1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

MICHELLE LEAL, et al. ) 

 ) 

 Plaintiff, )

) 

 v. ) CASE No.: 2:13 CV 318 

 ) 

TSA STORES, INC. d/b/a THE SPORTS ) 

AUTHORITY, URBAN EXPRESS ) 

ASSEMBLY, LLC, EAST COAST ) 

SUPPLY, INC., YONG QI BICYCLE ) 

INDUSTRIAL CO., LTD, GO ) 

CONFIGURE, INC., GUHLAM ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

Plaintiff, Michelle Leal (hereafter “Leal”) suffered injuries in a bicycling accident. She 

filed a state court complaint against several defendants including East Coast Cycle Supply Inc. 

(hereafter “East Coast”), TSA Stores Inc. d/b/a The Sports Authority (hereafter “Sports 

Authority”), Urban Express Assembly LLC (hereafter “Express”), Yong Qi Bicycle Industrial 

Co. (“Yong Qi”), LTD., Go Configure, Inc., and Guhlam Thomas (“Thomas”) (referred 

collectively herein as “Defendants”) alleging that their negligence in designing, manufacturing, 

producing, and assembling the bicycle and/or a design defect with the bicycle were responsible 

for her injuries. The case was then removed to federal court. [DE 3]. 

Defendant, East Coast filed the present Motion for Summary Judgment pursuant to Fed. 

R. Civ. P. 56, asserting that there is no genuine issue of material fact that it, by way of 
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defectively designing the bicycle, caused the injuries suffered by Leal. [DE 57]. Plaintiff did not 

oppose the motion. 1

 

For the following reasons, East Coast’s Motion for Summary Judgment will be 

GRANTED. 

APPLICABLE STANDARD 

 Before turning to the merits of East Coast’s Motion, the Court notes that East Coast 

emphasized at the telephone conference that its motion was unopposed and thus, the Court could 

simply grant the motion. This is incorrect. A plaintiff's failure to respond “is not alone a 

sufficient basis for the entry of a summary judgment.” Anchorage Assocs. v. Virgin Islands Bd. 

of Tax Review, 922 F.2d 168, 175 (3d Cir.1990); Rivera–Torres v. Rey–Hernández, 502 F.3d 7, 

13 (1st Cir.2007) (reminding that “an unopposed motion for summary judgment should not be 

granted unless the record discloses that there is no genuine issue as to any material fact and that 

the movant is entitled to judgment as a matter of law”). Rather, the court must determine whether 

the unopposed motion for summary judgment “has been properly made and supported.” Williams 

v. Murray, Inc., Civil No. 12–2122, 2014 WL 3783878, *2 (D.N.J. Jul. 31, 2014) (citation 

omitted). This requires more than just a cursory review of the filings. It requires the Court look 

 

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Subsequently, after Leal was granted leave to file her Second Amended Complaint, the Magistrate Judge 

noted in a telephonic conference on October 16, 2014 that the Second Amended Complaint did not alter 

East Coast’s pending motion for summary judgment, and that no response was forthcoming from 

Plaintiff, thereby making the Motion ripe for consideration. [DE 83]. While the motion was under 

consideration but other motions in the case were briefing out, Defendant, East Coast filed a Motion for 

Summary Ruling on its Motion for Summary Judgment [DE 74]. The Court is uncertain what the purpose 

of this motion was other than to alert the court to the pending status of East Coast’s Motion for Summary 

Judgment and the fact that it was unopposed. Counsel for East Coast then contacted the Court the week 

of December 8, 2014 inquiring about the status of the pending motion and noting to the Clerk that it was 

“unopposed.” In response, the Court conducted a telephonic conference on 12/15/2014, wherein counsel 

agreed that the motion was unopposed and agreed that the motion could be granted. However, as noted in 

this Court’s recitation of the applicable standard, the Court cannot summarily grant the Motion simply 

because it is unopposed. Accordingly, the Court conducted its usual thorough and complete analysis of 

the record before entering this Opinion and Order. 
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at the submissions supporting the motion and determine that the motion is sound and within the 

parameters of the law. 

 That said, summary judgment is appropriate when the movant shows that there is no 

genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of 

law. A “material fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A] party seeking 

summary judgment always bears the initial responsibility of informing the district court of the 

basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes 

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 

317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[T]he burden on the moving party may be 

discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of 

evidence to support the nonmoving party's case.” Id. at 325. 

