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holding that to contest statements of undisputed facts, the nonmoving party must point to specific evidence in the record
Summary of this case from Healthfirst, Inc. v. Medco Health Solutions, Inc.Opinion
No. 02 Civ. 8545 (GEL).
October 17, 2005
Marc S. Moller and Justin T. Green, Kreindler Kreindler LLP, New York, NY, for plaintiff.
R. Bruce Duffield and Kevin T. Hughes, Lord, Bissell Brook LLP, New York, NY, for defendants.
OPINION AND ORDER
Defendants Makita U.S.A., Inc. and Dolmar Gmbh (collectively "Makita") move for summary judgment against plaintiff Wayne Every's negligence and products liability claims. Makita asserts that Every has not produced evidence sufficient to show that the alleged defect in the chainsaw manufactured by Makita was the cause of the explosion that injured Every. For the reasons set forth below, defendant's motion is denied.
BACKGROUND
Over Memorial Day weekend in 2001, Every and a group of friends traveled to the Upper Peninsula region of Michigan to engage in some camping and relaxation. Among his camping supplies, Every brought his Makita DCS520si chainsaw. Every had owned this chainsaw since 1998 and had up until then experienced no problems with its operation. Throughout the weekend Every used the chainsaw to cut firewood and provide a campfire for himself and his companions.
On the afternoon of Sunday, May 27, Every attempted to start his Makita chainsaw, there was an explosion of some kind, a fire erupted, and Every was covered in flames. He threw the chainsaw away, rolled on the ground in an attempt to smother the fire, and was eventually tended to and removed from the campsite by emergency personnel. As a result of the fire Every suffered serious burns over a large portion of his body.
The present action was commenced in October 2002. Over the next two years the parties conducted discovery, obtaining numerous extensions past the Court's initial December 15, 2003, deadline, with the process finally reaching completion on August 27, 2004. On August 20, 2004, this Court denied plaintiff's request to designate additional experts due to the proximity of the close of discovery. Also at that time, Makita was ordered to turn over documents relating to prior testimony of its expert, Vincent Morabit. On September 3, 2004, Every moved for reconsideration of the Court's ruling with respect to the designation of additional plaintiff experts. That motion was denied on September 28, 2004, and defendant's motion for summary judgment followed on October 22, 2004.
DISCUSSION
I. Choice of Law
As an initial matter the parties disagree on which state's law should govern this motion for summary judgment. Makita argues that Michigan law should control since the incident occurred in Michigan and plaintiff was a Michigan domiciliary when the injury took place. Every claims that since defendant has not shown a conflict between New York and Michigan law there is no reason not to apply New York law. Every then goes on, in manner that somewhat undermines his primary position, to outline the differing New York and Michigan standards and argues that under either standard summary judgment is improper.
In the choice between New York and Michigan law, Makita has the better of the argument. Federal courts sitting in diversity must apply the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). In the Southern District of New York, therefore, New York choice-of-law rules govern the question. "When faced with a choice of law, a New York court generally will select the law of the state in which the tort was committed as the applicable law." Barnett v. Johnson, 839 F. Supp. 236, 242 (S.D.N.Y. 1993). The general rule will give way if a jurisdiction other than the situs of the injury "has the greatest concern with the specific issue raised in the litigation," based on "its relationship or contact with the occurrence or the parties." Babcock v. Jackson, 12 N.Y.2d 473, 481 (1963). But even when the strict situs rule is abandoned for the more flexible balancing of interests, the two most important factors in that balance are the location of the injury and the domiciles of the parties. Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 197 (1985).
In the present case the choice-of-law analysis wholly favors the application of Michigan law. The injury took place in Michigan and Every was a Michigan domiciliary at the time of the injury. (Every Dep. 6.) Perhaps the only fact that points away from Michigan is that the defendant corporations have their principal places of business in California (Makita U.S.A., Inc. Answer ¶ 2) and Germany (Dolmar GmbH Answer ¶ 1), but those facts certainly don't suggest a New York interest. Based both on the situs of the injury and on the balance of the interests Michigan law governs the action.
