United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
Lawrence R. Leonard United States Magistrate Judge
a products liability case wherein the Plaintiff asserted
claims for negligent design of an electronic shopping cart
against the Defendant, designer of the cart. Before the Court
is Defendant's Motion for Summary Judgment, filed on June
28, 2016. ECF No. 45. Plaintiff timely filed a response in
opposition on July 11, 2016. ECF No. 49. Defendant replied on
July 14, 2016. ECF No. 50. The Court held a hearing on August
12, 2016. ECF No. 76. The Court also heard arguments on
Defendant's Motion to Exclude Plaintiffs Expert
Testimony, ECF No. 43, Defendant's Motion to Strike, ECF
No. 58, and Plaintiffs Motion to Exclude Defendant's
Experts, ECF No. 62. The parties fully consented to
jurisdiction before the undersigned, ECF Nos. 18-20, and the
motions are ripe for decision. For the following reasons,
Defendant's Motion for Summary Judgment, ECF No. 45, is
GRANTED, and the matter is DISMISSED WITH PREJUDICE. All
remaining motions on the docket are MOOT.
20, 2013, Plaintiff was standing at the entrance to a
Wal-Mart store in Norfolk, Virginia, when another shopper who
was riding an Amigo "ValueShopper" cart struck
Plaintiffs ankle with the cart's platform edge, injuring
the Plaintiff. ECF No. 38 ¶¶ 5, 8. Plaintiff
asserted a negligence claim against Defendant,  alleging that
Defendant "had a duty to use sound engineering and
design practices to produce an electric cart that would be
reasonably safe to operate." Id. ¶ 16.
Plaintiff asserted six grounds for her defective design
claim: (1) the design omitted a soft rubber bumper on the
lower leading edge of the cart; (2) the leading edge was made
of a hard material with a 90 degree angle and had no
protective guard; (3) the angle of the lower leading edge of
the cart directed energy to a small area that made a
collision with a pedestrian likely to result in lacerations;
(4) the lower leading edge was unreasonably sharp and
dangerous; (5) the design failed to include a pressure
sensitive shut-off or "kill" switch; and (6) the
design failed to incorporate an audible warning system to
notify shoppers of the cart's presence. Id.
to the Rule 16(b) Scheduling Order, Plaintiff timely
disclosed her expert witness, Dr. Sebastian Y. Bawab
("Dr. Bawab"), a mechanical engineer, and provided
Defendant a report containing his complete opinions. ECF No.
44 attach. 2. Dr. Bawab completed an engineering analysis
report in which he "was requested to analyze the current
design of the metal platform edge of an AMIGO Value[S]hopper
and suggest modifications to improve the safety of the unit
when in contact with a pedestrian." ECF No. 46 attach.
1. Dr. Bawab conducted a field inspection of the cart and
reconstructed the incident using computer modeling.
Id. at 1-2. Dr. Bawab used the Plaintiffs height and
weight for the human pedestrian aspect of the model.
Id. Dr. Bawab completed this simulation using a
metal platform edge at the base of the cart and then again,
including a rubber bumper on the metal edge. Id. The
computation results revealed that when the cart's metal
platform edge hit the model human, it had a "more
concentrated" stress value of 1.9 MPa (megapascals).
Id. at 3. Dr. Bawab then covered the edge with
rubber, and ran the computation again. Id. The
stress value was "more dispersed, " at a value of
0.6 MPas. Dr. Bawab concluded the following:
1) The metal platform is considered an inferior product for
its application as it has sharp edges exposed that can be in
direct contact with a pedestrian flesh [sic] based on its
2) A simple and cost effective solution, such as adding a
rubber bumper to the metal platform edge would have mitigated
the concentrated stress when impacting the flesh. Our
designed rubber bumper shows stress reduction of modeled
flesh/skin by a factor over 3 in comparison to exposed metal
platform edge [sic].
3) Blunting sharp contact edges will reduce the chance of
cutting and mitigate localized stresses and thus reducing
[sic] the likelihood of potential inquiry.
Id. at 4-5.
report, Dr. Bawab did not consider any industry or government
standards when assessing the cart's design. Dr. Bawab did
not consider whether the cart met consumers'
expectations. Dr. Bawab did not compare the cart to
competitors' carts, did not consider published
literature, and did not research the existence of other cart
injuries or accidents. See Bawab Dep. at 88-89,
promulgated an expert in response, who referenced
Underwriters Laboratory ("UL") standards 3456 and
1439, which apply to Electric-Battery-Powered Carts for
Commercial Use, and Safety Tests for Sharpness on Edges on
Equipment, respectively. ECF No. 63 attach. 1 at 3; ECF No.
66 attach. 2. Amigo withdrew their expert witness on this
matter, ECF No. 66 at 2, though had cross-designated
Wal-Mart's expert who presented similar opinions,
see ECF No. 63 attach. 4 (Wal-Marts' expert
report). On July 15, 2016, Plaintiffs counsel responded with
a rebuttal report from Dr. Bawab. ECF No. 59 at 1 n.l. In his
rebuttal report, Dr. Bawab referenced the UL standards cited
by Defendant's expert, disputing their application and
the cart's compliance thereto. ECF No. 59 attach. 1 at
6-7. Dr. Bawab also presented new opinions in his rebuttal,
this time stating that his professional opinion was that the
metal platform edge was both "inferior and
dangerous." Id. at 8. Defendant motioned to
exclude Dr. Bawab's testimony, and strike his rebuttal
report. ECF Nos. 43 and 58.
STANDARD OF REVIEW
judgment under Federal Rule of Civil Procedure 56 is
appropriate when the Court, viewing the record as a whole and
in the light most favorable to the nonmoving party, finds
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A court should grant summary judgment if the
nonmoving party, after adequate time for discovery, has
failed to establish the existence of an essential element of
that party's case, on which that party will bear the
burden of proof at trial. Celotex Corp. v. Catrett,
411 U.S. 317, 323 (1986).
defeat a motion for summary judgment, the nonmoving party
must go beyond the facts alleged in the pleadings and instead
rely upon affidavits, depositions, or other evidence to show
a genuine issue for trial. See Id. at 324.
Conclusory statements, without specific evidentiary support,
are insufficient. Causey v. Balog,162 F.3d 795, 802
(4th Cir. 1998). Rather, "there must be ...