Submitted: March 29, 2019
Defendant Kenneth Lilly Fastener's Motion for Summary
Victoria Petrone, Esquire, Logan & Petrone, LLC, 100 West
Commons Blvd., Suite 435, New Castle, Delaware, 19720.
Attorney for Plaintiff.
Baumberger, Esquire, Chrissinger & Baumberger, 3 Mill
Road, Suite 301, Wilmington, Delaware, 19806. Attorney for
L. SCOTT, JUDGE
consideration of the Defendant's Motion for Summary
Judgment, and the record of the case, it appears that:
Plaintiff's cause of action alleges industrial fasteners
supplied by Defendant were defective, resulting in severe
damage to an industrial land clearing grinder.
October 16, 2018, the Court granted Defendant's Motion to
Exclude Plaintiff's expert's report. Defendant's
filed this Motion on March 12, 2019, arguing Plaintiff cannot
establish the necessary elements of their claim without
expert testimony or opinion.
Court may grant 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 summary judgment as a matter of
law." The moving party bears the initial burden
of showing that no material issues of fact are
present. Once such a showing is made, the burden
shifts to the non-moving party to demonstrate that there are
material issues of fact in dispute. In considering a motion for
summary judgment, the Court must view the record in a light
most favorable to the non-moving party. The Court will
not grant summary judgment if it seems desirable to inquire
more thoroughly into the facts in order to clarify the
application of the law.
Defendant originally believed the batch of industrial nuts at
issue had been returned to the manufacturer, they were not.
Defendant discovered that they still had the batch of nuts in
April 11, 2017, Plaintiff's counsel notified the Court
that he was scheduled to pick up a number of the nuts for the
purpose of testing. Plaintiff, however, expressed concern that
the nuts picked up for testing were not from the same batch
as the original.
July 2018, with their Motion to Exclude Plaintiff's
expert pending, Defendant expressed reluctance to allow more
time for testing, as Plaintiff had failed to conduct any
testing on the samples delivered the previous
Plaintiff has not conducted testing on any of the industrial
nuts alleged to be faulty.
Trial in this action was continued on November 10, 2016, to
allow for testing by Defendant. In their opposition to the
current motion, Plaintiff seeks to compel production of the
nuts remaining in Defendant's possession for the purpose
of expert testing and analysis. Plaintiff questioned the
provenance of the same nuts in 2017, and chose not to submit
them to testing at that time. The time for discovery ...