Opinion
Civil Action Case No. 00-2471-JAR
May 7, 2002
MEMORANDUM AND ORDER DENYING PLAINTIFFS' MOTION TO RECONSIDER
On March 26, 2002, the Court entered an order granting the motion for summary judgment filed by defendant The Raymond Corporation ("Raymond") and retaining joinder of Raymond for the limited purposes of comparing fault under K.S.A. 60-258a (Doc. 221). Plaintiffs have filed a motion to reconsider the Court's dismissal of Raymond (Doc. 224). Both Raymond and defendant Elite Logistics, Inc. ("Elite") have filed responses in opposition to plaintiffs' motion to reconsider (Docs. 227 and 228). Also before the Court is Raymond's motion to strike plaintiffs' supplemental memorandum in opposition to Raymond's motion for summary judgment (Doc. 237). A status conference was held on April 9, 2002, and the Court took the matters under advisement.
Procedural History of Raymond's motion
On February 14, 2002, Raymond filed a motion for summary judgment on plaintiffs' claims for negligence and product liability (Doc. 186). On that date, Raymond also filed a Daubert motion against Elite's expert on Raymond's comparative fault based on product liability. (Doc. 187).
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
On February 27, 2002, Elite filed a response to Raymond's motion for summary judgment stating it did not oppose dismissal of Raymond as a party defendant as long as Elite's right to compare Raymond's fault was preserved under K.S.A. 60-258a (Doc. 196).
On March 4, 2002, plaintiffs filed a Daubert motion adopting Raymond's motion against Elite's expert (Doc. 206). Plaintiffs also filed a motion for summary judgment against Elite, asking that Elite's claim of comparative fault against Raymond be dismissed in the event the Court grants plaintiffs' Daubert motion against Elite's expert (Doc. 205). That same date, Raymond filed a supplemental motion for summary judgment addressing plaintiffs' res ipsa loquitur claim against Raymond (Doc. 208) as raised in the Pretrial Order (Doc. 209).
On March 18, 2002, Raymond replied to Elite's response (Doc. 213).
On March 26, 2002, the Court entered a Memorandum Order granting Raymond's motion for summary judgment, dismissing Raymond as a party defendant, but retaining Raymond as a party for the limited determination of comparative fault (Doc. 221). On that same date, plaintiffs filed their response to Raymond's motion and supplemental motion for summary judgment Doc. 216).
On April 2, 2002, plaintiffs filed a motion to reconsider the Court's order granting Raymond's motion for summary judgment. (Doc. 224). Both Raymond and Elite objected to the motion for reconsideration (Doc. 227 and 228), and plaintiffs replied (Doc. 232).
The Court held a status conference on April 9, 2002. On April 10, 2002, plaintiffs filed a supplemental memorandum in opposition to Raymond's motion for summary judgment (Doc. 236); Raymond responded with a motion to strike (Doc. 237). Plaintiffs filed yet another supplemental response on April 16, 2002 (Doc. 238) and again, Raymond responded (Doc. 239).
Motion to reconsider
Plaintiffs' motion for reconsideration was filed within ten days of the Court's summary judgment order and thus the standards of Fed.R.Civ.P. 59(e) apply. Courts in general have recognized three major grounds justifying reconsideration pursuant to Rule 59(e): (1) an intervening change in controlling law; (2) availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. "Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party's position on the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination." Whether to grant or deny a motion for reconsideration is committed to the court's sound discretion.
Lynn v. Simpson, 2000 WL 1389922, *1 (D.Kan. 2000) (quoting Marx v. Schnuck Markets, Inc., 869 F. Supp. 895, 897 (D. Kan. 1994) (citations omitted)). See D. Kan. R. 7.3 (listing three bases for reconsideration of order).
Sithon Maritime Co. v. Holiday Mansion, 177 F.R.D. 504, 505 (D. Kan. 1998).
See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1386 (10th Cir. 1997).
Plaintiffs do not object to the Court's entry of summary judgment in favor of Raymond on plaintiffs' alleged product liability claim, only the dismissal of Raymond from the lawsuit. Plaintiffs abandoned their claim of products liability against Raymond in the final Pretrial Order entered March 5, 2002. But plaintiffs contend that they raised two additional claims against Raymond in the Pretrial Order: 1) res ipsa loquitur and 2) "adoption" of Elite's claims of product liability against Raymond. Plaintiffs argue that the Pretrial Order supercedes all prior pleadings.
