Opinion
4:03CV3208.
January 27, 2005
MEMORANDUM AND ORDER
Both sides have moved for partial summary judgment. Plaintiffs' motion (filing 65) seeks to have determined as a matter of law that: (1) Defendant is strictly liable in tort by reason of a design defect in a truck that it manufactured, which was involved in a fatal accident; (2) any negligence on the part of the truck driver or owner was not the sole proximate cause of the accident; and (3) Nebraska's statutes on comparative fault do not apply to Plaintiffs' strict liability theory of recovery. Defendant's motion (filing 75) seeks a determination that Plaintiffs' action is governed solely by Nebraska law, such that punitive damages cannot be recovered. Several associated motions are also pending.
I.
Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Egan v. Wells Fargo Alarm Servs., 23 F.3d 1444, 1446 (8th Cir. 1994). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue. Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir. 1997).
In order to withstand a motion for summary judgment, the nonmoving party must substantiate their allegations with "`sufficient probative evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy.'" Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Id. Essentially the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
[T]he plain language of Rule 56(c) 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Rule 56(e) provides that, when a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial."Anderson, 477 U.S. at 250. Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324.
II.
In conjunction with filing their summary judgment motion, Plaintiffs have attempted to renew two previously denied motions.Filing 67 recites that "Plaintiffs "resubmit their prior motion [filing 18] and move the Court for an Order declaring that the Court takes judicial notice of the following facts:
"1. Exhibit A attached to Plaintiffs' Index of Evidence [filing 21] is a true and correct copy of the Complaint-Wrongful Death Product Liability and Negligence Action filed by Plaintiffs against Defendant in the Circuit Court of the State of Oregon;
"2. Exhibit B attached to Plaintiffs' Index of Evidence [filing 21] is a true and correct copy of Defendant's Motion to Dismiss Complaint on Grounds of Forum Non Conveniens and Failure to Join Necessary Party filed by Defendant against Plaintiffs in the Circuit Court of the State of Oregon;
"3. Exhibit C attached to Plaintiffs' Index of Evidence [filing 21] is a true and correct copy of Defendant's Responses to Plaintiff's First Request for Production of Documents in the Circuit Court of the State of Oregon;
"4. Exhibit D attached to Plaintiffs' Index of Evidence [filing 21] is a true and correct copy of Plaintiff's Revised Response to Defendant's Motion to Dismiss Complaint on Grounds of Forum Non Conveniens or Failure to Join Necessary Party;
"5. Exhibit E attached to Plaintiffs' Index of Evidence [filing 21] is a true and correct copy of Defendant's Reply Memorandum in Support of Motion to Dismiss Complaint on Grounds of Forum Non Conveniens and Failure to Join Necessary Party together with the supporting Affidavit of Jeffrey M. Kilmer all of which were filed with the Circuit Court of the State of Oregon by Defendant Freightliner LLC; and
"6. Exhibit F attached to Plaintiffs' Index of Evidence [filing 21] is a true and correct copy of the transcript of hearing before the Honorable Henry Kantor, Circuit Judge of the Circuit Court of the State of Oregon on the 13th day of March, 2003 on Defendant Freightliner LLC's Motion to Dismiss."
In filing 68, "Plaintiffs resubmit their Motion to Deem Facts Judicially Admitted [filing 19] and move the Court for an Order declaring that Defendant Freightliner LLC has judicially admitted each of the following and that each is conclusively established in this action:
"1. That Defendant Freightliner LLC placed the 1996 Freightliner FL80 dump truck, which is the subject of this action on the market (¶ 3, Defendant's Answer to Plaintiffs' Amended Complaint, Filing 6);
"2. That, at the time the 1996 Freightliner FL80 dump truck which is the subject of this action left Defendant Freightliner LLC's possession the design of the brake pedal push rod of the service brake system was defective;
"3. That the design of the brake pedal push rod of the service brake system was defective because it failed to perform as safely as an ordinary consumer would expect when it is used in a manner either intended by Defendant Freightliner LLC or reasonably foreseeable by Defendant Freightliner LLC;
"4. That this defect made the product unreasonably dangerous for its intended use, or for any use the Defendant Freightliner LLC could have reasonably foreseen; and
"5. That this defect was a proximate cause of the accident which occurred on the 19th day of October 2000 in Lincoln, Nebraska, and the proximate cause of some damage to Plaintiffs' decedent, Shirley Carlson."
