United States District Court, D. Connecticut
Michael Gawel, Jr. and PPA Megan Gawel, Plaintiff,
American Specialties, Inc., Defendant.
RULING ON MOTION FOR SUMMARY JUDGMENT [DOC.
Bond Arterton, U.S.D.J.
American Specialties, Inc. ("ASI") moves for
Summary Judgment [Doc. # 50] on all counts of Plaintiff s
Second Substitute Amended Complaint ("SSAC") [Doc.
Second Count of Plaintiff s SSAC claims ASI's negligence
with respect to the public bathroom handicap grab bar Model
3413 that it allegedly manufactured, distributed, sold and/or
installed, which injured the minor plaintiff. The Third Count
alleges ASI violated Connecticut's Product Liability Act
("CPLA") § 52-572(m) because: Defendant's
moveable handicap rail was in a defective and unreasonably
dangerous condition; Defendant failed to warn that this
product was dangerous and subject to failure, misrepresenting
that it was safe for public use; to the extent warnings or
instructions were given, they were inadequate and failed to
provide notice of the defective or dangerous product
propensities; Defendant failed to properly and adequately
test or design the product and used improper materials;
Defendant failed to provide adequate installation,
maintenance, and repair instructions; and Defendant breached
the implied warranty of merchantability and express
argues that it is entitled to summary judgment primarily
because Plaintiff cannot prove his claims without expert
witness evidence and that Plaintiffs expert opinions are
tainted by Target's spoliation of evidence. ASI maintains
that Plaintiff cannot prove that it manufactured or sold the
grab bar at issue, that it contained a dangerous condition at
the time of sale, or that any additional warnings or actions
by ASI would have prevented the injuries to Plaintiff.
Moreover, according to ASI, because Target disposed of the
grab bar from its Torrington, Connecticut store several
months after Plaintiff was injured, but before ASI could
inspect, examine or test it, evidence about the grab bar must
be excluded. Thus, Defendant argues that because Target's
spoliation of the grab bar taints the reports of
Plaintiffs' experts Eugenia Kennedy and Dr. Irving U.
Ojalvo, the spoliation totally undermines Plaintiffs'
whole case and ASI is entitled to judgment as a matter of
recognizes that since spoliation is an evidentiary doctrine,
it is to be determined under federal law in this diversity
action (Def s Mem. in Support [Doc. # 51-1] at 7), but
maintains that the extreme sanction of summary judgment is
warranted under the circumstances of this case, citing
Residential Funding Corp. v. DeGeorge Fin. Corp.,
306 F.3d 99 (2d Cir. 2002) and Beers v Bayliner Marine
Corp., 236 Conn. 769 (1996). While the spoliator was
Target, not Plaintiff, ASI argues that because Plaintiff
adopted Target's experts, Plaintiff must bear the
consequences of their tainted testimony. However, Defendant
does not point to anything unique about the grab bar Model
3413 at issue in comparison with the exemplar grab bar, or
explain how its defects or non-defects would not be inherent
in the exemplar obtained and used by Dr. Ojalvo. Moreover,
pictures were taken of the actual subject bar before it was
disposed of, which formed the basis of Eugenia Kennedy's
opinions. Defendant offers no expert witness to explain what
material examination or testing must be performed on the
actual grab bar at issue, which could not be performed on an
exemplar, to rebut the Plaintiffs experts' opinions of
defect. See, e.g., Donahoe v. American Isuzu Motors,
Inc., 157 FRD 238, 244 (M.D. Pa. 1993) (car seat belt of
the same model as the unavailable subject seat belt can be
tested and the defendant would gain no more information
regarding the existence of defects from the original than
from an exemplar).
the adverse inference Defendant seeks is not substantive
proof relieving Defendant from its burden on summary judgment
of showing that Plaintiff lacks any evidence [Doc. # 85]
entered November 3, 2017.) establishing Defendant's
liability under the CPLA for the subject grab bar that
injured the minor Plaintiff. See e.g., Beers, 236
Conn, at 779. Experts Kennedy and Ojalvo provide testimony of
the bar's provenance, operation, defective condition, and
lack of warnings or instructions. Defendant may rebut this
proof at trial, including with evidence that manufacturers of
these grab bars sometimes manufacture and/or sell the same or
similar bars under different labels and through vendors other
than Defendant, but Defendant's motion for summary
judgment fails to demonstrate the absence of material
disputed facts. ASI may present its evidence of spoliation
by Target at trial and the Court will determine at that time
whether the sanction against Plaintiff of an adverse
inference jury instruction is warranted. However, ASI has not
persuaded the Court that the extreme sanction of summary
judgment is warranted on this record.
asserts that Plaintiff has failed to provide any proof that
the product was defective under any theory of CPLA liability.
Based on the same reasoning used in Durant v. ASI,
fn. 4 supra, and in light of Plaintiff s expert
opinions, which are not rebutted by any defense expert, the
Court finds Defendant's arguments unavailing as a basis
for summary judgment.
ASI's Motion for Summary Judgment against Plaintiff as a
spoliation sanction [Doc. # 50] is denied.
 Insofar as Defendant's Motion
seeks dismissal of cross-claims asserted by Target, it is
denied as moot, as Target has already been dismissed from the
 Plaintiffs separate negligence cause
of action (Count Two) is barred because it is subsumed by his
CPLA claim. See e.g., Densberger v. United Techs.
Corp., 297 F.3d 66, 70 (2d Cir. 2002) ("[A]s the
exclusive basis for product liability claims under
Connecticut law, the CPLA bars separate common law causes of
action in product liability cases."); Winslow v.
Lewis-Shepard, Inc., 212 Conn. 462 (1989) (holding that
the CPLA bars a separate negligence-based cause of
 Defendant now acknowledges that the
exemplar test bar used by one of Plaintiffs experts was
indeed Defendant's. (Def s. Reply ...