Beam v. McNEILUS TRUCK AND MFG., INC.

697 F. Supp.2d 1267

Sarah BEAM, personal representative of the Estate of James Anthony Lard, deceased, Plaintiff, v. McNEILUS TRUCK AND MANUFACTURING, INC., Defendant.

Civil Action No. CV-08-S-0933-NW.

United States District Court, N.D. Alabama, Northwestern Division.

March 24, 2010.

Ralph M. Young, Gonce Young Sibley & Collum-Butler, Florence, AL, for Plaintiff.

M. Todd Lowther, R. Bruce Barze, Jr., Balch & Bingham LLP, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

LYNWOOD SMITH, District Judge.

This action is before the court on the motion for summary judgment and two motions to exclude filed by defendant, McNeilus Truck and Manufacturing, Inc.¹ The suit arises out of an incident that occurred on December 11, 2007, when plaintiffs decedent, James Anthony Lard, fell from the riding platform on a garbage truck manufactured by defendant,² and died from the resulting injuries. Sarah Beam, as personal representative of the Estate of James Anthony Lard, asserted claims against defendant based on the so-called "Alabama Extended Manufacturer's Liability Doctrine" ("AEMLD"), an implied warranty of merchantability, and an implied warranty of fitness for a particular purpose.³ Defendant seeks the dismissal of all claims, as well as the exclusion of evidence tendered by plaintiffs expert, L.D. Ryan.

In support of its motion for summary judgment, defendant argues that plaintiffs AEMLD claim must fail because plaintiff failed to offer substantial, admissible evidence to support the elements of such a claim, and also because safety warnings conspicuously mounted on the vehicle occupied by plaintiffs decedent were ignored.⁴ Finally, defendant argues that plaintiffs warranty claims are not permissible in a suit of this nature, but that, even if such claims were cognizable, plaintiff failed to offer substantial, admissible evidence to support them.⁵

Defendant's first motion to exclude seeks to exclude the testimony of plaintiffs specially-retained expert witness, Dr. L.D. Ryan, arguing that he is not qualified to testify in this case, and that his opinions are not reliable.⁶ See Fed.R.Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendant's second motion seeks the exclusion of supplemental materials created by plaintiffs expert, based upon the fact that the opinions contained in the supplemental submission were not disclosed prior to the deadline specified in this court's scheduling order.⁷

Upon consideration, and for the reasons discussed below, defendant's motions to exclude the testimony and opinions of plaintiffs expert will be granted. As a consequence, and in the absence of admissible evidence to support plaintiffs claims, defendant's motion for summary judgment also will be granted.

I. STANDARDS OF REVIEW

A. Motion to Exclude or Strike Expert Testimony

The starting point for any discussion of the admissibility of opinion testimony offered by so-called "expert witnesses" is Federal Rule of Evidence 702. As amended in 2000, in response to the Supreme Court's seminal decisions in the so—called "Daubert Trilogy"—i.e., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),⁸General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997),⁹ and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)¹⁰—Rule 702 now provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702 (emphasis supplied). As the emphasized text of the foregoing quotation serves to indicate, the requirements of this rule can be grouped under three broad headings: qualifications, reliability, and helpfulness. See, e.g., U.S. v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (concluding that, "under Rule 702, we engage in a rigorous three-part inquiry"); Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003) (discussing the "three part inquiry used to determine the admissibility of expert testimony under Fed.R.Evid. 702").

Even though a "trial court has wide discretion in determining whether to exclude expert testimony," Montgomery v. Noga, 168 F.3d 1282, 1303 (11th Cir.1999) (quoting United States v. Cross, 928 F.2d 1030, 1049 (11th Cir.1991)), fidelity to the "gatekeeping role" imposed upon the trial court by the Daubert decision¹¹ requires district court judges to

engage in a rigorous inquiry to determine whether: "(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusion is sufficiently reliable as determined by the sort of inquiry mandated by Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue."

Rink v. Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir.2005) (quoting City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir.1998) (footnote omitted)). See also Frazier, 387 F.3d at 1260 ("While there is inevitably some overlap among the basic requirements . . . they remain distinct concepts and the courts must take care not to conflate them.").¹²

Furthermore, opinion testimony proffered by an expert witness must be excluded unless the party proffering the witness proves, by a preponderance of the evidence, that the witness is qualified, and that his testimony is both reliable and helpful. See, e.g., Rink, 400 F.3d at 1292 ("The party offering the expert has the burden of satisfying these three elements by a preponderance of the evidence.") (citing Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir.1999)); McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir.2004) (same); U.S. v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (same).

B. Motion for Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).¹³ In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995)). Inferences in favor of the nonmoving party are not unqualified, however. "An inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1983). Moreover,

the mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact.' A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").

II. SUMMARY OF FACTS

A. The Accident

As previously noted, this action arises out of an accident that occurred on December 11, 2007. Plaintiff's decedent, James Anthony Lard, then was employed by Lauderdale County, Alabama as a refuse collector and, on the morning in question, was performing his duties along Lauderdale County Road 134.¹⁴ Lard was riding on an exterior step mounted on the driver's side of a garbage truck manufactured by defendant,¹⁵ but owned and operated by the County's Solid Waste Department, when he fell or stepped off the moving truck and was killed.¹⁶

Immediately prior to the accident, Lard had collected the refuse from a residence located on the north side of the road. He then climbed onto the riding step located on the driver's side of the vehicle.¹⁷ Barry Trousdale, the driver of the truck, visually confirmed that Lard was aboard the riding step with "four points of contact"—a phrase indicating that Lard was grasping the handholds on the side of the truck with both hands, and, was standing with both feet on the riding step—before Trousdale began driving away from the residence.¹⁸

Approximately fifteen seconds later, Trousdale glanced in his rearview mirror and saw Lard rolling in the road.¹⁹ Neither Trousdale nor anyone else saw Lard fall from the truck.²⁰ No one knows whether Lard dismounted intentionally or unintentionally—i.e., whether he stepped off the riding step or fell off.²¹ Trousdale testified that there were no bumps or curves in the road, but...