Beckemeyer v. Gelco Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Melanie Beckemeyer,

Plaintiff,

v. Case No. 1:17cv695

Gelco Corporation, Judge Michael R. Barrett

Defendant.

OPINION & ORDER

This matter is before the Court upon Plaintiff’s Motion for Reconsideration (Doc.

38); and Defendant’s Motion to Strike Portions of Amended Complaint (Doc. 39). Also

before the Court is Defendant’s Motion for Summary Judgment (Doc. 55). Related to the

summary judgment motion is Defendant’s Motion for Leave to File Exhibit 5, Declaration

of RoseAnn Avilez (Doc. 54); Plaintiff’s Motion to Strike Defendant’s Motion for Leave

(Doc. 56); Defendant’s Motion to Strike Affidavit and Exclude Opinions and Testimony of

Plaintiff's Expert Scott W. McMahon, M.D. (Doc. 65); and Motion to Exclude Plaintiff's

Expert Opinions of Steven Rucker, CIH (Doc. 52). These motions have been fully briefed

(Docs. 40, 42, 55, 60, 61, 63, 64, 66, 67, 68).

I. BACKGROUND

Plaintiff’s claims stem from a Toyota RAV4. Plaintiff claims the vehicle was

contaminated with mold or some other environmental hazard which caused her to develop

severe health conditions. Plaintiff’s employer, Avanir Pharmaceuticals, contracted with

Defendant Gelco Corporation1 to provide Plaintiff with the vehicle. Plaintiff drove the

1Gelco Corporation is now known as Element Fleet Corporation.

vehicle intermittently from May 6, 2016 through September 23, 2016.

In her original complaint, Plaintiff brought claims for negligence and breach of

contract. Plaintiff moved to amend her complaint in order to add factual allegations.

The Court granted Plaintiff leave to amend the complaint, but only as to the negligence

claim, since amending the breach of contract claim would be futile. (Doc. 34). Plaintiff

seeks reconsideration on this issue. (Doc. 38). Defendant seeks to strike portions of

the Amended Complaint because according to Defendant, the Amended Complaint sets

forth allegations that go beyond the scope of the leave to amend permitted by the Court.

(Doc. 39).

II. ANALYSIS

A. Motion for Reconsideration

Although a motion for reconsideration is not mentioned in the Federal Rules of Civil

Procedure, it is often treated as a motion to amend judgment under Rule 59(e). McDowell

v. Dynamics Corp. of America, 931 F.2d 380 (6th Cir. 1991). There are three grounds

for amending a judgment under Rule 59: “(1) a clear error of law; (2) newly discovered

evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest

injustice.” Leisure Caviar, LLC v. United States Fish & Wildlife Serv., 616 F.3d 612, 615

(6th Cir. 2010) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)).

However, a motion made under Rule 59(e) is not an opportunity to reargue a case. Sault

Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (citation

omitted). The court should use its “informed discretion” in deciding whether to grant or

deny a Rule 59(e) motion. Huff v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982).

Plaintiff asks the Court to reconsider its dismissal of her breach of contract claim

based on a document which was discovered subsequent to the briefing on the Motion for

Leave to Amend. Plaintiff maintains that this document, titled “Maintenance

Management Addendum,” shows that Plaintiff was an intended third-party beneficiary of

the contract between Avanir and Defendant. (Doc. 38-1).

Even though there is some indication that Plaintiff had possession of this document

while her Motion for Leave to Amend was pending (See Doc. 40, PAGEID# 298), the

Court will nevertheless reconsider its decision to deny Plaintiff leave to amend her breach

of contract claim.

As this Court previously explained, in Ohio, the “intent to benefit” test is used to

determine whether a third party is an intended beneficiary of a contract. Huff v.

FirstEnergy Corp., 130 Ohio St. 3d 196, 200, 957 N.E.2d 3, 6 (Ohio 2011). Intent is

determined by looking at the language of the contract. Id. Accordingly, “for an injured

third party to qualify as an intended third-party beneficiary under a written contract, the

contract must indicate an intention to benefit that third party.” Id. at 8.

In ruling on Plaintiff’s Motion for Leave to Amend, the Court noted that the Master

Lease Agreement between Avanir and Defendant does not indicate an intention to directly

benefit Plaintiff. In the Master Lease Agreement, Avanir is referred to as the “Customer.”

As part of the Agreement, Defendant agrees “to lease to Customer and Customer hereby

agrees to lease from [Defendant] certain Vehicles for use in its business.” (Doc. 14-1).

