HOLLY ELWELL v. CONAIR INC.

145 F. Supp.2d 79 (2001) | Cited 0 times | D. Maine | May 16, 2001

MEMORANDUM DECISION ON DEFENDANT'S MOTIONS FOR SANCTIONS, TO STRIKE, IN LIMINE AND FOR SUMMARY JUDGMENT2

2 Pursuant to 28 U.S.C. § 636(c), the parties have consented tohave United States Magistrate Judge David M. Cohen conduct allproceedings in this case, including trial, and to order entry ofjudgment.

The defendant in this product liability action, Conair, Inc., has filedmotions for sanctions due to the alleged spoliation of evidence, toexclude the testimony of one of the plaintiff's designated expertwitnesses, to strike portions of two affidavits filed by the plaintiff,to strike the errata sheet filed by a witness with respect to thetranscript of her deposition, and for summary judgment. Resolution of themotion for summary judgment depends on the outcome of the other motionsand I will therefore address it last. This action was removed to thiscourt from the Maine Superior Court (York County) by the defendant.Notice of Removal (Docket No. 1) and attachments thereto.

I. Factual Background

The following relevant and undisputed material facts appear in theparties' statements of material facts submitted in connection with themotions for summary judgment and sanctions and the motion in limine toexclude the testimony of Robert Ridgeway, one of the plaintiff'sdesignated expert witnesses.

The plaintiff, Holly Elwell, alleges that on or about November 26, 1997she was injured while using a Conair food processor at her mother'shouse. Defendant's Statement of Material Facts in Support of Motion forSummary Judgment ("Defendant's SMF") (Docket No. 11) ¶ 2;Plaintiff's Response to Defendant's Statement of Material Facts("Plaintiff's Responsive SMF"), included in Plaintiff's Statement ofMaterial Facts in Opposition to Defendant's Motion for Summary Judgment(Docket No. 17), ¶ 2. The plaintiff's brother purchased the foodprocessor as a gift for the plaintiff's mother in the mid-1980s. Id.¶ 3. The food processor was storedunder the kitchen counter at the plaintiff's mother's house. Id. ¶5.

On the day of the plaintiff's accident, she removed the food processorfrom the cupboard, placed it on the counter and put food into the bowl.Id. ¶¶ 6-7. She put the lid on top of the bowl and turned the coverso that it was just barely under the lip where the words "unlock" and"off" appear. Id. ¶ 7 & Reply to Plaintiff's Response to Defendant'sStatement of Material Facts ("Reply to Response"), included inDefendant's Reply Statement of Material Facts (Docket No. 19), ¶7(b). She then put her left hand on the base of the food processor andused her right hand to plug it in. Defendant's SMF ¶ 7; Plaintiff'sResponsive SMF ¶ 7. As she plugged in the food processor, theplaintiff felt a slight vibration in the base of the machine and saw itlift off the counter a couple of centimeters. Id. ¶ 8. The lidflew at the plaintiff and hit her left hand. Id. ¶ 9. The bladeflew out spinning and hit the plaintiff's left hand. Id.

The plaintiff has designated Ralph Ridgeway as an expert witness totestify about defects in the food processor. Id. ¶ 10. On or aboutOctober 22, 1998 Ridgeway met with the plaintiff's then-attorney toinspect the food processor. Id. ¶ 19. Ridgeway plugged in the foodprocessor and attempted to get it to operate with the cover off. Id.¶ rmally, the cover is put on and rotated to a locked position, whichcauses a tab on the cover to push a spring-loaded ramp, thus depressingtwo plastic pins which in turn depress two rubber-tipped plunders in thebase on the machine, which activates the power switch and allows theprocessor to operate. Id. & Reply to Response ¶ 20(b). Ridgewaysuccessfully operated the food processor one time with the cover off.Defendant's SMF ¶ 21; Plaintiff's Responsive SMF ¶ 21. When heplugged it in a second time, it buzzed and smoked and the blade no longerturned; it has never run again. Id.