But Michigan versus New York is not the only conflict of law in this case. "Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996). Given the forgoing analysis, it is clear that Michigan law will provide the substantive law in this case; it would control the instructions to the jury and it will provide the substantive legal principles against which this summary judgment motion will be decided.
The rule on which defendant seeks to rely, however, is procedural. Makita argues that under Michigan law it is entitled to judgment as a matter of law if plaintiff cannot "produce `substantial evidence' establishing that, more likely than not, the alleged defect in the product actually caused the fire." (Def.'s Mem. Supp. Summ. J. 9.) That is indeed the law of Michigan. Skinner v. Square D Co. holds that to survive a summary judgment motion "plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred." 516 N.W.2d 475, 480 (Mich. 1994). ButSkinner was not brought in federal court; the summary judgment motion was made, and the sufficiency standard was applied, pursuant to Mich. Ct. R. 2.116(C)(10). Id. at 478.
Michigan's Rule 2.116 does not govern summary judgment procedures in this Court. Summary judgment in federal courts is governed by Fed.R.Civ.P. 56, which states that summary judgment will be granted if the record shows "that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The requirements of Rule 56 have been explained and applied in numerous cases, none of which creates any sort of substantial evidence requirement. The question remains whether state law sufficiency standards such as Michigan's should be regarded as substantive law and applied in federal diversity actions. Somewhat surprisingly, the question is unsettled in this Circuit. Our Court of Appeals has refused to decide the issue on many occasions. See Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 429 (2d Cir. 1999) ("This Circuit has not resolved whether in a diversity action the sufficiency of the evidence is a question governed by state or federal law.");Brady v. Chem. Constr. Corp., 740 F.2d 195, 202 (2d Cir. 1984) ("[I]n this circuit it is an open question whether the test [applied by the district court] for sufficiency of evidence in a diversity case is one of federal or state law." (alteration in original)), quoting Index Fund, Inc. v. Ins. Co. of N. Am., 580 F.2d 1158, 1163 (2d Cir. 1978); Simblest v. Maynard, 427 F.2d 1, 5 (2d Cir. 1970) (refusing to decide whether state or federal standard would apply and noting that the Supreme Court has declined to decide as well); Evans v. S.J. Groves Sons Co., 315 F.2d 335, 343 n. 2 (2d Cir. 1963) (assuming, but not deciding, that New York state law provides sufficiency standard because both parties agreed on point); O'Connor v. Pa. R.R. Co., 308 F.2d 911, 914 (2d Cir. 1962) (noting that Supreme Court has left the question open and refusing to decide because state and federal standards were sufficiently similar).
The issue is whether Michigan's substantial evidence standard should be characterized as substantive or procedural. "Classification of a law as `substantive' or `procedural' forErie purposes is sometimes a challenging endeavor."Gasperini, 518 U.S. at 427. As a general matter, however, the classification is easier where a Federal Rule of Civil Procedure is involved. "It is settled that if the Rule on point is consonant with the Rules Enabling Act and the Constitution, the Federal Rule applies regardless of contrary state law." Id. at 428 n. 7, see also Hanna v. Plumer, 380 U.S. 460, 469-74 (1965). Even if the supremacy of the Federal Rules is "settled" as a general matter, "[t]here has been much more difficulty, and the federal courts are not yet in agreement, on [whether] in a diversity case, . . . the sufficiency of the evidence to raise an issue for the jury [is] measured by a federal test or by a state test." Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2525. Despite this difficulty, most circuits that have squarely addressed the issue agree that the federal standard under Rule 56 should control.See id.; see also Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court Is Doing a Halfway Decent Job in It's Erie-Hanna Jurisprudence?, 73 Notre Dame L. Rev. 963, 1013 (1998) (stating that despite the sometimes confused doctrine, summary judgment standards are governed by Rule 56). But the agreement is not unanimous. For example, the Sixth Circuit recently applied Michigan's sufficiency standard as articulated in Skinner when reviewing a district court's grant of summary judgment under Rule 56. McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800-01 (6th Cir. 2000);see also Wright Miller, supra, § 2525 n. 20 (noting that the Sixth Circuit is one of two circuits to apply the state test for sufficiency in diversity actions).