Under the Maintenance Management Addendum, Avanir is again referred to as the

“Customer.” The Addendum states that Defendant “provides a program to minimize

Customer’s vehicle operating costs, driver downtime and administrative cost associated

with the payment of multiple suppliers.” (Doc. 38-1). The Addendum does little to

demonstrate that Plaintiff was an intended beneficiary of the agreement between Avanir

and Defendant. Any mention of a “Customer driver,” such as Plaintiff, is in the context

of reducing driver downtime or administrative costs, which is a benefit to the Customer.

For example, the Addendum explains that Defendant is able to lower costs because it

maintains a database of vendors who have agreed to provide services; but “[i]f a driver

has an emergency in a remote location or with an inoperable vehicle, a vendor may be

set up at the time of the first expected use.” The Addendum also states that Defendant

“will not refer a Customer driver to a vendor about which [Defendant] has knowledge of

or a reasonable basis of concern about the vendor performing defective and dangerous

repairs.” The Addendum then adds: “Customer acknowledges, however, that (i)

[Defendant] provides this service from a phone center in Minnesota and does not observe

either the vendor's operation or any repair; (ii) although drivers/customers may provide

information about problematic repairs and vendors, provision of such information is

entirely voluntary and nonsystematic.”

After reviewing the above contract language, and other language in the

Addendum, the Court concludes that Plaintiff was not an intended third-party beneficiary

under the Master Lease Agreement; and she has no enforceable rights under the Master

Lease Agreement or its Maintenance Management Addendum. Therefore, upon

reconsideration, the Court concludes Plaintiff’s Amended Motion for Leave to Amend her

Complaint would be futile as it relates to her claim for breach of contract. Accordingly,

Plaintiff’s Motion for Reconsideration (Doc. 38) is DENIED.

B. Motion to Strike Portions of Amended Complaint

Defendant argues that this Court should strike the allegations in Plaintiff’s

Amended Complaint which exceed the scope of the leave to amend granted by the Court.

Federal Rule of Civil Procedure 12(f) provides that, on motion of a party, the court

may strike from a pleading “an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.” Fed. R. Civ.P. 12(f). This Court has stricken an

amended complaint where new allegations were added to the complaint which exceeded

the court's grant of leave to amend. Helms v. Nationwide Ins. Co. of Am., 280 F.R.D.

354, 360 (S.D. Ohio 2012).

Defendant moves to strike allegations that Defendant was a supplier under Ohio’s

Product Liability Act (“OPLA”). Specifically, Defendants ask that Paragraphs 16 and 18

be stricken in their entirety and that the language “providing to Plaintiff a vehicle which

constituted a health hazard” be stricken from Paragraph 22.2 However, this Court has

already determined that the allegations in the Amended Complaint do not set forth a

products liability claim, and Plaintiff’s negligence claim is limited to Defendant’s response

once Plaintiff notified Defendant that the vehicle was contaminated. (See Doc. 34,

PAGEID# 168-69, 171). Accordingly, Defendant’s Motion to Strike Portions of Amended

Complaint (Doc. 39) is DENIED.

2These paragraphs are as follows:

16. Defendant had a duty to provide a safe vehicle to Plaintiff which would avoid

doing harm to Plaintiff.

. . .

18. Defendant knew or should have known that the vehicle it supplied to Plaintiff

was contaminated.

. . .

22. Defendant breached these duties by failing to exercise due care, providing to

Plaintiff a vehicle which constituted a health hazard and by failing to adequately

alleviate the hazard.

(Doc. 35).

C. Motion for Leave to File Declaration of Roseann Avilez and Motion to

Strike

Defendant seeks leave to file Exhibit 5, which is the Declaration of RoseAnn Avilez

(Doc. 54-1). Defendant explains that it was not able to file the Declaration earlier

because Avilez was out of the country for a period of time before the dispositive motion

deadline. Plaintiff does not oppose the filing of the Declaration, but has filed a Motion to

Strike Defendant’s Motion for Leave to File the Declaration of Roseann Avilez which

seeks to strike paragraphs 5, 7, 10, 18, 19, 20, 36 and 37 of the Declaration of Roseann

Avilez (Doc. 54-1) on the grounds that they purport to offer opinions of a lay witness

beyond that allowed by Federal Rules of Evidence 701. Defendant responds that Avilez

served as fleet manager for Avanir, and her statements are based on her experience and

knowledge of the administration of the fleet program.