Ridgeway took the food processor back to his office. Id. ¶ 23.When the plaintiff's attorney asked him to prepare a report, Ridgewayvisually inspected the food processor and noticed that the plungers werestuck in the down position. Id. ¶¶ 23-24. Ridgeway tapped the foodprocessor with his hand and the plungers popped back up. Id. ¶ 25.Ridgeway subsequently wrote a report in which he opined that if the foodprocessor were stored in its assembled condition with the cover in thelocked position, the pressure of the plastic pins and counter pressure ofthe plunger springs would cause the plungers to bulge, resulting in theplungers sticking down when the cover and bowl were subsequently removed.Id. ¶¶ 29-30. Prior to his deposition, Ridgeway did not know whetherthe food processor had in fact been stored in this manner. Id. ¶¶37, 39.

The defendant has designated David J. Wanat as its expert witness.Plaintiff's Statement of Additional Material Facts ("Plaintiff's SMF"),included in Plaintiff's Statement of Material Facts in Opposition toDefendant's Motion for Summary Judgment (Docket No. 17), ¶ 49; Replyto Plaintiff's Statement of Material Facts ("Defendant's ResponsiveSMF"), included in Defendant's Reply Statement of Material Facts (DocketNo. 19), ¶ 49. Wanat began his inspection of the food processor onJuly 22, 1999. Id. ¶ 50. He found that the interlock mechanism ofthe food processor worked properly both before and after he submitted theunit to a storage test. Id. ¶ 52. He attached the bowl, blade andbowl cover from the unit to the base of a functioning exemplar foodprocessor in order to perform a test with a unit that had a functioningmotor. Id. ¶ 57. By physically overcoming theinterlock mechanism, Wanat was able to power up the exemplar unit withoutthe bowl and lid locked in place. Id. ¶ 59. The food processor atissue can only operate if the interlock switch is depressed. Id. ¶71. After storing the subject unit at room temperature with all partslocked in position for eight days, Wanat did not see any distortion ofthe rubber plungers. Id. ¶ 60.

II. The Motions to Strike

A. Ridgeway Affidavit

The defendant moves to strike paragraphs 1 and 3-8 of the Affidavit ofRalph H. Ridgeway filed as Exhibit H to the plaintiff's statement ofmaterial facts. Defendant's Motion to Strike Affidavits ("Motion toStrike") (Docket No. 22) at 4-5. It asserts that paragraphs 3-5 and 8duplicate Ridgeway's deposition testimony and merit striking for thatreason and that paragraphs 1 and 6-7 violate the proscription establishedby Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.1994), against the use in connection with summary judgment of affidavitsthat contradict the affiant's earlier deposition testimony. Id.

The defendant cites no authority in support of its assertion thatparagraphs of an affidavit should be stricken merely because theinformation contained therein duplicates testimony already given atdeposition, although it does mention Fed.R.Evid. 403 in its replymemorandum, contending that the duplicative material constitutes "aneedless presentation of cumulative evidence." Reply Memorandum inSupport of Defendant's Motion to Strike Affidavits (Docket No. 26) at 2.The language of Rule 403 makes clear that it is intended to protect thejury and to avoid delay and waste of time. At the summary judgmentstage, asking a court to strike material from an affidavit on the groundthat the material is duplicative or cumulative is itself a waste of thecourt's time. It makes no difference to resolution of a motion forsummary judgment, or indeed any pre-trial motion, whether a party seeksto rely on deposition testimony or identical evidence in the form of anaffidavit. So long as the party does not insist that the court consultboth sources for the same information, no harm is done. Insofar as thedefendant's motion rests on this rationale, it is denied.

In Colantuoni the First Circuit held that "[w]hen an interested witnesshas given clear answers to unambiguous questions, he cannot create aconflict and resist summary judgment with an affidavit that is clearlycontradictory, but does not give a satisfactory explanation of why thetestimony is changed." 44 F.3d at 4-5.

The defendant contends that paragraph 1 of Ridgeway's affidavit"obviously contradicts the implication, if not the letter" of hisdeposition testimony as it "seeks to back away from his prior depositiontestimony that he considers it his role in the case to explain how theaccident occurred." Motion to Strike at 4. The first paragraph of theaffidavit states:

I was retained in this matter by Sean O'Connell, Esq. Sean O'Connell paid my firm, Robson Lapina, an initial retainer of $1,000. He then asked me to inspect the food processor in question, and to assess whether it had any defects that caused the incident at issue.

Ridgeway Aff. ¶ 1. Ridgeway's deposition testimony identified bythe defendant as providing the basis for exclusion of this paragraph ofthe affidavit under Colantuoni, Motion to Strike at 4, is the following:

Q. Now, what do you consider your role as an expert here today?

A. Basically, to try to explain how this accident could have occurred and if that explanation, to me at least, sounded reasonable in relation to the description that Holly said that it happened [sic].

