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Shami v. The Kroger Co.

United States District Court, D. South Carolina, Columbia Division

November 30, 2016




         Through 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.

         Defendants 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.


         Summary 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 correct.”).

         Rule 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).


         I. Shami's Claims Are Foreclosed by his Deposition Testimony

         Shami's Deposition Testimony and Related Evidence.

         During 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.

         Shami 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).

         While 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).

         Defendants' First Argument for Summary Judgment.

         Defendants 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).

         Shami Opposition Argument.

         Shami 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.

         Shami 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).[1] 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).

         Despite 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).

         Shami 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 ...

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