Plaintiffs raised both issues in their response to Raymond's motion for summary judgment filed on March 26, 2002, the same date the Court issued its Memorandum Opinion dismissing Raymond as a party defendant. The Court did not consider plaintiffs' response when it made its decision; in fact, the Court was under the mistaken impression that plaintiffs had not filed a response to Raymond's motion, instead opting to file their own motion for summary judgment against Elite as well as a Daubert motion against Elite's expert. At the status conference, counsel admitted there had been confusion over the filing of responses to Raymond's motion and that there was no issue as to the timeliness of plaintiffs' response filed on March 26, 2002. To that extent, the Court will consider and address the arguments and authorities set forth in plaintiffs' response.
Motion to Strike
As a preliminary matter, the Court must address a motion filed by Raymond (Doc. 237) to strike plaintiffs' supplemental response to Raymond's motion for summary judgment. Raymond characterizes plaintiffs' supplemental response as a surreply, which is not permitted without leave of court. Plaintiffs in fact filed two supplemental responses in spite of the rule against surreplies and in spite of the Court advising counsel at the status conference that additional briefing was not necessary (Doc. 236 and 238). Accordingly, the Court grants Raymond's motion to strike and does not consider either of plaintiffs' supplemental responses in ruling on plaintiffs' motion for reconsideration.
See First Savings Bank, F.S.B. v. U.S. Bancorp, 184 F.R.D. 363, 367 (D.Kan. 1998).
Procedural Issues
Raymond argues that plaintiffs' attempt to inject res ipsa loquitur and adopt Elite's allegations is contrary to D. Kan. Rule 16.2(c), the scheduling order, the testimony of plaintiffs' experts and fundamental fairness. Plaintiffs argue that the issues were properly raised and if not, they request the Court for leave to amend the Pretrial Order. For purposes of this motion to reconsider only, the Court assumes that the issues were properly raised or asserted and the motion to amend Pretrial Order is denied.
D. Kan. Rule 16.1(c) provides: ". . . The pretrial order, when approved by the court and filed with the clerk, together with any memorandum entered by the court at the conclusion of the final pretrial conference, will control the subsequent course of the action unless modified by consent of the parties and court, or by an order of the court to prevent manifest injustice."
I. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The court must consider the record in the light most favorable to the nonmoving party.
See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
See Anderson, 477 U.S. at 256.
Id.
See id.
See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied 469 U.S. 1214 (1985).
II. Facts
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to plaintiffs' case. Immaterial facts and facts not properly supported by the record are omitted.
This is a wrongful death action arising out of an accident that occurred on July 5, 2000, at a grocery distribution warehouse facility owned by defendant Associated Wholesale Grocers, Inc. ("AWG") in Kansas City, Kansas.
The accident occurred when an Elite employee, Steve McMullin, was transporting plaintiffs' decedent, William Stadtherr, and an AWG employee through the warehouse, as they stood on a work platform/basket that was attached to the forks of a Raymond Model 31 truck ("the forklift"). Raymond manufactured and sold the forklift, a piece of powered industrial equipment that is used by an operator to pick up and transport pallets of product or other large items. While traveling through the warehouse, the forks were raised, Mr. Stadtherr's head struck the ceiling, and he suffered fatal injuries.
On the day of the accident, McMullin was operating the forklift with his back to the forks, his right hand on the steering wheel and his left hand on the travel control lever. He was not facing the work platform/basket and testified that he did not realize the forks were raising until Mr. Stadtherr impacted the ceiling. The forks on the truck can be raised and lowered with a lift/lower toggle switch located on the top of the travel trailer. McMullin testified in his deposition that either 1) the forklift malfunctioned; or 2) he hit the toggle switch while he raised the forks.
On the same day, or shortly thereafter, Elite requested that representatives from the authorized Raymond dealer inspect the forklift. A comprehensive inspection was performed, and the dealer determined that the truck was in proper working order. There have been several inspections of the truck by all the parties and no one has disclosed any evidence that the forklift malfunctioned.