Deposition of Ralph H. Ridgeway, excerpts attached as Exh. D toDefendant's SMF, at 194. The two statements by Ridgeway are not clearlycontradictory. The former is a factual statement, the latter a statementof opinion. Whether Ridgeway's view of his assignment is inconsistentwith what the plaintiff's lawyer asked him to do is not a matter relevantto any of the issues now before the court and, more importantly, does notestablish a contradiction within the scope of the use of that term inColantuoni.

The defendant asserts that paragraphs 6-7 of the Ridgeway affidavit"provide additional information about Mr. Ridgeway's expertqualifications, in an obvious attempt to defeat the Defendant's argumentthat he is unqualified to testify" in this case. Motion to Strike at 5.Additional information is not, contrary to the defendant's apparentassumption, necessarily contradictory information. While Ridgeway mayhave been "methodically and comprehensively questioned about hisqualifications" during the deposition, id., that fact does not preventthe plaintiff from offering additional information on that point. Innone of the pages of the transcript of Ridgeway's deposition cited by thedefendant was Ridgeway asked whether he had any other qualificationsrelevant to his role in this case nor did he state that he had no furtherqualifications. Only under such circumstances could his affidavitstatements possibly be considered contradictory.

The defendant's motion to strike portions of the Ridgeway affidavit isdenied.

B. The Drew Deposition Errata Sheet

In a separate motion, the defendant asks this court to suppress orstrike the errata sheet submitted by Shirley M. Drew3 to accompanythe transcript of her deposition on the ground that it impermissiblyalters her testimony. Defendant's Motion to Suppress or Strike ErrataSheet ("Motion to Suppress") (Docket No. 23) at 2. Fed.R.Civ.P. 30(e)provides:

If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.

In this case, Drew made the following entries on an errata sheet that hasbeen appended to the transcript of her deposition:

Page: 38 Line: 11-14 From: [No entry]

To: The Conair food processor was stored on the bottom shelf of the cabinet all together, in one unit, for about a year, since Christmas of the year previous. I made jelly in September at which time I removed the processor from its place, set the jelly jar box in that spot and placed the food processor on the top of the box, making the unit to [sic] tall to fit. I then removed the cover and set it beside the unit on the box. It was so long ago, I had forgotten. So Holly, not living there, never noticed that the machine had been stored all together since Christmas. All she knew was it was apart when she went to use it that fateful Thanksgiving. She presumed, without asking differently, that it was always that way. At least it was when she noticed it, to use it.

Reason: I remembered this while reading my transcript.

Errata Sheet, [Deposition of Shirley M. Drew] ("Drew Dep. II"), excerptsattached to Plaintiff's SMF as Exhibit B. The lines in the transcriptidentified in the entry on the errata sheet read as follows:

Well, I had made a box of jelly and I put it on that shelf in the jelly jar box, and I set this on top of it. So in order to have that on top of it, I had to take the top of that thing off.

Drew Dep. I at 38.

The defendant contends that the change proposed on the errata sheet,the timeliness of which is not challenged, is an attempt "to alter theprior deposition testimony . . . so that it aligns better with Mr.Ridgeway's hypothesis," noting that the errata sheet was executed afterthe defendant filed its motion to exclude Ridgeway's testimony, based inpart on the fact that his conclusion was not supported by Drew'sdeposition testimony. Motion to Suppress at 5. While noting thiscourt's order on a similar issue in Great N. Storehouse, Inc. v. PeerlessIns. Co., 2000 WL 1901266 (D.Me. Dec. 29, 2000), the defendant contendsthat the better view of the law on this point, on which the First Circuithas not yet spoken, is that set forth in Greenway v. International PaperCo., 144 F.R.D. 322 (W.D.La. 1992), which the defendant refers to asrepresenting "the genesis" of the "modern trend," Motion to Suppress at2.

