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Lindholm v. BMW of North America, LLC

United States District Court, D. South Dakota, Central Division

August 17, 2016

BRUCE LINDHOLM, individually and as personal representative of the ESTATE OF ALEXANDER NELS LINDHOLM, and VANOOSHEH LINDHOLM, individually, Plaintiffs,
v.
BMW OF NORTH AMERICA, LLC, Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         This 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.

         I. PRELIMINARY ISSUES

         Defendant 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 where appropriate.

         This 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.

         Rule 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.

         II. FACTS PERTINENT TO MOTION

         On July 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")[1] 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.

         That 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, 32.

         Alex 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.

         The day before the accident, Bruce had helped Alex work on the car's exhaust issue in the storage unit.[2] 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.

         The 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 22-25.

         Defendant 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.

         Plaintiffs' expert, Lalley, [3] 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.

         Defendant's expert, Michael James ("James"), [4] 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.[5] 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.

         Both 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.

         Plaintiffs 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, [6] and (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.

         The 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.

         III. SUMMARY JUDGMENT STANDARD

         Under 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).

         IV. DISCUSSION

         Plaintiffs 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 below.

         A. Strict Liability Claim

         The 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 ...


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