The earlier motions (filings 18, 19) were denied on December 9, 2003, when I "decline[d] to consider Plaintiffs' naked requests for pretrial findings." (Filing 23.) Plaintiffs have not shown that such ruling was in error, nor have they presented any reason why I should now entertain their requests — they have simply filed the same motions again. Accordingly, filings 67 and 68 will be denied. See NECivR 60.1 ("Motions for reconsideration are disfavored."). Insofar as any facts recited in the motions may be material to issues raised by Plaintiffs' motion for partial summary judgment, I will, of course, consider whether those facts are undisputed.
Defendant's motion (filing 95) for additional time to file a brief and evidence opposing filing 68 will be denied as moot.
III.
As required by local rule, see NECivR 56.1 and former NELR 56.1, Plaintiffs have set forth in their supporting brief a separate statement of material facts as to which they contend there is no triable issue, and Defendant has responded to such statement. Defendant does not dispute that:
"1. Plaintiffs are the co-personal representatives of the Estate of Shirley Carlson, deceased.
"2. Defendant Freightliner is a Delaware limited liability company with its principal place of business in the State of Oregon but qualified to and doing business in the State of Nebraska.
"3. Venue is proper in this Court as the accident giving rise to this claim occurred within the confines of this district.
"4. Shirley M. Carlson was born on December 21, 1932, and was killed on October 19, 2000. She was 67 years old at the time of her death."
(Plaintiff's brief (filing 66), at 1-2 (citations to record omitted); Defendant's brief (filing 107), at 1 ("Freightliner agrees with items 1,2, 3, and 4. . . .")
Plaintiffs next state that:
"5. On October 19, 2000, a collision occurred at the Burger King restaurant located at 4230 North 27th Street in Lincoln, Lancaster County, Nebraska between a vehicle being operated by Plaintiffs' decedent, Shirley Carlson, and a 1996 Freightliner FL80 dump truck, No. VIN 1FCXIICB1TL741117, which dump truck was manufactured by Defendant Freightliner and placed by it into the stream of commerce. (Amended Complaint, Filing 5, ¶¶ 9 and 10; Defendant's Answer to Amended Complaint, Filing 6, ¶¶ 8, and 9)"
(Filing 66, at 2.) Defendant responds that "the vehicle manufactured and placed into the stream of commerce by Freightliner only consisted of the cab, engine, frame, and axles. Both the dump box (the back end of the dump truck) and the power take-off which operated the dump box were added by an unknown third party after the vehicle left Freightliner's possession. See Affidavit of Anthony Patrick Moore (`Moore Affid.'), Exh. 1, at ¶ 12." (Filing 107, at 2.) The referenced portion of Moore's affidavit states that:
"12. The FL80 involved in the collision with Plaintiff's decedent (VIN 1FCXIICB1TL741117) was not in the same condition as the vehicle placed in commerce by Freightliner. The vehicle placed into commerce by Freightliner only consisted of the cab, engine, frame, and axles. The dump box (the back end of the truck that was used to transport materials) and the power take-off which operated the dump box were added by an unknown third-party after the FL80 left Freightliner's possession. As a result, after-market changes were made to both the drive train and the body of the FL80. The size of the aftermarket dump box would be more consistent with a heavy-duty vehicle than a medium-duty vehicle. Again, the vehicle manufactured by Freightliner was never intended to be used as a heavy-duty vehicle."
(Filing 108, Exhibit 1, at 2-3.) Plaintiffs have not refuted any of this information.
