Eimers v. Lindsay Corp.

Christopher H. Steger Magistrate Judge

MEMORANDUM OPINION

TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE

The dispositive motions pending before the Court are: (1) Plaintiff Stephen Eimers's motions for partial summary judgment (Docs. 150, 151, 153); (2) Defendant Reynolds Fence & Guardrail, Inc.'s (“Reynolds”) motion for summary judgment (Doc. 158); (3) Defendant Lindsay Corporation's motion for summary judgment (Doc. 219); and (4) Defendants Lindsay Corporation and Lindsay Transportation Solutions, LLC (“LTS”) f/k/a (i) Lindsay Transportation Solutions Sales & Service, LLC (“LTSSS”) and (ii) Lindsay Transportation Solutions, Inc. f/k/a Barrier Systems, Inc.'s (“BSI”), (collectively, “Lindsay”), motion for summary judgment (Doc. 221). The Daubert motions pending before the Court are Plaintiff's motion to exclude testimony of Dr. Kim Collins (Doc. 145) and Lindsay Defendants' motions to exclude the expert opinions of Dr. Kevin Schrum (Doc. 201), Dr. Dean Sicking (Doc. 203), Dr. Sri Kumar (Doc. 205), Michael McCort (Doc. 208), and Dr. Marthinus van Schoor (Doc. 210).

For the following reasons, the Court will GRANT IN PART and DENY IN PART the motions to exclude the testimony of Dr. Kim Collins (Doc. 145) and Dr. Kevin Schrum (Doc. 201) and will DENY the motions to exclude the expert opinions of Dr. Dean Sicking (Doc. 203),

2

Dr. Sri Kumar (Doc. 205), Michael McCort (Doc. 208), and Dr. Marthinus van Schoor (Doc. 210). Plaintiff's motions for partial summary judgment as to Lindsay's affirmative defenses (Docs. 150, 153) are GRANTED. Plaintiff's motion for partial summary judgment to establish Lindsay's strict liability (Doc. 151) is DENIED. Reynolds's motion for summary judgment (Doc. 158) is DENIED AS MOOT. Lindsay Corporation's motion for summary judgment (Doc. 219) is DENIED. Lindsay's motion for summary judgment (Doc. 221) is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This case is a wrongful-death products-liability action arising from a car crash on Interstate 75 on November 1, 2016. Hannah Eimers was driving a 2000 Volvo S80 north on Interstate 75 near mile marker 55.90 in McMinn County, Tennessee. (Doc. 223-1, at 146.) The Volvo left the roadway, began a clockwise yaw, and collided with the guardrail end terminal at mile marker 56 (“subject guardrail”). (Id.) As a result of the collision, part of the subject guardrail penetrated the driver-side door, entered the occupant compartment, and severely injured Hannah Eimers, ultimately resulting in her death. (Id. at 147; Doc. 127, at 13.) Hannah Eimers's father, Plaintiff Stephen Eimers, now brings claims under the Tennessee Product Liability Act (“TPLA”) against Lindsay, asserting that the subject guardrail was defectively designed.

Plaintiff alleges the subject guardrail is an X-LITE guardrail end terminal manufactured and sold by Lindsay, but Lindsay asserts that it did not manufacture the subject guardrail. (Doc. 136, at 4.) The concept of a telescoping guardrail end terminal was first designed and developed by New Zealand company Armorflex International, Ltd., a subsidiary of Valmont Industries, Inc. (Doc. 151, at 4.) This type of guardrail system uses a slider panel at the end of the guardrail, and

3

as the guardrail “is pushed rearward, the panels are fed into the slider panel.” (Doc. 258-6, at 16.) “The panels stack into the slider panel and are pushed backwards as the shear bolts on subsequent panels release” so that the guardrails “telescope backwards.” (Id.)

Armorflex and Valmont Industries were named as Defendants in this action but were dismissed without prejudice after entering into a tolling agreement with Plaintiff. (Docs. 37, 39.) In 2006, Armorflex entered an exclusive license agreement with Lindsay Transportation Solutions, Inc., f/k/a Barrier Systems, Inc.'s (“BSI”), allowing BSI to further develop products using Armorflex's patents on the telescoping guardrail end terminal. (Doc. 223-1, at 728-56.) In 2019, BSI merged with Lindsay Transportation Solutions Sales & Service, LLC (“LTSSS”) to form Lindsay Transportation Solutions, LLC (“LTS”) (collectively, “Lindsay”). (Id. at 143-44.)

Defendant Lindsay Corporation denies any involvement with the design or manufacture of the X-LITE but admits that Lindsay, an indirect, wholly-owned subsidiary of Lindsay Corporation, marketed, promoted, advertised, distributed, and sold the X-LITE end terminal. (Id.) Despite Lindsay Corporation's position, evidence in the record, including emails, deposition testimony, signatures on contracts, and marketing materials, implicate Lindsay Corporation in the design, marketing, and manufacturing the X-LITE. (Doc. 258-2.) Evidence in the record suggests Lindsay also redesigned, developed, and tested the X-LITE after licensing the original design from Armorflex. (Doc. 223-1, at 758-92; Doc. 223-3, at 864.)

