United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO UNITED STATES DISTRICT JUDGE.
Castagna bought a recreational vehicle manufactured by Newmar
Corporation. Though the vehicle came with a written warranty,
Mr. Castagna had a hard time finding appointments to repair
the many problems he encountered, and the vehicle spent
multiple months out of service for repairs in just the first
year. Finally, just over a year after he purchased the
vehicle, it experienced a fire involving the power inverter,
causing smoke and fire damage. Mr. Castagna alleges that the
vehicle is now unusable. He thus sued Newmar, alleging
breaches of express and implied warranties and a claim under
Indiana's Deceptive Consumer Sales Act. In turn, Newmar
asserted a claim against Magnum Energy, Inc., which
manufactured the inverter, seeking indemnification for any
damages it may owe to Mr. Castagna if the inverter is found
to have caused the fire.
has now filed a partial motion for summary judgment, and
Magnum moved for summary judgment on the indemnification
claim. They each seek judgment as to any claim arising out of
the fire, arguing that there is no evidence that the inverter
caused the fire and that the fire occurred after the implied
warranty expired. Newmar also seeks summary judgment on Mr.
Castagna's claim under the Deceptive Consumer Sales Act,
and on some of remedies he seeks. For the following reasons,
the Court denies the motions as to the implied warranty.
However, the Court grants Newmar's motion as to the
Deceptive Consumer Sales Act claim. The Court also grants
Newmar's motion as to Mr. Castagna's request for
rescission, but denies it as to his request for consequential
Castagna grew up working in his father's RV dealership,
and now owns an online marketing company. In 2013, he and his
wife decided that they wanted to buy an RV, so Mr. Castagna
began exploring the options available from different
manufacturers. He called Newmar's national sales manager,
whom he spoke to on six or seven occasions. According to Mr.
Castagna, that individual told him that Newmar “had an
extremely high quality product, ” that “they
stood behind the product, ” and that their service was
“a step above.” Mr. Castagna ultimately decided
to purchase a 2014 Mountain Aire model manufactured by
Newmar. He purchased the vehicle on July 3, 2013, from North
Trail RV, for a total price of $393, 255.37.
vehicle came with a twelve-month limited warranty from
Newmar. Under the warranty, Newmar agreed to repair any
manufacturing defects that arose within twelve months of the
date of purchase. To obtain service, the warranty required a
buyer to contact the original dealer or Newmar's customer
service department in order to schedule an appointment at a
service center. However, the warranty stated that Newmar will
not be responsible for any incidental or consequential
damages, such as for loss of use of the vehicle, loss of
time, or travel expenses. The warranty also stated that the
implied warranty of merchantability was limited to a period
of twelve months from the date of purchase. Mr. Castagna was
aware when he purchased the vehicle that it came with a
warranty, and he signed a warranty registration form at the
time of the purchase. However, he denies having received the
warranty itself or being aware of the limitations at the time
of his purchase.
Castagna alleges that he began experiencing problems with the
vehicle immediately after the purchase. In fact, it was in
the shop for the first time the very next day. Mr. Castagna
states that the vehicle was in the shop for a laundry list of
repairs at least thirteen times over the first year, spanning
145 days (though a portion of that time appears to have been
due to a collision in which the vehicle was involved). Over
that time, Mr. Castagna drove the vehicle from Florida, then
up to Indiana, then to southern California and the southeast,
and then to northern California. There, the vehicle was
parked for some time at a home at which Mr. Castagna's
son was staying in Covelo, California.
August 5, 2014, as Mr. Castagna's son was returning home
from dinner, he saw smoke coming out of the vehicle. He and
his friend disconnected the vehicle from shore power and
looked inside the vehicle and in its basement compartments to
see if they could find a fire, but did not find one. However,
the basement compartments had suffered smoke and fire damage.
Sometime later, the vehicle was towed away from the site. In
order to tow the vehicle, the tow truck driver had to repair
the vehicle's air lines in order to release its brakes.
To do so, he had to clear out debris from inside the basement
compartments, but those contents were not preserved.
the ensuing months, the vehicle was inspected on a number of
occasions by representatives of Mr. Castagna, Newmar, and an
insurance company. In the course of those inspections, they
determined that the fire involved the vehicle's power
inverter, which was manufactured by Magnum Energy. An
inverter is a device that converts direct current from
batteries into alternating current for use in appliances in
the vehicle like microwaves. If the vehicle is plugged into
external power, the inverter can also convert alternating
current to direct current to charge the vehicle's
parties have each retained experts to determine the
fire's cause. The experts appear to agree that the
inverter suffered a failure, but disagree as to the cause.