However, Plaintiffs further state that:
"6. When the Freightliner dump truck in question left Defendant's possession, the service brakes were defectively designed in that the brake pedal push rod was not strong to perform as safely as an ordinary consumer would expect when it was used in a manner intended by Defendant or reasonably foreseeable to Defendant. (Amended Complaint, Filing 5, ¶¶ 10 and 13; Defendant's Answer to Amended Complaint, Filing 6, ¶¶ 8, 9, and 12; Defendant's Response to Plaintiffs' First Set of Requests for Admission, Request Nos. 1 and 3, Exh. H, Filing 21, and Magistrate Judge Piester's Memorandum and Order, p. 3, Filing 35; and Plaintiffs' Index of Evidence, Filing 21, Ex. F, pp. 7, 10, 27, 28 and Ex. E, p. 4)"
(Filing 66, at 2.) In response, Defendant first "contends that when the 1996 Freightliner FL80, VIN 1FCXIICB1TL741117 left its possession, the service brakes were not defective." (Filing 107, at 2.) This "contention" is not referenced to the record and therefore is of no consequence. See NECivR 56.1(b)(1) ("The response shall . . . contain pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon with the opposing party relies.Properly referenced material facts in the movant's statement will be deemed admitted unless controverted by the opposing party's response.") (emphasis in original). Defendant secondly "contends that the brake pedal push rod of the 1996 Freightliner FL80, VIN 1FCXIICB1TL741117, consisting of only the cab, engine, frame, and axles, was strong enough to perform as safely as an ordinary consumer would expect when the vehicle was used in a manner intended, or reasonably foreseeable by Freightliner. See Moore Affid., Exh. 1, at ¶ 12." (Id.) This second "contention" is not established by Moore's affidavit. As set forth above, Moore's affidavit only states that the truck was modified after it left Defendant's possession; that, in Moore's opinion, the truck "was never intended to be used as a heavy-duty vehicle" says nothing about the adequacy of the brake pedal push rod.
Finally, Defendant states that it "has neither admitted, nor been judicially deemed to have admitted that the brake pedal push rod was defective when the 1996 Freightliner FL80, VIN 1FCXIICB1TL741117, left its possession." (Id., at 3.) This statement is untrue. Magistrate Judge Piester ruled on March 19, 2004, that Defendant, by failing either to respond fully or to object to a request for admission, had effectively admitted that it "was negligent in utilizing a brake pedal push rod which failed to withstand reasonable and foreseeable use." (Filing 35, at 2-3.) That ruling was not appealed, but, on August 19, 2004, Defendant filed a motion to "withdraw and amend" the admission (filing 104). Magistrate Judge Piester denied that motion in a memorandum and order entered on December 1, 2004 (filing 137). In that same order, Magistrate Judge Piester sanctioned Defendant, pursuant to Fed.R.Civ.P. 37(b)(2)(A), by "deem[ing] the following facts and claims established and undisputed for the purpose of this action:
"When the Freightliner dump truck in question left Defendant's possession, the service brakes were defectively designed in that the brake pedal push rod was not strong enough to perform as safely as an ordinary consumer would expect when it was used in a manner intended by Defendant or reasonably foreseeable to Defendant; and
"The truck's defective brake pedal push rod made the Freightliner truck in question unreasonably dangerous for its intended use."
(Filing 137, at 64.) Defendant did not appeal this ruling.
Plaintiffs next state that:
"7. The defective brake pedal push rod made the Freightliner truck in question unreasonably dangerous for its intended use. (Defendant's Answer to Amended Complaint, Filing 6, ¶¶ 8, 9, and 12; Defendant's Response to Plaintiffs' First Set of Requests for Admission, Request Nos. 1 and 3, Exh. H, Filing 21, and Magistrate Judge Piester's Memorandum and Order, p. 3, Filing 35)"
(Filing 66, at 2-3.) Although Defendant "contends that the brake pedal push rod was neither defective, nor unreasonably dangerous for its intended use" (filing 107, at 2), Magistrate Judge Piester's ruling is also controlling on this issue. In any event, Defendant's only cited support for this "contention" is paragraph 11 of its answer, denying Plaintiffs' allegations of strict liability. Such pleading does not create a genuine issue of material fact.
