Eaton v . Wal-Mart Stores CV-97-245-SD 07/23/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Catherine Eaton

v. Civil No. 97-245-SD

Wal-Mart Stores, Inc.; Maine Building Specialties Co.; Door Control, Inc.

O R D E R

Plaintiff Catherine Eaton brings this personal injury action

against defendants Wal-Mart Stores, Inc., Maine Building

Specialties Co., and Door Control, Inc., alleging negligence and

strict liability in the operation of an automatic door.

Presently before the court are various pretrial motions.

Background

On May 25, 1996, plaintiff was a patron of defendant Wal-

Mart’s retail store in Seabrook, New Hampshire. As she exited

the store, an automatic door closed on her body, fracturing her

right pelvis and wrist and causing other injuries. Discussion 1. Plaintiff’s Motion for Voluntary Non-suit Without Prejudice

as to Defendant Maine Building Specialties Co. Only (document 17)

Plaintiff has moved for voluntary non-suit without prejudice with respect to defendant Maine Building Specialties Company, which disavowed under oath any relationship whatsoever with the door that allegedly injured plaintiff. Under Rule 41(a)(2), Fed. R. Civ. P., plaintiff’s motion must be and herewith is granted.

2. Plaintiff’s Motion for Leave to Extend the Deadline to

Disclose Liability Expert From March 1, 1998 to April 1 0 , 1998

(document 14)

Plaintiff disclosed her expert witness on April 1 0 , 1998, more than one month after the agreed-upon March 1, 1998, disclosure deadline. Plaintiff then moved to extend the disclosure deadline to April 1 0 , 1998. Defendant Door Control initially objected to the motion to extend, but then withdrew its objection. Accordingly, plaintiff’s motion for leave to extend the deadline from March 1, 1998, to April 1 0 , 1998, is granted.

Wal-Mart and Door Control contend that plaintiff’s expert disclosure is insufficient under Rule 26(a)(2)(B), Fed. R. Civ. P., which requires, in addition to a statement prepared and signed by the expert,

2 a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

All this information is necessary for the expert disclosure to be

considered sufficient. Presently, plaintiff's expert disclosure only includes her expert's analysis and findings, but omits the

other necessary information. Thus plaintiff has tendered an

insufficient expert disclosure and is hereby ordered to augment

that disclosure with the necessary information provided for in

Rule 26(a)(2)(B) by August 2 8 , 1998.

3. Wal-Mart Stores, Inc.’s Motion for Summary Judgment

(document 12)

Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law. Rule 56 ( c ) , Fed. R. Civ. P.;

Lehman v . Prudential Ins. Co. of Am.,

, 327 (1st Cir.

1996). The court’s function at this stage is not to “weigh the

evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Stone & Michaud

Ins., Inc. v . Bank Five for Savings,

, 1068

3 (D.N.H. 1992) (quoting Anderson v . Liberty Lobby, Inc.,

(1986)).

The moving party has the burden of establishing the lack of

a genuine issue of material fact. Finn v . Consolidated Rail

Corp.,

(1st Cir. 1986). The court views the

record in the light most favorable to the nonmoving party,

granting all inferences in favor of the nonmoving party. Caputo

v . Boston Edison Co.,

1 , 13 (1st Cir. 1991). To

survive summary judgment, the nonmoving party must make a “showing sufficient to establish the existence of [each] element

essential to that party’s case,” Celotex Corp. v . Catrett,

(1986), and cannot merely rely on allegations

or denials within the pleadings. LeBlanc v . Great Am. Ins. Co.,

(1st Cir. 1993), cert. denied,

(1994);

. When reviewing a

summary judgment motion, "'the question is not whether there is

literally no evidence favoring the non-movant, but whether there

is any upon which a jury could properly proceed to find a verdict in that party’s favor.'" Caputo, supra,

(quoting

De Arteaga v . Pall Ultrafine Filtration Corp.,

(1st Cir. 1988)).

Defendant Wal-Mart argues that plaintiff cannot prove her

allegations of negligence without an expert witness. In support

thereof, defendant cites Maille v . Wal-Mart Stores, Inc., No. 95-

C-00352-WS (N.H. Super. Ct. Jan. 2 4 , 1996), in which the superior

court held that expert testimony is required to show negligence

4 in a case involving electronic doors. However, plaintiff in the present case disclosed the identity of an expert witness on April 1 0 , 1998. Plaintiff’s evidence indicates that defendant Wal-Mart’s electronic exit door may have been malfunctioning and capable of causing injury. Plaintiff also submitted testimony tending to show that Wal-Mart knew or should have known that the electronic doors were malfunctioning. In any event, plaintiff has presented enough expert testimony regarding defendant's negligence that the case cannot be resolved on summary judgment. Accordingly, defendant’s motion for summary judgment is denied.

