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Johnson v. Costco Wholesale Corp.

United States District Court, D. Arizona

January 18, 2019

Robert Johnson, Plaintiff,
Costco Wholesale Corporation, et al., Defendants.


          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 ...

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