Case Bulletin – PA Superior Court Affirms Ruling Precluding Plaintiff’s Expert Witness and Entry of Non-Suit
In an opinion announced on November 8, 2016, in the matter of Nobles v. Staples, Inc. et al., No. 2939 EDA 2015, the Pennsylvania Superior Court held that a pre-trial motion in limine can put a party on notice for an “eleventh hour” grant of summary judgment prior to trial.
In Nobles, the plaintiff was injured when the office chair on which he was sitting snapped at the base and he fell to the floor. The plaintiff photographed the broken chair but did not preserve it for inspection. The plaintiff sued Staples, who he claimed sold him the chair in 2008, on a malfunction theory of products liability. However, the plaintiff did not have any documentation as to his purchase of the chair, and Staples could not verify that it even sold the type of chair at issue. Staples moved for summary judgment during discovery, which was denied as premature. After the close of discovery, Staples again moved for summary judgment on the grounds that the plaintiff was unable to prove that he purchased the chair from Staples. This motion was denied without comment.
Prior to trial, Staples filed motions in limine to bar any testimony that the chair was purchased from Staples and to bar the testimony of the plaintiff’s liability expert. After a jury was selected but before trial, argument was held on the motions in limine. The court granted both motions, and in particular barred the plaintiff’s liability expert’s testimony because he could not establish how the chair was actually defective. Rather, the expert merely testified that the chair was defective because it broke. After its motions in limine were granted, Staples then moved to dismiss the case, which was granted. The dismissal was recorded on the docket as a “non-suit”, but in his opinion the trial judge characterized the dismissal as the equivalent to entry of summary judgment.
The plaintiff appealed the non-suit, arguing that its entry was procedurally improper because, under Pa.R.C.P. 2301.(a)(1), a non-suit may only be entered if, after the close of the plaintiff’s case on liability, he has failed to establish a right to relief. The Superior Court disagreed, holding that since the non-suit was the functional equivalent to a motion for summary judgment, the standard for whether its “eleventh hour” entry was proper is “whether the non-moving party had notice that he must respond to the legal issue on which the motion is based and was afforded a full and fair opportunity to argue his position.” Nobles at 15. The court held that, since the plaintiff received Staples’ motions in limine over three weeks before trial, and those filings “included the precise legal issues, along with case law and facts, on which summary judgment ultimately was granted”, the plaintiff had ample notice and a fair opportunity to defend his position. Id. at 16. Further, the plaintiff was given an opportunity to argue his position in court immediately after the trial court granted Staples’ motion to exclude his expert’s testimony. He failed to do so and instead merely noted “an exception” on the record. The court noted that, after Staples moved to dismiss, the plaintiff’s attorney could have requested that the trial court allow the parties to submit briefs before ruling on the motion. Id. at 17, fn. 9.