IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DELOISE PRICE, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:06cv721-MHT

) 

WAL-MART STORES, INC., and )

EXTREME PERFORMANCE, INC., )

)

Defendants. )

PRETRIAL ORDER

A pretrial conference was held in the above case on October 18, 2007,

wherein, or as a result of which, the following proceedings were held and actions

taken:

1. Parties and trial counsel. 

The parties before the court are correctly named as set out below and the

designated trial counsel for the parties are as set out below:

PARTIES

TRIAL COUNSEL

Plaintiffs:

Deloise Price Jock M. Smith

Brian P. Strength

Cochran, Cherry, Givens &

Smith, P.C.

Post Office Box 830419

Tuskegee, Alabama 36083

Defendants:

Wal-Mart Stores, Inc.

Extreme Performance, Inc. Dennis Bailey

Rushton, Stakely, Johnston

& Garrett, P.A.

Case 2:06-cv-00721-MHT-TFM Document 33 Filed 10/19/2007 Page 1 of 4
P.O. Box 270

Montgomery, AL 36101

Counsel Appearing At Pretrial Hearing:

Brian P. Strength for the Plaintiff.

Dennis Bailey for the Defendants.

2. Jurisdiction and venue: Jurisdiction exits under 28 U.S.C

§1332. Venue is not contested.

3. Pleadings. The following pleadings have been allowed:

Complaint of the Plaintiff 

Answer of Wal-Mart Stores, Inc.

Answer of Extreme Performance, Inc.

4. Contentions of the Parties: 

(a) Plaintiff’s contentions:

On or about June 24, 2004, the Plaintiff was injured when she used an

exercise product called a Model EE 120 Deluxe Magnetic Elliptical

Machine manufactured and distributed by Extreme Performance, Inc.

She bought the product at Wal-Mart. It was assembled at Wal-Mart.

She paid a special fee for it to be assembled at Wal-Mart. When she

began using it, the machine abruptly came apart, causing the Plaintiff

to fall and suffer severe injuries. The machine came apart because it

was negligently assembled, as it was assembled without all of the

necessary parts. The Defendants had exclusive control of the assembly

of the product sold to the Plaintiff. Defendants knew or should have

known, with the exercise of reasonable care, that the product was

dangerous and was not assembled properly. Defendants owed a duty to

Plaintiff to make sure that the product was designed and assembled

correctly. An agent of Wal-Mart, acting in the line and scope of his

authority, negligently and wantonly assembled the machine. The failure

of Defendants to exercise their duty caused the Plaintiff to suffer injuries

and damages.

The Plaintiff relied on the implied warranty of merchantability as

outlined in the Uniform Commercial Code with respect to goods of the

kind sold to Plaintiff. The product was defective in that is was not

properly assembled.

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As a direct and proximate consequence of the unwholesome condition of

the said item and the Defendants’ breach of the implied warranty of

merchantability, Plaintiff was caused to suffer injuries and damages.

Upon these general contentions, Plaintiff brings claims for:

1. Negligence and wantonness; and

2. Breach of the implied warranty of merchantability.

(b) Defendant’s Contentions: 

Defendants generally deny liability and demand strict proof thereof.

Defendants plead contributory negligence and assumption of risk. If the

bolt was missing it should have been obvious to Ms. Price upon use of the

equipment and she continued to use the equipment nevertheless.

Defendants plead lack of notice of any breach of warranty and a no

causal relation defense. Defendants plead that the product was altered

after sale. Defendants plead that the plaintiff’s medical expenses have

been paid by collateral sources. Ala. Code § 6-5-522 (1975). Defendants

contend that plaintiff’s claims should be barred by judicial estoppel as

she is attempting to perpetrate a fraud upon the court by alleging

injuries and damages that she has already claimed to have been caused

by a previous incident which resulted in litigation and settlement.

5. Stipulations

None

It is ORDERED that:

(1) The jury selection and trial of this cause, which is to last one

day, are set for November 26, 2007, at 10:00 a.m. at the Frank

M. Johnson, Jr. United States Courthouse Complex,

Courtroom 2FMJ, One Church Street, Montgomery,

Alabama, 36104.

(2) A trial docket will be mailed to counsel for each party

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approximately two weeks prior to the start of the trial term;

(3) Each party shall have available at the time of trial, for use by

the court (the judge, the courtroom deputy clerk, and the law

clerk), three copies of the exhibit list and a sufficient number

of copies of each photostatically reproducible exhibit for

opposing counsel, the courtroom deputy clerk, the law clerk,

and the judge to each have a set of the exhibits;

(4) Trial briefs are required to be filed by November 21, 2007;

(5) All deadlines not otherwise affected by this order will remain

as set forth in the uniform scheduling order (Doc. No. 9)

entered by the court on September 26, 2006; 

(6) All understandings, agreements, deadlines, and stipulations

contained in this pretrial order shall be binding on all parties

unless this order be hereafter modified by Order of the court.

DONE this 19th day of October, 2007.

 /s/ Myron H. Thompson 

UNITED STATES DISTRICT JUDGE

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