United States District Court, D. Arizona
Steven P. Hardy, Plaintiff,
v.
Toyota Motor Sales USA Incorporated, Defendant.
ORDER
Dominic W. Lanza United States District Judge
In this
product liability action, pro se plaintiff Steven
Hardy (“Hardy”) alleges he sustained injuries in
a car crash because the braking system of his 2009 Toyota
Tacoma was “defective” and “failed to
operate.” (Doc. 19 at 2 [26(f) report]; see
also Doc. 1-1 at 9-12 [complaint].)
The
initial scheduling order required Hardy to provide his expert
disclosures by September 15, 2018. (Doc. 22 at 3.) This
deadline was later extended to October 15, 2018 at
Hardy's request. (Doc. 31.) However, Hardy has never
provided any expert disclosures. (Doc. 45 at 4.) In fact,
Hardy has not served any discovery since this case was filed.
(Doc. 45 at 4.)
On
December 17, 2018, defendant Toyota Motor Sales USA
Incorporated (“Toyota”) filed a motion for
summary judgment. (Doc. 45.) Toyota argues it is entitled to
summary judgment because (1) Hardy was required, under
Arizona law, to present expert testimony to meet his burden
of proof on several different issues (the existence of a
design defect, whether the defect existed when the vehicle
left Toyota's control, and causation), yet Hardy failed
to retain an expert or provide any expert disclosures
(id. at 8-10), and (2) Hardy cannot, in any event,
present a prima facie case on these issues because
he “has not presented evidence of any repair history,
witness testimony, photographs, video or any other admissible
evidence of improper brake function before the crash at
issue. To the contrary, he testified at his deposition that
he had purchased the vehicle brand new, in 2009, and had no
previous problems with the vehicle's brakes.
Plaintiff's unsubstantiated speculation about what
happened during this crash are not circumstantial evidence of
a defect and cannot defeat summary judgment”
(id. at 11-16).
The
deadline for Hardy to file a response to Toyota's summary
judgment motion was January 16, 2019, but Hardy has not filed
anything. As a result, Toyota has filed a notice asserting it
is entitled to summary relief under Local Rule 7.2(i). (Doc.
46.)
As an
initial matter, the Court disagrees with Toyota's
contention that it is automatically entitled to summary
judgment because Hardy failed to file an opposition to its
motion. Finkle v. Ryan, 174 F.Supp.3d 1174, 1180-81
(D. Ariz. 2016) (citations omitted) (“[A] local rule
permitting a district court to treat the lack of a response
as consent to granting a motion does not apply to summary
judgment motions. If a summary judgment motion is unopposed,
Rule 56 ‘authorizes the court to consider a fact as
undisputed,' but it does not permit the court to grant
summary judgment by default.”); Fed.R.Civ.P. 56,
advisory committee's note to 2010 amendments
(“[S]ummary judgment cannot be granted by default even
if there is a complete failure to respond to the
motion.”).
Nevertheless,
Toyota is entitled to relief on the merits. First, Toyota has
met its initial burden of production as the summary judgment
movant.[1] Toyota makes a strong argument that,
although a plaintiff isn't always required under Arizona
law to produce expert testimony in support of a design-defect
claim, expert testimony was required here because the
particular type of claim being advanced by Hardy
(i.e., a defect in the design of his vehicle's
braking system) requires specialized knowledge that falls
outside the ken of a lay juror. Cf. Wyatt by Caldwell v.
Wyatt, 526 A.2d 719, 725 (N.J. App. Div. 1987)
(“expert testimony was required [to prove] that
Wyatt's brakes were defective at the time of the
accident” because brake design is “a subject . .
. so esoteric that jurors of common judgment and experience
cannot form a valid conclusion”). Moreover, even
assuming arguendo that expert testimony isn't
required in this circumstance, the facts set forth in
Toyota's motion-which the Court treats as undisputed,
see Fed. R. Civ. P. 56(e)(2)- demonstrate that Hardy
lacks enough evidence to carry his ultimate burden of
persuasion at trial. Among other things, there's no
evidence the six-year-old vehicle at issue in this case had
any prior brake-related issues, Hardy didn't preserve the
car for testing or provide any maintenance records,
“the investigating officers determined that there were
no problems with the brakes in the Toyota Tacoma”
(see Doc. 45 at 2 ¶ 8), and Toyota's expert
concluded that a piece of debris recovered from Hardy's
vehicle after the accident-which Hardy claimed was a broken
piece of his braking system-didn't even come from the
2009 Toyota Tacoma braking system (see Doc. 45 at 4
¶ 25).
Because
Toyota met its initial burden of production, and Hardy failed
to respond to Toyota's motion or identify any evidence
that would create a genuine issue of material fact at trial,
summary judgment is warranted. See Fed. R. Civ. P.
56(e)(3). See also Sams v. Johnson & Johnson,
2015 WL 8213228, *2 (W.D. Wash. 2015) (“Defendants
pointed out Sams's failure to designate an expert witness
by the August 5, 2015 deadline or at any time thereafter.
Without this expert testimony, she cannot support a prima
facie product liability action. She has therefore failed to
create a genuine issue for trial. Furthermore, Sams failed to
timely respond to Defendants' motion. She did not meet
her burden of setting forth specific facts demonstrating a
genuine issue for trial. Therefore, Defendants are entitled
to judgment as a matter of law.”).
Accordingly,
IT IS ORDERED that:
(1)
Toyota's motion for summary judgment (Doc. 45) is
granted; and
(2) The
Clerk of Court shall enter judgment accordingly.
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Notes:
[1] A party moving for summary judgment
“bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“In order to carry its burden of production, the moving
party must either produce evidence negating an essential
element of the nonmoving party's claim or defense or show
that the nonmoving party does not have enough evidence of an
essential element to carry its ultimate burden of persuasion
at trial.” Nissan Fire & Marine Ins. Co. v.
Fritz Cos., 210 F.3d 1099, ...