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Morris v. National Seating & Mobility, Inc.

United States District Court, W.D. Texas, San Antonio Division

June 3, 2019

JAMES E. MORRIS, Plaintiff,
v.
NATIONAL SEATING & MOBILITY, INC., Defendant.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation concerns Defendant National Seating & Mobility, Inc.'s, Motion for Summary Judgment [#8]. Also before the Court is Plaintiff James E. Morris' Motion for Modification of Scheduling Order and for Leave of Court to File First Amended Complaint [#11]. On January 7, 2019, the Honorable Fred Biery referred all pre-trial proceedings in this case to the undersigned for disposition pursuant to Rule 72 of the Federal Rules of Civil Procedure and Rules CV-72 and 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas [#17]. The undersigned has authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Defendant's Motion for Summary Judgment be GRANTED and Plaintiff's Motion for Modification of Scheduling Order and for Leave of Court to File First Amended Complaint be DENIED.

         I. Procedural Background

         On December 12, 2017, Plaintiff James E. Morris (“Plaintiff”) filed a complaint against Defendant National Seating & Mobility, Inc. (“Defendant”), in the 37th Judicial District Court of Bexar County, Texas, alleging claims for strict products liability, breach of warranty, and negligence.[1] Plaintiff served Defendant through its registered agent on December 21, 2017, and Defendant timely filed its Notice of Removal [#1] in this Court on January 17, 2018.

         The Court entered a scheduling order on April 19, 2018 [#6]. The Scheduling Order set the deadline for amendment of pleadings as July 20, 2018. (Scheduling Order [#6] at ¶ 3.) The Scheduling Order also set the deadline for Plaintiff to designate testifying experts as August 15, 2018, but Plaintiff has not designated any experts or served any expert reports. (Id. at ¶ 4.) Discovery closed on November 15, 2018. (Id. at ¶ 6.)

         On November 30, 2018, Defendant filed a motion for summary judgment [#8]. A response [#9], a reply [#10], and two sur-replies [#15, #20] have been filed. On January 4, 2019, Plaintiff filed a motion to modify the scheduling order and for leave to file a first amended complaint [#11]. Defendant filed a response [#18].

         II. Facts Established by the Summary Judgment Record

         The material facts in the summary judgment record, viewed in the light most favorable to Plaintiff, the non-movant, are as follows. In 2013, Plaintiff purchased a motorized wheelchair from Defendant's San Antonio branch. (Doc. 9-3 at 1-8.) Plaintiff is a paraplegic and is “completely dependent” on his wheelchair for his mobility needs. (Id. at 56.) Plaintiff's wheelchair was manufactured and assembled by Pride Mobility Products Corporation and Quantum Rehab. (Aff. of Robert Black [#8-2] at ¶ 4.) Defendant was involved in the process of fitting Plaintiff for the wheelchair, ordering the wheelchair from the manufacturers, delivering the wheelchair to Plaintiff, and providing maintenance and repair services for the wheelchair. (Id. at ¶¶ 4-5.) When he purchased the wheelchair, Plaintiff weighed 255 pounds, and the wheelchair had a maximum weight capacity of 300 pounds. (Doc. 9-3 at 5, 42, 45.)

         By August 2014, the wheelchair required repairs. (Id. at 55-56.) The wheelchair was returned and Plaintiff received a replacement wheelchair on February 12, 2015. (Id. at 80-85.) Within two months of receiving the replacement wheelchair, it too required repairs. (Id. at 88.) It was returned and Plaintiff received another wheelchair on August 20, 2015. (Id. at 95, 109-10.) On September 15, 2015, Albert Dutson documented that Plaintiff weighed 305 pounds. (Id. at 95.) That same day, Dutson emailed Robert Black, the branch manager of Defendant's San Antonio branch, “James's new weight is now 305Lbs and he is blowing the circuit breaker he is now over the weight cap. of this PWC what is our plan of attack on this Issue ?” (Id.)

         On November 10, 2015, Amy McEwen documented that Defendant received a call from Plaintiff's wife, Jenny Blair, “requesting that the arms on his chair be tightened” because “the arm on the driver's side of the control keeps falling off, and the armrest is leaning down a little too much. The control box keep falling off.” (Id. at 112.) On November 22, 2015, Kris Herchberger, a technician for Defendant, made “some minor adjustments” to the wheelchair. (Id.) Herchberger made several additional repairs to the wheelchair between November 22, 2015, and January 12, 2017, the date of Plaintiff's accident.

         On February 28, 2016, Plaintiff was examined by Aria Dayani, M.D., who recorded that Plaintiff weighed 305 pounds. (Id. at 126.) Defendant received a copy of Dr. Dayani's medical report on May 20, 2016. (Id. at 127.) On August 25, 2016, Herchberger noted on a repair sheet: “Need to know weight cap. 350# per tech line.” (Id. at 221.) On August 29, 2016, Herchberger documented that the powered wheelchair “is rated for 350# the client weighs 325#.” (Id. at 206.)

         On January 12, 2017, while transferring from his wheelchair to his vehicle, the wheelchair's right armrest broke and Plaintiff fell to the ground and broke his left leg. (Id. at 301.) On February 7, 2017, Herchberger noted that the bolt for the adjustment of the pitch of the armrest was broken. (Id.) In a Wheelchair/Scooter/Stroller Seating Assessment Form, dated May 26, 2017, Jeff Witten, a physical therapist for Defendant, documented Plaintiff's weight as 333 pounds and listed the maximum weight capacity of his wheelchair as 300 pounds. (Id. at 328, 331.) Then, in the section asking for an explanation of “why current seating system is not meeting client's needs, ” Witten explained: “He nows weighs over #300 and the chair is not built to withstand those forces, He has multiple break downs and has broken the back and the seat elevator post which leaves him bed bound.” (Id. at 331.) On July 2, 2017, Plaintiff received a new wheelchair with a maximum weight capacity of 450 pounds. (Id. at 382, 386.)

         III. Legal Standard

         Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett,477 U.S. 317, 322 (1986); see also Fed.R.Civ.P. 56(c). A dispute is genuine only if the evidence is such ...


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