UNITED STATES DISTRICT COURT 

FOR THE 

DISTRICT OF NEW HAMPSHIRE 

 

Donald Gibson 

Plaintiff 

 - v. - Docket No. 1:06-cv-00150-PB 

Mack Trucks, Inc. 

Defendant

 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

 NOW COMES the defendant, Mack Trucks, Inc., by its attorneys, Devine, Millimet & 

Branch, Professional Association, and states as follows: 

1. The instant litigation arose out of a work-related accident that is alleged to have occurred 

on 7 May 2003. 

2. At the time of his injury, the plaintiff was acting within the scope of his employment with 

State Line Truck Service, Inc. 

3. Suit against the defendant was commenced by a complaint filed with the court on 26 

April 2006, almost three years after the date of the plaintiff’s accident. The Complaint 

was amended, without objection, on 14 July 2006. 

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4. The plaintiff alleged in the (first) Amended Complaint that he severely injured his right 

wrist while he was “tightening a spring clip.”1

 (Amended Complaint, at ¶ 8.) 

5. He further alleged in the (first) Amended Complaint that the spring clip in question had 

been “defectively designed and manufactured by Mack Trucks.” (Amended Complaint, at 

¶ 8.) 

6. The defendant moved for summary judgment, on the ground that Mack Trucks had not 

designed, manufactured, assembled, distributed or sold the failed spring clip. 

7. The court (Barbadoro, J.) granted partial summary judgment in favor of Mack Trucks on 

that ground, but allowed the plaintiff one final opportunity to amend his complaint. 

(Exhibit 1, Transcript of Telephonic Hearing.) 

8. The plaintiff subsequently filed his Second Amended Complaint, and it is that pleading 

that is the subject of the instant motion for summary judgment. 

9. In his Second Amended Complaint, the plaintiff has alleged that his injury was the result 

of Mack Trucks’ failure to warn him that he might be injured if he over-torqued a spring 

clip (u-bolt) during replacement. (Second Amended Complaint, at ¶¶ 11, 12 and 21(i).) 

10. He also claims that Mack should have warned him to use only genuine Mack parts, 

although nowhere in his amended pleadings does he allege the non-genuine parts are less 

safe, or more likely to fail during installation, than are genuine Mack parts. (Second 

Amended Complaint, at ¶¶ 13, 14, 21(j) and 21(k).) 

 

1

 The spring clips at issue are large u-bolts which are used to attach a truck suspension spring pack (comprising 

several individual spring leaves) to the truck's chassis. The spring clips are fastened to the chassis with large nuts 

installed on the threaded ends of the bolts. 

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11. There is no genuine issue of material fact remaining on either of these claims, and the 

defendant now moves for summary judgment in its favor as to the entire Second 

Amended Complaint. 

12. Summary judgment is appropriate “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Fed. R. Civ. P. 56(c). 

13. The party moving for summary judgment “bears the initial responsibility of ... identifying 

those portions of [the record] which it believes demonstrate the absence of a genuine 

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

14. Once the moving party has met its burden, the burden shifts to the adverse party to 

“produce evidence on which a reasonable finder of fact, under the appropriate proof 

burden, could base a verdict for it; if that party cannot produce such evidence, the motion 

must be granted.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 

1996). 

15. The “adverse party may not rest upon the mere allegations or denials of the adverse 

party’s pleading, but the adverse party’s response ... must set forth specific facts showing 

that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); See also Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 256 (1986). 

16. With respect to the plaintiff’s claim that he was injured by over-torquing the spring clip, 

the plaintiff has failed to produce any evidence whatsoever to support that allegation. 

17. In fact, and quite to the contrary, the plaintiff himself has repeatedly refuted his 

attorneys’ assertion that the bolt was over-torqued. 

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18. First, the documents that the plaintiff produced with his initial Rule 26 disclosures reveal 

that the failed part had NOT been over-torqued. 

19. Included in the plaintiff’s Rule 26 disclosures was a copy of the Form 8WC that was 

signed personally by the plaintiff, and filed with the New Hampshire Department of 

Labor by the plaintiff’s employer. (A copy of the Form 8WC, signed by the plaintiff, is 

attached to and incorporated in this motion as Exhibit 2.) 

20. In Section 25 of that form, the accident was described as follows: 

“Torquing u-bolt on truck. required torque is 1750 ft. lbs. - u-bolt 

broke at approx. 600 lbs forcing broken u-bolt and torque wrench 

downward bending wrist backwards” 

21. The report clearly indicates that the bolt was not over-torqued, but rather, had failed after 

only about one-third of the intended torque had been applied, and long before the target 

torque level of 1750 ft./lbs had been reached. 

22. Nowhere in the Form 8WC is there any suggestion that that bolt had fractured as a result 

of it being over-tightened during installation, nor is there any suggestion that the plaintiff 

was claiming that over-torquing the bolt had caused his injury. 