Finally, Plaintiffs state that:
"8. The defective brake pedal push rod failed just before the collision in issue causing the service brakes on the Freightliner truck in question to become inoperable. (Amended Complaint, Filing 5, ¶ 10; Defendant's Answer to Amended Complaint, Filing 6, ¶¶ 9 and 12; and Plaintiffs' Index of Evidence, Filing 21, Ex. F, pp. 7, 10, 27 28 and Ex. E, p. 4)
"9. The defective brake pedal push rod was a proximate cause of the injury and death of Plaintiffs' decedent. (Amended Complaint, Filing 5, ¶ 11; Defendant's Answer to Amended Complaint, Filing 6, ¶ 10; and Plaintiffs' Index of Evidence, Filing 21, Ex. F, pp. 7, 10, 27 28 and Ex. E, p. 4)"
(Filing 66, at 3.) Defendant responds that:
"Freightliner has admitted negligence only in one or more of the ways alleged in Paragraph 13 of Plaintiffs' Amended Complaint. Freightliner has further admitted only that said negligence was the cause of the brake pedal push rod failure, and a proximate cause of the collision, which caused or contributed to the decedent's injuries or damages. (Defendant's Answer to Amended Complaint, Filing 6, ¶ 12)"
Plaintiffs allege in paragraph 13 of their Amended Complaint that:
Freightliner was negligent in manufacturing and selling the Vehicle that presented an unreasonable risk of harm in one or more of the following particulars which caused or contributed to decedent's death:
a) In utilizing a brake pedal push rod that was not adequately tested.
b) In utilizing a brake pedal push rod which failed to withstand reasonable and foreseeable use.
c) In utilizing a brake pedal push rod which lacked sufficient stability to allow a driver to apply the air brakes under ordinary braking conditions without risk of complete brake failure.
d) In manufacturing and selling a product it knew or should have known included a defective brake pedal push rod design.
e) In failing to recall the 1996 Freightliner FL80 when it knew or should have known that the braking system included a defective brake pedal push rod.
f) In failing to notify its customer of the known defect in the 1996 Freightliner FL80.
(Filing 5, at 5-6.)
(Filing 107, at 3.) Defendant's description of its own pleadings is accurate. The admission that the brake pedal push rod failed because of some negligent act or omission on Defendant's part, and that such failure was a proximate cause of the collision and of the resulting injuries to Plaintiff's decedent, does not establish that the brake pedal push rod failed because of a design defect. As discussed above, Defendant also admitted in discovery that it "was negligent in utilizing a brake pedal push rod which failed to withstand reasonable and foreseeable use." This admission, however, likewise fails to establish that the failure was attributable to a design defect, which is the only part of Plaintiff's strict liability theory of recovery that is placed at issue by their summary judgment motion.
I have previously observed that while one of the specifications of negligence against Defendant concerns "manufacturing and selling a product it knew or should have known included a defective brake pedal push rod design" (filing 5, ¶ 13d), it is not clear whether their strict liability theory alleges a design defect, a manufacturing defect, or both. As I stated in a memorandum and order entered on March 30, 2004, denying Plaintiffs' previous motion for partial summary judgment (for a choice-oflaw determination on punitive damages): "They merely allege that the truck's brake pedal push rod was not of sufficient diameter, nor of sufficient strength and durability, to withstand normal operational forces. (Filing 5, ¶ 12.) Moreover, the plaintiffs allege that the defendant was guilty of numerous acts of negligence "in manufacturing and selling" the truck, including, among other things, failing to adequately test the brake pedal push rod, failing to recall the truck, and failing to notify its customer of the defect. (Filing 5, ¶ 13.)" (Filing 30, at 3.) Subsequently, in responding to Defendant's motion for partial summary judgment, Plaintiffs have claimed that their "Amended Complaint is alleged in broad enough terms to cover either a manufacturing defect or a design defect as the basis for the strict liability theory[,]" and stated that they "cannot say definitely that this is a design defect case as opposed to a manufacturing defect case." (Filing 114, at 1.)
Plaintiffs also cite a portion of a brief that Defendant filed in state court in Oregon (filing 21, Exhibit E), and a hearing transcript in that court (filing 21, Exhibit F), but, as noted and objected to by Defendant, neither of these documents is properly authenticated. Under our local rule, all documents submitted in support of a motion must be authenticated by affidavit. See NECivR 7.1(a)(2)(C) and former NELR 7.1(a)(2). See also Stuart v. General Motors Corp., 217 F.3d 621, 636 n. 20 (8th Cir. 2000) ("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). Documents which do not meet those requirements cannot be considered.").
Plaintiffs reply that the court nonetheless can take judicial notice of these documents pursuant to Rule 201 of the Federal Rules of Evidence. That evidentiary rule, however, "governs only judicial notice of adjudicative facts." Fed.R.Evid. 201(a). Such a judicially noticed fact must be "not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b)(2). Without proper authentication of Exhibits E and F, and without other readily available means for accessing "true and correct" copies of the Oregon court records, that condition is not satisfied here.