Federal Rule of Evidence 701 provides:

If a witness is not testifying as an expert, testimony in the form of an opinion

is limited to one that is:

(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to determining

a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within

the scope of Rule 702.

Fed. R. Evid. 701. In distinguishing lay testimony from expert testimony, the Sixth Circuit

has explained that “lay testimony results from a process of reasoning familiar in everyday

life, whereas an expert's testimony results from a process of reasoning which can be

mastered only by specialists in the field.” United States v. White, 492 F.3d 380, 401 (6th

Cir. 2007) (citing State v. Brown, 836 S.W.2d 530, 549 (Tenn.1992)). The Court notes

that the opinions stated by Avilez in her declaration are not technical, and do not involve

any specialized skill or expertise. For the most part, Avilez repeats what is stated in the

written policies and protocols identified by her in her declaration. (Doc. 54-1, Avilez Decl.

¶ 3). Therefore, the Court concludes that Avilez’s statements are proper lay opinion

testimony. However, the Court also notes that Avilez’s statements have limited

evidentiary value in that they state what Plaintiff should or should not have done under

the policies and protocols, and what Avilez was told Plaintiff did.

Plaintiff also argues that Avilez offers legal conclusions on key issues in the case

such as whether Plaintiff had a duty to ensure that the vehicle was delivered to the repair

facility and whether Defendant’s conduct was reasonable. “It is well settled that courts

should disregard conclusions of law (or “ultimate fact”) found in affidavits” submitted in

support of motions for summary judgment. F.R.C. Int'l, Inc. v. United States, 278 F.3d

641, 643 (6th Cir. 2002). “When ... conclusions of law appear in an affidavit ... the

extraneous material should be disregarded, and only the facts considered.” Id. at 643-

44 (quoting A.L. Pickens Co., Inc. v. Youngstown Sheet & Tube Co., 650 F.2d 118, 121

(6th Cir.1981)). Therefore, to the extent Avilez offer legal conclusions, the Court will

disregard these portions of the declaration.

Accordingly, Defendant’s Motion for Leave to File Exhibit 5, Declaration of

RoseAnn Avilez (Doc. 54) is GRANTED; and Plaintiff’s Motion to Strike Defendant’s

Motion for Leave (Doc. 56) is DENIED.

D. Motion for Summary Judgment

Defendant moves for summary judgment on Plaintiff’s negligence claim. (Doc.

55).

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper

“if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” The moving party has the burden of

showing an absence of evidence to support the non-moving party’s case. Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden of

production, the non-moving party cannot rest on his pleadings, but must present

significant probative evidence in support of his complaint to defeat the motion for

summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In

reviewing a summary judgment motion, courts are required to view the facts and draw all

reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris,

550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing United States v.

Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).

To prevail on a negligence claim in Ohio, a plaintiff must prove: (1) the existence

of a legal duty; (2) defendant’s breach of that duty; and (3) injury that is the proximate

cause of the defendant’s breach. Wallace v. Ohio Dep’t of Commerce, 773 N.E.2d 1018,

1025 (Ohio 2002).

Defendant argues that Plaintiff has failed to establish that Defendant owed any

duty to Plaintiff, or that Defendant breached any alleged duty to Plaintiff.

The Supreme Court of Ohio has explained:

“Duty, as used in Ohio tort law, refers to the relationship between the plaintiff

and the defendant from which arises an obligation on the part of the

defendant to exercise due care toward the plaintiff.” Commerce & Industry

Ins. Co., 45 Ohio St.3d at 98, 543 N.E.2d 1188; see, also, Huston v.

Konieczny (1990), 52 Ohio St.3d 214, 217, 556 N.E.2d 505. This court has

often stated that the existence of a duty depends upon the foreseeability of

harm: if a reasonably prudent person would have anticipated that an injury

was likely to result from a particular act, the court could find that the duty

element of negligence is satisfied. Texler v. D.O. Summers Cleaners &

Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 680, 693 N.E.2d 271;

Commerce & Industry, 45 Ohio St.3d at 98, 543 N.E.2d 1188; Menifee v.

Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 472

N.E.2d 707. In addition, we have also stated that the duty element of

negligence may be established by common law, by legislative enactment,

or by the particular circumstances of a given case. Chambers v. St. Mary's

School (1998), 82 Ohio St.3d 563, 565, 697 N.E.2d 198; Eisenhuth v.