Plaintiffs have two liability experts, but neither opines that the forklift malfunctioned, was defective or unreasonably dangerous, nor that Raymond's negligence caused Mr. Stadtherr's injury. Rather, plaintiffs' experts opined that the accident was caused by various acts, omissions and unsafe practices of Elite and AWG employees.
Paul Leeper, Elite's safety supervisor who investigated the accident, concluded that the forks were raised when McMullin inadvertently activated the lift/lower toggle switch.
Prior to June 1, 2000, AWG was the owner of the forklift. After June 1, 2000, Elite was the owner of the forklift and was responsible for the operation, use and maintenance of the forklift.
III. Discussion.
A. Plaintiffs' adoption of Elite's claim of product liability against Raymond.
As the Court previously ruled, plaintiffs' only affirmative claim for damages against Raymond was the claim for product liability for defectively designed forklift controls. Plaintiffs have abandoned this claim, however, omitting it from the final Pretrial Order. Plaintiffs do not seek reconsideration of the Court's entry of summary judgment against them on this claim. Rather, the issue is whether, by conditionally adopting Elite's comparative fault allegations against Raymond, plaintiffs have an affirmative claim against Raymond that survives summary judgment and preserves plaintiffs' right to recovery in the event Elite is successful in its comparative fault allegations.
Plaintiffs cite the case of Gust v. Jones in support of their proposition that "if the Plaintiff adopts another defendant's claims of comparative fault against another party, that party stays in the case, subject to pay any judgment against it." (Plaintiff's motion p. 6, emphasis in the original). The Court does not agree with plaintiffs' reading of Gust.
1996 WL 635703 (D. Kan. 1996), aff'd 162 F.3d 587 (10th Cir. 1998).
In that case, plaintiff Gust was a passenger in a car driven by Dighera that was involved in an accident with defendants. Gust sued the defendants, who sought to compare the fault of Dighera. Gust joined Dighera as a party plaintiff, then subsequently filed a cross-claim against Dighera. Prior to trial, Gust indicated that he would adopt the defendants' allegations of comparative fault against Dighera if they were proved at trial. Dighera objected, claiming that the court must enter a directed verdict in his favor at the end of Gust's case, if Gust failed to present evidence of Dighera's negligence. The court held that a directed verdict would be inappropriate until the defendants put on their evidence of comparative fault against Dighera. The court relied in part on K.S.A. 60-250(b), which states that a motion for directed verdict by a party joined pursuant to the comparative fault statute cannot be considered until all evidence has been presented by any party asserting the movant's fault. In essence, the court held that the defendants' evidence of Dighera's fault could be used by plaintiff to support his existing affirmative cross-claim for damages against Dighera. Although denied, Dighera renewed his motion for directed verdict at the close of the defendants' case.
1996 WL at *3.
Id.
Id.
In contrast, neither Elite, nor any other party has a cross-claim against Raymond and plaintiffs have abandoned their affirmative claim for damages against Raymond. Instead, plaintiffs seek to "adopt" Elite's allegations of comparative fault without setting forth any evidence of their own. At the same time, plaintiffs have affirmatively sought to eliminate Elite's right to compare Raymond's fault by filing a motion for summary judgment on the issue as well as adopting Raymond's Daubert motion against Elite's expert. The Court declines to extend Gust under these circumstances.
Gust can also be distinguished in that it involved a motion for directed verdict while this case is at the summary judgment stage. While a directed verdict in a comparative negligence case cannot be considered until all parties asserting the movant's fault have presented evidence, there is no corresponding statutory requirement for a motion for summary judgment. If the Court were to apply Gust as urged by plaintiffs, summary judgment would never be granted in a case where the moving party's co-defendants have signified their intent to compare the moving party's fault. As the Kansas Court of Appeals held in Hull v. Agustin, this is simply not the law.
