Seaton v. Black & Decker (U.S.), Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

GABRIEL SEATON, )

)

Plaintiff, ) Case No. 2:20-CV-124

)

v. ) Judge Collier

)

BLACK & DECKER (U.S.), INC., ) Magistrate Judge Wyrick

)

Defendant. )

M E M O R A N D U M

Before the Court is a motion for summary judgment by Defendant Black & Decker (U.S.),

Inc. (Doc. 19.) Plaintiff Gabriel Seaton has filed a response (Doc. 25), and Defendant has replied

(Doc. 26). For the following reasons, the Court will GRANT IN PART and will DENY IN PART

Defendant’s motion for summary judgment (Doc. 19).

I. BACKGROUND

On June 6, 2019, Plaintiff purchased a battery-powered hedge trimmer, manufactured by

Defendant, from a hardware store in Greeneville, Tennessee. Plaintiff had “a good respect for

different machinery and tools” (Doc. 25-2 at 2), although he had never assembled or operated a

hedge trimmer.

After purchasing the hedge trimmer, Plaintiff began to assemble it at home. He unpacked

the hedge trimmer’s box, which was taped and sealed, and removed the box’s contents to the

kitchen counter. The box’s contents included the hedge trimmer, a hand guard, and a shield for

the blades, as well as an instruction manual. The instruction manual included several warnings,

including not to touch the hedge trimmer blades, but did not warn the user that the hedge trimmer’s

battery was already attached and charged. There was no warning regarding the battery on the

outside of the hedge trimmer’s box. Plaintiff was not aware the battery was already attached to

the hedge trimmer.

Having placed the box’s contents on the kitchen counter, Plaintiff decided the hedge

trimmer would be more stable, and avoid scratching the countertop, if he placed a towel underneath

it. To do so, Plaintiff picked up the hedge trimmer, placing his left hand on the blades and his

right hand on the handle. Plaintiff then lifted the hedge trimmer from the counter and accidentally

pressed two switches located on the handle, which turned the hedge trimmer on. When the hedge

trimmer turned on, its blades lacerated Plaintiff’s left hand. Plaintiff immediately threw the hedge

trimmer back onto the counter and pulled his fingers from the blades. He went to the emergency

room where he received treatment for his injuries. Later on, Plaintiff was treated by Dr. Benjamin

Rogozinski for the injuries to his hand.

On June 2, 2020, Plaintiff filed a lawsuit against Defendant in the Circuit Court for Greene

County, Tennessee. (Doc. 1-1.) Plaintiff asserts claims for negligence, implied warranty of

fitness, implied warranty of merchantability, and strict liability under Tennessee law. (Id.) On

June 16, 2020, Defendant removed the case to this Court based on diversity-of-citizenship

jurisdiction. (Doc. 1.)

The deadline for Plaintiff to make any expert disclosures was originally November 16,

2020. (Doc. 15.) On November 13, 2020, Plaintiff moved to continue this deadline, stating he

needed to take Defendant’s Rule 30(b)(6) deposition to decide if an expert was needed. (Doc. 16.)

The Court denied Plaintiff’s request, finding Plaintiff’s reasons for an extension failed to establish

good cause to amend the scheduling order. (Doc. 17.)

Defendant has moved for summary judgment. (Doc. 19.) Plaintiff has filed a response

(Doc. 25), and Defendant has replied (Doc. 26). The motion for summary judgment is now ripe.

II. STANDARD OF REVIEW

Summary judgment is proper when “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.” Fed. R. Civ. P.

56(a). The moving party bears the burden to demonstrate no genuine issue of material fact exists.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th

Cir. 2003). The Court should view the evidence, including all reasonable inferences, in the light

most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir.

2001).