In the absence of an authoritative ruling from the Second Circuit, this Court will adopt the majority rule and apply the federal standard for determining sufficiency of the evidence in summary judgment motions under Rule 56. A persuasive analysis is set forth in Mayer v. Gary Partners Co., 29 F.3d 330 (7th Cir. 1994). There, Judge Easterbrook, writing for the panel, explained that the debate between the two positions is based "on a confusion between the who and how of litigation." Id. at 335. In a jurisdiction such as Michigan with a substantial evidence standard for summary judgment, the judge would not instruct a jury that the plaintiff must produce substantial evidence to prevail at trial; "instead the judge most likely will tell the jury to decide according to the preponderance of the evidence." Id. "The [substantial evidence] standard determines who resolves the factual dispute, and the `preponderance' standard tells that body how to evaluate the evidence presented." Id. The "who" question is a procedural one, so it is left to Rule 56. The "how" question is substantive, and it is there that the Michigan law will govern. Accordingly, for this motion for summary judgment under Rule 56 the federal standards, not Michigan's, for sufficiency of the evidence will apply.
Judge Easterbrook's analysis is easily applied to the instant case because Michigan law is clear that the substantial evidence requirement is a "who" rule and not a "how" rule. In Kaminski v. Grand Truck Western Railroad Co. the Michigan Supreme Court first adopted the standard here at issue, and the Kaminski Court was clear that the question before it was what "would justify the court in taking upon itself th[e] responsibility . . . of [an] instructed verdict in a negligence case." 79 N.W.2d 899, 901 (1956). Just twelve years later, in Schedlbauer v. Chris-Craft Corp., the Michigan Supreme Court referred to the test adopted in Kaminski as a test for "determining what is causally conjectural and what is not when the defendant in negligence moves for an instructed verdict," 160 N.W.2d 889, 891 (1968) (emphasis added). More recently, in Skinner v. Square D Co., the Michigan Supreme Court again characterized the substantial evidence test as a "threshold evidentiary standard," 516 N.W.2d 475, 480 (1994), and noted that it has been consistently applied to motions for directed verdict and summary judgment, id. at 480 n. 9. This history illustrates that the substantial evidence requirement is not applied by the fact finder when determining liability, but is applied by the judge when deciding whether to submit a case to the jury.
Michigan courts have thus clearly stated that the substantial evidence standard is a procedural rule that determines when a judge may grant a motion for summary judgment or directed verdict. Accordingly, to the extent the Michigan rule differs from the requirements of Fed.R.Civ.P. 56, Makita's summary judgment motion must be assessed against the standard set by the federal rule.
II. Plaintiff's Response
Before reaching the merits of Makita's summary judgment motion, the Court is presented with the antecedent issue of the procedural sufficiency of plaintiff's response. Under Local Rule 56.1 a motion for summary judgment must be accompanied by a statement of facts "as to which the moving party contends there is no genuine issue to be tried." Local R. 56.1(a). Thereafter, the nonmoving party must respond with a "short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." Local R. 56.1(b). Any fact asserted in the moving party's statement that is not controverted in the nonmoving party's response is deemed to be admitted by the nonmoving party. Local R. 56.1(c).
Makita followed this procedure and submitted to the Court a Statement of Material Facts setting forth forty-one facts it claimed were not in dispute, with each fact followed by a citation to the record as required by Local Rule 56.1(d). In response, Every contested an assortment of Makita's asserted facts. However, many of Every's objections were not based on evidence in the record as required by Rule 56.1(d). Instead, plaintiff submitted two new expert affidavits, which had not been provided in the regular course of discovery and were first made available as part of his papers opposing the motion. These new submissions are both dated November 17, 2004, almost a month after defendant filed its October 22, 2004, motion for summary judgment and more than two-and-a-half months after the close of discovery on August 27, 2004. Naturally, defendant objects to these new affidavits as support for plaintiff's opposition to summary judgment.
