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Snider-Jefferson v. Amigo Mobility International, Inc.

United States District Court, E.D. Virginia, Norfolk Division

August 17, 2016

AMIGO MOBILITY INTERNATIONAL, INC. trading as Amigo Mobility and/or Amigo, Defendant.


          Lawrence R. Leonard United States Magistrate Judge

         This is 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.


         On July 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, [1] 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. ¶¶ 17-32.

         Pursuant 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 intended use.
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.

         In his 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, 98-99, 103.

         Defendant 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.


         Summary 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).

         To 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 ...

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