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N.U. v. Wal-Mart Stores, Inc.

United States District Court, D. Kansas

June 27, 2017

N.U., a minor, by and through her father and next best friend, HERIBERTO UNZUETA, and her mother and next best friend, ELBA UNZUETA, Plaintiffs,
v.
WAL-MART STORES, INC., Defendants.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge.

         N.U., a minor, by and through her parents, Heriberto Unzueta and Elba Unzueta, brings suit against Wal-Mart Stores, Inc. and Consumer Testing Laboratories, Inc. to recover damages for personal injuries which she sustained when a dress that she wore caught fire.[1] This matter is before the Court on Defendant Wal-Mart Stores, Inc.'s Motion For Summary Judgment And Memorandum In Support (“Motion For Summary Judgment”) (Doc. #115) filed February 8, 2017, Defendant Wal-Mart Stores, Inc.'s Motion To Strike Plaintiffs' Response To Defendant's Statement Of Uncontroverted Facts And Plaintiffs' Statement Of Additional Uncontroverted Facts (“Motion To Strike”) (Doc. #125) filed March 15, 2017 and Defendant Wal-Mart Stores, Inc.'s Motion For Oral Argument On Wal-Mart Stores, Inc.'s Motion For Summary Judgment And Suggestions In Support Thereof (Doc. #139) filed April 18, 2017. For reasons stated below, the Court overrules all three motions.

         I. Motion To Strike

         Defendant asks the Court to strike plaintiffs' response to its statement of uncontroverted facts and plaintiffs' statement of additional uncontroverted facts. Defendant asserts that plaintiffs have failed to (1) refer with particularity to portions of the record on which they rely to dispute defendant's statement of material facts as required by Rule 56(c)(1), Fed. R. Civ. P., [2] and D. Kan. Rule 56.1(b)(1);[3] (2) set forth additional facts in a concise manner with specific references to record support as required by D. Kan. Rule 56.1(b)(2);[4] (3) comply with the 30-page limitation set forth in D. Kan. Rule 7.1(e);[5] and (4) follow the Court's Summary Judgment Guideline No. 6.[6] Motion To Strike (Doc. #125) at 1-2, 9.

         A. Plaintiffs' Response To Defendant's Statement Of Uncontroverted Facts

         Defendant asserts that in response to its statement of uncontroverted facts, plaintiffs fail to refer with particularity to portions of the record on which they rely. Motion To Strike (Doc. #125) at 1, 4-6. Specifically, defendant asserts that “several” paragraphs fail to cite specific portions of the record. See id. at 4, ¶ 4 (citing paragraph nos. 15, 16, 17, 20, 21, 22, 23 and 24). The Court's review of plaintiffs' responses indicates that for the most part, they do cite specific portions of the record. For instance, paragraph no. 16 states as follows:

16. Silvia Cervantes, Aunt of N.U., purchased the dress prior to the start of the school year, 2013 (August or September) from the Wal-Mart Store on Wanamaker. She initially purchased it for her daughter, but it did not fit her. Thus, she kept it aside and presented it to N.U. on her birthday, December 15, 2013. The dress at the time of sale was on a clearance rack and the dress did not include a top. (Silvia Cervantes deposition, p. 39. l.3 to p. 46, l.12) Attachment A.

Plaintiffs' Response To Statement Of Facts (Doc. #118) at 12, ¶ 12. While plaintiffs could have more precisely supported individual sentences with pin point cites, the responses are not written in a way that makes it overly burdensome for defendant to respond. Cf. Tolle v. Am. Drug Stores, Inc., No. 05-2191-KHV, 2006 WL 1537398, at *1 (D. Kan. June 1, 2006) (reluctantly striking plaintiffs' summary judgment response that was flagrant violation of D. Kan. Rule 56.1(b)(1) where court could not envision how defense counsel could prepare meaningful reply). As noted below, to the extent either party asserts facts that are not supported by record cites, the Court disregards them for purposes of ruling on defendant's summary judgment motion.