The first of these affidavits is from Clarke J. Gernon, an expert who had previously been identified by Every and was initially deposed by Makita on August 10, 2004. In his initial expert report and deposition Gernon stated that the "fuel line was defective" (Gernon Dep. 109) and that "fuel from the clearance between the fuel line and the top of the tank provided a pilot . . . for the bigger fire" that injured plaintiff. (Id. at 102.) In his new affidavit, Gernon claims that in addition to the defective fuel line, the fuel cap was also defective. (Gernon Aff. ¶ 5.)
The second new affidavit is from Stanley A. Johnson. According to the affidavit, Johnson is an industrial designer and a specialist in chainsaw design. (Johnson Aff. ¶ 1, 2.) Johnson had no previous involvement in this case; he was not listed among plaintiff's expert disclosures and he provided no expert report. In his affidavit Johnson summarizes the results of tests he performed in connection with prior litigation involving Makita on a chainsaw similar to the model used by Every, and outlines various problems he found with the chainsaw's fuel cap.
A third new affidavit, from the plaintiff Every himself, summarizes and clarifies various points that were already made in his initial deposition.
Every claims that these additional affidavits are necessary because of Makita's "dilatory production" of materials relating to two previous cases involving defendant: Friederick v. Sachs-Dolmar, No. 95-CV-0164 (Wisc. Cir. Ct. 1995), and Strohl v. Dolmar, No. 00-CV-4942 (E.D. Pa. 2000). Makita was ordered to produce certain material relating to these cases in an Order dated August 20, 2005. Every does not allege that Makita did not comply with this Order. In fact, aside from claiming that production of the materials was "dilatory" Every makes no effort to explain why the production of the Friederick and Strohl materials should entitle him to add new expert testimony based on a new theory of liability in response to Makita's summary judgment motion after the close of discovery. As is clear from Every's Memorandum of Law, his purpose in producing the additional affidavits is to present a completely new theory of the case: that the explosion that injured plaintiff could have been caused by a defective fuel cap.
For purposes of this summary judgment motion, Every may not rely on this new theory or the two November 17, 2004, expert affidavits, and the facts contained therein will not be considered by this Court in deciding the motion. See Fed.R.Civ.P. 37(c)(1) ("A party that without substantial justification fails to disclose [expert information] shall not . . . be permitted to use as evidence . . . on a motion any witness or information not so disclosed.") Discovery was completed on August 27, 2004. If Every wanted to extend the discovery deadline, the proper course would have been to petition the Court for an extension and articulate the circumstances surrounding and reasons justifying the request. Every was certainly familiar with this procedure, given that three extensions had previously been granted in this case. Of course, it is likely that such an additional request would have been denied, since the Court's final extension, in an Order dated June 24, 2004, stated that "no further extensions shall be granted." But that statement did not mean that future discovery should simply be done at plaintiff's whim, without leave of the Court; it meant that discovery was to be completed by August 27, 2004.
Enforcement of this deadline is not a mere matter of punctilio about compliance with court-ordered timetables. "Modern instruments of discovery . . . make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. The Proctor Gamble Co., 356 U.S. 677, 682 (1958). With respect to experts, parties are required to disclose the identity of all witnesses who will give expert testimony, Fed.R.Civ.P. 26(a)(2)(A), and must provide a report prepared by each such witness that contains, inter alia, "a complete statement of all opinions to be expressed and the basis and reasons therefor," Fed.R.Civ.P. 26(a)(2)(B). After a party has produced reports for its proposed experts, the opposing party has an opportunity to depose the experts and test their conclusions.
Every's proposed use of new affidavits from new experts advancing new theories would frustrate that scheme. Defendants are entitled to make summary judgment motions on the basis of the discovery record compiled in accordance with the federal rules and the court's orders. Every's new expert theory cannot be presented without giving Makita an opportunity to depose his experts, thus reopening discovery and rendering Makita's motion, addressed in good faith to the theories and evidence that had been disclosed, an expensive waste of effort.
