United States District Court, D. Arizona
ORDER GRANTING DEFENDANT COSTCO'S MOTION FOR
SUMMARY JUDGMENT
Honorable Susan M. Brnovich United States District Judge
At
issue is Defendant Costco Wholesale Corporation's Motion
for Summary Judgment (Doc. 74, Mot.), to which Plaintiff
Robert Johnson filed a Response (Doc. 81, Resp.), and
Defendant Filed a Reply (Doc. 90, Reply). Defendant also
filed a Separate Statement of Facts in Support of its Motion
(Doc. 75, SSOF). Plaintiff filed a Separate Statement of
Facts in Support of his Response (Doc. 82, PSOF), but he
failed to include a controverting statement of facts as
required by LRCIV 56.1(b). Accordingly, the Court deems
Defendant's statement of facts that are supported by
citations to the record to be true.[1] Szaley v. Pima
Cty., 371 Fed.Appx. 734, 735 (9th Cir. 2010);
Pierson v. City of Phoenix, No. CV-16-02453-PHX-DLR,
2017 WL 4792122, at *1 (D. Ariz. Oct. 24, 2017). Oral
argument was held on January 10, 2019.
I.
Background
Johnson
was shopping at a Costco in Gilbert, Arizona, on April 30,
2015, when he alleges he was injured by Costco's
negligence. Specifically, he alleges the customer in front of
him at the checkout placed a “sparkling wine-type
bottle” upright on the conveyer belt, which fell off
and shattered, resulting in glass striking his face. The
bottle allegedly hit a device on the belt meant to move the
item closer to the cashier, which knocked it over the
one-to-six-inch-tall guardrail. As it was falling, Johnson
unsuccessfully attempted to catch the bottle, and it hit the
floor. (SSOF ¶ 4-5). After it hit the floor, it bounced
up at least two feet before falling to the ground again and
exploding. (SSOF ¶ 5).
In his
complaint, Johnson states Costco acted negligently in four
ways: (1) by failing to maintain the conveyor belt in a
reasonably safe condition; (2) by allowing the bottle to
proceed upright on the conveyor belt, which created an
unreasonable risk of harm because it was more susceptible to
falling; (3) by failing to warn Johnson and other customers
of the inherent dangers of placing bottles upright; and (4)
by failing to otherwise exercise due care. At oral argument
and in his response, he indicated his position has evolved
slightly. He conceded he has discovered no evidence of a
maintenance problem with the conveyor belt, and his alleged
breaches of care are: (1) the conveyor belt did not have a
tall enough guardrail; (2) Costco should not have allowed the
bottle to proceed unless it laid the bottle on its side; and
(3) Costco failed to warn customers about the possibility of
carbonated glass bottles falling off the conveyor
belt.[2]
When
the bottle “exploded, ” the shattered glass
lacerated Johnson's left eyelid, for which he declined
medical treatment at the scene. (SSOF, Ex. 4 at 10). He also
claims the exploding bottled created a “blast
wave” that caused extensive injuries beyond the
laceration. (SSOF ¶ 7). He alleges he suffered a
traumatic brain injury, a stroke or aneurysm, facial nerve
and muscle damage, occasional slurred speech, breathing and
movement issues, anxiety/depression, and dental damages.
(SSOF ¶ 7). He alleges the injury also has caused daily
migraines and sleep disruption. (SSOF, Ex. 4 at 4-5, 7). He
alleges the accident further affected his work life,
resulting in him having to take 212.5 hours of sick time due
to the incident and costing him $750, 000 in retirement
benefits. (SSOF, Ex. 5 at 7). His alleged medical bills from
the incident totaled $8, 312.23 as of March 26, 2018.
Johnson
disclosed his expert witnesses on April 16, 2018, the
deadline for doing so. (Doc. 63). Johnson did not disclose
any experts to testify that Costco breached the applicable
standard of care. The disclosure listed six medical
professionals that treated Johnson and one “unknown
neurologist” that had yet to treat Johnson.
Plaintiff's six experts were listed as: (1) Megan
McCarthy, MSN FNP; (2) Dr. Rozbeh Torabi, M.D.; (3) Dr.
Charanjit Dhillon, M.D.; (4) Dr. Bilal Hameed, M.D.; (5) Dr.