To survive a motion for summary judgment, “the non-moving party must go beyond the

pleadings and come forward with specific facts to demonstrate that there is a genuine issue for

trial.” Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a “[plaintiff] is

not entitled to a trial on the basis of mere allegations.” Smith v. City of Chattanooga,

No. 1:08-cv-63, 2009 WL 3762961, at *2–3 (E.D. Tenn. Nov. 4, 2009) (explaining the court must

determine whether “the record contains sufficient facts and admissible evidence from which a

rational jury could reasonably find in favor of [the] plaintiff”). In addition, should the non-moving

party fail to provide evidence to support an essential element of its case, the movant can meet its

burden of demonstrating no genuine issue of material fact exists by pointing out such failure to the

Court. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

At summary judgment, the Court’s role is limited to determining whether the case contains

sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). The Court may not make credibility

determinations or weigh the evidence in addressing a motion for summary judgment. Id. at 255.

If the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant

based on the record, the Court should grant summary judgment. Id. at 251–52; Lansing Dairy,

Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

III. DISCUSSION

Defendant moves for summary judgment on three grounds: Plaintiff’s failure to establish

one element of his products-liability claims, Plaintiff’s comparative fault, and that certain

categories of Plaintiff’s claims for damages cannot succeed in the absence of expert testimony.

A. Products-Liability Claims

The parties agree that Tennessee law, particularly the Tennessee Products Liability Act

(the “TPLA”), applies to this case. (See Doc. 22 at 5; Doc. 25 at 4.) The TPLA does not impose

liability on “[a] manufacturer or seller of a product . . . for any injury to a person . . . caused by the

product unless the product is determined to be in a defective condition or unreasonably dangerous

at the time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a)

(emphasis added). A prima facie products-liability claim therefore exists if the plaintiff shows

three elements: “(1) the product was defective and/or unreasonably dangerous, (2) the defect

existed at the time the product left the manufacturer’s control, and (3) the plaintiff’s injury was

proximately caused by the defective product.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483

(6th Cir. 2008) (internal quotation omitted). These elements are the same regardless of the legal

theory or theories on which the plaintiff relies. See Tatham v. Bridgestone Ams. Holdings, Inc.,

473 S.W.3d 734, 749 (Tenn. 2015).

Defendant moves for summary judgment based only on Plaintiff’s alleged failure to

establish the first element of his TPLA claims, that is, that the hedge trimmer was either defective

or unreasonably dangerous.1 (Doc. 22 at 5–10.) Both alternatives—defective condition and

unreasonably dangerous—are addressed in turn.

1. Defective Condition

The TPLA defines “defective condition” as “a condition of a product that renders it unsafe

for normal or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28-102(2). The

plaintiff has the burden to identify a product’s alleged defect. Langford v. Gatlinburg Real Estate

& Rental, Inc., 499 F. Supp. 2d 1042, 1051 (E.D. Tenn. 2007). There are several types of defects

under Tennessee law. Design and manufacturing defects are commonly alleged, but “the plaintiff

can also assert that the product suffers from a warnings defect.” Lee v. Metro. Gov’t of Nashville

& Davidson Cnty., 596 F. Supp. 2d 1101, 1127 (M.D. Tenn. 2009); see also Spier v. Coloplast

Corp., 121 F. Supp. 3d 809, 817 (E.D. Tenn. 2015) (“[A] warnings defect claim is simply another

species of strict products liability, along with manufacturing and design defect claims.”); King v.

Danek Med., Inc., 37 S.W.3d 429, 443–44 (Tenn. Ct. App. 2000) (discussing failure-to-warn defect

claim).

Defendant asserts Plaintiff has failed to identify a defect in the hedge trimmer (Doc. 22 at

6–7), but the Court disagrees. As Plaintiff’s Complaint and summary-judgment response

demonstrate, Plaintiff has identified a warnings defect in the hedge trimmer. See Lee, 596 F. Supp.

2d at 1127. Specifically, Plaintiff asserts the hedge trimmer was defective based on its lack of

warning that the battery was attached and partially charged. (Doc. 25 at 8–13.) Thus, summary

judgment is not appropriate based solely on Plaintiff’s alleged failure to identify a defect.

However, to the extent Plaintiff’s TPLA claims are based on a design or manufacturing defect, the

1 The Court need not address the second and third elements of any TPLA claim, as

Defendant does not move for summary judgment on those grounds.

Court will GRANT IN PART Defendant’s motion (Doc. 19), as Plaintiff fails to identify such a

defect.