Magnum's expert opined that a fire of unknown origin
began in the vehicle's basement. He believes that the
fire then caused a fault in electrical lines outside of the
inverter, sending 120-volt alternating current into the
12-volt direct current lines, which then traveled to the
inverter and caused it to fail. He concluded that the
inverter performed as intended, and was a victim of the fire,
not its cause. Newmar's expert reached a similar
Castagna retained three experts who each disagree with those
conclusions. They did not locate any source of
electrical activity outside of the inverter that could have
caused the fault in the inverter. They also opined that the
damage in the basement compartments indicated that the fire
began at the inverter and then spread outward. Due to the
fire damage to the inverter and the unexplained loss of
certain components after the fire, they could not identify
what caused the fault within the inverter. However, they
opined that the failure was consistent with an electrical
discharge within one of the inverter's components. The
failure within the inverter would have been forceful enough
to expel heated gases and flames into the vehicle. They
believe that this caused other materials in the vehicle's
basement compartments to catch fire, before the fire
self-extinguished due to a lack of fuel and oxygen.
Castagna alleges that the fire and the vehicle's other
defects have rendered it unusable. He thus filed this action
against Newmar asserting claims for breach of express and
implied warranties. He raises each of those theories under
state law and the federal Magnuson- Moss Warranty Act. He
also asserts a claim under Indiana's Deceptive Consumer
Sales Act. Newmar then asserted a claim for indemnification
against Magnum, to the extent it may be held liable to Mr.
Castagna due to a fault with the inverter. Discovery has now
closed, and both defendants have filed motions for summary
addressing the substance of the motions for summary judgment,
there are a number of preliminary matters to discuss. First,
Newmar filed a motion to strike various materials Mr.
Castagna submitted in response to summary judgment. The
argument portion of Newmar's motion is so conclusory that
it often forgoes even using grammar. [E.g., DE 117
p. 4 (“¶ 6, violates FRE 801-802, statement
‘fixed as promises [sic] indicates
hearsay”); (“¶'s 14, 15 & 16
violates [sic] FRE 701, not helpful. Plaintiff just
choosing sides.”)]. Newmar seeks to strike a total ten
expert reports and affidavits with the following argument:
“(a) Violates FRE 403 and 801-802. (2) Expert reports
under FRCP26 [sic] are not independently admissible.
(c) Reports prepared with an eye toward litigation are not
admissible. (d) Reports rely on hearsay and allowance would
be creating a hearsay conduit.” [DE 117 p. 3 (case
citations omitted)]. Those might be appropriate as
subheadings to introduce developed arguments, but here they
constitute the entirety of Newmar's argument as to these
extensive materials. The Court thus finds that Newmar's
objections are waived as undeveloped.
addition, to the extent the Court can discern Newmar's
arguments from its terse discussion, those arguments are
meritless. For example, while expert reports generally cannot
be admitted into evidence at trial, that does not mean they
cannot be used at summary judgment, which is by definition
resolved on a paper record instead of through live testimony.
Though the reports themselves were not authenticated with
sworn declarations, there is no reason to believe the experts
here will not testify consistent with their written reports
at trial. Rule 56(c)(2) allows a party to object that the
material cited “cannot be presented in a form
that would be admissible in evidence, ” Fed.R.Civ.P.
56(c)(2) (emphasis added), but the content of the reports can
be presented in admissible form at trial-through the
experts' testimony-so the reports need not be stricken on
that basis. Newmar also objects that the reports were
prepared with an eye toward litigation, but that is
inherently the case for retained experts; that does not make
their opinions inadmissible. Newmar also raises Rule 403,
which is a puzzling objection at summary judgment. If a fact
is necessary to the outcome of the motion, then its probative
value could not be substantially exceeded by any danger of
prejudice, so the evidence could not be stricken on that
basis. And if the fact is not necessary to the outcome of the
motion, then it need not be stricken anyway. In addition,
concerns about unfairly prejudicing a party in the eyes of
the jury or presenting cumulative evidence are not applicable
at summary judgment, which tests the sufficiency of the
evidence. Newmar has thus not adequately presented any
argument that warrants striking these materials.
also moves to strike various paragraphs of Mr. Castagna's
affidavit with similarly succinct objections. It repeatedly
objects on hearsay grounds to Mr. Castagna explaining what
Newmar's employees told him, but statements by a
party-opponent are not hearsay. Newmar's other objections
are either undeveloped or inapplicable, or address matters
that are not material to the resolution of the motion.