There can be no doubt, moreover, that Every's fuel cap theory is new. Before Every's summary judgment papers no issue had been raised with respect to the fuel cap on the chainsaw. Every stated that he never had difficulty removing the cap (Every Dep. 20-21), that he was able to put the cap on snugly (id. at 20), that he never experienced any stripping when tightening the fuel cap (id. at 21), and that he never experienced any leakage from the fuel cap (id.). Plaintiff's expert Patrick E. Cassidy's investigation "focus[ed] on the fuel tube," not the cap. (Cassidy Dep. 9.) The subject of Cassidy's report is titled "Analysis of Fuel Line from Dolmar/Makita Chain Saw." (Cassidy Report 1) (emphasis added). When asked about the Strohl and Friederick cases, Cassidy responded that nothing in those cases was relevant to his investigation because he was dealing with the fuel line and those cases involved the fuel cap. (Id. at 101.) Gernon's report and deposition were likewise focused on the fuel line. When asked about the fuel cap he replied, "I did not determine its ability to seal against fuel leakage." (Gernon Dep. 13-14.) The only discussion of the fuel cap involved the question of whether it was off or on at the time of the fire, not whether it was defective. (Id. at 47-60.) When asked if he had any criticism of the fuel cap, Gernon replied "no." (Id. at 70.) He did note, however, that he had reviewed some five hundred pages of documents related to the Strohl litigation. (Id. at 69.) Gernon included only two conclusions in his report: one regarding the molding of the fuel tank and handle and one regarding the leak in the fuel line. (Gernon Report 3.) He stated no conclusion regarding the fuel cap. Every points to no discovery material, other than the November 17, 2004, affidavits, that implicates the fuel cap as the cause of the fire. Yet Every's opposition to Makita's summary judgment motion relies almost completely on this new theory, which is supported solely by affidavits obtained after the completion of discovery and never disclosed to Makita.
Every's attempt to justify the additional affidavits by reference to Makita's production of materials relating toStrohl and Friederick is completely without merit. As previously stated, Every does not allege that Makita failed to comply with this Court's August 20, 2005, Order to produce the documents at issue. Every does, however, imply that the contents of the "critical materials" produced by Makita as a result of the Order were a surprise, resulting in "a distinct disadvantage" to plaintiff. (Pl. Mem. 7 n. 4.) But this cannot be true. It is obvious that at the very least Every was aware of previous cases in which Makita had been accused of producing a chainsaw with a defective fuel cap. The depositions of Every's own witnesses indicate that they were familiar with the Strohl andFriederick litigation, and that they were on notice about previous claims regarding Makita's fuel cap.
Every's expert Cassidy was asked if he had reviewed any materials from the Strohl and Friederick litigation, and he replied "Yes. . . . I have reviewed depositions, I've reviewed information from Dolmar on the fuel cap." (Cassidy Dep. 99.) Cassidy recognized that the Strohl case "focused, if not entirely, almost entirely, on the fuel cap and the cork and so forth, the fuel cap." (Id. at 101.) When asked about the subject of the prior litigation Cassidy stated that he "read issues about the tightening of the cap. And there was an expert that testified about the tightening of the cap and the cork and the use of the tool." (Id. at 105.) Similarly, Every's expert Gernon was familiar with the Strohl litigation. He stated "I reviewed transcripts of courtroom testimony. . . . [T]here were . . . judicial decisions or opinions that were relative to that case, or motions that you all have, . . . that I reviewed. It was a package of information that probably comprised of 500 pages. And I felt that I came away with a fairly clear understanding of what the litigation was." (Gernon Dep. 69.) It is therefore unclear, and plaintiff makes no attempt to explain, how the materials produced by Makita in response to the Court's August 20, 2005, Order caused any prejudice whatsoever.
Gernon did state that he was not familiar with theFriederick case. (Gernon Dep. 70.) But familiarity with one case is enough to show that Every was or should have been long on notice regarding any potential claims that Makita's fuel cap was involved in the accident.