This determination does not end the Court’s inquiry. “A manufacturer is not required to

design a product that is perfect, accident-proof, or incapable of causing injury.” Brown v. Crown

Equip. Corp., 181 S.W.3d 268, 282 (Tenn. 2005). An injury itself is not proof of a defect.

Shoemake v. Omniquip Int’l, Inc., 152 S.W.3d 567, 573 (Tenn. Ct. App. 2003). For example, “a

knife is not defective simply because if the user’s hand slips, the blade will cut his or her hand.”

Privette v. CSX Transp., Inc., 79 F. App’x 879, 886 (6th Cir. 2003). Instead, “[e]stablishing this

element requires only proof, in a general sense and as understood by a layman, that ‘something

was wrong’ with the product.’” Browder v. Pettigrew, 541 S.W.2d 402, 406 (Tenn. 1976) (quoting

Scanlon v. Gen. Motors Corp., 326 A.2d 673, 677–78 (N.J. 1974)).

Defendant asserts there is no evidence to establish anything was wrong with the hedge

trimmer, in light of Plaintiff’s failure to even identify a defect. (Doc. 22 at 6–7.) Plaintiff,

however, points to specific facts to demonstrate a genuine issue of fact as to whether the hedge

trimmer’s lack of warning would be seen as something wrong with the product. See Chao, 285

F.3d at 424; Browder, 541 S.W.2d at 406. Defendant’s expert witness, Jack Elgin Hyde, Jr., CSP,

and Defendant’s Safety Assurance Manager, Jeffrey Paul Gant, testified that the hedge trimmer

had no warning regarding the battery being attached and charged. (See Doc. 25-3 at 3 (Hyde

Deposition) (“Q. Were there any warnings, to your knowledge, on the battery itself telling the

consumer that it is shipped partially charged? A. I’m not aware of any.”); Doc. 25-4 at 3 (Gant

Deposition) (“Q. Is there any information in that section [of the Instruction Manual] that advises

the user/consumer that the battery is already installed in the trimmer? A. No there is not.”).)

Plaintiff testified that he was not aware the battery was attached, did not think the battery would

be attached, and would not have picked it up as he did if he knew the battery was attached and

charged. (See Doc. 21-2 at 11, 13.) Viewing this evidence in the light most favorable to Plaintiff,

Plaintiff’s expectation and the lack of warning are sufficient to show a layperson could consider

the absence of warnings to be something wrong with the hedge trimmer. See Browder, 541 S.W.2d

at 406.

Defendant argues Plaintiff’s failure-to-warn theory should be rejected because it was not

previously raised by Plaintiff and has not been the subject of discovery. (Doc. 26 at 1–2.)

Defendant states Plaintiff’s Complaint contains only one allegation regarding failure to warn. (Id.

at 2 (citing Doc. 1-1 ¶ 7).) “It is well-settled that a plaintiff may not expand its claims to assert

new theories in response to summary judgment.” Vonderhaar v. Waywire, 797 F. App’x 981, 990

(6th Cir. 2020) (quoting Renner v. Ford Motor Co., 516 F. App’x 498, 504 (6th Cir. 2013)). “This

rule exists to protect defendants from ‘unfair surprise’ when moving for summary judgment.” Id.

(quoting Tucker v. Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir.

2005)).

Plaintiff’s failure-to-warn theory is not an unfair surprise to Defendant. In Vonderhaar,

the plaintiff’s summary judgment response put forth a new theory of liability that “bore no

resemblance whatsoever” to the complaint. 797 F. App’x at 990. The same is not true here—

Count I of Plaintiff’s Complaint alleges, in part, Defendant “failed to warn the plaintiff and other

consumers and foreseeable users of the hedge trimmer that they should ensure the battery pack

was not engaged before beginning assembly of the hedge trimmer.” (Doc. 1-1 ¶ 7.) Defendant

therefore had notice that Plaintiff might rely on a failure-to-warn theory for his TPLA claims.2

2 In fact, Defendant referenced failure-to-warn liability in its summary judgment brief,

which suggests Defendant was aware Plaintiff would rely on such a theory. (See Doc. 22 at 7 (“A

product is not unreasonably dangerous because of a failure to adequately warn of a danger or

Although Defendant argues Plaintiff has not pursued discovery on this theory of liability, Plaintiff

has sufficiently alleged a warning-defect claim and has pointed to evidence to avoid summary

judgment as to a warning-defect claim. The Court finds Plaintiff’s failure-to-warn theory is not

improper, as it does not expand the claims asserted in his Complaint.

