Urda v. Valmont Indus., Inc.

561 F.Supp.3d 632

Harris Eugene URDA, et al.

v.VALMONT INDUSTRIES, INC., et al.

CIVIL ACTION NO. 3:18-CV-1044-JWD-EWD

United States District Court, M.D. Louisiana.

Signed September 21, 2021

Thomas Taylor Townsend, T. Taylor Townsend, LLC, Natchitoches, LA, Jeremy Newell, Pro Hac Vice, John W. Stevenson, Jr., Stevenson & Murray, Houston, TX, Trey Morris, Morris & Dewett, LLC, Shreveport, LA, for Harris Eugene Urda, Rachel Urda.

Mark R. Pharr, III, Lindsay Meador Young, Galloway, Johnson, Tompkins, Burr & Smith, Lafayette, LA, for Valmont Industries Inc., Valmont Newmark, Inc.

RULING ON DEFENDANTS’ MOTION TO EXCLUDE EXPERT TESTIMONY PURSUANT TO FEDERAL RULE OF EVIDENCE 702

JOHN W. deGRAVELLES, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants’ Motion to Exclude Expert Testimony Pursuant to Federal Rule of Evidence 702 (Doc. 131) ("Motion ") brought by defendants Valmont Industries, Inc. and Valmont Newmark, Inc. ("Defendants" or "Valmont"). The Motion is opposed by plaintiffs Harris Eugene Urda and Rachel Urda (collectively, "Plaintiffs"). (Doc. 139.) No reply brief was filed. The Court has carefully considered the law, facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, the Motion is denied.

I. BACKGROUND

According to Plaintiffs, Harris Eugene Urda ("Urda") was seriously injured on January 4, 2018 while working for Aldridge Electric, Inc. at a construction site in Plaquemine, Louisiana. (Doc. 64 at 2.) At the time of the injury,

[Urda] was operating a crane ... which was involved in placing utility power poles in the ground by a vibratory hammer used in conjunction with the crane. When the hammering process began, the ears of the pole fell from the teeth of the hammer and struck the crane and ... Urda, causing his injuries.

(Doc. 75 at 3, ¶ 9.)

Valmont was among the defendants sued. Plaintiffs charge that Valmont "provided power poles with galvanized ears. The galvanized material caused the connection between the ears and the teeth of the vibratory hammer to be compromised and caused the pole to fall." (Id. at ¶ 10.)

Plaintiffs "do not assert products liability claims" but, rather, "present negligence claims only." (Doc. 139 at 3.)

Valmont denies liability, (Doc. 47 at 5; Doc. 79), and states that "[t]he issues of what caused the caisson to fall, what could have been done to prevent the fall, and which parties were responsible and in what proportions, are hotly contested," (Doc. 131 at 4).

In support of their negligence claims against Valmont, Plaintiffs offer the opinions of William H. Pierce, a mechanical engineer who was retained by Plaintiffs to "reconstruct the accident" and "determine the cause of the incident." (Doc. 139 at 7.) As it pertains to Valmont, Pierce was asked specially to determine:

1. Whether or not Valmont, as the manufacturer and supplier of the subject pole base, supplied the pole base in a reasonably safe and proper manner in accordance with safety engineering principles.

2. ***

3. The probable cause of the accident.

4. Whether or not the accident could have been prevented had Valmont supplied the pole base to Aldridge in a reasonably safe and proper manner....

(Doc. 131-5 at 3.)

As to Valmont, Pierce concludes:

1. During the accident, the subject caisson's tabs separated from the APE vibratory hammer clamp as a result of Valmont's failure to mask the lift tabs during the caisson galvanization process.

2. Valmont's lack of structured oversight/quality control and inter-division communication during the manufacturing process of the subject caisson resulted in the subject batch of caisson's [sic] shipped to the Entergy work site exposing Aldridge installation personnel to the hazard that Entergy attempted to eliminate through design.

3. Had Valmont had a properly structured quality control and inter-division communication pipelines [sic] during the manufacturing process, the subject caisson's lift tabs would not have been galvanized and the accident would have been prevented.

(Doc. 131-5 at 24–25.)

II. SUMMARY OF PARTIES’ ARGUMENTS

Valmont argues that Pierce "is not qualified ... to provide the opinions on the subject matter for which he is providing opinions." (Doc. 131 at 1.) Further, since "his opinions are not supported by any analysis or calculations," they "are not in compliance with the evidentiary standards" required by Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). (Id. at 1, 8–11.) Finally, Valmont maintains that Pierce rests his opinions on "ipse dixit and unwritten ‘back-of-the-envelope’ calculations" which provide an additional ground for excluding his testimony. (Id. at 11–12.)

