United States District Court, W.D. Texas, San Antonio Division
JAMES E. MORRIS, Plaintiff,
NATIONAL SEATING & MOBILITY, INC., Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES
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.
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. 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,
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.)
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].
Facts Established by the Summary Judgment Record
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.)
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.)
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
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.
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.)
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 ...