         Defendant complains that in opposition to several of its fact contentions, plaintiffs repeatedly cite their response to paragraph no. 11. Motion To Strike (Doc. #125) at 6. Defendant asks the Court to disregard plaintiffs' responses to paragraph nos. 11, 15, 16, 17, 20, 21, 22, 23, and 24. See id. As discussed below regarding the merits of defendant's summary judgment motion, the parties hotly dispute whether defendant has correctly identified the dress that N.U. wore at the time of the accident. In paragraph no. 11, defendant asserts that N.U.'s dress was “a Faded Glory yellow 100% cotton smocked spaghetti-strapped sundress with dots.” Motion For Summary Judgment (Doc. #115) at 3, ¶ 11. In support of the assertion, defendant cites unverified photographs which do not in themselves support the contention. See id. In response to paragraph no. 11, plaintiffs provide 15 subparagraphs (labeled “a” to “o”) which they contend controvert defendant's identification of the dress. Ideally, plaintiffs would have provided this information in their statement of additional facts and referred to the additional fact paragraphs to show that they controverted defendant's assertion in paragraph no. 11. The format of plaintiffs' response, however, does not flagrantly disregard the rules. More importantly, it allows for an adequate response by defendant. Cf. Tolle, 2006 WL 1537398, at *1. The Court overrules defendant's motion on this ground.

         B. Plaintiffs' Statement Of Additional Uncontroverted Facts

         Defendant contends that plaintiffs' statement of additional uncontroverted facts “are posed in an intentionally vague manner, contain multiple factual allegations, and do not make specific references to the record in support of each factual contention.” Motion To Strike (Doc. #125) at 2 (emphasis in original). Defendant asserts that the “majority” of plaintiffs' additional facts contain citations at the end of numerous sentences (or even paragraphs), making it unclear which statement of fact the reference allegedly supports. See id. In particular, defendant points to paragraph nos. 7, 8, 9, 10, 16, 23, 26, 35 and 36.[7] See id. As with the responses to defendant's statement of uncontroverted facts, plaintiffs could have more precisely cited the evidentiary support for their statement of additional facts. Nevertheless, the additional fact paragraphs are not written in a way which makes it overly burdensome for defendant to respond.[8] Cf. Tolle, 2006 WL 1537398, at *1. The Court overrules defendant's motion on this ground.

         C. Page Limitation

         Defendant asserts that plaintiffs' response to its summary judgment motion exceeds the 30-page limit set forth in D. Kan. Rule 7.1(e). See Motion To Strike (Doc. #125) at 8. Under D. Kan. Rule 7.1(e), absent a court order, the arguments and authorities section of briefs or memoranda must not exceed 30 pages. D. Kan. Rule 7.1(e). By its terms, the rule applies only to the argument and authorities section of briefs and memoranda and therefore not to statements of fact.

         In response to defendant's motion for summary judgment, plaintiffs filed two documents: (1) a 20-page response to defendant's statement of facts (Doc. #118) and (2) a 20-page memorandum in opposition (Doc. #119). Defendant asserts that the first document, i.e. the response to defendant's statement of facts (Doc. #118), includes legal argument such that the combined filings exceed the 30-page limitation. Defendant asks the Court to strike any argument that exceeds 30 pages. See Motion To Strike (Doc. #125) at 8. Defendant makes no attempt to delineate which statements of fact allegedly constitute improper legal argument.[9] Defendant's motion is overruled on this ground.

         D. Summary Judgment Guideline No. 6

         Defendant asserts that plaintiffs have failed to comply with the Court's Motion for Summary Judgment Guideline No. 6, which provides that attorneys should not set forth legal arguments in the statement of facts. Motion To Strike (Doc. #125) at 2-3, 8. As discussed, defendant has not indicated which fact paragraph(s) allegedly contain legal argument. Moreover, defendant has not shown that if even if a fact paragraph does contain legal argument, the proper remedy is to strike it.[10]The Court overrules defendant's motion on this ground.

         II. Motion For Summary Judgment

         A. Legal Standards

         Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hill v. Allstate Ins. Co., 479 F.3d 735, 740 (10th Cir. 2007). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248. A “genuine” factual dispute requires more than a mere scintilla of evidence in support of a party's position. Id. at 252.

         The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which the nonmoving party carries the burden of proof. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry this burden, the nonmoving party may not rest on the pleadings but must instead set forth specific facts supported by competent evidence. Nahno-Lopez, 625 F.3d at 1283.

         The Court views the record in the light most favorable to the nonmoving party. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may grant summary judgment if the nonmoving party's evidence is merely colorable or is not significantly probative. See Liberty Lobby, 477 U.S. at 250-51. In response to a motion for summary judgment, a party cannot rely on ignorance of facts, speculation or suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988); Olympic Club v. Those Interested Underwriters at Lloyd's London, 991 F.2d 497, 503 (9th Cir. 1993). The heart of the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52.