With respect to qualifications, while Valmont concedes that Pierce may be qualified generally in mechanical engineering and has had experience with other areas of accident reconstruction, his lack of experience with "cranes, the operation of cranes or vibratory hammers, or the driving of piles or caissons" renders him unqualified to testify regarding the issues in this case. (Id. at 6; id. at 6–8.) Valmont charges that his opinions are "based on conjecture", (id. at 8), and are not grounded on analysis or calculations, (id. at 8–10 (quoting Pierce's testimony regarding safety manuals and his lack of understanding of how a grapple crane is used to stabilize the caisson).) Finally, Valmont points the Court to Pierce's testimony where he performed but did not record and cannot reproduce "back-of-the-envelope" calculations thus rendering his opinions ipse dixit. (Id. at 11–12.)

Plaintiffs respond that Pierce is highly qualified to provide the opinions he has given and, while he has limited experience with the specific equipment involved in this accident, "[t]he list of products he has investigated during his career includes heavy industrial equipment such as cranes, forklifts, and other lifting devices." (Doc. 139 at 8 (citing Pierce Aff., Doc. 139-1 at ¶ 4).) Furthermore, he utilizes in every case the same mechanical engineering and physics principles, "kinematics (the study of motion) and dynamics (the causes of motion)" and "the engineering hierarchy" to perform a "failure mode evaluation", i.e., to identify failure modes and the causes of the accidents he investigates, regardless of the particular equipment involved. (Id. (citing Doc. 139-1 at ¶ 8–10).) He also utilized generally accepted safety engineering principles. (Id. )

As to Pierce's methodology and the sufficiency of the foundation for his opinions, Plaintiffs maintain that Pierce "followed the methodology in this case that he uses in every investigation" which is set out in Pierce's original report and affidavit. (Id. ) Plaintiffs hotly dispute the charge that Pierce's opinions are not supported by "any analysis or calculation" since he reviewed between 5,000 and 10,000 pages of materials, produced a detailed report and supplement, provided an affidavit further explaining his work in the case, and gave a deposition approximately 200 pages in length with 40 exhibits. (Id. at 18.) Finally, Plaintiffs direct the Court to Pierce's testimony and his explanation of the "back-of-the-envelope calculations" as well as his reliance on "calculations made by other sources of information." (Id. at 18.)

III. STANDARD

Pursuant to Federal Rule of Evidence 702, "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise" if the rule's preconditions are met. As this Court has explained:

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , which provide that the court serves as a gatekeeper, ensuring all scientific testimony is relevant and reliable. This gatekeeping role extends to all expert testimony, whether scientific or not. Under Rule 702, the court must consider three primary requirements in determining the admissibility of expert testimony: 1) qualifications of the expert witness; 2) relevance of the testimony; and 3) reliability of the principles and methodology upon which the testimony is based.

Fayard v. Tire Kingdom, Inc. , No. 09-171, 2010 WL 3999011, at *1 (M.D. La. Oct. 12, 2010) (internal citations omitted) (citing Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ).

This Court has broad discretion in deciding whether to admit expert opinion testimony. See, e.g., Gen. Elec. Co. v. Joiner , 522 U.S. 136, 138–39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (holding that appellate courts review a trial court's decision to admit or exclude expert testimony under Daubert under the abuse of discretion standard); Watkins v. Telsmith, Inc. , 121 F.3d 984, 988 (5th Cir. 1997) ("District courts enjoy wide latitude in determining the admissibility of expert testimony."); Hidden Oaks Ltd. v. City of Austin , 138 F.3d 1036, 1050 (5th Cir. 1998) ("Trial courts have ‘wide discretion’ in deciding whether or not a particular witness qualifies as an expert under the Federal Rules of Evidence.").

Defendants’ motion is a Daubert challenge. Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). When Daubert is invoked, a district court may, but is not required to, hold a hearing at which the proffered opinion may be challenged. See Carlson v. Bioremedi Therapeutic Sys., Inc. , 822 F.3d 194, 201 (5th Cir. 2016). However, when no hearing is held, "a district court must still perform its gatekeeping function by performing some type of Daubert inquiry." Id. "At a minimum, a district court must create a record of its Daubert inquiry and ‘articulate its basis for admitting expert testimony.’ " Id. (quoting Rodriguez v. Riddell Sports, Inc. , 242 F.3d 567, 581 (5th Cir. 2001) ).

The role of the trial court is to serve as the gatekeeper for expert testimony by making the determination of whether the expert opinion...