Rejecting Every's new expert affidavits complicates the application of the procedural requirements of Local Rule 56.1. Under Local Rule 56.1(c), material facts claimed by the moving party in a motion for summary judgment are deemed admitted unless those facts are controverted by the opposing party. Of the sixteen statements of material fact that Every disputes in his response statement, eight are controverted only by reference to the now disallowed affidavits. Of the remaining eight disputed statements all but one are controverted with at least some reference to the disallowed affidavits.
This Court is not required to search the record for genuine issues of material fact that the party opposing summary judgment fails to bring to the Court's attention. Holtz v. Rockefeller Co., 258 F.3d 62, 73 (2d Cir. 2001). Every has failed to follow Rule 56.1(d)'s command that "[e]ach statement of material fact by a[n] . . . opponent must be followed by citation to evidence which would be admissible." However, "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz, 258 F.3d at 73. Even in cases where the opposing party completely neglects to file a response under Rule 56.1, a district court may conduct a review of the record to determine if summary judgment is appropriate. Id. In this case, Every has filed a response under Rule 56.1; however, the response relies heavily on materials the Court has now ruled inadmissible. Nevertheless, because plaintiff has contested sixteen of defendant's asserted facts, the Court will not deem those facts admitted under Rule 56.1(c) for this motion. To the extent that Every has relied on previously undisclosed expert testimony to contest Makita's assertions, other evidence must be found in the record to support Every's objections to Makita's asserted facts. Since Every has, as to some of these matters, failed to provide supporting evidence, the Court will search the available record to determine whether genuine issues of material fact exist.
III. Summary Judgment
Summary judgment will be awarded if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law applied to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To establish negligence under Michigan law, plaintiff must prove: "1) that the defendant owed a duty to the plaintiff; 2) that the defendant breached that duty; 3) that the defendant's breach was a proximate cause of the plaintiff['s] damages; and 4) that the plaintiff suffered damage." McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000), citing Swan v. Wedgwood Christian Youth Family Servs., Inc., 583 N.W.2d 719 (Mich.Ct.App. 1998). In a products liability action, Michigan law requires "proof of a causal connection between an established defect and injury."Skinner v. Square D. Co., 516 N.W.2d 475, 478 (Mich. 1994). For purposes of this motion, Makita admits that a reasonable jury could find that Every's "chainsaw was defective due to shrinkage of the fuel line running from the fuel tank to the carburetor." (Def.'s Mem. Supp. Summ. J. 2.) Thus, Makita essentially acknowledges that a jury question is presented as to the duty and breach elements of the negligence claim. The sole issue in this motion for summary judgment is causation; Makita argues that there is no explanation for "how the hypothetical tiny gas leak at the fuel line erupted into the major fire that injured plaintiff." (Id.) Under Michigan law, definite and direct proof of causation is not required, and the Michigan Supreme Court has "repeatedly recognized that plaintiffs may utilize circumstantial proof to show the requisite causal link between a defect and an injury in a products liability case." Skinner, 516 N.W.2d at 480. But circumstantial proof must be based on "reasonable inferences of causation, not mere speculation." Id.
Makita's motion for summary judgment must be denied, because there exists a genuine issue of material fact regarding the cause of the fire that injured plaintiff. Makita points to various pieces of evidence in the record in an attempt to show that the undisputed material facts are insufficient to prove causation. However, a full reading of the record indicates that the evidence, taken in the light most favorable to plaintiff, presents genuine issues as to a number of material facts. Moreover, the alternative theory of causation put forward by defendant is directly contradicted by numerous statements in the record.
