The opinion of the court was delivered by: Hon. John E. Jones III
Presently pending before the Court is the Second Motion for Summary Judgment (doc. 90) filed by the Defendant, Louisville Ladder, Inc., counsel having been granted an enlargement of time to file same by Order of this Court (doc. 89) dated July 12, 2012. Pursuant to Local Rule 7.6 and this Court's Order (doc. 102) dated October 5, 2012, because the Plaintiffs have failed to respond to the said Motion, it shall be deemed unopposed. For the reasons detailed herein, we will grant the Motion in its entirety and enter judgment in favor of the Defendant.
Plaintiffs Andrew M. Shecktor and Jean B. Marshman (collectively, "Plaintiffs") commenced the instant products liability action on July 16, 2008 with the filing of a Writ of Summons in the Court of Common Pleas of Montgomery County, Pennsylvania. (Doc. 1-3). A Complaint (Doc. 1-4) naming both Defendant and Wal-Mart Stores, Inc., as defendants was later filed on January 12, 2009.*fn1 On February 3, 2009, Defendant timely removed this action the United States District Court for the Eastern District of Pennsylvania (Doc. 1). On June 9, 2009, the action was transferred to this Court on motion of the Defendant.
Discovery was completed by the July 29, 2011 deadline. Thereafter, on August 30, 2011, Defendant filed a motion for summary judgment. (Doc. 64). We referred the motion to Magistrate Judge Mannion for a report and recommendation ("R&R"), (Doc. 67), and on February 27, 2012, Magistrate Judge Mannion issued an R&R recommending that this Court deny the Motion in its entirety, noting that issues of fact persisted with respect to the report and conclusions of the Plaintiffs' proffered expert witness, Richard Hughes, P.E. (Doc. 78). Neither party objected to the R&R, and this Court adopted it in full on March 19, 2012. (Doc. 79).
On April 17, 2012, Defendant filed a Daubert*fn2 Motion (docs. 81, 82) seeking preclusion of Hughes as an expert witness. As the parties are aware, shortly thereafter, on April 24, 2012, Mr. Philip J. Berg, counsel for the Plaintiffs, filed a Motion for Extension of the Trial Date (doc. 83) asserting that ongoing medical complications rendered him unable to tend to his practice. We granted the Motion, placed the case on the November 2012 trial term, and vacated the case management deadlines. (Doc. 84). The Order did not vacate controlling deadlines with respect to the pending Motion. (Id.). The deadline for filing opposition papers expired, and this Court issued an Order (doc. 85) admonishing Plaintiffs' counsel that failure to file responsive papers would result in the Court deeming the Motion unopposed. (Id.). Despite the Court's courtesies, Plaintiffs' counsel failed to oppose the Motion, and on July 10, 2012, the Court, after considered analysis of Hughes' report and qualifications, granted the Defendant's Daubert Motion and precluded Hughes' testimony and report from admission at trial. (Doc. 86).
On July 19, 2012, with leave of Court, the Defendant filed a Second Motion for Summary Judgment (doc. 90) and supporting brief. On August 10 and August 11, 2012, respectively----and notably after the opposition brief deadline had expired----counsel for the Plaintiffs filed a Motion for Relief from Judgment (doc. 93), seeking the Court to reconsider its decision precluding Hughes' testimony, and a Motion to Stay Summary Judgment Proceedings (doc. 96), which sought a stay of all proceedings pending resolution of the Motion for Relief. Following a brief stay of proceedings pending briefing of the Plaintiffs' Motion for Relief, on September 18, 2012, entered an Order (doc. 101) denying the Plaintiffs' Motion.
As noted above, Plaintiffs' opposition brief deadline expired before the Plaintiffs filed papers seeking a stay of those deadlines. However, in an abundance of caution and for the sake of affording the Plaintiffs a fair opportunity to litigate, an opportunity Plaintiffs' counsel seems intent upon denying them, the Court entered an Order (doc. 102) providing Plaintiffs an additional five (5) days in which to file responsive papers and admonishing Plaintiffs that failure to do so would serve as an indication to the Court that the Motion is unopposed. Nearly two weeks have passed since that Order issued, and the Court has not received opposition papers. Defendant's Motion for Summary Judgment shall thus be deemed unopposed.
The following facts are derived from the Defendant's Statement of Facts (doc. 91), the totality of which are deemed admitted by Plaintiffs' failure to respond specifically or generally thereto pursuant to Local Rule of Court 7.6.
The sole count of the Plaintiffs' Complaint asserts a negligence claim against the Defendant and alleges that Plaintiff Andrew Shecktor ("Shecktor") was injured on July 16, 2006, while using Defendant's Model L-2323-16 extension ladder to trim tree branches on his property. (Doc. 1). The subject ladder is composed of a base section and an upper movable "fly" section. (Doc. 91, ¶ 7). Each section is eight feet long and constructed with two side rails connected by rungs, spaced every foot along the side rails. (Id.). The base section has shoes affixed to the bottom of each side rail. (Id. ¶8). These shoes are attached to the ladder with a fixed bolt in the rail which passes through a slot in the shoe. (Id.). The slot design allows the shoes to swivel to be positioned on different surfaces and also permits the shoes to move vertically, so that the shoes can be positioned flat where the ground elevations are different between the left and right sides of the ladder. (Id.).
Shecktor purchased the subject ladder on November 25, 2005 from Home Depot. (Id. ¶ 10). Prior to the July 16, 2006 incident, Shecktor used the subject ladder twice. (Id. ¶ 11). He reports no problems with the subject ladder prior to the incident at issue in this litigation. (Id. ¶ 13). Shecktor stated that he had read all warnings and labels on the ladder prior to July 16, 2006. (Id. ¶ 12).
On July 16, 2006, Shecktor set out to use the ladder to cut three dead tree branches from a 120' pine tree in his backyard. (Id. ¶ 14). Shecktor made the initial cuts from the ground using a pruning shear and then climbed the ladder to make the final cut on each of the three branches. (Id. ¶ 16). Shecktor set the ladder up with the feet flat on the ground, two rungs overlapping, and the rung locks locked.
(Id. ¶ 15). Shecktor made the final cut of the first two branches without incident. (Id. ¶ 16). He admits that there was no instability in the ladder while he was climbing and that the ladder did not flex or ...