Defendant has moved to strike Plaintiffs' reply brief (filing 115) as having been filed without benefit of a prior court order, as required by NELR 7.1(c). That local rule, however, was superseded, effective August 6, 2004, by NECivR 7.1(c). Plaintiffs' reply brief was filed within the 5-day period allowed by the new local rule. Thus, Defendant's motion to strike (filing 116) will be denied.
As it happens, though, Defendant has supplied the court with an admittedly genuine copy of the Oregon court transcript, which is attached to filing 81 as part of Exhibit 3C (Plaintiffs' requests for admissions) and later authenticated by filing 108, Exhibit 3B (Defendant's responses to Plaintiffs' requests for admission). I also note that Magistrate Judge Piester previously reviewed Exhibit F in connection with a motion by Defendant to amend its answer to assert misuse of the product by third parties as an affirmative defense. He ruled that the doctrine of judicial estoppel prevented Defendant from alleging this affirmative defense because it had already admitted liability in the Oregon action for design and manufacturing defects. In particular, Magistrate Judge Piester found that:
The authenticity of the brief has not been established, and therefore I have not considered it. Although the defect presumably could be remedied by an affidavit of Plaintiffs' counsel, Plaintiffs have not requested leave to supplement their evidence.
To secure dismissal of the Oregon case, Freightliner's counsel admitted there was a defect in the braking system of the Freightliner truck due to a broken pin; that the broken pin resulted in the loss of brakes that led to the collision which killed Shirley Carlson; and that the brakes were defectively designed and manufactured with brake pins that were too small to withstand the forces used.
(Filing 137, at 30.) Thus, while the findings of fact that Magistrate Judge Piester made in sanctioning Defendant for misconduct during discovery did not specifically address the element of proximate cause, his memorandum and order included a broader finding that, as a matter of law, Defendant is strictly liable in tort for design and manufacturing defects in the brake pedal push rod.
My own reading of Exhibit F also leads me to conclude that, as alleged in Plaintiffs' amended complaint, "in the Oregon action, Freightliner admitted the product defect claimed herein and that it was a proximate cause of the accident. . . ." (Filing 5, ¶ 6.) Moreover, it clearly appears that Defendant's counsel represented to the court in Oregon that liability would not be contested, and that Defendant would only be asserting that the truck owner and truck driver also shared responsibility for the accident. As summarized by Magistrate Judge Piester, "Freightliner admitted that its fault `caused the loss of brakes' which `contributed to the accident,' and it admitted `some liabilit[y],' but not `all of the liability' for the accident. Filing 21, ex. F (transcript) at 6:19-8:2." (Id.)
In its amended answer, Defendant specifically "[d]enies that Freightliner in briefs and arguments admitted the product defect claimed herein and that it was a proximate cause of the accident." (Filing 17, ¶ 6.)
The doctrine of judicial estoppel is a discrete doctrine different from issue preclusion. Leonard v. Southwestern Bell Corp. Disability Income Plan, 341 F.3d 696, 702 (8th Cir. 2003). "The doctrine of judicial estoppel prevents a party from taking a position during litigation which is contrary to one taken in a prior judicial or quasi-judicial proceeding. The underlying purpose is to protect the judicial process. Leonard v. Southwestern Bell Corp. Disability Income Plan, 341 F.3d 696, 702 (8th Cir. 2003). Judicial estoppel is only available as a means to bar inconsistent statements if the prior statements were adopted by a court, made in a judicial proceeding, or made in the same or related litigation. Id." Amtrust Inc. v. Larson, 388 F.3d 594, 600-01 (8th Cir. 2004). One of the considerations that typically informs the decision of whether to apply the doctrine in a particular case "is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped."United States v. Grap, 368 F.3d 824, 831 (8th Cir. 2004) (quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001).
At the Oregon court hearing on March 13, 2003, after Defendant's counsel presented his argument in support of the motion to dismiss on grounds of forum non conveniens, Plaintiffs' counsel addressed the court, stating: "Mr. Kilmer [Defendant's counsel] sort of maybe admitted liability in the brief, and I think you saw that there might be some questions there and asked him about it." (Exhibit F, Transcript (Tr.), at 27:5-7.) The judge replied: "Right, and counsel clarified that in . . . responding to my questions. I'm satisfied." (Tr., at 27:14-18.) Plaintiff's counsel continued: "But since he has now admitted liability, he's admitted that this brake push pin was defective and that was a cause of death of Mrs. Carlson, that removes a lot of the issues in this case." (Tr., at 28:5-8.) Defendant's counsel did not dispute this statement, but merely responded that "even with the admission of liability, issues of damage and other things of interest to Nebraska and Nebraska courts have to be decided,. . . . [T]here is a lot of discovery on other issues in this case . . . that must be resolved and is best resolved in Nebraska." (Tr., at 38:3-16.) The unresolved issues, according to Defendant's counsel, primarily concerned allocation of liability.
Defendant's admission of liability obviously was an important factor in the Oregon court's decision to dismiss Plaintiffs' action. As Defendant's counsel argued: "Now, the Oregon Court has jurisdiction only because Freightliner's corporate headquarters is here and the design of the product occurred here, and I think plaintiffs feel that they have a better chance of having Oregon punitive damages found applicable here. . . . And there's really no basis before (sic) Freightliner's concession on design defect to bring this case in Oregon. Clearly the center of gravity of this case is Nebraska, but with a concession, whatever factor that otherwise had, has diminished to meaninglessness." (Tr., at 15:10-25.)
In summary, Defendant's unqualified admission of liability was adopted and acted upon by the Oregon court to the detriment of Plaintiffs, and it would be unfair to permit Defendant now to deny liability except with respect to negligence. Thus, pursuant to Fed.R.Civ.P. 56(c), I will enter an interlocutory "judgment of liability against Defendant on Plaintiffs' theory of strict liability for design defect," as requested in the first part of Plaintiffs' summary judgment motion (filing 65, part I).
According to Plaintiffs, the essential elements of strict liability in tort under Nebraska law are:
1. That the Defendant placed the product in question on the market;
2. That, at the time the product left the Defendant's possession, it was defective in one or more of the ways claimed by the Plaintiffs;
3. That this defect made the product unreasonably dangerous for its intended use, or for any use the Defendant could have reasonably foreseen; and
4. That this defect was a proximate cause of some damage to the Plaintiffs.
(Filing 66, at 4) (citing NJI2d Civ. 11.20 (2003)). Defendant argues that the Nebraska Supreme Court has also required both a showing that the defendant "knew, or in the exercise of reasonable care should have known, that the product would be used without inspection for defects" and a showing that the plaintiff's injury was sustained "while the product was being used in a way and for the general purpose for which it was designed and intended." (Filing 107, at 15) (citing Jay v. Moog Automotive, Inc., 652 N.W.2d 872 (Neb. 2002); Rahmig v. Mosley Machinery Company, Inc., 412 N.W.2d 56 (Neb. 1987)). My finding that Defendant is judicially estopped from denying liability eliminates any need to consider particular elements of the strict liability theory of recovery.
The second part of Plaintiffs' motion seeks "a summary judgment that as a matter of law any negligence on the part of Shawna Whyrick [the truck driver] and or Brandt Excavating Company [the truck owner] was not the sole proximate cause of the accident, injuries and death which are the subjects of this action." (Filing 65, part II.) Plaintiff argues that because "Defendant has admitted that its defective brake pedal push rod was a proximate cause of the accident . . . [b]y definition, another's negligence could not be the sole proximate cause." (Filing 66, at 10-11.)
It appears from Plaintiffs' brief that this part of the summary judgment motion was intended to defeat an anticipated "third-party misuse" defense to the product design strict liability theory. See, e.g., Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 646 (Neb. 2000) (declining to decide whether third-party misuse is an affirmative defense to strict liability in Nebraska, but finding no prejudice in trial court's failure to give misuse instruction where jury was instructed that its verdict must be for the defendant if action taken by a third-party was the sole proximate cause of the plaintiff's injuries). As previously discussed, Magistrate Judge Piester has since denied Defendant's motion for leave to amend its answer to assert thirdparty misuse as an affirmative defense. Moreover, my determination that Defendant is barred by the doctrine of judicial estoppel from contesting liability necessarily precludes any argument by Defendant that the acts or omissions of others were the sole proximate cause of the accident. No separate "judgment" will be entered on this aspect of Plaintiff's motion.
The third and final part of Plaintiffs' motion for summary judgment seeks purely a legal determination — that Nebraska's comparative fault statutes, Neb. Rev. Stat. §§ 25-21,185.07 to 25-21,185.12, do not apply to strict liability claims. As noted by Magistrate Judge Piester, Defendant's amended answer includes a "claim for allocation" requesting that "the negligence or fault of the defendant Freightliner L.L.C., the negligence of Shawna Whyrick, and the negligence of Brandt Excavating Company be considered by the jury for allocation in accordance with Neb. Rev. Stat. § 25-21,185.09 (Reissue 1995)." (Filing 17, at 5.) Although Plaintiffs believe this "claim of allocation" should only apply to their allegations of negligence against Defendant (i.e., paragraph 13 of the amended complaint), they have presented no persuasive authority to support their belief. They merely state that the Nebraska Supreme Court has yet to decide the issue. Unless and until Plaintiffs provide me with some basis for concluding that their legal position is correct, I will assume that Defendant's partial defense ("claim of allocation") is legally sufficient as against all theories of recovery alleged in the amended complaint.
IV.
Over a year ago, Plaintiffs filed a motion (filing 26) seeking a determination that Oregon law allowing punitive damages applies. I characterized that filing as a motion for partial summary judgment and denied the same for lack of evidence. See memorandum and order entered March 30, 2004 (filing 38). Defendant has now filed a motion for partial summary judgment seeking a determination that Nebraska law (not allowing punitive damages) applies. The motion will be denied for the reason that genuine issues of material fact exist — in part, because of Defendant's refusal to cooperate in discovery — regarding the place where the defective part was designed and engineered (i.e., Oregon or North Carolina).
Plaintiffs, while filing an opposing brief, have also filed a motion (filing 113) requesting that, "[i]n the event the Court fails to deny Defendant's Motion for Partial Summary Judgment outright," Plaintiffs be granted "additional time to take depositions pursuant to Fed.R.Civ.P. 56(f)." This motion for continuance will be denied as moot.
When filing its motion for partial summary judgment Defendant also filed a motion (filing 79) for leave to withdraw an admission that was contained in a brief submitted in opposition to Plaintiffs' earlier "choice-of-law" motion. In that brief Defendant stated: "The vehicle was designed by Freightliner engineers in Portland, but was manufactured in North Carolina." (Filing 31, at 2.) Defendant states that it has since determined that all of the brake design work was performed in North Carolina, and it has presented evidence to this effect. As discussed in Plaintiffs' brief, however, that evidence is not consistent with deposition testimony presented by one of Defendant's employees, Anthony Moore. The evidence is also inconsistent with statements made by Defendant's counsel before the Oregon court — statements that may also be subject to the doctrine of judicial estoppel. Because Defendant's evidence is controverted, I will deny the motion to withdraw the admission. I do not decide at this time whether the statement in Defendant's brief constitutes a binding judicial admission of fact, nor whether Defendant is bound by similar statements that were made in the Oregon court proceeding.
One piece of this evidence is an affidavit by Defendant's Associate General Counsel, Brian Burton. This affidavit was not signed when filed, but Defendant has filed a motion to permit such filing (filing 82) and also a later motion (filing 87) to permit a signed affidavit to be substituted. Both of these motions will be granted.
IT IS ORDERED that:
1. Plaintiffs' motion to take judicial notice of adjudicative facts (filing 67) is denied;
2. Plaintiffs' motion to deem facts judicially admitted (filing 68) is denied;
3. Defendant's motion for enlargement of time (filing 95) is denied;
4. Defendant's motion to strike (filing 116) is denied;
5. Plaintiffs' motion for summary judgment (filing 65) is granted in part and denied in part, as follows:
a. The court finds that Defendant is liable on Plaintiffs' theory of strict liability for design defect; and
This finding of liability is made pursuant to Fed.R.Civ.P. 56(c). No final judgment is being entered pursuant to Fed.R.Civ.P. 54.
b. In all other respects, the motion is denied;
6. Plaintiffs' motion for continuance (filing 113) is denied;
7. Defendant's motion to withdraw admission (filing 79) is denied;
8. Defendant's motion for leave to file unsigned affidavit (filing 82) is granted;
9. Defendant's motion for leave to substitute affidavit (filing 87) is granted; and
10. Defendant's motion for partial summary judgment (filing 75) is denied.