The Court therefore will DENY IN PART Defendant’s motion for summary judgment

(Doc. 19) as to Plaintiff’s claims alleging the hedge trimmer was defective.

2. Unreasonably Dangerous

Under the TPLA, a product is “unreasonably dangerous” when it:

is dangerous to an extent beyond that which would be contemplated by the ordinary

consumer who purchases it, with the ordinary knowledge common to the

community as to its characteristics, or that the product because of its dangerous

condition would not be put on the market by a reasonably prudent manufacturer or

seller, assuming that the manufacturer or seller knew of its dangerous condition.

Tenn. Code Ann. § 29-28-102(8). This definition provides for “two tests: the consumer

expectation test and the prudent manufacturer test (which involves risk-utility balancing).”

Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 803 (Tenn. 2001) (citing Ray ex rel. Holman v.

BIC Corp., 925 S.W.2d 527 (Tenn. 1996)). These tests, however, “are not exclusive of one another

and therefore either or both of these tests are applicable to cases where the product is alleged to be

unreasonably dangerous.” Jackson, 60 S.W.3d at 806.

The Court therefore considers whether summary judgment is appropriate under either or

both tests. The Court turns first to the prudent-manufacturer test, as Defendant contends it alone

can apply to Plaintiff’s TPLA claims. (See Doc. 22 at 7–9; Doc. 26 at 5.)

hazard that is apparent to the ordinary user.”).)

a. Prudent-Manufacturer Test

“The prudent manufacturer test turns on whether, balancing all the relevant factors, a

reasonably prudent manufacturer would market the product if it had the knowledge of the

dangerous condition.” Irion v. Sun Lighting, Inc., No. M2002-00766-COA-R3-CV, 2004 WL

746823, at *7 (Tenn. Ct. App. Apr. 7, 2004). This test requires that the plaintiff offer expert

testimony as to the prudence of the defendant’s decision to market the product. Id. (“Expert

testimony is required under the prudent manufacturer test.”); Ray, 925 S.W.2d at 531 (“[E]xpert

testimony about the prudence of the decision to market would be essential.”); Brown v. Raymond

Corp., 432 F.3d 640, 647 (6th Cir. 2005) (The prudent-manufacturer test is “a test under which

expert testimony is required in order to reach the jury.”); Johnson v. Wal-Mart Stores East, LP.,

No. 3:11-CV-469, 2013 WL 3168591, at *4 (E.D. Tenn. June 20, 2013) (“A plaintiff cannot prove

that a product is unreasonably dangerous under the prudent manufacturer test without expert

testimony.”); Coffey v. Dowley Mfg. Inc., 187 F. Supp. 2d 958, 968 (M.D. Tenn. 2002), aff’d, 89

F. App’x 927 (6th Cir. 2003) (“[E]xpert testimony about the prudence of the decision to market

would be essential.”).

Defendant asserts Plaintiff has made no expert disclosures, and the Court notes any such

disclosure would be untimely pursuant to its denial of Plaintiff’s motion to amend the

expert-disclosure deadline. In light of Plaintiff’s lack of expert testimony, Plaintiff’s TPLA claims

fail as a matter of law, insofar as Plaintiff relies on the prudent-manufacturer test to show the hedge

trimmer was unreasonably dangerous. Thus, the Court will GRANT IN PART Defendant’s

motion for summary judgment (Doc. 19) as to the prudent-manufacturer test. Plaintiff will be

barred from relying on the prudent-manufacturer test to prove the first element of his TPLA claims.

b. Consumer-Expectation Test3

The consumer-expectation test holds that “a product is not unreasonably dangerous if the

ordinary consumer would appreciate the condition of the product and the risk of injury.” Tatham,