In Peerless, Magistrate Judge Kravchuk was asked to prevent anyreference at trial to four pages of errata sheets signed pursuant to Rule30(e) by the employee of the defendant who had made the decision at issuein the action. 2000 WL 1901266 at *2. The deponent's stated reason forthe changes was "more complete answers." Id. Judge Kravchuk states:

Rule 30(e) allows deponents to provide revised answers to deposition questions, including answers contradictory to those provided at the deposition. The Rule does not require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes — even if those reasons are unconvincing. The Rule merely requires that the deponent abide by a restricted time frame for making the changes and recite the reasons for any changes. However, when a party amends his testimony under Rule 30(e), the original answer to the deposition questions will remain part of the record and can be read at the trial. Though a reason must be supplied for the changes, there is no indication that the explanation must be any more in-depth than the reasons provided . . . herein. For this reason, I am unpersuaded that Rule 30(e) itself justifies any exclusion of [the changes]. [The deponent's] revisions will be permitted to supplement his original deposition answers.

Id. (citations and internal punctuation omitted).

In Greenway, the plaintiff made 64 corrections to her deposition. 144F.R.D. at 323. The court ordered the changes deleted, despite a moreextensive statement of reasons for the proposed changes than that presentin Peerless, stating that "The Rule cannot be interpreted to allow one toalter what was said under oath. If that were the case, one could merelyanswerthe questions with no thought at all then return home and plan artfulresponses." Id. at 325. I do not find this reasoning persuasive. Ifthe original answers as well as the changes are made available to thejury when and if the deposition testimony is used at trial, the jurorsshould be able to discern the artful nature of the changes. For purposesof pre-trial motions, the plain language of Rule 30(e) should control.The motion to strike or suppress the errata sheet is denied.

C. Drew Affidavit

The defendant asks the court to strike paragraphs 1-4 of the affidavitof Shirley M. Drew, attached to the plaintiff's statement of materialfacts as Exhibit C, because they duplicate her deposition testimony, andparagraphs 5-9, the remaining paragraphs of that affidavit, with theexception of a single statement, as contradicting her depositiontestimony. Motion to Strike at 3-4. For the reasons already discussed, Iwill not strike the paragraphs alleged to be duplicative.

Of the material at issue in paragraphs 5-9 of the affidavit, thedefendant offers no evidence to suggest that the first sentence inparagraph 7, the second sentence in paragraph 8, or the first clause inthe third sentence of paragraph 8 contradict any of Drew's depositiontestimony. The defendant does not object to the first sentence ofparagraph 8. Motion to Strike at 3. Accordingly, none of these sentencesor sentence fragments may be struck in any event.

The remaining statements, while they may appear to contradict Drew'sdeposition testimony without reference to the errata sheet subsequentlyexecuted by Drew and attached to the transcript of that deposition, arenot contradictory when considered in light of the correction andamplification of the deposition testimony intended by the changes made inthe errata sheet.4 The defendant's motion to strike portions of theDrew affidavit is denied.

III. Motion for Sanctions

The defendant asks this court to dismiss this action with prejudice orto exclude the testimony of Ridgeway as a sanction for the destruction ofthe food processor's motor during Ridgeway's examination before the foodprocessor was made available for inspection by the defendant. Defendant'sMotion for Sanctions for Spoliation of Evidence ("Spoliation Motion")(Docket No. 8) at 1, 3.5 As Judge Carter noted in Northern AssuranceCo. v.Ware, 145 F.R.D. 281 (D.Me. 1993), when a party is accused by anopponent of spoliation of evidence "the most severe sanction of dismissalshould be reserved for cases where a party has maliciously destroyedrelevant evidence with the sole purpose of precluding an adversary fromexamining that relevant evidence." Id. at 282 n. 2. The defendantoffers no evidence of such malicious destruction here, and dismissal ofthe action is accordingly not warranted.

Under settled authority, the district court has inherent power to exclude evidence that has been improperly altered or damaged by a party where necessary to prevent the non-offending side from suffering unfair prejudice. Although deterrence may play a role, the primary aim is remedial, at least absent willful destruction. This power is a companion to, but somewhat different in effect from, the doctrine that permits an adverse inference from one side's destruction of evidence.

Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 446 (1st Cir.1997) (citations omitted). "If . . . evidence is mishandled throughcarelessness, and the other side is prejudiced, we think that thedistrict court is entitled to consider imposing sanctions, includingexclusion of the evidence." Id. at 447. Bad faith is not a necessaryprerequisite for the imposition of sanctions for spoliation of evidence.Trull v. Volkswagen of Am., Inc., 187 F.3d 88, 95 (1st Cir. 1999).Prejudice to the moving party, however, is required.