In this case, the defendant has met its factual burden through their unopposed motion for 

summary judgment. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) (“[F]ailure to respond by 

the nonmovant as mandated by the local rules results in an admission.”). By not responding to 

the motion for summary judgment, the plaintiff has conceded the defendants' version of the facts. 

Brasic v. Heinemanns Inc., 121 F.3d 281, 286 (7th Cir.1997). This does not alter the standard for 

assessing a Rule 56 motion, but does “reduc[e] the pool” from which the facts and inferences 

relative to such a motion may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir.1997). 

FACTUAL BACKGROUND 

On August 17, 2011, Leal was injured while riding her bicycle, a K2 Breeze, which was 

purchased, already assembled, at Sports Authority by Leal’s husband. [Second Amended 
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Complaint, ¶8; Plaintiffs Answers to Interrogatories, #2]. According to Leal, while riding the 

bicycle, the handlebar shifted suddenly causing her to fall. [Second Amended Complaint, ¶8]. 

Leal was cycling uphill and put pressure on the handlebars of the bicycle at which time the 

handlebars came loose turning all the way to the left. As a result of the bicycle malfunction and 

the resulting fall, Leal was injured. [App. Tab 3, Plaintiff Answers to Interrogatories, #24]. 

Defendant, East Coast, designed the bicycle. [Second Amended Complaint, ¶9]. 

Jeff Bruno (“Bruno”) is the President of East Coast. [App. Tab 4, Affidavit of Jeff Bruno, 

¶1 (“Bruno Aff. ¶___)]. East Coast designs bicycles for many companies and has an agreement 

with Sports Authority to design bicycles, particularly the K2 Breeze bicycle. [Id. at ¶7]. East 

Coast’s specific relationship with Sports Authority involves an agreement between the two 

companies for East Coast to design bicycles within particular price points for particular models 

of bicycles. [Bruno Aff. ¶¶6-8]. Bicycle design entails creation and making a plan for 

construction of a bicycle but does not include the actual physical construction of bicycles. [Id. at 

¶4]. Rather, the actual manufacture and assembly of the bicycles is done by either Defendant 

Yong Qi or Zoom/HL Corporation of China.2

 The bicycles are delivered to Sports Authority 

95% assembled; the handle bars, the front wheels, and the pedals are not assembled. [Id. at ¶9]. 

After the incident that resulted in Leal’s injuries, an employee of East Coast, MJ Sureau 

(“Sureau”) inspected the bicycle at Leal’s home with all counsel present. [App. Tab 5, Sureau 

Affidavit, ¶3].3 The stem portion of the steering mechanism alleged to have failed in this case 

was manufactured by Zoom/HL Corporation and there were no signs of damage to the stem or 

any stripping of the stem bolts from installation. [Id. at ¶¶4-6]. Sureau tightened the stem bolts 

 

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 Zoom/HL Corporation is not a named defendant. 

3

 Sureau has served as the Head Bicycle Mechanic at Bike Depot North from 1998-2009, Senior Service 

Specialist at Iron Horse Bicycle Company from 2006-2008, and currently serves as the K2 Bike Brand 

Manager. In his experience he has inspected over fifty (50) bicycles for unique issues aside from 

maintenance. 
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to factory specification and secured the stem into the head tube of the bicycle; the bicycle stem 

was tightened in the presence of and with the consent of all counsel. Sureau utilized his own 

body weight to demonstrate that the stem was tight and not moving. [Id. at ¶7]. The inspection 

further revealed that the stem wedge bolt was in proper working condition with no issues. [Id. at 

¶8]. 

Having examined the bicycle, it is Sureau’s expert opinion that the looseness of the 

handlebars was not due to any design or manufacturers defect since the stem was in working 

condition at the time of the inspection and he was able to tighten the stem correctly. [Id. at ¶¶9-

10]. He further opines that the cause of this malfunction was either an assembly issue or that the 

customer tried to adjust the stem for comfort. [Id. at ¶11]. In his professional experience, 

Sureau indicates that it is common for consumers to lower or raise the stem on a bicycle to adjust 

the height for comfort and not re-tighten or re-install the stem to the correct torque. [Id. at ¶9]. 

Thus, it is Sureau’s conclusion that the malfunction was not due to an assembly issue in that it 

would have been noticed by Leal in the store at the time of purchase because the stem was 

completely loose at the time of his inspection. [Id. at ¶12]. 