         B. Facts

         Unless otherwise noted, the following facts are uncontroverted, deemed admitted or construed in the light most favorable to plaintiffs.[11]

         On February 27, 2014, when N.U. was seven years old, she wore a dress that caught fire and caused her injury. At the time of the accident, N.U. was standing with three siblings in front of the family fireplace. Her father, Heriberto Unzueta, had started a fire and then went downstairs to exercise. Unzueta instructed his children that fire is dangerous and they should not go near it.[12]Unzueta does not recall whether he closed the metal mesh protective screens on the fireplace. He is aware that if the metal mesh protective screens were shut, they would have protected the fire and embers from coming out of the fireplace. He also knows that if someone gets too close to a fire, his or her clothes might catch on fire.

         The dress that N.U. wore was a “Faded Glory” brand that only defendant sells. A third-party manufacturer made the dress in India for defendant to sell in the United States. The dress was made of 100 per cent cotton. Photographs of burned remains of the dress indicate that it was a light-colored sun dress with spaghetti straps. See Exhibit K to Motion For Summary Judgment (Doc. #115).[13]

         Plaintiffs did not produce any hang tags that were on the dress at the time of purchase or any receipts or other documentation to identify the style number of the dress. Ordinarily, the left inseam of the dress would have a label that contains specific product information. See Affidavit Of Angie Davis ¶ 6, Exhibit A to Defendant Wal-Mart Stores, Inc.'s Opposition To Plaintiffs' Motion To Compel Disclosure (“Wal-Mart's Opposition To Motion To Compel”) (Doc. #64) filed March 18, 2016. The inseam label is not available on the burned remains of N.U.'s dress. See id. ¶¶ 6-9.

         Absent specific product information, defendant cannot conclusively identify the dress that N.U. wore.[14] See, e.g., Wal-Mart's Opposition To Motion To Compel (Doc. #64) filed March 18, 2016 at 1-2 (absent specific product information such as UPC or product codes, locating and identifying product information on dress sold by defendant extremely arduous if not impossible); Affidavit Of Angie Davis ¶ 9 (any one of multiple potential buyers might have been responsible for purchasing this particular line of dresses; absent specific product information from label on left inseam of dress, impossible to know which buyer and even then no guarantee buyer would recognize dress among many different products within buyer's purview).[15]

         Defendant contends that N.U. wore Style No. FG 10D100L, which it sold in the spring of 2010. See Defendant's Motion (Doc. #115) at 4, ¶ 13. To support its contention, defendant provides an affidavit by David Sillery, in-store buyer for Style No. FG 10D100L.[16] See Affidavit Of David Sillery, Exhibit N to Defendant's Motion (Doc. #115). Sillery states that based on his review of photographs of the burned dress, he can “confirm” that the remains of the burned dress match Style No. FG 10D100L. See id. ¶¶ 4-6.[17]

         Sylvia Cervantes - the person who purchased the dress that N.U. wore - examined the same photographs as Sillery and testified that Style No. FG 10D100L is not the same dress that she purchased. Cervantes Deposition at 65:8-23, Exhibit A to Plaintiffs' Response To Statement Of Facts (Doc. #118).

         Plaintiff's expert, Steven M. Spivak, reviewed evidence in the case and opined as follows: The shell and lining fabric of N.U.'s dress was made of a very light-weight construction. Spivak Expert Report ¶ 11, Exhibit L to Plaintiffs' Response To Statement Of Facts (Doc. #118).[18] Such fabric “can ignite in as little as one or two seconds from a tiny, pinpoint needle flame.” Id. ¶ 12. The raised fiber surface spots on the dress made it especially prone to immediate ignition from a burning ember or spark emitted by a fireplace. Id. The public does not know or appreciate the easy ignition, rapid flame spread and engulfing fire that can result with momentary ignition of such lightweight cotton fabric and a loose, flowing skirt. Id. ¶ 17.

         C. Analysis

         Plaintiffs assert product liability claims based on defective design and failure to warn.[19]S e e Plaintiffs' Memorandum In Opposition To Defendant's Summary Judgment Motion (“Plaintiffs' Opposition”) (Doc. #119) filed March 1, 2017 at 7. Defendant seeks summary judgment on all claims. Defendant asserts that plaintiffs cannot establish that it (1) defectively ...


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