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SHULTZ v. BARKO HYDRAULICS

April 6, 1993

MARK R. SHULTZ, Plaintiff,
v.
BARKO HYDRAULICS, INC., a division of PETTIBONE CORPORATION, a corporation, BARKO HYDRAULICS, a wholly owned subsidiary of PETTIBONE CORPORATION, BARKO HYDRAULICS, a division of PETTIBONE CORPORATION, and RECKART EQUIPMENT, INC., a corporation, Defendants. MARK R. SHULTZ, Plaintiff, v. BARKO HYDRAULICS, INC., a division of PETTIBONE CORPORATION, a corporation, and RECKART EQUIPMENT, INC., a corporation, Defendants.



The opinion of the court was delivered by: D. BROOK SMITH

 SMITH, District J.

 I. INTRODUCTION

 On or about February 23, 1988, plaintiff Mark R. Shultz ("Shultz"), a Pennsylvania resident, was seriously injured at work when the arm of a hydraulic log loader--loaded at the time--snapped and fell on his leg. Shultz filed a complaint alleging strict liability, negligence, and breach of warranty claims against defendant Barko Hydraulics, Inc. ("Barko"), a Minnesota corporation, the manufacturer of the loader, and defendant Reckart Equipment, Inc. ("Reckart"), a West Virginia corporation, the seller or supplier of the loader. Plaintiff's complaint sounds in strict liability, negligence and breach of warranty. Jurisdiction is proper under 28 U.S.C. ยง 1332.

 This matter is currently before the Court on defendants' Motion for Summary Judgment. *fn1" Defendants contend that when the defendants produced the head weldment portion of the allegedly defective log loader, the plaintiff's expert lost it, thereby depriving defendants of the opportunity to sufficiently examine the product and rebut plaintiff's expert's allegations.

 At a February 25, 1993 hearing on this matter, defendants did not materially supplement or alter their legal position and factual allegations from those set forth in their briefs in support of the motion for summary judgment. Similarly, plaintiff indicated that he too is satisfied with the record as it exists for the purpose of determining who lost the head weldment.

 Therefore, the sole issue remaining before the Court is whether a defendant is entitled to summary judgment in a products liability action when the allegedly defective product is lost or destroyed by the plaintiff. *fn2"

 II. DISCUSSION

 A.

 Initially, this matter raises a question regarding the permissible basis of a Rule 56 summary judgment. Rule 56(c) requires the entry of summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Once the moving party has satisfied its burden of identifying evidence which demonstrates the absence of a genuine issue of material fact, the non-moving party must demonstrate by affidavits and other materials the existence of specific material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987). Rule 56(e) states that a "court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Fed. R. Civ. P. 56(e).

 In support of, and in opposition to, the motion at bar, the parties have added to the record five affidavits and over two hundred photographs of the missing head weldment. At the February 25, 1993 evidentiary hearing, I also permitted the parties to adduce the testimony of witnesses, and plaintiff did produce their expert, Mr. John Wiss, a mechanical engineer who has examined the head weldment, to testify that defendants are not unduly prejudiced by the head weldment's absence.

 Although sworn testimony is not enumerated as one of the evidentiary bases upon which a motion for summary judgment may be decided, it is fairly implied from Rule 56(c)'s reference to the possible "hearing on the motion," and it is well established that trial judges may consider such evidence under Rule 56. See e.g., American Contract Bridge League v. Nationwide Mut. Fire Ins. Co., 752 F.2d 71, 75 n. 2 (3d Cir. 1985) (citing U.S. v. Webber, 396 F.2d 381, 386 n. 10 (3d Cir. 1968); Stafford v. Electronic Systems and Assoc., Inc., 1989 WL 150007 ...


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