Here, there is no evidence that Ridgeway knew or should have known thatthe motor of the food processor would burn out the second time he pluggedit in. There is no allegation that he did anything to cause thedestruction of the motor beyond plugging the appliance in. Nor, from allthat appears, could he have anticipated that the mere act of plugging theappliance in would result in the inability of any subsequent examiner toattempt to replicate the accident as the plaintiff described it with theentire food processor at issue. The only prejudice identified by thedefendant as flowing from Ridgeway's actions is that "there is no way forDefendant to test Mr. Ridgeway's pre-spoliation observation that the foodprocessor ran without the cover being locked in place." Spoliation Motionat 3. However, the defendant does not suggest how or why the motor ofthat unit was critical to this test. The defendant was able to transferthe other part of the unit, including the interlock mechanism that is atthe heart of this case, to the motor base of an exemplar unit and to testthe mechanism with the power supplied by that motor. It does not suggestany way in which this testing was so inferior to testing with theoriginal motor that it has been unfairly prejudiced in preparation of itsexpert testimony. For all that appears in the record, the motor did notburn out due to any unfair activity by Ridgeway. Unlike the situation inWare, there was no selective preservation of evidence here. Thedefendant may inform the jury through testimony at trial, if it wishes,that its expert was unable to duplicate the precise conditions underwhich the plaintiff claims she was injured due to the fact that the motorof the food processor was burned out when the plaintiff's expert wastesting it. Beyond that, it has not shown sufficient prejudice to justifyexcluding Ridgeway's testimony. See generally McLaughlin v. Denharco,Inc., 129 F. Supp.2d 32, 35-36 (D.Me. 2001). The motion for sanctions isdenied.

IV. Motion to Exclude Expert Testimony

The defendant asks the court to exclude Ridgeway's testimony pursuantto Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993), and Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999), based onhis alleged lack of qualifications and the lack of scientific and factualsupport for his proposed testimony. Defendant's Motion in Limine("Motion in Limine") (Docket No. 9) at 2-7.

Daubert is often characterized as establishing the trial judge as the"gatekeeper" for expert testimony. See 509 U.S. at 589 n. 7. While itis now clear that the trial judge's general "gatekeeping" function withrespect to expert testimony that was set forth in Daubert applies to allexpert testimony, not just that based on scientific knowledge, Kumho, 119S.Ct. at 1171, it is also clear that the specific analytic factors listedin Daubert "neither necessarily nor exclusively appl[y] to all experts orin every case," id.6 Relevant reliability concerns may focus onpersonal knowledge or experience, not just scientific principles. Id. at1175. "[T]he factors identified in Daubert may or may not be pertinentin assessing reliability, depending on the nature of the issue, theexpert's particular expertise, and the subject of his testimony." Id.(quoting with approval from the brief for the United States as AmicusCuriae). "[W]hether Daubert's specific factors are, or are not,reasonable measures of reliability in a particular case is a matter thatthe law grants the trial judge broad latitude to determine." Id. at1176.

The defendant centers its attack on Ridgeway's qualifications on hisopinions that:

if the food processor was stored in its assembled condition with the cover in the locked position, the pressure of the plastic pins and counter pressure of the plunger springs would cause the plungers to bulge, resulting in the plungers sticking down even if the cover and bowl are subsequently removed;

Defendant's SMF ¶ 29; Plaintiff's Responsive SMF ¶ 29, and

the cause of this malfunction is a design defect in the rubber material of the plungers, such that they distort or bulge from the combined spring pressures when the processor is stored in the assembled condition. Mr. Ridgeway further observed, reported and opined that the distortion or bulging of the rubber plungers continued after the combined spring pressure on these plungers was removed,

Id. ¶ 30 & Reply to Response ¶ 30. Motion in Limine at 3. Thedefendant states that Ridgeway has never worked with small electricalhousehold appliances in general or food processors in particular; that hehas never worked as an expert witness in any case involving suchappliances; that he has no work experience with rubber or plasticmaterials and has not served as an expert witness in any case involvingsuch materials; and has never taken a course in the science of plastics.Id. at 3-4. These facts, the defendant contends, make Ridgewayunqualified to give the cited opinions. Id. The defendant alsodiscusses at some length the testing that Ridgeway did not perform.Defendant's Reply Memorandum in Support of Motion in Limine ("ReplyMemorandum") (Docket No. 21) at 2-4.