Moneyhon (1954), 161 Ohio St. 367, 53 O.O. 274, 119 N.E.2d 440,

paragraph one of the syllabus. Admittedly, however, the concept of duty

in negligence law is at times an elusive one.

Wallace v. Ohio Dep't of Commerce, 96 Ohio St. 3d 266, 274, 773 N.E.2d 1018, 1026

(Ohio 2002).

Under the “voluntary duty” doctrine, Ohio courts have held “that once a duty is

undertaken voluntarily, it must be performed with ordinary care.” Boerner v. Liberty Mut.

Ins. Co., 748 F. Supp. 535, 539 (S.D. Ohio 1989) (quoting Sawicki v. Village of Ottawa

Hills, 37 Ohio St.3d 222, 525 N.E.2d 468, 474 (1988)). This doctrine is based on Section

323 of the Restatement of Torts, which provides:

One who undertakes, gratuitously or for consideration, to render services to

another which he should recognize as necessary for the protection of the

other's person or things, is subject to liability to the other for physical harm

resulting from his failure to exercise reasonable care to perform his

undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the

undertaking.

Restatement (Second) of Torts § 323.3 Under this doctrine, Ohio courts have found a

negligent action by a contractor can serve as a voluntary assumption of a duty to

foreseeable plaintiffs. Bennett v. MIS Corp., 607 F.3d 1076, 1094 (6th Cir. 2010) (citing

3Although the Ohio Supreme Court has not expressly adopted Section 323, the court has

cited Section 323 with approval. Seley v. Searle & Co., 67 Ohio St.2d 192, 202, 423 N.E.2d 831,

839, fn. 7 (Ohio 1981).

Briere v. Lathrop Co., 22 Ohio St.2d 166, 258 N.E.2d 597, 602 (1970) (holding general

contractor liable for painter's injury where employee of general contractor assisted

subcontractor's employee in moving scaffold, thereby proximately causing painter's fall

from scaffold).

As this Court has explained, to prevail under § 323(a):

the increased risk of harm must be measured against “the risk that would

have existed had the defendant never provided the services initially.”

Wheatley v. Marietta College, 2016-Ohio-949, 48 N.E.3d 587, at ¶ 92 (4th

Dist.) (internal citations omitted). That is, the “negligent performance must

somehow put the plaintiff in a worse situation than if the defendant had

never begun the performance.” Id. Generally, this requires “sins of

commission rather than omission.” Wissel v. Ohio High School Athletic

Ass'n, 605 N.E.2d 458, 465 (Ohio Ct. App. 1992) (quoting Turre v.

Government of the Virgin Islands, Virgin Islands Water & Power Auth., 938

F.2d 427, 432 (3d Cir. 1991)). Under § 323(b), the plaintiff’s reliance must

usually be “based on specific actions or representations which cause the

person[ ] to forego other alternatives of protecting themselves.” Wissel,

605 N.E.2d at 465 (quoting Cracraft v. City of St. Louis Park, 279 N.W.2d

801, 807 (Minn. 1979)).

Reed v. Bove, No. 2:17-CV-168, 2019 WL 3779866, at *6 (S.D. Ohio Aug. 12, 2019). In

addition, the scope of the duty is limited to that actually undertaken. Sawicki, 525 N.E.2d

at 474.

Here, soon after Plaintiff began her employment with Avanir, Defendant emailed

Plaintiff program materials which explain that Defendant is “pleased to be the fleet

management provider for Avanir Pharmaceuticals.” (Doc. 50-8, PAGEID# 882; Doc. 50,

Melanie Beckemeyer Dep. at 117, PAGEID# 1826). The materials explain that it is

Defendant’s goal “to provide best-in-class service to help you manage and operate your

company vehicle effectively and efficiently.” (Doc. 50-8, PAGEID# 882). The materials

list Defendant’s programs which Avanir “has enrolled in to assist you in maintaining your

company vehicle.” (Id.) The materials also include phone numbers and instructions

regarding “How, What and When” to call about problems with the vehicle. (Id.) Included

in these numbers is a number “[f]or assistance with vendor locations, vehicle maintenance

consultation, unscheduled maintenance, glass, and roadside assistance.” (Id.) 4

Defendant informed Plaintiff that its Driver Support Center should be the “first point of

contact for all your fleet vehicle needs.” (Doc. 50-12, PAGEID# 932). Based on this

evidence, the Court finds that Defendant voluntary assumed a duty to provide Plaintiff

with assistance in the maintenance of the Toyota RAV4 assigned to her. Therefore,

Defendant had a duty to exercise reasonable care in providing Plaintiff assistance with

the maintenance of the vehicle.