23. Next, as part of the discovery in this case, interrogatories were propounded to the 

plaintiff. In those interrogatories, the plaintiff was asked to provide a description of how 

the accident had occurred. 

24. In his responses, which were served on the defendant in January of 2007, the plaintiff 

again stated that the bolt had broken at 600 lbs., confirming the original description of the 

accident that he had signed for the New Hampshire Department of Labor. 

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25. Nowhere in his interrogatory answer is there any suggestion that he had over-torqued the 

bolt while installing it. (A copy of the plaintiff’s answer to Interrogatory # 9 is attached 

to and incorporated in this motion as Exhibit 3.) 

26. The plaintiff again confirmed that the bolt had not been over-torqued, when he testified at 

his recent deposition. 

27. During the deposition questioning, the plaintiff admitted that the bolt had failed well 

before the torque level that was necessary to complete the installation (1750 ft./lbs.) had 

been reached. (Gibson Deposition Transcript, at pp. 77-78, 81-83, attached hereto as 

Exhibit 4.) 

28. He also testified repeatedly during his deposition that the bolt had not been over-torqued 

by him. (Gibson Deposition Transcript, at pp. 81-83, 142, attached hereto as Exhibit 4.) 

29. The plaintiff’s repeated statements that the bolt was not over-torqued stand 

uncontroverted. 

30. Since the plaintiff has admitted (repeatedly) that the bolt was not over-torqued, there is 

no way a jury could possibly find that the defendant’s alleged failure to warn of the risk 

of over-torquing had caused the plaintiff’s injury. 

31. In the absence of over-torquing, the alleged failure to warn is irrelevant, and no genuine 

issue remains for trial as to that claim. 

32. With respect to the plaintiff’s claim that Mack should have warned the plaintiff to use 

only genuine Mack parts, there is no allegation contained in the Second Amended 

Complaint that non-genuine spring clips are less safe, or are more likely to fail during 

installation, than are genuine Mack spring clips. 

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33. The plaintiff would apparently have the court (and a jury) assume, that non-genuine 

spring clips are more likely to fail during installation than are genuine Mack spring clips. 

However, this allegation has never been properly pled. 

34. Moreover, even if that claim had been properly pled, such a claim would require expert 

testimony to establish it at trial, as there is no way that an average jury would know 

whether non-genuine spring clips are more likely to fail during torquing than genuine 

Mack parts. 

35. The allegation is clearly outside the common knowledge and everyday experience of the 

average person, and “beyond the ken of the average layman.” See District of Columbia 

v. Freeman, 477 A.2d 713 (D.C. 1984), Zinnell v. United States Shipping Bd. E.F. Corp., 

10 F.2d 47, 49 (2d Cir. 1925), and Lemay v. Burnett, 139 N.H. 633, 660 A.2d 1116 

(1995). As such, expert testimony would be required. 

36. The plaintiff has not identified any expert witness who has offered such an opinion, and 

the deadline for the disclosure of the plaintiff’s experts has now passed. 

37. In light of the foregoing, there is no genuine issue of material fact remaining for trial as to 

the claims set forth in the plaintiff’s Second Amended Complaint, and the defendant is 

entitled to the entry of summary judgment in its favor pursuant to Fed. R. Civ. P. 56(c). 

38. A memorandum of law is attached to and incorporated in this motion. 

39. Due to the dispositive nature of this motion, the undersigned counsel has not sought the 

concurrence of opposing counsel. See Local Rule 7(c). 

 WHEREFORE, the defendant respectfully requests that the honorable court enter 

summary judgment in its favor pursuant to Fed. R. Civ. P. 56(c) as to the entire Second 

Amended Complaint; and grant such other and further relief as the court may deem just. 

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Respectfully submitted, 

Mack Trucks, Inc. 

 By its attorneys, 

 DEVINE, MILLIMET & BRANCH, 

PROFESSIONAL ASSOCIATION 

 /s/ Robert C. Dewhirst 

Dated: 1 October 2007 _____________________________ 

Robert C. Dewhirst, Esquire 

NHBA # 634 

111 Amherst Street 

Manchester, NH 03105 

(603) 669-1000 

rdewhirst@devinemillimet.com 

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CERTIFICATE OF SERVICE 

I hereby certify that I have this day caused the foregoing Defendant’s Motion for 

Summary Judgment to be served upon the following individuals via electronic transmission in 

accordance with the court’s Administrative Procedures for Electronic Case Filing: 

a) Scott A. Ewing, Esquire 

b) Robert M. Caplan, Esquire 

 /s/ Robert C. Dewhirst 

Dated: 1 October 2007 ____________________________ 

Robert C. Dewhirst, Esquire 

NHBA # 634 

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