Therefore, Newmar's motion to strike is denied.
Magnum filed two motions to strike testimony by Mr. Layson,
one of Mr. Castagna's retained experts, on the basis that
the opinions were not timely disclosed under Rule 26. Mr.
Layson issued a written report as required, but Magnum argues
that, during his deposition, Mr. Layson offered opinions
beyond the scope of his report. Magnum thus moves to strike
those opinions. It also argues that Mr. Layson offered
another new opinion in response to its motion to strike, so
it filed a separate motion to strike that opinion.
Court denies these motions to strike. First, none of the
opinions in question are necessary to the outcome of the
motion for summary judgment. Second, even assuming these are
new opinions that were not timely disclosed, Magnum has not
shown that they should be stricken. Under Rule 37(c)(1), a
party cannot use evidence that was not timely disclosed as
required under Rule 26, “unless the failure was
substantially justified or harmless.” Fed.R.Civ.P.
37(c)(1); David v. Caterpillar, Inc., 324 F.3d 851,
857 (7th Cir. 2003). Here, Magnum has not identified any
cognizable harm. In its opening brief, Magnum argues that the
testimony is confusing, misleading, and vague, but that is an
attack on its substance, not its timeliness; the testimony
would be no more or less confusing, misleading, or vague had
it been disclosed earlier. In its reply brief, Magnum argues
that it was prejudiced because, without a proper disclosure,
it would not have learned about these opinions until trial if
it hadn't deposed Mr. Layson. Magnum did depose
Mr. Layson, though, and it has not shown how it is any worse
off for having learned of these opinions during Mr.
Layson's deposition instead of in his report.
might argue that a late disclosure of expert opinions
prevented the party from conducting follow-up discovery into
those opinions or having their own expert respond to those
opinions, but Magnum does not do so. In fact, its own expert
did not address or respond to any of the opinions in Mr.
Layson's written report, so there is no reason to believe
he would have addressed or responded to any of these
“new” opinions if given the chance. In addition,
even if the opinions at issue are new, they each relate to
and arise out of matters that Mr. Layson did discuss and
opine on in his initial report. Thus, in the absence of any
plausible argument to the contrary, Mr. Castagna has shown
that the disclosure, even if untimely, was harmless. Magnum
also seeks to strike a paragraph of an affidavit submitted by
plaintiff's counsel in response to the first motion to
strike, but that is immaterial and does not warrant
discussion. Thus, Magnum's motions to strike are denied.
the Court notes that Mr. Castagna filed his entire response
brief and supporting materials [DE 104] under seal, without
ever filing a motion for leave to file the documents under
seal. That is unacceptable. If information in a filing meets
the high standard for keeping an item in the public record
under seal, see Baxter Int'l, Inc. v. Abbott
Labs., 297 F.3d 544, 546 (7th Cir. 2002) (stating that
only trade secrets, information covered by a recognized
privilege, and information required by statute to be
maintained in confidence may be filed under seal), the filing
party must move to maintain the filing under seal, and must
publicly file any remaining materials. Mr. Castagna never
publicly filed any of these materials-the vast majority of
which have no conceivable justification for sealing-and has
not moved to maintain them under seal. Accordingly, unless
any party files a motion to seal within fourteen days, the
Court will direct the Clerk to unseal this filing.
STANDARD OF REVIEW
judgment is proper when 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). A “material” fact is one identified by the
substantive law as affecting the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A “genuine issue” exists with respect to
any material fact when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. Where a factual record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial, and
summary judgment should be granted. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citing Bank of Ariz. v. Cities Servs. Co.,
391 U.S. 253, 289 (1968)). In determining whether a genuine
issue of material fact exists, this Court must construe all
facts in the light most favorable to the non-moving party and
draw all reasonable and justifiable inferences in that
party's favor. Jackson v. Kotter, 541 F.3d 688,
697 (7th Cir. 2008); King v. Preferred Tech. Grp.,
166 F.3d 887, 890 (7th Cir. 1999).
Castagna asserts claims for beaches of express and implied
warranties, raising each of those theories under Indiana law
(Count 1) and the Magnuson-Moss Act (Count 2). He also
asserts a claim under Indiana's Deceptive Consumer Sales
Act (Count 3). Newmar and Magnum have each moved for summary
judgment that Mr. Castagna is not entitled to recover for the
fire damage, which underlies his implied warranty claims.
Newmar has also moved for summary judgment on Mr.
Castagna's claim ...