473 S.W.3d at 750 (quoting Ray, 925 S.W.2d at 530). Plaintiff argues the jury should determine

whether this test is met (Doc. 25 at 13), “[b]ut no, juries do not determine whether and when a

party presents sufficient evidence to create a triable issue of fact.” See Rodriguez v. Stryker Corp.,

680 F.3d 568, 573 (6th Cir. 2012).

As an initial matter, Defendant contends the consumer-expectation test cannot apply to

Plaintiff’s claims based on the hedge trimmer’s complexity. (See Doc. 22 at 9.) Courts have noted

“it may be difficult for plaintiffs in cases involving highly complex products to establish that the

product is dangerous to an extent beyond that which would be contemplated by an ordinary

consumer, even though the consumer expectation test may, technically, apply.” Jackson, 60

S.W.3d at 806; see also Raymond Corp., 432 F.3d at 644. However, “[e]ven a technically complex

failure may involve a subject about which an ordinary consumer may have an expectation . . . .”

Coffey, 187 F. Supp. 2d at 972. That is the case here—the design, construction, and manufacturing

of the hedge trimmer may be complex, but the general “populace understands the basic functions

and purpose.” See Tatham, 473 S.W.3d at 751 (considering products-liability claim regarding

tire). The Court finds “it is quite reasonable to believe that the ordinary consumer has enough

experience with [hedge trimmers] to have some expectation as to” the hedge trimmer’s warnings

at time of sale. See Bradley v. Ameristep, Inc., 800 F.3d 205, 211 (6th Cir. 2015). Thus, the

consumer-expectation can apply to Plaintiff’s claim.

3 Defendant again asserts Plaintiff’s failure-to-warn theory is improper, but as with

defective condition, the Court finds this theory of liability is not improper. See supra III.A.1.

Plaintiff advances two theories to show the hedge trimmer was unreasonably dangerous:

first, the hedge trimmer’s battery was attached and charged at the time of sale and second,

Defendant failed to warn4 consumers that the battery was attached and charged. The Court

considers each of these theories separately and whether Defendant has demonstrated there is no

genuine dispute that the consumer-expectation test is not met and, if so, whether Plaintiff has come

forward with specific facts to show otherwise.

First, the consumer-expectation test “requires the consumer to establish what an ordinary

consumer purchasing the product would expect.” Ray, 925 S.W.2d at 531. Stated simply, “if the

product is more dangerous than a reasonable consumer would have expected, it is defective.”

Coffey, 187 F. Supp. 2d at 968 (alteration omitted) (quoting Tatum v. Cordis Corp., 758 F. Supp.

457, 461 (M.D. Tenn. 1991))

Defendant asserts “there is no evidence that the hedge trimmer’s performance was ‘below

reasonable minimum safety expectations’ of anyone.” (Doc. 22 at 10.) Plaintiff, however, has

pointed to evidence of his own expectations regarding the hedge trimmer’s safety. Viewing the

evidence in the light most favorable to Plaintiff, Plaintiff can be considered an ordinary consumer,

as he is familiar with power tools despite having never operated a hedge trimmer. (See Doc. 21-2

at 3; Doc. 25-2 at 2.) Plaintiff testified he expected the hedge trimmer would not be sold with its

battery attached and charged and did not see any warnings to that effect:

Q. And you weren’t aware or were you that the battery was attached?

A. I was not aware. Anything I’ve ever assembled, even a little toy helicopter,

the battery is always the last step you put in. . . [C]ommon sense just, like,

4 Plaintiff’s lack of expert testimony does not preclude his TPLA claims under the

consumer-expectation test. See Coffey, 187 F. Supp. 2d at 969 (“While an expert witness is

necessary under the prudent manufacturer test, the consumer expectation test, by definition, relies

on the expectations of ordinary consumers, not experts.”).

tells you that, you know. Like, that’s your final piece to the puzzle. You

don’t assemble a lamp with it plugged into the wall.

(Doc. 21-2 at 11; see also id. (“I was not aware. Anything that I’ve ever assembled, even a little

toy helicopter, the battery is always the last step you put in.”).) This testimony shows that Plaintiff,

an ordinary consumer, had expectations regarding the safety of the hedge trimmer, which were not

met.