Leal was provided with Sureau’s expert report on February 17, 2014. [App. Tab 6]. She 

did not retain an expert witness that opposes Mr. Sureau’s opinion regarding the design and 

condition of the bicycle. [App. Tab 2, Plaintiffs Answers to Interrogatories, ¶8]. Leal has not 

produced any report of any expert witness to opine either differently or in opposition to Sureau 

on the issue of the cause of the bicycle handlebars’ malfunction or upon the issue of any role in 

such malfunction being attributable in any way to the design of the bicycle. [App. Tab 7, Pltf’s 

Resp. to Request for Production #3]. Leal further admits that she is not aware of anything that 

East Coast did to cause the bicycle accident and East Coast never indicated to Leal that they 
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assembled the bicycle at issue in this case. [App. Tab 8, Leal Dep. at p. 154, lines 17-19; p. 128, 

lines 12-17]. 

 Based upon these facts, East Coast asserts it is entitled to summary judgment. 

DISCUSSION 

 Indiana's Product Liability Act (the “Act”) governs all actions that are brought by a user 

or consumer against a manufacturer or seller for physical harm caused by a product regardless of 

the substantive theory or theories upon which the action is brought. Ind.Code § 34–20–1–1; 

Stegemoller v. ACandS, Inc., 767 N.E.2d 974, 975 (Ind.2002). A product may be defective 

within the meaning of the Act because of a manufacturing flaw, a design defect, or a failure to 

warn of dangers in the product's use. Baker v. Heye–America, 799 N.E.2d 1135, 1140 

(Ind.Ct.App.2003), trans. denied. The Act generally imposes strict liability for physical harm 

caused by a product in an unreasonably dangerous defective condition. Ind.Code § 34–20–2–1. 

For actions based on an alleged product design defect, however, the Act departs from strict 

liability and specifies a different standard of proof: “[T]he party making the claim must establish 

that the manufacturer or seller failed to exercise reasonable care under the circumstances in 

designing the product.” Ind.Code § 34–20–2–2. Thus, the statute itself prescribes the applicable 

standard of care for allegations of a design defect such as the claim brought by the plaintiff here. 

TRW Vehicle Safety Systems, Inc. v. Moore, 936 N.E.2d 201, 209 (Ind.,2010). 

 In this case, as East Coast points out, Leal has not set forth any evidence whatsoever, in 

the form of competing expert testimony or otherwise, that would create a genuine issue of 

material fact as to whether East Coast’s design of the bicycle fell below the standard of care 

required by the Act. In stark contrast, however, East Coast has produced unopposed expert 

testimony from Sureau in which he opines that the bicycle did not suffer from a design defect in 
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the handlebars and stem and there is no causal connection between the design of the bicycle’s 

handlebars and stem and Leal’s accident. Sureau further opines, without any contrary evidence 

from the plaintiff, that the bicycle appeared to him to malfunction from an assembly issue rather 

than a design issue. 

Moreover, in Whitted v. Gen. Motors Corp., 58 F.3d 1200, 1206 (7th Cir.1995), the 

Seventh Circuit, applying Indiana law, recognized that “allowing a plaintiff to establish the 

existence of a design defect by his mere assertion is ludicrous.” Indeed, “[i]n plain words, an 

assertion is only a hypothesis until there is evidence to support its truth.” Ford Motor Co. v. 

Moore, 905 N.E.2d 418, 431 (Ind.App. 2009) (opinion vacated on other grounds).

 Here, as East Coast states, Leal has not even attempted to prove more than the “mere 

assertion” in her Complaint that the design of the handlebars and stem were defectively 

designed. Leal herself testified in her deposition that she had no knowledge of anything East 

Coast did in designing the bicycle that caused her injuries. Thus, even her own testimony does 

not support a design defect claim against East Coast. Accordingly, there are no genuine issues of 

material facts to support the assertion that East Coast defectively designed the bicycle. East 

Coast’s Motion for Summary Judgment is GRANTED. 

CONCLUSION 

“Summary judgment is not a discretionary remedy. If the plaintiff lacks enough evidence, 

summary judgment must be granted.” Jones v. Johnson, 26 F.3d 727, 728 (7th Cir.1994), cert. 

granted 513 U.S. 1071, 115 S.Ct. 713, 130 L.Ed.2d 621 (1995). That is precisely the situation 

with respect to the present claim, and the defendant’s motion for summary judgment [DE 57] 

must be granted. Likewise, its Motion for Summary Ruling [DE 74] is GRANTED. 
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This Entry does not resolve all claims against all parties. As a result, no partial final 

judgment shall issue at this time. 

Entered this 17th day of December, 2014. 

s/ William C. Lee 

United States District Court