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Thomas v. Louisville Ladder, Inc.

United States District Court, D. Kansas

October 20, 2014

TRACY THOMAS, Plaintiff,
v.
LOUISVILLE LADDER, INC., et al., Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief District Judge.

Plaintiff Tracy Thomas seeks monetary damages from defendant Louisville Ladder, Inc. ("defendant") for alleged negligence, manufacturing defect, failure to warn, design defect, and breach of implied warranty. This matter is before the court on defendant's Motion to Exclude and Strike Expert Testimony (Dkt. 49) and Motion for Partial Summary Judgment (Dkt. 51). For the reasons stated below, defendant's Motion for Partial Summary Judgment is granted. Defendant's Motion to Exclude and Strike is dismissed as moot.

I. Factual and Procedural Background

A. Local Rule Dispute

As an initial matter, defendant alleges that plaintiff, in her Response to the motion for partial summary judgment, failed to comply with local rules 56.1(a) and 56.1(e). Dkt. 59, at 7. These rules read as follows:

(a) Supporting Memorandum. The memorandum or brief in support of a motion for summary judgment must begin with a section that contains a concise statement of material facts as to which the movant contends no genuine issue exists. The facts must be numbered and must refer with particularity to those portions of the record upon which movant relies. All material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.
(e) Duty to Fairly Meet the Substance of the Matter Asserted. If the responding party cannot truthfully admit or deny the factual matter asserted, the response must specifically set forth in detail the reasons why. All responses must fairly meet the substance of the matter asserted.

D. KAN. R. 56.1 (emphasis added). Defendant alleges that, of the thirty-three paragraphs of uncontroverted facts it set forth in its motion, plaintiff admitted only twelve. Dkt. 59, at 7. The remaining twenty-one paragraphs were not admitted, denied, or adequately addressed. Dkt. 59, at 7. As such, defendant argues, those remaining twenty-one facts should be deemed admitted for purposes of summary judgment. Based on a review of the pleadings, the court agrees.

Kansas Rule 56.1(a) allows a material fact to be deemed admitted unless it was specifically controverted by the statement of the opposing party. Any controverting statement must fairly meet the substance of the matter asserted. D. KAN. R. 56.1(e). However, for a majority of defendant's proffered facts, plaintiff seemingly disregarded these rules, opting instead to supplement, reword, or attempt to explain defendant's statement without ever admitting or denying the statement's content. For example, in paragraph number two, defendant sets forth the following: "[p]laintiff alleges that she suffered physical injuries to her wrist, knee, and heel and that she suffered severe traumatic head injury when the ladder collapsed while she was standing on it." Dkt. 52, at 1. In response, plaintiff only provides supplemental information, stating that she "also sustained extensive permanent, painful and disabling injuries, along with pain and suffering, disfigurement and emotional distress." Dkt. 57, at 2. In paragraph six, defendant proffers that "[p]laintiff alleges that the traumatic brain injury she suffered has impaired her ability to perform these services ([p]laintiff states that she believes her creative is not as effective and she is losing business because of it.)." Dkt. 52, at 2. In response, plaintiff simply rewords the statement: "[a]s a result of [p]laintiff's psychological brain trauma, her creative ability was not as effective as it was before the incident and because of that, she was not introduced to new clients, resulting in lost income." Dkt. 57, at 3. Finally, in response to paragraph twelve (and numerous others), plaintiff attempts to simply explain away the allegation. Defendant states "[p]laintiff was never told by anyone (neither Direct Energy nor John Young) that Direct Energy chose not to hire her because of an impaired creative ability." Dkt. 52, at 3. Even though plaintiff admitted this fact in her deposition, her response reads as follows: "[p]laintiff fostered this belief because Direct Energy never called her back about retaining her services, nor did John Young, who was previously happy with [p]laintiff's work, invite [p]laintiff to pitch advertising for his new business." Dkt. 57, at 4.

Having reviewed and considered plaintiff's response to paragraphs 2, 3, 5, 6, 10-19, 21, 23, 25-27, 30, and 32 of defendant's statement of uncontroverted facts, the court finds that plaintiff failed to specifically controvert these facts as required by D. KAN. R. 56.1(a) and failed to fairly meet the substance of these paragraphs as required by D. KAN. R. 56.1(e). Therefore, these facts are deemed admitted for purposes of defendant's motion for partial summary judgment.

B. Factual and Procedural Background

This case arises from a July 22, 2010, incident during which plaintiff, age sixty-two (62), alleges that she was injured by an extension ladder manufactured by defendant's predecessor-in-interest, Cuprum. In 1992, plaintiff purchased a twenty-foot aluminum Cuprum model 385-20 Type III extension ladder with a 200-pound load capacity from Westlake Ace Hardware in Shawnee, Kansas. More than eighteen years later, on July 22, 2010, plaintiff was using this ladder to clean out her gutters and look at her roof. Plaintiff alleges that, while she was on the ladder, approximately four feet off the ground, the extension locking hooks falsely locked, causing the ladder to fully collapse while plaintiff was on it. As a result, plaintiff claims that she slid down the ladder, got caught between its rungs, and ultimately fell to the ground with the ladder coming down on top of her. Plaintiff initially alleged that she suffered physical injuries to her wrist, knee, and heel, as well as a severe traumatic head injury. During the pretrial conference, however, plaintiff withdrew her claim of a severe traumatic head injury and instead asserted that she suffers from psychological and psychiatric issues as a result of the incident.

It is these psychological and psychiatric issues that are the primary focus of defendant's motion for partial summary judgment. Plaintiff owns her own advertising services business, Tracy Thomas Advertising. She writes, produces, and provides the voice for advertising spots, sells radio spots to clients, provides creative and production supervision services, and assists clients with the actual production of creative material. Plaintiff now alleges that, as a result of her psychological brain trauma, her creative ability is not as effective as it was before the accident, thereby causing her to lose all of her "major advertising clients, with none on the horizon." Dkt. 50-2, at 6. Specifically, plaintiff identifies the following businesses as "lost clients:" (1) Clockwork Home Services, (2) Pyramid Roofing, (3) Axcet HR Solutions, (4) Bordner Roofing, and (5) Elder & Disability Law Firm.

On July 13, 2012, plaintiff filed suit against defendants Louisville Ladder, Inc., Westlake Hardware, Inc., and Ace Hardware Group in the district court of Johnson County, Kansas, case number 12CV5630, alleging negligence, manufacturing defect, failure to warn, design defect, and breach of implied warranty of merchantability for which she seeks, inter alia, damages for lost profits. Dkt. 1-1. On April 25, 2013, plaintiff voluntarily dismissed without prejudice defendants Westlake and Ace. Dkt. 1-2. On May 23, 2013, defendant removed plaintiff's action to the United States District Court, District of Kansas citing ...


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