United States District Court, D. Kansas
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,
WAL-MART STORES, INC., Defendants.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge.
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. 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.
Motion To Strike
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.,  and D. Kan.
Rule 56.1(b)(1); (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); (3) comply with the
30-page limitation set forth in D. Kan. Rule
7.1(e); and (4) follow the Court's Summary
Judgment Guideline No. 6. Motion To Strike (Doc.
#125) at 1-2, 9.
Plaintiffs' Response To Defendant's Statement Of
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
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
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
Plaintiffs' Statement Of Additional Uncontroverted
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. 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. Cf. Tolle,
2006 WL 1537398, at *1. The Court overrules defendant's
motion on this ground.
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.
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. Defendant's motion is overruled on
Summary Judgment Guideline No. 6
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.The Court overrules
defendant's motion on this ground.
Motion For Summary Judgment
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.
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.
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.
otherwise noted, the following facts are uncontroverted,
deemed admitted or construed in the light most favorable to
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.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.
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).
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.
specific product information, defendant cannot conclusively
identify the dress that N.U. wore. 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
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. 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. ¶¶
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.
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). 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.
assert product liability claims based on defective design and
failure to warn.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 ...