Makita begins by noting that plaintiff's expert Cassidy "offers no opinion as to the source of the ignition of the fire." (Def.'s Stmnt. of Mat. Facts ¶ 22.) Makita further argues that plaintiff's expert Gernon was "unable to identify the source of ignition for the fire, but admits that a campfire could be a source of ignition for escaped fuel" (id. ¶ 30) and that he was "unable to understand how the fire progressed." (id. ¶ 32.) In connection with the small gap in the fuel line, Gernon stated "that only tiny quantities of fuel or vapor could escape through the gap" (id. ¶ 37) and that "this tiny amount would be insufficient to cause the extensive burning in this accident" (id. ¶ 38). Makita then concludes that "[e]ven assuming that the fuel from the alleged gap did ignite and create a small `poof,' neither Mr. Cassidy nor Mr. Gernon has an explanation as to how that could have become the major fire that injured plaintiff." (Id. ¶ 41.) Based on these asserted facts, Makita claims that there is a "lack of any evidence that any defect in the chain saw . . . allowed the fuel to escape, that somehow ignited and caused injury to plaintiff." (Def.'s Mem. Supp. Summ. J. 7.) Makita, however, is mistaken.
First, regarding its claim that Gernon admitted the campfire could have been the source of ignition, Makita has neglected the portion of Gernon's testimony that is most relevant to the issue. Gernon admitted that a campfire could be a source of ignition if "the chain saw fuel were brought sufficiently close to the campfire." (Gernon Dep. 67.) But while Gernon stated that a campfire could be a source of ignition, in this case he ruled out the campfire as the source of ignition. (Id. at 65.) Makita alleges that Every walked "past the campfire" before he attempted to start the chainsaw (Def.'s Stmnt. of Mat. Facts ¶ 11) but Every has contested this assertion (Pl.'s Stmnt. of Mat. Facts ¶ 11), and Every's deposition sheds no light on the issue because his distance from the campfire before attempting to start the chainsaw is not discussed (Every Dep. 66). There is evidence in the record that Every was at one point two or three feet away from the campfire, but that came after he was already engulfed in flames. (Loveall Dep. 10-11.)
In an affidavit included with Every's response to Makita's summary judgment motion, Every states that he was at least fifteen feet away from the fire at the time leading up to the accident. (Every Aff. ¶ 15.)
On the issue of ignition more generally, Makita is correct that Every is unable to "identify the source of ignition for the fire." (Def.'s Stmnt. Mat. Facts ¶ 30.) However, it is unclear how any explanation, outside of one implicating Every's own negligence, would justify judgment as a matter of law for Makita. Every does not claim that a defect in defendant's chainsaw caused a spark; Every is claiming that a defect in Makita's chainsaw caused gasoline or gasoline vapors to leak out of the saw. The spark, wherever it came from, is alleged to have ignited those vapors. It is abundantly clear that there was in fact a fire; Makita is not claiming that nothing provided an ignition, it is merely pointing out that we don't know what that ignition was. But something ignited the fire, and if the fuel for that fire was present as the result of a defect in Makita's chainsaw then a reasonable jury could conclude that Makita is liable for plaintiff's injuries.
With respect to the gap in the fuel line, Makita is simply wrong to claim that Every has no explanation or evidence showing how the fuel line gap could have caused the eventual fire that injured him. Plaintiff's expert Cassidy stated that escaping fuel from the fuel line gap "was a cause of the accident." (Cassidy Dep. 95.) While he noted that there was no burning in the area of the gap, this fact did not concern him with respect to his conclusion regarding causation because "it's conceivable that the vapors come out of [the fuel line gap] and then ignite when they get out into the — where there is air and ignition sources." (Id. at 58.)
Plaintiff's expert Gernon provided additional information on the issue of causation. Gernon stated that the fuel line gap provided a clearance "by which whatever is in the fuel tank, can move out of the fuel tank, be it liquid or vapor." (Gernon Dep. 32.) As Makita points out, Gernon did state that the area by the filler port, and not the area by the fuel line gap, was where the "primary flame occurred." (Id. at 45-46.) But this does not mean that the fuel line gap was not the source of the fuel that started the fire. Gernon explained that the leak from the fuel line gap would have allowed fuel vapor to migrate within the chainsaw, and that this vapor would mix with outside air. Once the proper mixture of vapor and oxygen was achieved, the vapor could then easily be ignited. (Id. at 99-100.) According to Gernon, this initial ignition would have been a small "poof," but that poof then resulted in the larger fire. As Gernon explained: "[T]he fuel from the [fuel line gap] provided a pilot, if you will, for the bigger fire. It was the source of energy that started the bigger fire." (Id. at 102.) This progression — from a small leak that allows vapor and gas to escape, to a mixing of that gas and vapor with outside oxygen creating a flammable substance, to the migration of that substance throughout the chainsaw, to the ignition of that substance near the filler port, causing a large fire — is not a progression based on mere speculation. Rather, it is a reasonable chain of inferences that a reasonable factfinder could accept.
