y

“Statement of Relevant Facts” neither identifies “SA Calderon” as the Acrostar’s initial user, nor
cites to any evidentiary support whatsoever, not even the unauthenticated document discussed
above. As a result, there is no proper factual foundation for the Motion. See Smith v. Lamz, 321
F.3d 680, 682 (7th Cir. 2003) (“Under Local Rule 56.1, the defendants, as movants for summary
judgment, were required to submit in support of their summary-judgment motion a statement of
material facts, comprised of short numbered paragraphs with citations to admissible evidence .. .
2”).

Because of this factual ambiguity, Defendant’s Motion for Partial Summary Judgment on
Count I of Plaintiffs Complaint is denied. It appears that Defendant will likely prevail on this
Count at trial, but the Count is not properly subject to dismissal on the basis of the summary
judgment record submitted. See, e.g., Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d
524, 527 (7th Cir. 2000); Joseph T. Ryerson & Son, Inc. v. Plastech Engineered Prods., Inc., No.

01 C 5878, 2003 WL 21659684, at *J (N.D.IIL July 15, 2003). 4

Mark Filip
United States District Judge
Northern District of Illinois

2004

Enter: APRS


demonstrate the existence of a genuine issue of material fact regarding the applicability of any
statutory exception, would bar this cause as untimely. See Garza v. Navistar Int’l Transp. Co.,
172 I. 2d 373, 378, 666 N.E.2d 1198, 1200 (1996); see also Taylor v. Raymond Corp., 719 F.
Supp. 738, 742-43 (N.D. Ill.), aff'd 909 F.2d 225, 227 (7th Cir. 1990) (per curiam).

However, Defendant’s only support for its factual assertions that the Aerostar was sold to
a Ford dealer on July 7, 1992 and that the “vehicle was then sold to its ‘initial user,’ SA Calderon
on August 7, 1992,” is Defendant’s citation of a single unauthenticated document. (Mot. at 4.)
Although Defendant’s motion describes the document as a “business record of Ford,” no
affidavit from a person qualified to introduce the document as evidence at trial, or other proper
form of authentication, was provided to establish the document’s admissibility as a business
record. For this reason, the document cannot support the rendering of summary judgment. See
Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir, 2000) (“Normally, to demonstrate such
trustworthiness and reliability at the summary judgment stage, the party seeking to offer the
business record must attach an affidavit sworn to by a person who would be qualified to
introduce the record as evidence at trial... .”); see also Martz v. Union Labor Life Ins. Co., 757
F.2d 135, 138 (7th Cir. 1985) (“The correspondence Martz filed with the district court was not
supported by affidavit or otherwise authenticated . . . . The district court could not properly have
relied upon the exhibits... .”).

Relatedly, Defendant also failed to supply a statement of material facts in support of its
Motion in conformity with the requirements of Local Rule 56.1. Despite the provisions of Rule
56.1 that require the movant to submit a statement of material facts (supported with specific

references) that the movant asserts entitle it to summary judgment, Defendant’s two paragraph


instore Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Mark Filip Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 7887 DATE 4/5/2004
CASE VICKIE SHUPE vs. FORD MOTOR COMPANY
TITLE
[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
(6) a Filed motion of [ use listing in “Motion” box above.]
(2) im} Brief in support of motion due
(3) a Answer brief to motion due . Reply to answer brief due.
(4) 0 Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on _setfor__—_ at
(7) QO Trial(set for/re-set for] on at
(8) 0 [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without prejudice and without costs[by/agreement/pursuant to)
OOFRCP4(m) (Local Rule 41.1 OFRCP41(a)(1) [FRCP41(a)(2).
ao) «off {Other docket entry) . ENTER MEMORANDUM OPINION Denying Ford Motor Company’s
Motion for Partial Summary Judgment On Count I of Plaintiff's Complaint at Law [12-1].
rel 1) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court. ~, Document
No notices required suimbr of notes
Notices mailed by judge’s staff. y
Notified counsel by telephone. -L-b
wv | Docketing to mail notices. -
. gt}
Mail AO 450 form. ae docketing deputy {nitials
Copy to judge/magistrate judge.

date mated notice

courtroom pond be oaece is
TBK deputy’s
initials

t Date/time'received in .
central Clerk's Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS ~
EASTERN DIVISION if

APR 0 6 2004

VICKIE SHUPE, Administrator of the Estateof —)
JAMES W. SHUPE, Deceased )

) Case No. 03 C 7887
Plaintiff, )

) Judge Mark Filip

v. )
)
FORD MOTOR COMPANY, a Foreign )
Corporation, )
)
Defendant. )

MEMORANDUM OPINION DENYING FORD MOTOR COMPANY’S MOTION FOR
PARTIAL SUMMARY JUDGMENT ON COUNT I OF PLAINTIFF’S COMPLAINT AT LAW

Defendant has moved for partial summary judgment on the ground that Count I of
Plaintiff’s complaint is barred by the Illinois statute of repose governing product liability actions,
735 Ill. Comp. Stat. 5/13-213(b). As explained below, Defendant’s motion is denied because of
Defendant’s failure to authenticate the critical document it cited in support of its motion and
Defendant’s related failure to supply a statement of material facts in conformity with Local Rule
56.1.

In Count I of her three-count complaint, Plaintiff, the Administrator of the Estate of
James Shupe, asserts a strict liability cause of action alleging that Mr. Shupe was killed on
October 11, 2003, when his car was struck head-on by a 1992 Ford Aerostar Mini-van driven by
Colleen Burnett. Plaintiff alleges that the 1992 Ford Aerostar was unreasonably dangerous and
defective when it left the possession and control of Defendant, the manufacturer of the Aerostar,

and that the dangerous condition of the Aerostar proximately caused the death of Mr. Shupe.

14


Plaintiff filed suit on November 5, 2003 seeking damages recoverable under The Illinois
Wrongful Death Act.

The Illinois statute forming the basis of Defendant’s motion for summary judgment
states, in pertinent part, as follows:

... (N]Jo product liability action based on the doctrine of strict liability in tort shall

be commenced except within the applicable limitations period and, in any event,

within 12 years from the date of first sale, lease or delivery of possession by a

seller or 10 years from the date of first sale, lease or delivery of possession to its

initial user, consumer, or other non-seller, whichever period expires earlier, of

any product unit that is claimed to have injured or damaged the plaintiff, unless

the defendant expressly has warranted or promised the product for a longer period

and the action is brought within that period.
735 Ill. Comp. Stat. 5/13-213(b) (emphasis added), “Seller” is defined to mean “one who, in the
course of a business conducted for the purpose, sells, distributes, leases, assembles, installs,
produces, manufactures, fabricates, prepares, constructs, packages, labels, markets, repairs,
maintains, or otherwise is involved in placing a product in the stream of commerce.” Jd. at 213
(a)(4).

Defendant asserts in its Motion for Partial Summary Judgment on Count I (“Mot.”) that
“the first sale by Ford of this vehicle occurred on July 7, 1992, when Ford sold the vehicle to an
authorized Ford dealer. . .. The vehicle was then sold to its ‘initial user,’ SA Calderon, on
August 7, 1992.” (Mot. at 4.) Assuming these facts are true, the twelve-year statutory repose
period would expire on July 7, 2004 and the ten-year repose period would have expired on
August 7, 2002, more than eleven months before Plaintiff filed her complaint. Because, in this

scenario, the ten-year repose period “expires earlier,” it would apply to Plaintiff's strict liability

cause of action under the terms of the statute and, because Plaintiff has not attempted to