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Whitley v. Kion North America Corp.

United States District Court, D. Massachusetts

March 22, 2017



          Judith Gail Dein United States Magistrate Judge.


         The plaintiff, James Whitley, was working as a Longshoreman/Harbor Worker at the Conley Terminal located in South Boston, Massachusetts on August 31, 2012 when a forklift truck on which he was riding flipped over and crushed his leg. He brought this products liability claim against the purported manufacturer of the forklift, who he believed to be Linde Material Handling North America Corporation. According to the defendant, Linde Material Handling North America Corporation is now known as Kion North America Corp. (“Kion”), and the plaintiff amended his complaint accordingly to name Kion as the sole defendant. The forklift has been destroyed, and there is little identifying information available about the equipment. However, a photograph of the forklift clearly shows that it bears the “Linde” logo.

         This matter is presently before the court on Kion's motion for summary judgment. Docket No. 20. Therein, Kion contends that it did not design, manufacture, distribute or sell the forklift truck at issue in this action. Kion has submitted the affidavits of its cost accountant, Jamie Barnaby, and its General Product Manager, Mark Roessler, in support of its contention. These affidavits refer to Kion and its “predecessor companies” but do not identify those companies. Moreover, the affidavits indicate that the computer system searched by the defendant contains data that only goes back to 2001.

         The plaintiff has submitted information from the internet showing that “Linde Material Handling” is still in existence and still manufactures forklifts. Moreover, no other “Linde” entity is identified as a forklift manufacturer, and there is a great deal of confusion in the publicly available information concerning the relationships between the Linde entities and the Kion group of companies. This court recognizes that the plaintiff has not challenged Kion's factual assertions directly, or under oath. Nevertheless, a review of the record leaves the critical material fact as to the identity of the manufacturer in dispute. There is no evidence that any entity other than one for which Kion would be responsible could have manufactured a forklift bearing the Linde logo that was used in Massachusetts in 2012. This issue was not addressed in the affidavits submitted by Kion, despite the fact that the information would seemingly be within the defendant's knowledge and control.

         The burden is on the party moving for summary judgment to show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). This court finds that Kion has not met this burden, and the motion for summary judgment is DENIED WITHOUT PREJUDICE. Kion may renew its motion if it can demonstrate that another entity (for which it has no liability) could have manufactured the forklift with the Linde logo depicted in the photograph submitted by the plaintiff. If a renewed motion is not filed within 30 days, this court will hold a status conference to set a discovery schedule.


         The plaintiff was working on a forklift truck at the Conley Terminal in South Boston on August 31, 2012, when the machine flipped over and crushed his leg. The forklift was owned by Massport. Massport allegedly refused to allow the equipment to be photographed or inspected after the incident, and the forklift was subsequently destroyed. Pl. Opp. (Docket No. 34) at 2. Massport did provide a serial number for the equipment (EIX317T00006) and described it as “Linde #3.” See Kion's Statement of Undisputed Material Facts ¶ 4.[1] At some point, the plaintiff did obtain a photograph of the forklift, which bears the logo “Linde, ” as well as the name “MIJACK.” Pl. Opp. at 2, Ex. A. According to the plaintiff, MIJACK was a distributor of the forklift, but “had no responsibility for design, manufacture or quality control of the Linde machine involved in this incident.” Pl. Opp. at 2.

         Mr. Whitley filed suit against Linde Material Handling North America Corporation and Kion North America Corporation on August 27, 2015 in Suffolk Superior Court. SF ¶ 10. Counsel for the defendants provided proof to the plaintiff that “Linde Material Handling North America Corporation” had changed its name to “Kion North America Corporation” on December 29, 2014, and that the two companies were, therefore, one in the same. Pl. Opp. at 2-3; Abrams Aff. (Docket No. 37) ¶ 3, Ex. 1. Therefore, the plaintiff filed an amended complaint, naming Kion as the only defendant. Pl. Opp. at 2-3. The case was then transferred to this court on January 5, 2016. The parties consented to having the case decided by a Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Docket No. 16.

         Kion filed its motion for summary judgment on June 8, 2016, contending that it did not design, manufacture, distribute, or sell the forklift truck at issue in this litigation.[2] In support of its motion, Kion filed the affidavit of Mark Roessler, who had been employed by Kion, “or its predecessor companies, ” since 1977. Roessler Aff. (Docket No. 24) ¶ 2. Mr. Roessler attested that he has been responsible for Sales & Product Management, and was familiar with every type of equipment that the company had built or sold during his tenure. Id. ¶ 3. He also attested that these companies had not built or sold the forklift depicted in the photograph provided by the plaintiff, which he identified as a C80/6 having the ability to stack containers up to six high. Id. ¶¶ 4-5. Moreover, the only similar machine that the company had sold, a C80/5, which apparently had the ability to stack containers only up to five high, had been sold to a company in Canada, and had been taken out of service “approximately five years ago.” Id. ¶ 4.[3]

         Kion also submitted the affidavit of its cost accountant, Jamie Barnaby, who had been employed by Kion “or its predecessor companies, ” since 1998. Barnaby Aff. (Docket No. 23) ¶ 2. He reviewed the company's “computer systems that store all the records for every lift sold by KION NA and its predecessor companies since April 1, 2001, as well as all records of trucks sold prior to that date for which we processed a warranty claim after April 1, 2001.” Id. ¶ 3. This review established that KION had not sold any equipment with the serial number Massport had identified since 2001, or processed a warranty on equipment with that serial number since 2001 even if it had been purchased before then. Id. ¶¶ 3-4. Similarly, the computer records contained “no record of any equipment being registered to the Port of Massachusetts, the alleged owner of the equipment involved in this case.” Id. ¶ 5. There is no evidence in the record as to how long forklifts usually remain in use.

         In opposing Kion's motion for summary judgment, the plaintiff filed a request pursuant to Fed.R.Civ.P. 56(d) to take discovery on the issue of the identity of the manufacturer. Docket No. 25. The court allowed this request, and the plaintiff obtained written discovery from Kion. See SF ¶¶ 18, 20. According to Kion, the plaintiff had the opportunity to pursue additional discovery, but elected not to do so. See SF ¶¶ 19-21. It is undisputed that plaintiff did not depose Kion's affiants, or serve third-party subpoenas on Massport, the alleged owner of the forklift, or MIJACK, the alleged distributor of the forklift. See Bishop Aff. (Docket No. 45-1) ¶ 3.

         Kion then renewed its motion for summary judgment, Docket No. 35, and the plaintiff renewed his opposition. Docket No. 34. In opposing the motion for summary judgment, the plaintiff wrote as follows:

Linde Material Handling is a company that is still in existence and manufactures the vehicle that is the subject of Mr. Whitley's complaint. Linde Material Handling has its own website and it is associated with the Linde Heavy Truck website. The website indicates that Linde Heavy Truck is a German ...

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