No case law directly addresses whether a plaintiff’s expectation alone satisfies the

consumer-expectation test. In Sigler, the plaintiff “submitted a sworn affidavit stating her

expectation that the airbag would deploy in an accident like the high-speed crash that she alleges

occurred,” but also relied on the defendant’s brochure to show an expectation. 532 F.3d at 485–

86. Unlike Sigler, where the plaintiff offered both her own affidavit and evidence from the

defendant, Plaintiff offers only his own expectation. In Irion, “[t]he only proof Ms. Irion offered

regarding a consumer’s expectation was her own statement that she had no idea how dangerous

the lamp was until the fire and the lawsuit,” which did not satisfy the consumer-expectation test.

2004 WL 746823, at *16. But Plaintiff’s testimony is more direct as to an ordinary consumer’s

expectations than the statement in Irion—Plaintiff stated he expected the battery would not be

attached, while the plaintiff in Irion simply stated she did not realize the product was dangerous.

“Whether [Plaintiff] is successful on a products liability claim under the consumer expectation test

will depend on whether the trier of fact agrees that [Plaintiff’s] expectation of product performance

constituted the reasonable expectation of the ordinary consumer having ordinary knowledge of the

product’s characteristics.” Jackson, 60 S.W.3d at 804. The Court finds Plaintiff’s expectation, on

its own, is sufficient to survive summary judgment, as it provides evidence of an ordinary

consumer’s expectations regarding the hedge trimmer. See Ray, 925 S.W.2d at 531.

Second, “[a] product is not unreasonably dangerous because of a failure to adequately warn

of a danger or hazard that is apparent to the ordinary user.” Tenn. Code Ann. § 29-28-105(d).

There is testimony from Defendant’s witnesses that a consumer would know the battery is attached

to the hedge trimmer “[b]y looking” (Doc. 25-3 at 2) and that “[t]he battery is visible . . . [and] not

hidden” (Doc. 25-4). However, Plaintiff testified he was not aware the battery was attached. (See

Doc. 21-2 at 13 (“I wasn’t thinking that there was going to be a battery in there, so I just grabbed

it like so.”).) Thus, there is a genuine dispute of fact as to whether the hedge trimmer was

unreasonably dangerous based on a failure to warn of the battery’s attachment and charge.

Accordingly, the Court will DENY IN PART Defendant’s motion for summary judgment

(Doc. 19) as to Plaintiff’s reliance on the consumer-expectation test to establish the hedge trimmer

was unreasonably dangerous.

B. Comparative Fault

Defendant’s second ground for summary judgment is Plaintiff’s alleged comparative fault.

(Doc. 19 at 10–11.) Under Tennessee law, comparative fault precludes a plaintiff’s recovery if his

fault was equal to or greater than the defendant’s fault. McIntyre v. Balentine, 833 S.W.2d 52, 57

(Tenn. 1992). “[I]t is well settled that comparative fault is typically a question for the trier of fact.”

Halmon v. Lane College, No. W2019-01224-COA-R3-CV, 2020 WL 2790455, at *3 (Tenn. Ct.

App. May 29, 2020). But “there is no legal prohibition in granting a defendant summary judgment

based on the defense of comparative fault.” Id. (citing Young v. Jordan, No. W2015-02453-COA-

R9-CV, 2016 WL 5210873, at *4 (Tenn. Ct. App. Sept. 20, 2016)). Summary judgment based on

comparative fault is appropriate if, viewing the evidence in the light most favorable to the

non-moving party, “reasonable minds could not differ that [the plaintiff’s] fault was equal to or

greater than that of the defendant[].” Id.

Comparative fault is an affirmative defense, so “the defendant must ‘conclusively establish

the affirmative defense’ by pointing to undisputed facts that prove the defense.” Ellington v.

Jackson Bowling & Family Fun Center, L.L.C., No. W2012-00272-COA-R3-CV, 2013 WL

614502, at *10 (Tenn. Ct. App. Feb. 19, 2013) (quoting McMahan v. Sevier Cnty., No. E2005-

02028-COA-R3-CV, 2007 WL 1946650, at *2 (Tenn. Ct. App. July 3, 2007)). Defendant argues

there is no dispute of fact that Plaintiff’s fault in sustaining his injury was at least, if not more, than

fifty percent, which precludes him from recovery under Tennessee comparative-fault law. (Doc.