The opinions set forth above do not include any suggestion of amaterial that would have been appropriate to avoid the problemsidentified with the plungers. They do not even suggest that a moreappropriate material was available. The observation that a device made ofa particular material performed in a certain manner does not require,under the circumstances of this case, formal training in the science thatdeals with the physical characteristics of that material. Neither of thecited opinions requires that Ridgeway have any of the experience ortraining that the defendant suggests he lacks. The defendant's concernsmay be relevant to the weight to be accorded to Ridgeway's opinions, butthey do not make him unqualified to offer those opinions. SeeMcLaughlin, 129 F. Supp.2d at 35-36.

The defendant asserts that Ridgeway did not use reliable principles andmethods in reaching the cited opinions, listing things that Ridgeway didnot do or did not know. Motion in Limine at 5-7. Each of these allegedomissions goes to the weight of the opinions, not to admissibility. Thedefendant cites no authority for its assumptions that Ridgeway wasrequired to assert a scientific principle to support the plaintiff'sversion of the accident, to test other food processors of the samemodel, or to "calculate a rate of error for the model in question," id.at 6-7, nor am I aware of any. The defendant appears to suggest as wellthat Ridgeway was required to publish these specific opinions or that theplaintiff is required to show that these specific opinions are generallyaccepted by the scientific community. Id. at 7. Such case-specificopinions cannot be subject to such requirements; if they were, they couldnever be offered in litigation.

A closer question is presented by the defendant's argument thatRidgeway's opinions "are based on factual assumptions that are at oddswith the undisputed facts," Motion in Limine at 4. According to thedefendant, this means that the opinions are not "based on sufficientfacts or data" as required by Fed.R.Evid. 702. Id. at 5. Specifically,the defendant refers to Drew's deposition testimony that the foodprocessor was not stored as an assembled unit and the lack of any evidencethat, even if the food processor had been stored as an assembled unit,the cover was in the locked position during such storage. Id. at 4-5;Reply Memorandum at 4. Drew's original deposition testimony is notcorrectly characterized as "undisputed fact." I have denied thedefendant's motion to strike or suppress the errata sheet in which Drewstates that the food processor was in fact stored "all together, in oneunit, for about a year." Drew Dep. II, Errata Sheet. However, even asmodified, Drew's testimony does not establish that the food processor wasstored with the lid in the locked position, a factual predicate that isessential to Ridgeway's opinion. It is clear from the testimony of theplaintiff herself that the lid could be placed on the unit without beingin the locked position. Deposition of Holly Elwell, excerpts attached asExhibit A to Defendant's SMF, at 76.

Ordinarily, I would reserve ruling on a motion in limine to excludeexpert testimony on the ground that a necessary factual predicate to theexpert's proffered opinions does not exist, allowing the party offeringthe expert the opportunity to establish that predicate at trial.However, in this instance the defendant has made the lack of this factualpredicate one of the bases for its motion for summary judgment, and underthese circumstances the plaintiff does have the burden to place thenecessary facts, which may or may not be disputed, before the court. Thein limine motion is therefore granted in the summary judgment contextwith the consequence that Ridgeway's product liability opinion testimonyis excluded from the summary judgment record.

V. Motion for Summary Judgment

The defendant seeks summary judgment solely based on the exclusion ofthe testimony of the plaintiff's expert. Defendant's Motion for SummaryJudgment (Docket No. 10) at 2-3. The plaintiff responds in conclusoryfashion that proof of a defect in the product is not necessary to hernegligence claim and that she may proceed without expert testimony.Plaintiff's Objections to Defendant's Motion for Summary Judgment (DocketNo. 16) at [2]-[3]. She also states that the breaches of duty involvedin her "negligence" claim are the designing of an interlock switch thatwas susceptible to failure and the selection of a material that wassusceptible to failure when put to its intended use, id. at [2],presumably the material used to make the plungers that Ridgeway isprepared to testify would stick in the depressed, "on" position when thecover of the food processor was left in the locked position. I concludethat neither alleged breach can be established without expert testimony,and that the only expert testimony offered by the plaintiff on this pointis the excluded Ridgeway testimony. Accordingly, the defendant isentitled to summary judgment.

