id. at 877. The
Mississippi Court of Appeals affirmed in a 5-4 decision. Id. at 872. On writ of certiorari, the
Mississippi Supreme Court determined that the trial court erred by entering a directed verdict, and
remanded for a new trial, stating, “No legal authority exists to require expert testimony in this case,
and
we do not want to encourage such a rule
.” Id. at 877 (emphasis added). In light of Forbes, the
Fifth Circuit has stated, “[a]t minimum, [Plaintiff’s] failure to properly offer expert testimony,
standing alone, cannot destroy his breach of warranty claims.” Winfun v. Daimler Chrysler Corp. ,
A. Defect
Defendant first argues that without an expert, Thompson is unable to offer any evidence as
to how the stand was defective. The “defective condition” contemplated by subsections (a)(ii) and
(a)(iii) of the MPLA “is merely the satisfaction of one of four possiblе elements under subsection
(a)(i).” Forbes,
The Court also notes Defendant only asserts that Thompson is unable to establish a defect,
and offers no argument regarding the requirement of subsection (a)(ii) that “the dеfective
condition”—in this case, the failure of the product to perform as warranted—rendered the product
unreasonably dangerous to Thompson. However, even if DOP had properly raised this issue, the
Court would find that a reasonable juror could conclude that the failure of the ladder to bear the
warranted weight load could render it unreasonably dаngerous to the user. Similarly, although not
addressed in DOP’s motion, a reasonable juror could conclude that no material change in the
product occurred after it left DOP’s control based on the circumstantial evidence in the record.
See Forbes,
B. Causation
Defendant also asserts that Thompson is unаble to establish causation. The proximate cause
is the “cause which in natural and continuous sequence unbroken by any efficient intervening cause
produces the injury and without which the result would not have occurred.” Forbes,
In Rogers, a worker fell to his death from a ladder.
Cole is similarly distinguishable. In Cole, a Longshoreman and Harbor Workers Act case,
a plaintiff fell down a stairwell in a vessel his employer was helping to refurbish. The Plaintiff
alleged that the stairs lacked tread with a proper grip, which contributed to the plaintiff’s injuries.
II. Implied Warranty of Merchantability
Thompson also asserts a claim for breach of the implied warranty of merchantability. The implied warranty of merchantability arises under Mississippi Code Annotated Section 75-2-314, which states in part that: “a warranty that goods shall be merchantаble is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” Miss. Code Ann. § 75-2- 314(1). The statute further provides that:
(2) Goods to be merchantable must be at least such as:
(a) Pass without objection in the trade under the contract description; and (b) In the case of fungible goods, are of fair average quality within the description; and
(c) Are fit for the ordinary purposes for which such goods are usеd; and (d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) Are adequately contained, packaged and labeled as the agreement may require; and
(f) Conform to the promises or affirmations of fact made on the container or label if any.
Miss. Code Ann. § 75-2-314(2).
There are five elements that a Plaintiff must prove to recover under section 75-2-314: (1)
That a “merchant” sold “goods,” and he was a merchant with respect to “goods of the kind” involved
in the transaction, (2) which were not merchantable at the time of the sale, and (3) injuries and
damages to the plaintiff or his property, (4) caused proximately and in fact by the defective nature
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of the goods, and (5) notice to the seller of the injury. Vince v. Broome,
Rеgarding Plaintiff’s implied warranty claims, Defendant again asserts that Thompson cannot prove a defect or causation without expert testimony. However, for the reasons stated above, a reasonable juror could conclude that the stand “failed to conform to the promises or affirmations of fact made on the container or label,” which wоuld render the product unmerchantable (“defective” in the context of a breach of implied warranty claim) and that this failure proximately caused Plaintiff’s injuries. Accordingly, the Motion for Summary Judgment is denied as to this claim.
CONCLUSION
The Motion for Summary Judgment is DENIED.
SO ORDERED on this, the 7th day of September, 2012.
/s/ Sharion Aycock UNITED STATES DISTRICT JUDGE
Notes
[1] The Court will conduct a Daubert hearing regarding Defendant’s Motion to Exclude [64] outside the presence of the jury prior to commencement of the trial.
[2] DOP admits that it manufactured the stand in question.
[3] As part of its product testing, the stand’s ladder was subjected to a “300 pound repetitive load test.” When questioned about this topic, Mickey Bowles, DOP’s 30(b)(6) representative stated: Q: Why would it [the ladder] only be tested with a 300-pound repetitive test load if this tree stand had a capacity of 500 pounds? A: Well, that’s because it’s intended that only one person at a time is on the stаnd . . . Q: Does it say anywhere in [the instruction manual] that the ladder is only for 300 pounds? . . . A: I don’t know that – I don’t know that it states that specifically.
[4] DOP relies heavily on Cothren for the proposition that Thompson is required to offer expert testimony in this case to survive summary judgment. However, Cothren did not involve a breach of warranty claim and did not discuss Forbes v. General Motors Corp., discussed infra .
[5] To be sure, the court also stated: “We do not intend for today’s holding to become a strict rule that no expert testimony is ever needed in any products liability case involving an an automobile’s air bag. The nature of these fact driven actions is such that we must approach them on a case-by-case basis.” Id. at 878.
[6] As explained in Forbes, a “defective condition,” under subsections (a)(ii) and (a)(iii)
should be distinguished from the requirement of a “defective product” for claims brought under
subsections (a)(i)(1) (manufacturing defect), (a)(i)(2) (failure to contain adequate warnings or
instructions), or (a)(i)(3) (design defect). In other words, the failure of the product to conform to
its warranty constitutes the defective condition, and “expert testimony is not needed to establish
that the product did not perform as warranted. ” Forbes ,