22 Kan. App. 2d 464 (Kan.App. 1996).
In Hull, plaintiffs initially filed suit against a hospital for medical malpractice involving the birth of their child. The hospital sought to compare its negligence with a doctor. Plaintiffs amended their petition to add the doctor as a party defendant. The hospital did not bring a cross-claim against the doctor. The doctor defendant moved for summary judgment on the grounds that none of plaintiffs' experts had opined that the doctor had deviated from the applicable standard of care. The plaintiffs failed to respond, but the hospital opposed the summary judgment, informing the court that it intended to compare the doctor's fault at trial without contesting the merits of the motion. The trial court granted the doctor's motion for summary judgment, but ordered that he remain on the verdict form for the sole purpose of comparing his fault. At some point, plaintiffs settled with the hospital. The plaintiffs subsequently appealed the decision in an attempt to reinstate their action against the doctor.
Id. at 652.
Id.
Id.
The court of appeals affirmed, noting that the plaintiffs had the responsibility under K.S.A. 60-256(e) to oppose the motion for summary judgment and show the court evidence of a claim against the moving defendant. The court rejected plaintiffs' argument that summary judgment was not appropriate because the hospital had controverted the facts set out in the doctor's motion for summary judgment, noting that "[t]here may have remained material issues of fact between [the hospital] and [the doctor], but no such material issues of fact remained to be determined in the lawsuit between plaintiffs and [the doctor]." The court stressed that to defeat a properly supported motion for summary judgment, the nonmovant must come forward with specific, material facts showing there is a genuine issue for trial. Whether there remained issues between the doctor and the hospital was irrelevant.
Id. at 653.
Id.
Id. (citation omitted).
Id.
Similarly, plaintiffs in this case have failed to adequately oppose Raymond's motion or supplemental motion for summary judgment. Gust does not override plaintiffs' obligations under Rule 56 to oppose Raymond's motion with evidence, not merely allegations. Plaintiffs could have avoided summary judgment on their affirmative claim against Raymond for product liability by adopting Elite's evidence of Raymond's fault. This evidence was readily available to plaintiffs and was submitted by Elite in its response to Raymond's motion for summary judgment wherein Elite sought to preserve its right to compare Raymond's fault. Instead of doing this, however, plaintiffs opted to concede their products claim against Raymond and attack Elite's expert on the issue. The Court is not persuaded by plaintiffs' novel "adoption" argument and will not reconsider its previous order dismissing Raymond on this basis.
B. Res Ipsa Loquitur
The doctrine of res ipsa loquitur has been construed and applied by Kansas courts under many different factual scenarios. The phrase is commonly understood to mean "the thing stands for itself." It is intended to operate solely as a rule of evidence rather than as substantive law. The doctrine recognizes that some circumstances give rise to an inference of negligence even in the absence of direct proof of a negligent act. Essential to the application of the doctrine of res ipsa loquitur is that (1) it must be shown that the thing or instrumentality causing the injury or damage was within the exclusive control of the defendant; (2) the occurrence must be of such kind or nature as ordinarily does not occur in the absence of someone's negligence; and (3) the occurrence must not have been due to contributory negligence of the plaintiff.
Bias v. Montgomery Elevator Co. of Kansas, Inc., 216 Kan. 341, 343 (1975) (citing Chandler v. Anchor Serum Co., 198 Kan. 571 (1967).
Id. (citing Vieyra v. Engineering Inv. Co., Inc., 205 Kan. 775 (1970); Blue Stem Feed Yards, Inc. v. Craft, 191 Kan. 605 (1963).
"The rationale behind the doctrine is said to be that when the defendant has exclusive control of the instrumentality he has it within his power to produce evidence of the cause of the injury, while the plaintiff is without such knowledge and must therefore rely on proof of the circumstances." It is well settled in Kansas that res ipsa loquitur is applicable to multiple defendants.
Id. (citing Worden v. Union Gas System, Inc, 182 Kan. 686 (1958).
Bias, 216 Kan. at 343 (citations omitted);Robinson v. Nightingale, 188 Kan. 377, 381 (1961).
Raymond contends that it is entitled to summary judgment on this issue because res ipsa loquitur is not applicable to product liability cases. Alternatively, Raymond argues that plaintiffs can present no competent evidence that Raymond had exclusive possession or control of the forklift on the date of the accident requisite to it being liable under Kansas' application of res ipsa loquitur. Plaintiffs submit that William Stadtherr is exactly the person for whom the res ipsa loquitur doctrine exists — he "was simply standing in a work platform on a forklift when the forks suddenly, and without warning, raised and propelled him into the ceiling causing fatal injuries."