Jamie Rawson, M.D.; (6) Dr. Andrew Ducruet, M.D. Johnson
listed the providers along with their address and the
information that they had treated Johnson and would
“testify on the issue of causation.” On May 8,
2018, Johnson also updated the unknown neurologist to Dr.
Sean Southland, Ph.D., “who treated Plaintiff on April
18, 2018.” Dr. Southland was also supposed to
“testify on the issue of causation.” For each of
these witnesses, Johnson did not provide a report or summary
of the facts and opinions to which the witnesses were
expected to testify. (Doc. 63). He merely provided their
names, titles, addresses, and that they would testify as to
causation. His supplemental disclosure adding Dr. Southland
included the same information plus the date he treated
Johnson.
On June
18, 2018, Johnson filed a motion to supplement his expert
witness disclosure to add Dr. Michael J.A. Robb, M.D., an
oto-neurologist that treated Johnson after the expert witness
deadline, and to designate one of his fact witnesses, Gloria
Cales, as an expert witness as well. Johnson wanted Ms. Cales
to testify about his wage and pension rights, but
“inadvertently omitted [her] from the expert witness
list.” (Doc. 83). Judge Logan denied Johnson's
motion. (Doc. 95). The motion did not include a request to
add any experts that would testify about whether Costco
breached its duty to keep customers reasonably safe.
II.
Legal Standard
Summary
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
material fact is any factual issue that might affect the
outcome of the case under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute about a fact is “genuine” if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Id. “A party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by . . . citing to particular parts of
materials in the record” or by “showing that
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1)(A), (B). The court need only consider the cited
materials, but it may also consider any other materials in
the record. Id. 56(c)(3). Summary judgment may also
be entered “against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Initially,
the movant bears the burden of demonstrating to the Court the
basis for the motion and “identifying those portions of
[the record] which it believes demonstrate the absence of a
genuine issue of material fact.” Id. at 323.
If the movant fails to carry its initial burden, the
nonmovant need not produce anything. Nissan Fire &
Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03
(9th Cir. 2000). If the movant meets its initial
responsibility, the burden then shifts to the nonmovant to
establish the existence of a genuine issue of material fact.
Id. at 1103. The nonmovant need not establish a
material issue of fact conclusively in its favor, but it
“must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The nonmovant's bare
assertions, standing alone, are insufficient to create a
material issue of fact and defeat a motion for summary
judgment. Liberty Lobby, 477 U.S. at 247-48.
“If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Id. at 249-50 (citations omitted).
However, in the summary judgment context, the Court believes
the nonmovant's evidence, id. at 255, and
construes all disputed facts in the light most favorable to
the nonmoving party. Ellison v. Robertson, 357 F.3d
1072, 1075 (9th Cir. 2004). If “the evidence yields
conflicting inferences [regarding material facts], summary
judgment is improper, and the action must proceed to
trial.” O'Connor v. Boeing N. Am., Inc.,
311 F.3d 1139, 1150 (9th Cir. 2002).
III.
Analysis
Federal
courts sitting in diversity apply substantive state law to
state-law claims. Lukes v. American Family Mut. Ins.
Co., 455 F.Supp. 1010, 1013 (D. Ariz. 2006). Johnson
bears the burden of proving negligence, and it is not up to
Costco to prove of absence thereof. Berne v. Greyhound
Parks of Ariz., 448 P.2d 388, 389 (Ariz. 1968). To
succeed on a negligence claim in Arizona, Johnson must prove
Costco had (1) a “duty to conform to a certain standard
of care”; (2) Costco breached that standard; (3) there
is a “causal connection” between Costco's
conduct and the resulting injury; and (4) it resulted in
“actual damages.” Gipson v. Kasey, 150
P.3d 228, 230 (Ariz. 2007). Costco moves for summary judgment
on the second and third elements, contending that Johnson
needs expert testimony to establish Costco breached the
appropriate standard of care in operating the conveyor belt
and that he is unable to prove the exploding bottle is the
medical cause of his injuries. For the reasons that follow,
the Court agrees Johnson cannot establish that Costco
breached the appropriate standard of care without expert
testimony, and Costco's motion for summary judgment is
granted.
1.
Johnson must prove Costco breached the standard of care
by showing they had an obligation to discover and correct or
...