4. Defendant Door Control's Motion for Leave to Reply to

Plaintiff's Objection to Door Control's Motion for Summary

Judgment (document 19)

The court grants Door Control's motion for leave to reply

and has fully considered its reply in ruling on the motion for

summary judgment.

5. Defendant Door Control's Motion for Summary Judgment

(document 11)

Defendant Door Control moves for summary judgment, claiming

that plaintiff has failed to disclose an expert to support her

liability claims or, alternatively, that plaintiff's product

liability claim must fail as a matter of law because Door Control

was merely a supplier of services in this case.

5 As to the first claim, the court has granted plaintiff's

motion to extend disclosure deadline. Since plaintiff has made a

valid expert disclosure, defendant Door Control's motion for

summary judgment based on failure to disclose an expert is

denied.

Next, Door Control seeks summary judgment on the ground that

it merely repaired the doors, but did not sell any products.

Section 402-A of the RESTATEMENT OF TORTS (SECOND) (1965), which has

been adopted by the New Hampshire Supreme Court, Buttrick v .

Lessard, 110 N . H . 36, 37-38 (1969); see, e.g., Chellman v . S A A B -

Scania A B , 138 N . H . 7 3 , 7 7 ,

(1993) ("We adopted

the doctrine of strict products liability as expressed in the

RESTATEMENT (SECOND) OF TORTS § 402-A (1965) in Buttrick v .

Lessard."), "applies to any person engaged in the business of

selling products for use or consumption. It therefore applies to

any manufacturer of such a product, [or] to any wholesale or

retail dealer or distributor . . . ." RESTATEMENT, supra, cmt. f;

see, e.g., Bolduc v . Herbert Schneider Corp., 117 N . H . 566, 569,

(1977) ("Persons in the business of selling

products may be held strictly liable in tort . . . . " ) .

Moreover, strict liability can be applied when persons both

provide a product and perform a service. See 63A A M . JUR. 2D §

1302 (1977). A hybrid sales-service transaction can give rise to

a cause of action for strict liability if the sales aspect of the

6 transaction predominates and the service aspect is incidental.

Id. at § 1301. Defendant Door Control admits providing

replacement parts, but argues that its main task was to repair

the doors.

However, the evidence establishes that the sales aspect of

the transaction between Door Control and Wal-Mart predominated

over the repair aspect. Door Control's invoices state that the

company is in the business of providing sales, service, and

rebuilding. In testimony, the president of Door Control, Joe

McCune, Jr., stated that the company is a dealer and

representative for several different automatic door

manufacturers. Attachment to Plaintiff's Objection to Wal-Mart's

Motion for Summary Judgment. Also, the invoices provided by

plaintiff tend to show that Door Control's business depends

predominantly on sales, not service. Id. The invoices provide

that on three service calls to the Seabrook Wal-Mart store, Door

Control billed Wal-Mart a combined $1,609 for parts, but only

$324 for labor. Id. This evidence supports the argument that

the transaction was

predominantly a sale, so Door Control's motion for summary

judgment therefore must be denied.

7 6. Assented-To Motion to Extend Defendants' Expert Disclosure

Deadlines From June 15, 1998 Until August 2 8 , 1998 (document 22)

Defendants' request for a commensurate amount of time to

file their expert disclosures is granted. Defendants' experts

must be disclosed on or before August 15, 1998.

Conclusion To summarize, the court has granted plaintiff's motion for voluntary non-suit regarding defendant Maine Building Specialties Co. (document 1 7 ) . The court also has granted plaintiff's motion for leave to extend deadline to disclose liability expert (document 1 4 ) , but has found that said disclosure is insufficient and has given plaintiff until August 2 8 , 1998, to augment same. Defendants also moved to extend time to disclose their experts (document 2 2 ) ; the motion is granted, and said disclosures are due on or before August 15, 1998. The court has granted Door Control's motion for leave to reply to plaintiff's objection to motion for summary judgment (document 1 9 ) . Finally, the court

8 has denied Wal-Mart's and Door Control's motions for summary

judgment (documents 12 and 1 1 , respectively).

SO ORDERED.

Shane Devine, Senior Judge United States District Court July 23, 1998

cc: Robert I . Mekeel, Esq. George R. Moore, Esq. James C . Wheat, Esq.

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