19 at 10–11.) Plaintiff responds his actions were reasonable, particularly in light of the lack of

warnings regarding the battery and being unaware the battery was attached. (Doc. 25 at 13.)

Plaintiff’s proportion of fault depends, at least in part, on whether the battery’s attachment

to the hedge trimmer was apparent. However, as discussed above, there is a genuine dispute as to

whether it was apparent that the battery was attached. See supra III.B.2.b. Based on this genuine

dispute of fact, the Court finds reasonable minds could differ as to whether Plaintiff’s fault was

equal to or greater than Defendant’s fault. See Halmon, 2020 WL 2790455, at *3. Thus, the Court

will DENY IN PART Defendant’s motion for summary judgment (Doc. 19) on the grounds of

comparative fault.

C. Claims for Damages Without Expert Testimony

Defendant’s third ground for summary judgment asserts Plaintiff cannot recover certain

categories of damages without expert testimony, which he does not have. (Doc. 22 at 11–12.)

Plaintiff asks the Court to deny Defendant’s motion as to these claims, stating his counsel failed

to file expert disclosures of Plaintiff’s treating physician due to ongoing negotiations. (Doc. 25 at

13–14.) In addition, Plaintiff states his treating physician can provide the testimony necessary to

recover certain damages. (Id.)

As relevant here, Plaintiff’s Complaint seeks damages for medical expenses, past and

future pain and suffering, and diminished work capacity.5 (Doc. 1-1 ¶ 11.) The Court will address

whether these categories of damages require expert testimony to be recovered.

First, Plaintiff appears to seek only past medical expenses, not future medical expenses.

(See Doc. 1-1 ¶ 11; Doc. 21-2 at 3 (Plaintiff’s Deposition) (“Q. Do you have any reason to think

[your injury is] going to cost you something out of pocket in the future? A. No, sir.”).) “[T]o

recover for [medical] expenses, expert opinion must be offered regarding the reasonableness and

necessity of the physician’s services and charges.” Stricklan v. Patterson, No. E2008-00203-COA-

R3-CV, 2008 WL 4791485, at *4 (Tenn. Ct. App. Nov. 4, 2008); see also Klamborowski v.

Johnson, No. M2013-COA-R3-CV, 2014 WL 2002140, at *4 (Tenn. Ct. App. May 13, 2014)

(quoting Al-Athari v. Gamboa, No. M2013-00795-COA-R3-CV, 2013 WL 6908937, at *3 (Tenn.

Ct. App. Dec. 30, 2013)) (“The law requires a plaintiff seeking to recover damages resulting from

a personal injury to present competent expert testimony (1) to prove medical expenses were

necessary and reasonable and (2) to establish that a plaintiff’s physical injury was in fact caused

by the incident at issue.”).

Plaintiff asserts the deposition testimony of his treating physician, Dr. Rogozinski, can

establish his damages claim for past medical expenses. (See Doc. 25-5.) However, it cannot, as it

does not address either the reasonableness or the necessity of Plaintiff’s medical expenses. (See

id.) Moreover, such opinions would necessarily be expert opinions under Rule 702 of the Federal

5 Plaintiff also seeks damages for loss of enjoyment of life, but Defendant does not move

for summary judgment on these damages, and expert testimony is not required to recover for loss

of enjoyment of life. See Adams v. Farbota, No. 3:13-cv-01449, 2015 WL 2455124, at *3 (M.D.

Tenn. May 22, 2015) (“[L]oss of enjoyment of life can be based on relatively mundane facts that

are well within the province of the jury to understand and evaluate without the need for expert

testimony.”).

Rules of Evidence, and Plaintiff has not made any expert disclosures, as discussed above. Thus,

Plaintiff cannot recover his past medical expenses, as he fails to present expert testimony as to the

reasonableness and the necessity of such expenses. The Court will GRANT IN PART

Defendant’s motion for summary judgment (Doc. 19) as to Plaintiff’s damages claim for past

medical expenses.

