Madison - St. Clair Record

Wednesday, August 21, 2019

Wal-Mart seeks summary judgment in former judge Byron's injury suit, claims stool did not collapse

By Heather Isringhausen Gvillo | Jan 18, 2018

Wal-Mart filed a motion for summary judgment against former Madison County circuit judge Nicholas Byron in his product liability suit, arguing that Byron fell from a saddle stool that was not defective and had not collapsed.

Byron filed his complaint on Oct. 8, 2015, through attorney Eric J. Carlson of Byron, Carlson, Petri & Kalb LLC.

In his deposition, Byron said he purchased a “Mainstays” brand 24-inch saddle stool from the Glen Carbon Wal-Mart to use in his bedroom as a place to sit while getting dressed. The stool was placed on a wood floor.

He claims he purchased a preassembled floor model of the stool because he is “not good” at assembling things.

However, Wal-Mart stated in its motion for summary judgment that floor models are not for sale because they are assembled differently. Customers may purchase boxed items and have them assembled in the store by an employee.

Byron later said in his deposition that he believes he was told by a cashier that a store employee assembled the stool, but he does not have any specific knowledge of who performed the task.

He claims he did not alter the stool or inspect the stool prior to the incident.

Byron alleges that on Dec. 17, 2013, he was sitting on the stool while leaning forward to put a sock on his left foot. As he was leaning back to straighten up, he claims the stool tipped backwards, causing him to fall. He claims the stool collapsed because the back bottom crossbar of the stool had broken off and a portion of the crossbar chipped apart. The rest of the stool remained intact.

Byron alleges the impact was “instantaneous,” causing him to injure his ribs and tailbone area and develop an open sore.

Byron alleges the stool was unreasonably dangerous in that it lacked adequate fasteners or hardware, was improperly assembled and was more dangerous than an ordinary consumer would expect.

Wal-Mart filed a motion for summary judgment on Jan. 3 through attorneys Heath Sherman and Shana Scheid of Nyhan Bambrick Kinzie & Lowry PC in Chicago.

The defendant argues that Byron was required to identify his witnesses before Oct. 12. On that day, Byron’s counsel contacted the defense counsel and requested a three-week extension to disclose the Rule 213(f)(3) expert. The defendant confirmed the request.

On Nov. 28, Byron’s counsel advised that he made a strategic decision to proceed without a Rule 213(f)(3) expert, instead identifying a Rule 213(f)(1) fact witness and Rule 213(f)(2) independent expert witness. As a result, the plaintiff failed to timely disclose a liability expert and cannot support his claims in the complaint.

Further, Wal-Mart identified its controlled Rule 213(f)(3) expert witness and mechanical engineer, Dr. John E. Meyer, on Dec. 12, who will testify regarding the design, manufacture, assembly and usage of the stool. Meyer is expected to have an opinion that the stool has no design or manufacturing defects, was properly assembled, and was reasonably safe at the time it left Wal-Mart’s possession.

Wal-Mart argues that Byron has failed to identify any evidence of a defect in the stool when it left the defendant’s possession.

The defendant argues that the stool did not “collapse,” but that Byron simply fell from the stool. Wal-Mart argues that Meyer did not observe any “witness marks” on the stool, which would have been present had it collapsed.

“Further, Dr. Meyer is expected to opine that while the Stool was lying on its side on the ground, the lower cross bar of the Stool was struck by an overhead object with significant force which caused the crossbar to move inward and upward.

“The continued moving force of the object ultimately caused the cross bar to split, but did not impact the legs of the Stool which remained securely attached to both the seat and the remaining cross bars,” the motion states.

As a result, Wal-Mart claims it is entitled to summary judgment on both counts in Byron’s complaint.

“Plaintiff can only point to his fall and resulting injury as proof of a defect in the Stool, nothing more. Plaintiff has not disclosed an expert witness with respect to any potential defect in the Stool, and the time for Plaintiff to do so has passed,” the motion states.

Wal-Mart employee Kendall Bruening is an associate buyer in the defendant’s furniture department and testified that “Mainstays” is Wal-Mart’s private label home and seasonal brand.

Wal-Mart received and reviewed a passing audit report for the manufacturer’s factory before initiating the procurement process for the stool. Wal-Mart also obtains wood origin documents identifying the origin, type and source of the wood used in the item. The product is also tested by a third-party lab. Items are also subject to random in-store testing every year.

The stool was the subject of seven testing reports, the motion states.

Wal-Mart previously filed a motion to bar Byron from naming an expert witness in June 2017 after he “either, by choice, or through inadvertence disobeyed this Court’s order by failing to answer 213(f)(3) interrogatories and making such witnesses available for deposition in determining whether to impose discovery sanctions.”

The motion states that last February, the parties held a joint examination to view the stool and remnants of the alleged broken rung at Byron’s counsel’s office. However, the plaintiff neglected to have an expert present at the inspection.

“If Plaintiff were to be permitted to name an expert at this time, despite the lack of diligence in doing so prior to the deadline, such disclosure would require that the parties reconvene with each expert in order to conduct a second inspection of the evidence.

“This would prejudice the defense by requiring it to incur the time and expense of being present for an additional inspection with no repercussion to the Plaintiff,” the motion stated.

Circuit judge Barbara Crowder has scheduled the case for jury trial on March 12.

Madison County Circuit Court case number 15-L-1306

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Organizations in this Story

Byron, Carlson, Petri & Kalb, LLC Nyhan, Bambrick, Kinzie & Lowry, P.C.