However, for liability to attach, in addition to establishing a breach of the duty to

exercise reasonable care, Plaintiff must demonstrate that Defendant’s alleged failure to

exercise reasonable care either (a) increased the risk of harm, or (b) induced detrimental

reliance. Wissel v. Ohio High Sch. Athletic Assn., 78 Ohio App. 3d 529, 540, 605 N.E.2d

458, 465 (Ohio Ct. App. 1992).

There is evidence in the record that before the RAV4 was delivered to Plaintiff, it

was held in storage. (Doc. 58, Joel Howard Rollo Dep. at 27; Doc. 58-2). Defendant’s

vehicle transport vendor, Professional Automotive Relocation Services (“PARS”), picked

up the RAV4 from another Avanir employee when she left the company. (Rollo Dep. at

28). PARS then stored the RAV4 in an open parking lot owned by PARS. (Rollo Dep.

at 28). When Defendant directed PARS to deliver the RAV4 to Plaintiff, a PARS

employee inspected the RAV4 and discovered that water had leaked into the car,

4Defendant contracts with these vendors as part of its maintenance management

program. (Doc. 36, Lynn Borrell Dep. at 21). Defendant pays the vendors directly for any

services performed by the vendors. (Borrell Dep. at 37).

probably through the partially-opened front passenger window. (Doc. 47, Sharon

Mitchell Dep. at 21). The front passenger seat and floorboard were wet. (Id.) This

condition was noted by PARS on the Bill of Lading/Condition Report for the RAV4, which

stated: “Leaks water by passenger sun visor!!” (Doc. 47-1, PAGEID# 476). Normally,

PARS would call Defendant to seek approval to either move forward with delivery of the

vehicle, or to have the problem addressed. (Rollo Dep. at 47-48). However,

Defendant’s call log shows that Defendant was not aware of the issue until Plaintiff called

and informed Defendant of the leak on May 6, 2016. (Doc. 36, Lynn Borrell Dep. at 48).5

When Plaintiff informed Defendant of the leak, Defendant directed her to take the

RAV4 to a Toyota dealership for maintenance and gave her a choice of dealerships to

use. (Doc. 50, Melanie Beckemeyer Dep. at 188, 193-194). Plaintiff chose the Toyota

dealership which was closest to her home. (Beckemeyer Dep. at 194). However,

because Plaintiff was required to complete an intensive home study course for new

employees, Plaintiff did not take the RAV4 to the Toyota dealership until over a month

later on June 23, 2016. (Doc. 50, Beckemeyer Dep. at 101, 176, 196). It was at that

time Plaintiff noticed she was dizzy when she drove the RAV4. (Doc. 50, Beckemeyer

Dep. at 196). Plaintiff told Defendant that she wanted the car remediated for mold.

(Doc. 50, Beckemeyer Dep. at 196). Plaintiff also told the Toyota dealership that she

wanted the car remediated for mold. (Doc. 50, Beckemeyer Dep. at 197-98). While the

5The log shows that Plaintiff called Defendant on May 6, 2016. (Doc. 36-5). An initial

entry in the log states: “Driver received her Unit and the paperwork stated the Unit has a water

leak by the passenger sun visor. Driver wanted to know why she was sent a vehicle with an

issue like this and how she can get it fixed ASAP. Please contact driver to assist.” The next

entry in the log states: "Please contact driver and advise her to call Element maintenance at

800-328-6363 and work with them to get leak repaired. We were not aware of this issue and

maintenance should be able to get it resolved.” (Id.)

Toyota dealership was not able to perform mold remediation, it did detail the car at

Plaintiff’s request. (Doc. 49, Steve Russell Dep. at 12, 36). In addition, a repair

technician for the Toyota dealership found a damaged washer line. (Russell Dep. at 20).

This line runs from the washer fluid tank near the engine, up the “pillar” of the car’s

windshield, into the roof, and down the back of the car to the sprayer for the rear

windshield wiper. (Russell Dep. at 22). The Toyota dealership returned the RAV4 to

Plaintiff on July 9, 2016. (Doc. 51, Beckemeyer Dep. at 252). Plaintiff drove the vehicle

until approximately September 22, 2016. (Doc. 54-1, PAGEID# 1490). At that time,

Plaintiff told Avanir that she was having severe allergic reactions to the mold in the vehicle

and requested that Avanir replace the vehicle. (Id.) Avanir approved a rental vehicle

for Plaintiff and made arrangements to have the RAV4 picked up. (Doc. 54-1, Roseann

Avilez Decl., PAGEID# 1483). The RAV4 was later removed from Avanir’s fleet and sold

at auction. (Id.)