Second, Plaintiff seeks to recover damages for his past and future pain and suffering. (Doc.

1-1 ¶ 11.) “Pain and suffering ‘encompasses the physical and mental discomfort caused by an

injury’ and ‘includes the wide array of mental and emotional responses that accompany the pain,

characterized as suffering, such as anguish, distress, fear, humiliation, grief, shame, or worry.’”

Adams v. Farbota, No. 3:13-cv-01449, 2015 WL 2455124, at *2 (M.D. Tenn. May 22, 2015)

(“Adams I”) (quoting Huskey v. Rhea Cnty. at *15). For past pain and suffering, a plaintiff may

rely on lay testimony to recover. See id. (citing Williams v. Steward, No. 02A01-9712-CV-00311,

1998 WL 408795, at *3 (Tenn. Ct. App. July 22, 1998)). To recover for future pain and suffering,

however, “proof of that kind is usually required to be in the form of expert testimony.” Williams

v. Steward, No. 02A01-9712-CV-00311, 1998 WL 408795, at *3 (Tenn. Ct. App. July 22, 1998);

see also Adams I, 2015 WL 2455124, at *2 (citing Williams, 1998 WL 408795, at *3) (stating it

would “not be reversible error for the court to . . . preclude the recovery of future pain and suffering

in the absence of expert testimony”). Accordingly, Plaintiff can seek to recover damages for any

past pain and suffering, but Plaintiff is barred from seeking damages for any future pain and

suffering due to his lack of expert testimony. Defendant’s motion for summary judgment (Doc.

19) will be DENIED IN PART as to Plaintiff’s damages claim for past pain and suffering and

will be GRANTED IN PART as to Plaintiff’s damages claim for any future pain and suffering.

Third, Plaintiff seeks damages for his diminished earning capacity. (Doc. 1-1 ¶ 11.)

“[W]hen damages are sought for loss of earning capacity, further expert proof is sometimes needed

to specifically link the injury sustained to the impairment of the injured party’s capacity to earn a

living.” Brown v. Echols, 585 S.W.3d 424, 429 (Tenn. Ct. App. 2019). Expert testimony is

required “where an alleged physical impairment and earning capacity is not obvious.” Adams v.

Farbota, 306 F.R.D 563, 570–71 (M.D. Tenn. 2015) (“Adams II”). Plaintiff does not explain any

way in which the relationship between his injury and earning capacity is obvious. As a result, the

Court finds expert testimony is required for Plaintiff to recover damages based on his alleged

diminished earning capacity. See id. Accordingly, the Court will GRANT IN PART Defendant’s

motion for summary judgment (Doc. 19) as to Plaintiff’s damages claim for diminished earning

capacity.

In sum, summary judgment is appropriate as to Plaintiff’s damages claims for past medical

expenses, future pain and suffering, and diminished earning capacity, and Plaintiff will be

precluded from recovering such damages.

IV. CONCLUSION

For the foregoing reasons, the Court will GRANT IN PART and DENY IN PART

Defendant’s motion for summary judgment (Doc. 19), as follows:

1. The motion will be GRANTED as to Plaintiff’s claims based on the hedge

trimmer’s alleged defective condition due to a design or manufacturing defect;

2. The motion will be DENIED as to Plaintiff’s claims based on the hedge trimmer’s

alleged defective condition due to a warnings defect;

3. The motion will be GRANTED to the extent Plaintiff relies on the

prudent-manufacturer test to establish the hedge trimmer was unreasonably

dangerous;

4. The motion will be DENIED to the extent Plaintiff relies on the

consumer-expectation test to establish the hedge trimmer was unreasonably

dangerous;

5. The motion will be DENIED as to comparative fault;

6. The motion will be GRANTED as to Plaintiff’s damages claim for past medical

expenses;

7. The motion will be DENIED as to Plaintiff’s damages claim for past pain and

suffering;

8. The motion will be GRANTED as to Plaintiff’s damages claim for future pain and

suffering; and

9. The motion will be GRANTED as to Plaintiff’s damages claim for diminished

earning capacity.

AN APPROPRIATE ORDER WILL ENTER.

/s/

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE