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Wunder v. Elettric 80, Inc.

United States District Court, D. Kansas

August 15, 2014

JOANN WUNDER, individually and on behalf of the heirs-at-law of deceased Thomas Wunder Plaintiff,
ELETTRIC 80, INC., et al., Defendants.


K. GARY SEBELIUS, Magistrate Judge.

This matter comes before the Court upon Defendants Elettric 80, Inc. and Elettric 80, S.P.A.'s (collectively, "Elettric 80") Joint Motion for Summary Judgment (ECF No. 42) and Request for Oral Argument on their Motion for Summary Judgment (ECF No. 58).[1] In this case, Plaintiff Joann Wunder brings a products liability action under theories of strict liability and negligence against Elettric 80. Ms. Wunder alleges that her husband, Thomas Wunder, died as a result of a workplace accident involving a laser guided vehicle ("LGV") allegedly manufactured and/or sold by Elettric 80. Elettric 80 argues that summary judgment should be granted in its favor because Ms. Wunder cannot establish the causation element of her claims. For the reasons explained below, defendants' joint motion for summary judgment is denied.

I. Summary Judgment Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law."[2] A fact is "material" if it is "essential to the proper disposition of the claim."[3] An issue of fact is "genuine" "if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."[4] The court views the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.[5]

The movant bears the initial burden of establishing the lack of a genuine issue of material fact and the entitlement to a judgment as a matter of law.[6] To meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the claims of the opposing party; instead, the moving party can simply point out the absence of evidence for the other party on an essential element of that party's claim.[7]

If the movant carries this initial burden, the burden shifts to the nonmovant to "set forth specific facts showing that there is a genuine issue for trial."[8] The nonmovant may not rest on mere allegations or denials of its pleading.[9] Rather, the nonmovant must give "specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."[10] "Conclusory and self-serving affidavits are not sufficient" to show disputed material facts.[11] In addition, the nonmovant cannot rely "on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial."[12]

II. Admissibility of Deposition Testimony

Before addressing the merits of this motion, the Court first examines an evidentiary issue. Prior to filing the current lawsuit, Ms. Wunder filed an application for workers' compensation benefits against Del Monte Foods Co. for the death of her husband, Mr. Wunder. Ms. Wunder was represented by the same counsel in the workers' compensation proceeding as she is in this current lawsuit. The parties in that proceeding conducted extensive discovery concerning Mr. Wunder's death, including deposing sixteen persons. Elettric 80 cites portions of these sixteen depositions in this matter to support its assertion that no one saw the LGV strike Mr. Wunder at the time of his accident.[13] These same persons are identified as witnesses in Ms. Wunder's initial Rule 26 disclosures, and she cites some of their depositions in response to the current motion.

Elettric 80 argues that although it may use deposition testimony taken during the workers' compensation proceedings to support its summary judgment motion, Ms. Wunder cannot use that same testimony against Elettric 80.[14] Citing Fed.R.Evid. 801 (Rule that defines hearsay and excluded statements) and 802 (Rule against the use of hearsay) and Fed.R.Civ.P. 32(a) (Rule governing the use of depositions in court proceedings), defendants contend, in part, that the deposition testimonies are hearsay and cannot be used against them because they were not parties to the workers' compensation proceedings or represented at those depositions. Elettric 80 also argues that the deposition testimonies, particularly that of Pablo Cerca and Courtney Sanders, are inadmissible under Fed.R.Civ.P. 56(c)(2).[15] The Court disagrees.

At the summary judgment stage, the content or substance of any evidence relied upon must be admissible, but the evidence need not be submitted in a form that would be admissible at trial.[16] For example, Fed.R.Civ.P. 56(c)(1)(A) specifically permits a party to support its factual assertions by means of a deposition transcript or affidavit, even though these are forms of evidence that are usually inadmissible as hearsay at trial.[17] The rationale is that the same facts may ultimately be presented at trial in an admissible form.[18] As the Tenth Circuit has explained, a witness to a car accident could not submit his testimony at trial via affidavit because that statement would be hearsay; at the summary judgment stage, however, the affidavit is proper because its content-the eyewitness account of the affiant-is admissible.[19] "To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury."[20] If material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence, then a party may object to it as improper.[21]

Elettric 80 argues that the deposition testimonies are hearsay. In general, Rule 32(a) authorizes the use of a deposition at trial or a hearing if the deposition is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying, as will be applied here. "Rule 32(a) creates of its own force an exception to the hearsay rule.... [T]he fact that the deponent is not present in court and that it is his out-of-court statement at the deposition that is being read is not in itself ground for objection."[22] Courts, however, should disregard any inadmissible statements (e.g., hearsay) contained within affidavits or deposition transcripts that could not be presented at trial in any form.[23] Thus, although evidence presented in the form of an affidavit or deposition at the summary judgment stage can be "converted" in form into live testimony at trial, the content or substance must be otherwise admissible, and any hearsay contained in an affidavit or deposition remains hearsay beyond a court's consideration.[24] Elettric 80, however, does not point to any statement made by any deponent within the deposition transcript that would inadmissible if testified to at trial. Elettric 80 appears to only object to the form of evidence, rather than a specific hearsay statement. Elettric 80's hearsay objection is overruled.

Turning to Elettric 80's Rule 32(a) objection, a deposition generally may be used against a party in a court proceeding on these conditions:

(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were ...

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