Under Kansas law, product liability claims are governed by the Kansas Products Liability Act ("KPLA") The underlying purpose of the KPLA is "to consolidate all products liability actions, regardless of theory, into one theory of legal liability." Thus, "all legal theories of recovery, e.g., negligence, strict liability, and failure to warn, are to be merged into one legal theory called a `product liability claim.'" To present a prima facie product liability claim, plaintiff must produce proof of three elements: (1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant's control.
K.S.A. 60-3301 et seq.
Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 756 (1993).
Id. (citing Savina v. Sterling Drug, Inc., 247 Kan. 105, 126 (1990)).
Mays v. Ciba-Geigy Corp., 233 Kan. 38, 54 (1983).
In Welge v. Planters Lifesavers Co., Judge Posner recognized the theoretical inconsistencies of merging products liability with res ipsa:
17 F.3d 209 (7th Cir. 1994).
The doctrine of res ipsa loquitur teaches that an accident that is unlikely to occur unless the defendant was negligent is itself circumstantial evidence that the defendant was negligent. The doctrine is not strictly applicable to a products liability case because unlike an ordinary accident case the defendant in a products case has parted with possession and control of the harmful object before the accident occurs. But the doctrine merely instantiates the broader principle, which is as applicable to a products case as to any other tort case, that an accident can itself be evidence of liability. If it is the kind of accident that would not have occurred but for a defect in the product, and if it is reasonably plain that the defect was not introduced after the product was sold, the accident is evidence that the product was defective when sold.
Id. at 211 (citations omitted).
The parties fail to cite any Kansas cases specifically addressing the issue of whether res ipsa is applicable in product liability cases governed by the KPLA. The Court's review of the law in other jurisdictions reveals the law surrounding this issue to be unsettled, to say the least. It appears Kansas has applied theories analogous to res ipsa loquitur to prove that a defect existed. The Kansas Supreme Court has held that elements of a product liability claim "may be proven inferentially, by either direct or circumstantial evidence." "If plaintiff seeks to prove his claim via circumstantial evidence, that evidence `must tend to negate other reasonable causes, or there must be an expert opinion that the product was defective.'" Thus, in certain instances, circumstantial evidence may produce reasonable inferences upon which a jury may reasonably find that a defendant manufactured a defective product.
See, e.g. Samara hv. Danek Medical, Inc., 70 F. Supp.2d 1196 (D. Kan. 1999); Mays, 233 Kan. 38; Weir v. Federal Ins. Co., 811 F.2d 1387 (10th Cir. 1987).
Mays, 233 Kan. at 54.
Samarah, 70 F. Supp.2d at 1202 (citing Mays, 233 Kan. at 54); Weir, 811 F.2d at 1392 ("The inference of a defect is permissible whenever the plaintiff has introduced evidence that would exclude other causes of the accident.").
In Samarah v. Danek Medical, Inc., the case cited by Raymond, the plaintiff brought a products liability action alleging that the bone screw fixation construct that was surgically inserted into his spinal pedicles was defective. The plaintiff offered the testimony of four experts to support his theory that the product was defectively designed and manufactured. The experts testified that the product was unreasonably dangerous but failed to offer any factual support for these conclusory opinions and failed to identify a specific defect in the product. The court entered summary judgment in favor of the defendants stating:
Id. at 1199.
Id. at 1202.
Id.
. . . plaintiff has failed to identify the existence of, much less produce any evidence regarding, a specific defect in the TSRH instrumentation system at issue in this case. . . . Thus to the extent that plaintiff has failed to offer specific facts to indicate exactly how or why defendants' product is allegedly defective, plaintiff essentially requests the court to infer the existence of a defect in defendants' product solely from the fact that plaintiff sustained an injury allegedly attributable to the TSRH device. Under Kansas law, however, such proof is inadequate to establish a viable products liability claim. . . .
Id.
Applying this analysis to the facts of this case, plaintiffs have not presented enough evidence to establish an inference of a defect in the forklift. Plaintiffs have not produced an expert to offer any evidence of a defect, nor have they offered any evidence that would exclude other causes of the accident. This is simply not enough to create a reasonable inference and the Court will not reconsider its order on this basis.
