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Hunt v. Lowe's Home Centers, LLC

United States District Court, M.D. Tennessee, Columbia Division

December 20, 2017

GRACIE HUNT, Plaintiff,



         This products liability dispute hinges on a simple factual question: whether a Whirlpool freezer that Gracie Hunt bought at a Lowe's Home Center (“Lowe's”) leaked refrigerant in her home, causing her injuries. (Doc. No. 1.) The Court has diversity jurisdiction over this case, pursuant to 28 U.S.C. § 1332(a). (Doc. No. 72.) Lowes Home Centers, LLC, and Whirlpool Corporation collectively ask the Court to resolve the factual dispute on summary judgment. (Doc. No. 47.) Defendants and Hunt also each filed a motion to strike certain documents pertaining to the summary judgment record. (Doc. Nos. 54, 67.) For the following reasons, all motions are DENIED. This case will proceed to jury trial as scheduled.


         On January 24, 2015, Lowe's delivered a new, sixteen cubic foot upright Whirlpool freezer to Hunt's home. (Doc. No. 49-1 at 1-2.) The Lowe's employees turned the freezer on and noticed it appeared to be working properly. (Doc. No. 47-8 at 12; 49-4 at 3.) The employee who turned on the freezer could tell that the freezer was blowing cold air, but was not sure if the air was cold because it was snowing outside, making everything cold, or because the freezer was working properly. (Doc. No. 49-4.) The employee told Hunt that it would take about twenty-four hours to reach its desired freezing temperature, zero degrees Fahrenheit, and she should put her frozen food from her other kitchen freezer in her new one to speed up that process. (Doc. No. 49-1 at 7.) Hunt placed a few frozen items on each side of the freezer. (Doc. No. 49-1 at 7.) When she checked an hour later, the items were still frozen and the freezer appeared to be working properly. (Doc. No. 49-1 at 7.)

         At around 5:00 p.m., Hunt and her son, Billy Birdsong, noticed a funny smell, but were unsure what was causing the smell. (Doc. No. 49-1 at 7-8.) Around 9:00 p.m., after Birdsong left, Hunt started feeling ill with a headache. (Doc. No. 49-1 at 8.) She fell asleep around 10:00 p.m., but woke up at 3:00 a.m. with her lungs and throat burning and a headache. (Doc. No. 49-1 at 8.) She asked Birdsong to come back to her house to help her. (Doc. No. 49-1 at 8.) When Birdsong arrived, he searched the residence for the cause of his mom's breathing problems and noticed that all the food in the new freezer had thawed out. (Doc. No. 49-1 at 8.) He pulled the freezer away from the wall and saw a stain on the black cardboard panel of the machine compartment. (Doc. No. 49-1 at 8.) He believed the refrigerant in the freezer (aka, Freon) must have leaked out, causing the freezer to stop working and the frozen food to thaw. (Doc. No. 49-1 at 9.)

         Later on January 25, Hunt's throat, lungs, nose, and chest were burning; her head was pounding; she had wheezing and shortness of breath; and she was tired, jumpy, and jittery. (Doc. No. 49-1 at 9.) Hunt has had asthma attacks before this event, however, she has never been hospitalized because of her asthma. (Doc. No. 49-1 at 9.) Only two days earlier, however, she had to go to Urgent Care because of her headaches, coughing, congestion, vomiting and diarrhea. (Doc. No. 10.) As a result of the current symptoms, she was taken to the Southern Regional/Hillside Hospital, where her doctor put her on oxygen, hooked up an IV, and called the Tennessee Poison Control. (Doc. No. 49-1 at 9.)