While the complaint does not invoke Maine's strict liability statute,14 M.R.S.A. § 221, the plaintiff's identification of her claims ofnegligence in her memorandum of law establishes that she bases her caseon a theory of product design defect. Such claims come within the scopeof that statute. "Products will be considered in a defective conditionunreasonably dangerous to users or consumers either where error wascommitted in the manufacturing or design process or where themanufacturer or supplier failed to warn of a product hazard." Walker v.General Elec. Co., 968 F.2d 116, 119 (1st Cir. 1992) (construing section221). The burden of proof on this point rests with the plaintiff.Bouchard v. American Orthodontics, 661 A.2d 1143, 1145 (Me. 1995). Proofof a defect in product design "involves an examination of the utility ofthe product's design, the risk of such design and the feasibility ofsafer alternatives." Walker, 968 F.2d at 119. Whether expert testimonyis required on this point or not, the plaintiff fails to identify anysource of such evidence other than the challenged testimony of Ridgeway.Even assuming that the plaintiff's claim sounds in negligence independentof the strict liability statute, this evidentiary omission is fatal. Id.at 120.

When a plaintiff's sole expert witness presents a hypothesis that isnot supported by the facts in the summary judgment record, and no otherevidence to support the plaintiff's theory of negligence is offered,summary judgment for the defendant is appropriate. Schubert v. NissanMotor Corp. in U.S.A., 148 F.3d 25, 30-32 (1st Cir. 1998); Green v.Cessna Aircraft Co., 673 A.2d 216, 219-20 (Me. 1996).

VI. Conclusion

For the foregoing reasons, the following rulings will be entered on thedefendant's motions:

(i) the defendant's motion to strike affidavits is DENIED;

(ii) the defendant's motion to suppress or strike the errata sheet tothe deposition of Shirley Drew is DENIED;

(iii) the defendant's motion for sanctions for spoliation of evidenceis DENIED;

(iv) the defendant's motion in limine to exclude the testimony ofRalph H. Ridgeway is GRANTED; and

(v) the defendant's motion for summary judgment is GRANTED.

3 Drew is the plaintiff's mother. This fact is not included ineither party's statement of material facts, but there does not appear tobe any dispute on this point.

4 It is not necessary to reach the plaintiff's argument that theColantuoni standard is not met because Drew is not an interestedwitness, Plaintiff's Objections to Defendant's Motion to StrikeAffidavits (Docket No. 25) at 2, but I note that Drew, as the plaintiff'smother and a witness to the accident, is an interested witness, if thatstatus is required by Colantuoni, in which the affidavit at issue wasthat of the plaintiff. In Torres v. E. I. DuPont de Nemours & Co.,219 F.3d 13, 16, 20 (1st Cir. 2000), the First Circuit applied Colantuonito the affidavit of a non-party witness, a client of the plaintiff. Ifsuch a witness is "interested," surely the plaintiff's mother has thatstatus.

5 The defendant also claims that the fact that the plaintiff'sbrother dropped the food processor, chipping its bowl, Defendant's SMF¶ 48; Plaintiff's Responsive SMF ¶ 48, "the day before Mr.Ridgeway's deposition," Spoliation Motion at 2, entitles it tosanctions. Ridgeway's deposition was conducted on January 31, 2001,Deposition of Ralph H. Ridgeway, excerpts attached as Exh. D toDefendant's SMF, at cover, and the defendant's expert conducted hisexamination of the food processor for "several days" after July 22,1999, Plaintiff's SMF ¶ 50; Defendant's Responsive SMF ¶ 50.The defendant has not even suggested how the chipping of the bowl causedit any prejudice. Therefore, this event will not be considered further inthis regard.

6 Contrary to the suggestion of the defendant, Motion in Limine at2-3, the fact that the subject matter of expert testimony is not"scientific" is no bar to its admissibility. United States v. Kayne,90 F.3d 7, 11 (1st Cir. 1996).

1. The defendant refers to itself in its answer as Conair, Inc.Answer With Jury Demand (Docket No. 2) at 1. At other times, it refersto itself as Conair Corporation. E.g., Unopposed Motion of ExtendDeadline to File Motions (Docket No. 7) at 1; Defendant's Statement ofMaterial Facts in Support of Motion for Summary Judgment ("Defendant'sSMF") (Docket No. 11) at 1.

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