Plaintiff has not demonstrated that Defendant failed to exercise reasonable care in

providing Plaintiff assistance with the maintenance of the RAV4. While Plaintiff points to

the discovery of the leak by PARS, there is nothing in the record which shows that PARS

informed Defendant of the leak. The evidence in the record shows that Defendant first

learned of the problem when Plaintiff brought it to their attention on May 6, 2016. Once

Defendant was aware of the problem, it directed Plaintiff to take the RAV4 to a Toyota

dealership. Plaintiff does not claim that Defendant was negligent in making this

recommendation. The record demonstrates that once Defendant was made aware of

the problem, its response was timely. There is no evidence that Defendant was

negligent in the selection of the vendors who provided maintenance. Plaintiff was given

a choice of dealerships to perform the maintenance, and Plaintiff chose the dealership

closest to her house. There also is nothing in the record showing that Defendant was

aware that there were still issues with the RAV4 after the Toyota dealership returned the

RAV4 to Plaintiff on July 9, 2016. As such, even if the Court were to draw all reasonable

inferences in the light most favorable Plaintiff, Plaintiff has not established that in

providing assistance to Plaintiff, Defendant increased the risk of harm to Plaintiff. There

is no evidence that Plaintiff was in a worse situation than if Defendant had never helped

Plaintiff find a Toyota dealership and pay for the services rendered at the dealership.

There is also no evidence in the record of specific actions or representations by Defendant

which caused Plaintiff to forego other alternatives of protecting herself. Therefore, the

Court concludes that Defendant is entitled to summary judgment on Plaintiff’s negligence

claim. Accordingly, Defendant’s Motion for Summary Judgment (Doc. 55) is GRANTED.

E. Motion to Exclude Testimony of Steve Rucker

Defendant moves this Court to exclude the opinions and report of Plaintiff’s expert

Steve Rucker, CIH pursuant to Rule 702 of the Federal Rules of Evidence. (Doc. 52).

However, Rucker’s expert report goes to the issue of whether mold contamination existed

in the RAV4. Because the Court finds it unnecessary to reach this issue, Defendant’s

Motion to Exclude Testimony of Steve Rucker (Doc. 52) is DENIED as MOOT.

F. Motion to Exclude Opinions and Testimony of Scott McMahon, M.D.

Defendant moves to exclude the opinions and report of Plaintiff’s expert Scott W.

McMahon, M.D. pursuant to Federal Rule of Evidence 702. (Doc. 65). However, Dr.

McMahon’s report goes to the issue of whether Plaintiff’s injury was the result of being

exposed to mold contamination in the RAV4. Because the Court finds it unnecessary to

reach this issue, Defendant’s Motion to Exclude Opinions and Testimony of Scott

McMahon, MD (Doc. 65) is DENIED as MOOT.6

III. CONCLUSION

Based on the foregoing, it is hereby ORDERED that:

1. Plaintiff’s Motion for Reconsideration (Doc. 38) is DENIED;

2. Defendant’s Motion to Strike Portions of Amended Complaint (Doc. 39) is

DENIED;

3. Defendant’s Motion to Exclude Plaintiff's Expert Opinions of Steven Rucker,

CIH (Doc. 52) is DENIED as MOOT;

4. Defendant’s Motion for Summary Judgment (Doc. 55) is GRANTED;

5. Defendant’s Motion for Leave to File Exhibit 5, Declaration of Rose Ann

Avilez (Doc. 54) is GRANTED;

6. Plaintiff’s Motion to Strike Defendant’s Motion for Leave (Doc. 56) is

DENIED; and

7. Defendant’s Motion to Strike Affidavit and Exclude Opinions and Testimony

of Plaintiff's Expert Scott W. McMahon, M.D. (Doc. 65) is DENIED as

MOOT.

8. There appearing to be no remaining matters before this Court, this matter

is CLOSED and TERMINATED from the active docket of this Court.

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett

United States District Judge

6For the same reasons, the Court finds it unnecessary to reach the issue of raised by

Plaintiff regarding an adverse inference instruction based on the destruction of evidence.