United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER GRANTING MOTION FOR SUMMARY
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
this action, Plaintiff, Mohammad Irfan Shami
(“Shami”), seeks damages for injuries allegedly
suffered while using a heating pad manufactured by Defendant
Kaz USA, Inc. (“Kaz”). Complaint ¶¶ 6,
8-10. Shami alleges he purchased the heating pad from
Defendant The Kroger Company (“Kroger”) on
January 6, 2013, and was burned while using the heating pad
on January 9, 2013. Complaint ¶¶ 9, 10.
seek summary judgment on two grounds. First, they argue
Shami's claims are foreclosed by his deposition
testimony, which places the date of purchase (January 6-13,
2013) after the date of injury (December 17-18, 2012).
Second, they argue Shami has failed to adduce evidence the
heating pad was defective or otherwise unreasonably
dangerous. For reasons set forth below, the court grants the
motion on both grounds.
judgment should be granted if “the movant shows 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). It is well established that summary
judgment should be granted “only when it is clear that
there is no dispute concerning either the facts of the
controversy or the inferences to be drawn from those
facts.” Pulliam Inv. Co. v. Cameo Properties,
810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for
summary judgment has the burden of showing the absence of a
genuine issue of material fact, and the court must view the
evidence before it and the inferences to be drawn therefrom
in the light most favorable to the non-moving party.
United States v. Diebold, Inc., 369 U.S. 654, 655
(1962). However, the non-moving party cannot create a genuine
issue of material fact by presenting his or her own
conflicting versions of events. Barwick v. Celotex
Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“A
genuine issue of material fact is not created where the only
issue of fact is to determine which of the two conflicting
versions of the plaintiff's testimony is
56(c)(1) provides as follows:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers or other materials; or
(b) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
Shami's Claims Are Foreclosed by his Deposition Testimony
Deposition Testimony and Related Evidence.
his deposition, Shami testified he purchased the heating pad
between January 10 and 13, 2013. Shami dep. at 29-30 (ECF No.
38-2). He also identified a January 6, 2013 receipt as likely
the receipt for the purchase, though he expressed some
uncertainty based on the price. Shami dep. at 28, 29, 33, 34.
There is no other evidence of the purchase date. Thus, while
the precise date of purchase is unclear, the proffered
evidence places the purchase between January 6 and 13, 2013.
Shami also testified he had previously used a heating pad
owned by his mother, though no dates were indicated as to
that use. Shami dep. at 30.
testified he used the heating pad at night while sleeping and
was burned during such use the evening preceding December 18,
2012. Shami dep. at 37-41 (referring to month and day), 42-43
(identifying year as 2012). The following morning (December
18) his roommate “saw [Shami's] arm and [his] face
and got scared, so he took [Shami] to the [emergency
room].” Id. at 38; see also Id. at 41
(denying he used the heating pad after December 18, 2012).
in the emergency room, Shami took cell-phone video of his
injuries, which he gave to his attorney. Id. at 37,
50-52; see also Id. at 39 (stating he “would
go by the video” to show his injuries). A screenshot of
the metadata linked to that video reflects a “last
modified” date of December 23, 2012. ECF No. 38-4
(Affidavit of J. Michael Jordan).
First Argument for Summary Judgment.
argue the sequence of events established by Shami's
deposition testimony precludes Shami's claim because it
establishes Shami purchased the Kaz heating pad between
January 6 and 13, 2013, after he alleges he suffered
burns from a heating pad on the evening preceding December
18, 2012. Defendants offer the cell-phone video metadata as
documentary evidence bolstering this sequence of events (and
inconsistent with any claim the injury occurred after
December 23, 2012).
responds that Defendants are (1) improperly seeking to
resolve an issue of credibility on summary judgment; and (2)
defense counsel's affidavit offers improper testimony by
counsel. ECF No. 49 at 1, 2. As to the first point, Shami
notes he suffers certain psychiatric conditions (depression
and schizoaffective and anxiety disorders) and was taking
various medications at the time of his deposition.
Id. at 2 (citing Shami dep. at 6, 7, 18-21). He
asserts he was not asked if either the health conditions or
medications “resulted in memory problems or impacted
his ability to give truthful and/or accurate
answers[.]” Id. at 2 n.1.
also proffers medical records from two visits to Lexington
Medical Center on January 9 and 30, 2013, which he argues
support his allegation he was injured on or about January 9,
2013. Id. at 3-4 (citing Ex. B). He characterizes
the record of his January 9, 2013 visit as showing he was
“admitted . . . on January 9, 2013 at 3:00 a.m.,
complaining of having woken up with red lesions to his left
forearm also redness and numbness to his face” and was
“discharged that evening with a prescription for
antibiotics and topical cream to treat his arm.”
Id. at 3, 4 (citing Ex. B). Shami characterizes the
record of his January 30, 2013 visit as showing he returned
to the Emergency Department “for follow-up care for a
burn on his left forearm ‘about 11 days
ago[.]'” The physician noted there was “an
area on the left forearm ‘consistent with the healing
of a 2nd degree burn' which was ‘healing
well.'” Id. at 4 (citing Ex. B).
disavowing his deposition testimony as to the date of his
injury, Plaintiff relies on the same deposition for various
propositions including the following: (1) he received a skin
graft for the burn injury in February 2013 at Doctors
Hospital in August, Georgia; and (2) he saw a neurologist in
mid-January and, thereafter, went to the urgent care center
(presumably referring to his January 30, 2013 visit to
Lexington Medical Center Urgent Care). Id. at 4, 5
(quoting Shami dep at 37, 38, 48, 49). Shami proffers no
medical records relating to the skin graft or neurologist
visits). He also, somewhat inexplicably, cites his deposition
testimony for the proposition he made a video the morning he
woke up after getting burned, which was the evening before
“December 18.” Id. at 4, 5 (citing Shami
dep. at 37, 39).
does not offer any affidavit or declaration seeking to
clarify the date he suffered the burn. Neither does he offer
any support for his claim he was ...