Lindsay, however, also entered into a sub-license agreement with Formet, now known as Forjas Metalicas S.A. DE C.V., pursuant to which Formet could manufacture, market, and sell Lindsay's X-LITE guardrail design, albeit under the tradename label “TX.”^[1] (Doc. 223-3, at

4

864.) The sub-license agreement ended in April 2013, at which point Lindsay transitioned manufacture and sale of the guardrails from Formet (as TX) to Lindsay (as X-LITE). (Id.) When the sub-license agreement ended, any unsold TX systems and kits remained in Formet's possession; Lindsay did not purchase any of the TX guardrail stock. (Id.)

Shortly before the close of discovery in this case, Lindsay claimed it discovered that the subject guardrail was a TX-manufactured and sold by Formet-not an X-LITE and amended its answer to add an affirmative defense that Formet was liable under the doctrine of comparative fault. (Docs. 96, 136.) The assertion that Formet, rather than Lindsay, manufactured and sold the subject guardrail arises from evidence that Lindsay's engineering team implemented a design change to the X-LITE slider panel: a purely aesthetic triangle notch to indicate the proper orientation upon final assembly. (Doc. 223-3, at 864.) This engineering change was implemented in August 2013, and Lindsay asserts that it did not sell any X-LITE guardrails in Tennessee until after 2014, after the triangle-notch modification. (Id. at 865.) Inspection of the subject guardrail did not reveal any triangle notch in the slider panel. (Doc. 223-1, at 522.)^[2] In light of Lindsay's eleventh-hour allegation that Formet manufactured the subject guardrail,

5

Plaintiff amended his complaint to name Forjas Metalicas S.A. DE C.V. f/k/a Formet as an additional Defendant. (See Doc. 127, at 10.)

Both federal and state authorities approved the subject guardrail. The National Cooperative Highway Research Program (“NCHRP”) published the NCHRP 350 Report, which outlines recommended procedures for the safety-performance evaluation of highway features. (See Doc. 204-4.) At the time of Hannah Eimers's crash, the Federal Highway Administration (“FHWA”) evaluated guardrail-end-terminal performance according to the criteria in this report. (Doc. 222, at 3.) The NCHRP 350 requires end terminals to demonstrate crashworthiness in specific, idealized crash conditions. (Id.) For instance, it only tests crashworthiness up to 62.5 miles per hour. (Id.) Guardrail manufacturers submit test results and other information to the FHWA, which it evaluates, and issues an approval letter if the guardrail is found compliant with the NCHRP 350. (See Doc. 223-1, at 807.) An FHWA letter of approval under the NCHRP 350 criteria allows state departments of transportation to receive subsidies from the federal government for purchase and installation of such an end terminal. (See Doc. 258-7, at 56-60.) The X-LITE received an FHWA approval letter in 2011. (Doc. 223-2, at 606.)

The Tennessee Department of Transportation (“TDOT”) approves guardrail products and then contracts with installers who may only install products from the approved TDOT Qualified Product List (“QPL”). (Doc. 223-1, at 2.) The TX and X-LITE were submitted to TDOT to evaluate the products for inclusion on the QPL in 2012 and 2013, respectively. (Id. at 69.) The submission packet included a “Product Evaluation Submittal Form, the letter from the FHWA stating that X-Lite met the guidelines contained in NCHRP Report 350 and FHWA deemed X-Lite acceptable for use on the National Highway System, Product Specification Sheet, Product Drawings, Product Warranty, Installation Manual, Product Literature, and FHWA test data,

6

photos, video, and reports.” (Id.) TDOT accepted the X-LITE for inclusion on the QPL. (See Doc. 223-2, at 365.)

In addition to the guardrail manufacturers, Plaintiff also named Reynolds, the state contractor that installed the subject guardrail, as a Defendant. (Id. at 9.) In January 2014, TDOT contracted with Reynolds to replace the guardrail system at mile marker 56 on Interstate 75. (Id. at 3.) Under its contract with TDOT, Reynolds had no duty to test or evaluate products that are included on the QPL and no authority to approve or deny a product's inclusion on the QPL. (Id. at 3.) Reynolds installed the replacement guardrail on December 21, 2014, and TDOT inspected and accepted the work as satisfactory on the same day. (Id. at 2-3.) Pursuant to its contract with TDOT, Reynolds was to be paid only after TDOT performed an inspection and found the installation to be satisfactory. (Id.) The TX, as manufactured and sold by Formet, was also a TDOT-approved product on the QPL in December 2014. (Id. at 365.) While Reynolds has not affirmatively identified whether the subject guardrail was an X-LITE or a TX, it asserts that guardrail was more likely than not an X-LITE:

Reynolds's inventory records show that they