Alternatively, the Court concludes that the traditional doctrine of res ipsa loquitur is also inapplicable under the facts of this case. While the Court agrees with plaintiffs that a forklift would not ordinarily raise suddenly unless someone was negligent, plaintiffs have the burden of showing that the negligence can reasonably be attributed to Raymond. This can be accomplished by showing that Raymond had exclusive control of the forklift.
Plaintiffs cite Robinson v. Nightingale in support of their position that res ipsa applies to Raymond. That case involved claims for negligence against defendants in successive control of a collapsing truck hoist. The hoist had been constructed and erected by two of the defendant contractors, who, pursuant to a contract with a third defendant, Simlo, agreed to construct and erect the hoist from materials prepared and supplied by, and upon advice and instruction of Simlo. The court held that "where one or some or all of the interdependent defendants (the contractors and Simlo) were in successive control and burdened with the performance of contractual duties to complete the hoist, it is incumbent upon them to explain their action and conduct when the completed hoist suddenly collapsed with resultant injury to another."
188 Kan. 377 (1961).
Id. at 433-34.
Id. at 438.
Plaintiffs cannot show that Raymond had exclusive control of the forklift. In contrast to Robinson, there is no allegation in this case that Raymond and the other defendants were involved in a contract or joint venture when the accident occurred. Further, the Court notes that Robinson was decided before enactment of the KPLA. The Court is not persuaded by plaintiffs' argument that seems to equate status as a manufacturer as an alternative to the element of exclusive control.
While it is true that a plaintiff does not have to eliminate all other possible causes of the accident for the doctrine to apply, the plaintiff must produce sufficient evidence from which a reasonable person could say that, on the whole, it is more likely than not that the defendant was negligent. Kansas courts have refused to permit the use of res ipsa where, as here, the evidence discloses other equally possible causes of the accident. Plaintiffs, whose own experts have concluded the forklift was not defective, have not produced evidence that would indicate that it is probable the accident was caused by negligent manufacturing of the forklift rather than by negligent operation or maintenance. In fact, plaintiffs rely on the testimony of the forklift operator that he either activated the toggle switch to raise the forks or the forklift malfunctioned. Accordingly, the Court will not reconsider its previous order on this ground.
Ballard v. Buckley Powder Company, 60 F. Supp.2d 1180, 1188 (citing Bias, 216 Kan. at 344).
See, e.g., Bias, 216 Kan. at 346; Savina v. Sterling Drug, Inc., 247 Kan. at 133 ("Here, the evidence establishes that it is at least equally probable that the negligence of another . . . was the cause of the injury. Because plaintiff failed to present evidence establishing that the acts of the defendants caused plaintiff's injury, the trial court properly granted summary judgment on the issue of res ipsa loquitur."); Mellies v. National Heritage, Inc., 6 Kan. App. 2d 910 (1981) ("Given the fact that proximate cause was not certain, the doctrine of res ipsa loquitur would not be applicable.").
IT IS THEREFORE ORDERED BY THE COURT that plaintiffs' motion to reconsider (Doc. 224) is DENIED and Raymond is entitled to summary judgment as a matter of law on plaintiffs' claims against Raymond;
IT IS FURTHER ORDERED that Raymond shall remain a party to this action for the limited purpose of the comparative fault procedure in K.S.A. 60-258a;
IT IS FURTHER ORDERED that Raymond's motion to strike (Doc. 237) is GRANTED and that plaintiffs' motion to amend pretrial order is DENIED.
IT IS FURTHER ORDERED that the following motions remain MOOT:
1. That part of plaintiffs' Motion for Summary Judgment (Doc. 202) directed to Raymond's assumption of risk defense;
2. Raymond's Daubert motion (Doc. 187);
It should be noted that on March 4, 2002, plaintiffs filed their own Daubert motion (Doc. 206) against Elite's expert, adopting Raymond's motion. That motion is not yet under advisement, pending response and reply by the parties, as directed by separate order entered this date.
3. Elite's motion to defer response to Raymond's Daubert motion (Doc. 195); plaintiffs' motion in opposition (Doc. 204); and Raymond's memorandum in opposition (Doc. 210).
IT IS SO ORDERED.