         Each side presented competing experts to determine where the leak of the refrigerant occurred. Plaintiff's expert, J.A.M. Boulet, Ph.D., prepared a Report dated February 24, 2017. (Doc. No. 49-9.) Boulet opined that the “leak probably originated at a crack in the noted solder joint in the charge tube.” (Doc. No. 49-9 at 7.) He continued that the “cracks in the solder joint of the charge tube were most likely not caused by bending of the tube due to contact with the [fibrous] panel after the panel was installed.” (Doc. No. 49-9 at 9.) Boulet concluded that the cracks in the solder joint “would have allowed a mixture of oil and refrigerant . . . to leak from the compressor into the room where the freezer was initially installed.” (Doc. No. 49-9 at 13.) “Due to the nature of the refrigerant, any mixture that leaked from the compressor would have expanded into the room in which the freezer sat and would have been recirculated to the entire . . . residence via its HVAC system.” (Doc. No. 49-9 at 13.)

         Defendants then deposed Boulet. At the deposition, Boulet testified that “the cracks were inflicted when the panel was not in place. Whether that was at the factory or later, I have no way of knowing. According to [a deposition Boulet reviewed], it would have to have been at the factory, but I don't know that.” (Doc. No. 49-7 at 3.) He continued that the “freezer worked [inside Hunt's residence], according to the depositions that [he] read, when it was installed.” (Doc. No. 49-7 at 8-9.) If true, the freezer would have begun running with coolant in it, but when the freezer “ceased to have the effect of cooling, that implies . . . that the coolant leaked while it was running in the . . . residence.” (Doc. No. 49-7 at 8.)

         After the deposition, Boulet prepared a “Supplemental Report.” (Doc. No. 61-1.) In it, he stated that he believes that the “bending of the charge tube [at the Whirlpool factory] weakened the tube at the point where the cracks ultimately appeared, ” but did not cause the cracks to occur at the Whirlpool factory. (Doc. No. 61-1 at 3.) Instead, “[e]xposure to heat and cold while in transit and/or storage would result in expansion and contraction of the copper tubing and so would further weaken the point in the charge tube where it ultimately cracked.” (Doc. No. 61-1 at 3.) He also noted that the fibrous panel buckled because not all the screws were in place, and because of the “increased flexibility” as a result of the buckling, “it is possible that at a time when the fiberboard panel was not fully secured, bending of the charge tube occurred as a result of contact with the panel.” (Doc. No. 61-1 at 3.) Finally, according to the depositions, “the only time that the system was under extensive pressure was when it was in operation inside the residence of Gracie Hunt.” (Doc. No. 61-1 at 4.) Therefore, Boulet opined that the “oil and refrigerant sprayed on the fiberboard panel and into the home when the charged tube was cracked under extensive pressure inside [Hunt's] residence.” (Doc. No. 61-1 at 4.) On August 2, 2017, Boulet prepared and signed under oath an Affidavit that largely reflected his supplemental report. (Doc. No. 49-6.)

         Defendants move to strike Boulet's Affidavit. (Doc. No. 54.) However, Defendants do not move to strike Boulet's July 3, 2017 Supplemental Report. Instead, Defendants argue that because the Affidavit is not a supplemental expert report, under Federal Rule of Civil Procedure 26, and was filed after Defendants filed for summary judgment, it is an “ambush attempt” to “surprise Whirlpool.” (Doc. No. 54-1 at 13.)

         To the contrary, Hunt served Boulet's Supplemental Report on Defendants on July 5, 2017, two days before Defendants moved for summary judgment. Additionally, while it is apparent from the filings (Doc. Nos. 54-1, 61, 65, 67) that both sides were sloppy in meeting deadlines to disclose experts, submit expert reports, and make experts available for deposition, the Court is not now in a position to determine which party is to blame for any missed deadline. As shown in the March 2, 2017 Joint Statement, it appears that any delay was largely due to Plaintiff's original expert becoming ill and not being able to serve as an expert any longer. (Doc. No. 42.)

         Defendants move to strike Boulet's Affidavit for being contrary to deposition testimony. The motion is denied because the opinion in the Affidavit is consistent with her July 3, 2017 Supplemental Report. To the extent Defendants move to strike Boulet's Affidavit as untimely, any late Supplemental Report appears to be harmless because it was served on Defendants prior to their filing of the motion for summary judgment, and substantially justified due to Boulet's limited time (and late arrival) in the case after the previous expert's unexpected illness. ...

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