United States District Court, D. South Dakota, Central Division
BRUCE LINDHOLM, individually and as personal representative of the ESTATE OF ALEXANDER NELS LINDHOLM, and VANOOSHEH LINDHOLM, individually, Plaintiffs,
BMW OF NORTH AMERICA, LLC, Defendant.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
case is a products liability and wrongful death action
brought by Bruce Lindholm, individually and as personal
representative of the Estate of Alexander Nels Lindholm, and
Vanoosheh Lindholm (collectively "Plaintiffs")
against BMW of North America, LLC ("Defendant"),
stemming from a tragic accident that occurred on July 5,
2013. Doc. 1-1. Plaintiffs seek monetary relief, including
attorney's fees and punitive damages. Doc. 1-1. Defendant
moved for summary judgment on all claims, Doc. 28, which
Plaintiffs oppose, Doc. 32. For the reasons explained below,
Defendant's motion is granted.
complied with Local Rule 56.1(A) of the Civil Local Rules of
Practice of the United States District Court for the District
of South Dakota by filing a statement of material facts along
with their motion for summary judgment. Doc. 42. Local Rule
56.1(B) requires the party opposing a motion for summary
judgment, to "respond to each numbered paragraph in the
moving party's statement of material facts with a
separately numbered response and appropriate citations to the
record." D.S.D. Civ. LR 56.1(B). All material facts set
forth by the moving party are deemed admitted "unless
controverted by the opposing party's response to the
moving party's statement of material facts." D.S.D.
Civ. LR 56.1(D). Plaintiffs filed their own statements of
undisputed facts, Doc. 33, but did not file a response under
Local Rule 56.1(B). Nevertheless, to ensure that the facts
are viewed in the light most favorable to Plaintiffs as the
non-moving party, this Court draws the facts not only from
Defendant's Statement of Undisputed Material Facts, but
also from documents supporting Plaintiffs' Brief in
Opposition to Defendant's Motion for Summary Judgment
Court heard oral argument from counsel on June 1, 2016. Docs.
49, 50. At the close of that hearing, this Court stated that
because additional discovery was ordered after Defendant
filed its motion for summary judgment and in order for the
record to be complete, both parties would be permitted to
supplement the record with any affidavits or other materials
that the parties believed to be important in the Court's
consideration of whether there is a genuine issue as to any
material fact. Doc. 50 at 40-12; see also Docs. 37,
48. Neither party objected to the Court's acceptance of
additional materials at that time. See Doc. 50 at
40-12. Thereafter, Plaintiffs' counsel submitted
additional materials opposing Defendant's motion for
summary judgment, including an affidavit and "Analysis
Summary" from Plaintiffs' expert, Aaron Lalley
("Lalley"), and information surrounding two prior
incidents of Storz cantilever jacks apparently failing. Docs.
53, 55-1, 55-2, 55-3, 55-4, 55-5. Defendant now objects to
this Court's consideration of that additional
information. Defendant first maintains that Plaintiffs failed
to submit an affidavit or declaration pursuant to Federal
Rule of Civil Procedure Rule 56(d) stating why they could not
present the supplemental material earlier. Doc. 57 at 2.
Defendant second argues that Lalley's "Analysis
Summary" and affidavit should be excluded from the
record because the "Analysis Summary"-which
Defendant characterizes as a fourth report-was untimely
produced and the affidavit is inconsistent with Lalley's
previous testimony. Doc. 57 at 1-10.
56(d) provides that "[i]f a nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may: (1)
defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order." Fed.R.Civ.P.
56(d). Plaintiffs' counsel submitted an adequate Rule
56(d) declaration in their Brief Pursuant to Federal Rule
56(d) in Further Opposition to Defendant's Motion for
Summary Judgment, Doc. 55, and at the oral argument hearing,
this Court allowed both parties time to submit additional
materials to complete the record before this Court ruled on
Defendant's motion for summary judgment, including expert
materials. District courts are afforded "great
discretion in determining whether to strike expert testimony
that is either undisclosed or disclosed in contravention of
the court's scheduling order, " Sheesley v.
Cessna Aircraft Co., No. 02-4185 KES, 2006 WL 3042793,
at *4 (D.S.D. Oct. 24, 2006), and the Federal Rules of Civil
Procedure "should be construed, administered, and
employed by the court ... to secure the just, speedy, and
inexpensive determination of every action and proceeding,
" Fed.R.Civ.P. 1. Thus, under Rule 56(d) and in an
effort to provide a "just" consideration of
Plaintiffs' case, Defendant's objection is overruled,
and this Court will consider the supplemental materials
submitted by Plaintiffs.
FACTS PERTINENT TO MOTION
5, 2013, twenty-four-year old Alexander Lindholm
("Alex") was attempting to repair an exhaust leak
on his 1997 BMW 540i Sedan ("the car"). Doc. 30 at
¶ 1; Doc. 33 at ¶¶ 1-2. The car was inside a
storage unit that Alex's father, Bruce Lindholm
("Bruce"), had rented in Pierre, South Dakota for
use in repairing and restoring automobiles. Doc. 30 at ¶
U Doc. 32-1 at 15; Doc. 32-3 at 32-34; Doc. 33 at ¶ 1-
Alex used the jack provided with the car ("Storz
cantilever jack") to lift the car and gain access to a
hanger that was supporting and securing the exhaust system.
Doc. 30 at ¶ 2; Doc. 33 at ¶¶ 2, 5. The
exhaust hanger and related components are located underneath
and toward the center of the car, not near any of the
car's tires. Doc. 30 at¶3.
afternoon, Alex's friend, Daniel Neugebauer
("Neugebauer"), picked Alex up from the storage
unit and the two of them made various stops around town in
attempt to find parts to fix the exhaust system. Doc. 32-1 at
18-21; Doc. 33 at ¶¶ 2-3. When Neugebauer picked
Alex up from the storage unit, Neugebauer observed that the
car was lifted in the back passenger area of the car with the
Storz cantilever jack. Doc. 32-1 at 26. Neugebauer testified
that Alex said he wanted to use the Storz cantilever jack
because it was the manufacturer's jack. Doc. 32-1 at 29.
Neugebauer testified that other hydraulic jacks and jack
stands were in the storage unit, but on that day, only the
Storz cantilever jack was being used to lift the car and that
there were no wheel chocks around any of the wheels. Doc.
32-1 at 30, 53. When Neugebauer dropped Alex off at the
storage unit after obtaining parts, Neugebauer testified that
the car was still supported only by the Storz cantilever jack
and that no hydraulic jacks or jack stands were being used.
Doc. 32-1 at 34-35. Neugebauer dropped Alex off at the
storage unit to make the repairs himself. Doc. 32-1 at 21,
had used only the Storz cantilever jack to lift the car in
order to work underneath it on the exhaust system. See Doc.
32-1 at 26-30, 34-35; Doc. 32-3 at 33-34, 37. While Alex was
under the lifted car making repairs, the Storz cantilever
jack somehow tipped, and the car fell on top of Alex. Doc.
32-3 at 32-33; Doc. 33 at ¶ 5. Alex died from asphyxia
under the weight of the car. Doc. 32-4. Later that evening,
Bruce went to the storage unit to check on Alex. Doc. 32-3 at
32-33. Bruce discovered that the Storz cantilever jack had
tipped over and that Alex's body was underneath the car.
Doc. 32-3 at 32-33. Bruce used a nearby hydraulic floor jack
to lift the car off of Alex's body. Doc. 32-3 at 33.
Bruce testified that there were other hydraulic jacks and
jack stands in the storage unit, but when he arrived at the
unit on July 5, 2013, it did not appear as if Alex had used
anything to support the car other than the Storz cantilever
jack. Doc. 32-3 at 33-34, 37.
before the accident, Bruce had helped Alex work on the
car's exhaust issue in the storage unit. Doc. 32-3 at
24-25. On that day, Alex jacked up the car with the Storz
cantilever jack and Bruce asked Alex why he was using the
Storz cantilever jack. Doc. 32-3 at 24-25. Bruce testified
that Alex said the Storz cantilever jack was the "proper
jack for the job, " and BMW had designated locations or
receptacles for the Storz cantilever jack to be used to lift
the car off the ground. Doc. 32-3 at 24-25. After jacking the
car up with the Storz cantilever jack on the day before the
accident, Alex had placed a jack stand under the car and both
Alex and Bruce proceeded to work on the car's exhaust
issue. Doc. 32-3 at 25.
Storz cantilever jack was provided with the car to be used
for tire repair or replacement and not for work underneath
the car. Doc. 30 at ¶ 4. The owner's manual provided
with the car instructs that the Storz cantilever jack
"is designed for changing tires only" and that one
should "[n]ever lie beneath the vehicle or start the
engine while the car is supported by the jack - risk of fatal
injury!" Doc. 30 at ¶ 5; Doc. 29-2 at 1-2. An
illustration depicted on the Storz cantilever jack warns that
one should not lie under the vehicle while using the Storz
cantilever jack. Doc. 31 at 3. Alex was disregarding the
instructions in the owner's manual and the illustration
on the Storz cantilever jack on July 5, 2013. Doc. 30 at
¶ 7; see also Doc. 32-3 at 53; Doc. 32-10 at
is the distributor of the car. Doc. 30 at ¶ 9. Defendant
did not design, test, or manufacture the car or the Storz
cantilever jack. Doc. 30 at ¶ 8.
expert, Lalley,  submitted multiple expert reports in this
case including: (1) an expert witness report dated March, 25,
2014; (2) another report dated August 27, 2015; (3) a
response to Defendant's expert's report dated
November 5, 2015; and (4) an "Analysis Summary"
dated November 15, 2015. Doc. 29-1; Doc. 32-11; Doc. 55-1.
Lalley also signed an affidavit and was deposed concerning
his opinions. Docs. 32-10, 53. At his deposition, Lalley
testified that the Storz cantilever jack is not defective,
"per se." Doc. 32-10 at 14. Lalley opined, however,
that the Storz cantilever jack-and every jack of that
particular design-was defectively designed because it
represents a "regression in design" and "a
significant departure from conventional design" that
compromises consumer safety. Doc. 32-10 at 14, 17; see
also Doc. 32-11 at 2-3. Lalley cited three factors that
contributed to the Storz cantilever jack's functional
failure: (1) the base of the Storz cantilever jack is nearly
twice as narrow as other conventional jacks; (2) the Storz
cantilever jack's upper pivot head was made of plastic,
rather than steel; and (3) two polymer castings in the upper
pivot "click" together for an interference fit,
whereas other conventional jacks are "rigidly
pinned" together. Doc. 32-9 at 1-2; Doc. 32-10 at 15,
17-18; Doc. 53 at ¶ 2; Doc. 55-1 at 4-5. In Lalley's
opinion, the minimum lateral load that the Storz cantilever
jack would be able to withstand while fully extended before
becoming unstable is sixty-five pounds. Doc. 32-10 at 15, 17.
Lalley then compared the Storz cantilever jack to a scissor
jack that had a wider base ("exemplar jack"). Doc.
32-10 at 18-20. Lalley calculated that the exemplar jack
would be able to withstand a lateral load of 260 pounds. Doc.
32-10 at 20. Lalley opined that the Storz cantilever jack is
"defective and unreasonably dangerous to the
consumer" because it "offers increased risk as it
has a reduced lateral load requirement an[d] increases
consumer responsibility." Doc. 53 at ¶¶ 3-4,
7. Lalley also testified that the Storz cantilever jack
needed a complete redesign because consumers do not always
use a product under ideal conditions, and he would never rely
upon product warnings to ensure consumer safety. Doc. 32-10
at 16, 23-24. Lalley attested that he believed the design
choices were made to "save money in material and space,
" and that he would never approve the design "as it
is defective and unreasonably dangerous." Doc. 53 at
¶¶ 3, 5-7; Doc. 55-1 at 5.
expert, Michael James ("James"),  reconstructed the
accident using the same model jack as the Storz cantilever
jack and a BMW vehicle similar to Alex's. Doc. 32-13 at
14; Doc. 55-5. James opined that it was unlikely that Alex
was able to generate the amount of direct force necessary to
tip the Storz cantilever jack because Alex was lying on his
back under the car in a position that would have constrained
his work area. Doc. 32-13 at 26. According to James, Alex
would have been able to generate enough force, however, if he
was able to add the car's own momentum by getting the car
to rock back and forth. Doc. 32-13 at 26. James opined that
whether the upper pivot was made of plastic or steel or
whether the pivot point is rigidly pinned had no effect on
the stability of the Storz cantilever jack, other than what
the failed jack would look like afterwards; separation of the
upper pivot material begins to occur after the jack is forced
beyond its point of stability, which Alex would have reached
in either case. Doc. 32-13 at 10-12, 31. James also opined
that although a wider base may increase the resistance of the
Storz cantilever jack to tipping, the size of the Storz
cantilever jack's base was not a major factor in the
accident. Doc. 32-13 at 20. James noted in his report that
the Storz cantilever jack is smaller than conventional jacks
but "provid[es] utility while minimizing space and
weight." Doc. 32-13 at 22.
experts disagreed as to the other expert's final
conclusions and calculations, including use of the parking
brake, the relative force the other three tires may or may
not have provided, and whether the other's overall
calculations of force were correct. See e.g.. Doc.
32-11; Doc. 32-13 at 11, 31; Doc. 53 at ¶ 6; Doc. 55-1
at 3-4. Of course on ruling on Defendant's motion for
summary judgment, this Court resolves those disagreements
between the experts in the Plaintiffs' favor.
submitted evidence of what they believe constitute two prior
incidents of the Storz cantilever jack's failure: (1)
documents from a case titled Gallimore v. BMW North
America, LLC, No. 05-10652-CA-22, filed in the
Miami-Dade County Circuit Court in Miami-Dade, Florida,
(2) a BMW Group Special Product Investigation Report that was
prepared on November 27, 2002 in a matter involving customer
Chelsey Beaver ("Beaver report") and her 1999 540i
BMW. Docs. 55-3, 55-4. Plaintiffs submitted a complaint from
Gallimore, a defective design and negligent design
products liability action in which Gallimore sought damages
for injuries sustained to his hands on September 16, 2003
while using the jack provided with his 525i Sedan purchased
in 2002. Doc. 55-3 at 4-6, 10-11. Additional discovery
materials show that Gallimore spoke with BMW North
America's Customer Relations and stated that at the time
of the incident "he was on his knees preparing to
install the spare tire on [the] right rear when the vehicle
fell forward onto his left hand, completely severing his
pinky." Doc. 55-3 at 24. The customer relations log
states that Gallimore "believes the jack base is too
small to support the vehicle properly and [was] the cause of
the vehicle falling." Doc. 55-3 at 24.
Beaver report totals three pages; the first page is the
report itself and the second and third pages consist of
photographs. Doc. 55-4. The Beaver report concerns an
incident where a BMW owner apparently sustained injuries to
his hand when changing a flat tire in an underground parking
structure with the vehicle's car jack. Doc. 55-4 at 1.
The report states that "[w]hile the car was raised, the
top white plastic piece popped off of the jack, causing the
car to fall. Mr. Beaver's hand became pinned between the
top of the tire and the wheel well." Doc. 55-4 at 1. The
jack was inspected, and the report observed that "a
piece off of the top of the jack was separated from the
jack" and that "[t]he mounting point of the piece
has a scrape mark on the end." Doc. 55-4 at 1.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper "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." Fed.R.Civ.P.
56(a). Rule 56 places the burden initially on the moving
party to clearly establish the absence of a genuine issue of
material fact and entitlement to judgment as a matter of law.
Id.; see also Celotex Corp. v. Catrett. 477
U.S. 317, 322-23 (1986). Once the moving party has met that
burden, the nonmoving party must establish that a material
fact is genuinely disputed either by "citing to
particular parts of materials in the record" or by
"showing that the materials cited do not establish the
absence or presence of a genuine dispute." Fed.R.Civ.P.
56(c)(1)(A), (B); see also Gacek v. Owens & Minor
Distrib., Inc., 666 F.3d 1142, 1145-46 (8th Cir. 2012).
"A party opposing summary judgment may not rest upon
mere allegations or denials contained in the pleadings, but
must, by sworn affidavits and other evidence, set forth
specific facts showing that there is a genuine issue for
trial." Mehrkens v. Blank. 556 F.3d 865, 868-69
(8th Cir. 2009); see also Mosley v. City of Northwoods,
Mo., 415 F.3d 908, 910 (8th Cir. 2005). On summary
judgment, courts view the evidence and reasonable inferences
in the light most favorable to the nonmoving party.
Robbins v. Becker, 794 F.3d 988, 992 (8th Cir.
2015). Summary judgment is "properly regarded not as a
disfavored procedural shortcut, but rather as an integral
part of the Federal Rules as a whole, which are designed to
secure the just, speedy and inexpensive determination of
every action." Toreerson v. City of Rochester,
643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (internal
quotation marks omitted) (quoting Celotex Corp., 477
U.S. at 327).
have alleged Defendant is liable under multiple products
liability theories, including strict liability for defective
design, negligence and negligent design, wrongful death, and
breach of implied warranty. Doc. 1-1. Each theory is analyzed
Strict Liability Claim
Supreme Court of South Dakota adopted the Restatement
(Second) of Torts § 402A to govern strict liability
cases under South Dakota law. Karst v. Shur-Co., 878
N.W.2d 604, 610 (S.D. 2016; see also Peterson v. Safway
Steel Scaffolds Co., 400 N.W.2d 909, 912, (S.D. 1987);
Smith v. Smith. 278 N.W.2d 155, 158-59 (S.D. 1979);
Engberg v. Ford Motor Co., 2 ...