Makita is correct that Gernon cannot state with certainty how the transition from poof to larger fire occurred. But Gernon is clear that in his opinion this transition did take place. To more fully explain this transition, Gernon stated, "we would have to know what happened to the [fuel] cap" (id.), which was not found on the chainsaw after the accident and has still not been located. But contrary to defendant's assertions, Gernon is not completely without explanations. He provided two possible theories: (1) that it came loose when Every threw the saw to the ground; or (2) that there was a sudden pressure rise causing the fuel cap to blow off. (Id. at 62.) According to Gernon those are the only two possibilities. (Id.) Under neither of those two circumstances would defendant be absolved of liability.
The reasonableness of the inferences in Every's theory is made all the more evident when considered next to Makita's competing theory of the case — "that plaintiff forgot to replace the fuel cap, and spilled gasoline on himself, which was ignited by the nearby campfire." (Def.'s Mem. Supp. Summ. J. 2.) In support of this theory, Makita relies on the following asserted facts: "[w]itnesses observed that the fuel cap was not on the chain saw" (Def.'s Stmnt. Mat. Facts ¶ 13), and "[w]itnesses also observed that plaintiff had `gas all over him[self]'" (id. ¶ 14) (alteration in original). While Makita provides citations to the record for these claims, neither of them has any basis in the evidence provided. In support of the statement that the fuel cap was not on the chainsaw, Makita cites to the depositions of Bill Loveall and Mark Squires. But Loveall's and Squire's testimony clearly refers to the period after the fire, when Every had already dropped the chainsaw. (Loveall Dep. 15-16, Squires Dep. 9.) Every agrees that the fuel cap was not in place at that time. The crucial moment for defendant's theory is before the fire. As for the assertion that plaintiff had gas all over himself, Makita cites to four separate affidavits in support of that claim, but none of the four witnesses was actually present during the time leading up to the accident. Certainly none of them saw Every spill any gas on himself prior to the fire.
In addition to the lack of witness corroboration for Makita's theory, plaintiff's experts flatly reject it. Cassidy explained that the fuel cap on Every's chainsaw was located on the side of the chainsaw. Therefore, if Every had forgotten to put the cap on after fueling, as defendant alleges, the gasoline would have just poured out of the saw. (Cassidy Dep. 51-52.) In Cassidy's opinion, he "can't imagine that [this] would not have been noticeable." (Id. at 63.) Gernon's statements on the point are even more emphatic. When presented with the possibility that the fuel cap was off before the fire, Gernon responded:
I don't believe that could have been. That makes little, if any, physical sense to me. I agree with [defense expert] Mr. Morabit in his report, where he says that a missing or leaking fuel cap is obvious. . . . And for him to pick up the saw with the expectation of actually cutting wood with it, . . . when there's no cap, to me is nonsense.
The Court was not provided with Morabit's report in connection with this motion.
(Gernon Dep. 62.) Of course, Every himself stated in his deposition that after refueling the chainsaw prior to the accident he put the fuel cap back on and tightened it snugly. (Every Dep. 55.)
Plaintiff has presented a reasonable theory supported by the testimony of two experts, and defendant has offered no competing explanation for the fire that injured Every that a jury would be compelled to accept as a matter of law.
CONCLUSION
A reasonable jury could certainly reject plaintiff's theory. But on this record, it cannot be said that no reasonable jury could accept it. Accordingly, defendant's motion for summary judgment is denied.
SO ORDERED.