D.G. and G. Inc. v. FlexSol Packaging Corp.

Citation: Not availableDocket: 08-3417

Court: Court of Appeals for the Eighth Circuit; August 17, 2009; Federal Appellate Court

Original Court Document: View Document

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DG&G, Inc. appeals a summary judgment favoring FlexSol Packaging Corp. regarding claims of strict liability for failure to warn, product defect, negligence, and breach of implied warranties. The appeal follows a case in the Eastern District of Missouri, presided over by Magistrate Judge Thomas C. Mummert, III. In 2005, DG&G, a cotton gin operator, utilized FlexSol's polyethylene bags to package cotton, which subsequently developed mold due to uneven moisture application. FlexSol’s bags, approved by the National Cotton Council (NCC), lacked warnings about their inability to allow moisture-restored cotton to breathe. DG&G reported minimal water damage in previous years, but following machine inspections indicated uneven water application as a potential cause. After settling with other parties involved in related lawsuits, DG&G pursued claims against FlexSol. The district court granted FlexSol's motion for summary judgment, which DG&G contests on the grounds that FlexSol failed to provide adequate warnings about the product's dangers. The Eighth Circuit Court reviews this summary judgment de novo, affirming that summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law, adhering to Missouri law on strict liability failure-to-warn claims.

To establish 'direct result' causation in a failure-to-warn claim, the claimant must prove that the lack of warning directly caused damages and that a warning would have changed the behavior of those involved in the incident. If evidence suggests the plaintiff was unaware of the danger, a presumption exists that a warning would be followed, although this presumption can be rebutted. The defendant must demonstrate the plaintiff was aware of the specific danger leading to the injury, not just general risks. Manufacturers are not required to warn about dangers that are obvious or commonly known. In the case involving DG&G, the company admitted knowledge of the limitations of polyethylene (PE) bags regarding moisture retention and had prior experience with moisture damage. Additionally, evidence indicated DG&G was aware that bagging cotton with excess moisture could cause damage, as evidenced by previous incidents and their inquiries about moisture measurements. Consequently, the court dismissed DG&G’s strict liability failure-to-warn claim. 

Regarding DG&G's assertion that FlexSol’s PE bags were defective, Missouri law outlines four requirements for a strict liability claim: the product must have been sold in the ordinary course of business, be found in a defective and unreasonably dangerous condition for its anticipated use, be used as expected, and cause damages directly. While strict liability does not mean absolute liability, the claimant must show the product was used in a reasonably anticipated manner, which can include foreseeable misuse. DG&G argued its usage of the bags was reasonable; however, guidelines indicated that a moisture content above 7.5% should be avoided, and DG&G's cotton had an average moisture content of 12.83%. The court affirmed that significant property damage occurred because DG&G improperly added excess moisture, thereby concluding that bagging such cotton was not a reasonably anticipated use of the PE bags.

DG&G claims that polyethylene (PE) bags serve a reasonably anticipated use of equilibrating moisture levels in cotton; however, FlexSol's bags were approved by the NCC without a requirement for drying moisture-restored cotton. The NCC specifications focused on aspects like tensile strength and tear resistance, while the bags were intended primarily to protect cotton bales from contamination. DG&G's assertion that the bags were used for moisture transmission is unsupported, and DG&G admits the industry recognizes the limitations of PE bags regarding breathability. Consequently, it is not objectively foreseeable that DG&G would utilize the bags for their breathability, leading to the conclusion that DG&G did not demonstrate a reasonably anticipated use. The district court correctly granted FlexSol summary judgment on DG&G's strict liability claim, and as DG&G failed to establish a reasonably anticipated use, their negligence and implied warranty claims were also dismissed. 

Additionally, DG&G contended that the district court erred in considering unsworn expert reports from William S. Anthony. FlexSol later submitted an affidavit verifying these reports, which the district court deemed sufficient for summary judgment purposes. Documents submitted for summary judgment must be authenticated per Fed. R. Civ. P. 56(e), and the district court has broad discretion regarding the supplementation of the summary judgment record. Although DG&G cited cases where unsworn reports were deemed inadmissible, those cases did not address whether documents could be considered if 'cured' by a subsequent affidavit. The district court, therefore, retained the discretion to accept or reject these late-filed materials.

The district court's handling of evidentiary issues regarding unsworn expert reports and testimony is addressed. The court permitted FlexSol to supplement the summary judgment record with an affidavit from expert Anthony, allowing the consideration of previously unsworn reports if verified by affidavits or depositions. The court rejected DG&G's objections to the expert reports, noting that there was no prohibition against using another party's expert report and that DG&G had the opportunity to depose Anthony. 

Regarding the exclusion of Robert J. Bockserman's expert testimony, the court's decision is reviewed for abuse of discretion. Under Federal Rule of Evidence 702, expert testimony must assist in understanding evidence or determining facts and meet specific criteria, including reliance on sufficient facts and reliable methods. Bockserman’s methodology was flawed; he tested only three specimens instead of the required four, did not understand the implications of additional tests, failed to use a dummy specimen, and did not peer review his report. Consequently, the district court did not abuse its discretion in excluding his testimony. The judgment of the district court is affirmed.