Opinion
No. 8:99CV29
December 6, 2001
MEMORANDUM OPINION
This matter is before the court on defendants' Fed.R.Civ.P. 50 motion for judgment as a mailer of law at the close of plaintiff's case in this products liability action alleging negligence, strict liability in tort, and failure to warn. This action involves injuries sustained by plaintiff John Fitzpatrick as the result of a fall from a ladder designed, manufactured and sold by defendant.
There has been some dispute about whether defendant Louisville Ladder Corp. or Louisville Ladder Group, LLC, is the prope defendant. Resolution of that issue is not necessary in light of the finding that there is no liability. Accordingly, both defendants will be referred to, collectively, as "Louisville Ladder."
The action was tried to a jury from November 5, 2001, to November 14, 2001. At the close of plaintiff's case in chief, defendant moved for judgment as mailer of law and the court granted the motion. The following are the court's findings of fact and conclusions of law on the motion. Defendant contends there is not sufficient evidence from which a jury could conclude: (1) that the FS2008 stepladder was defectively designed; (2) that the step ladder "racked"; (3) that such "racking" caused plaintiff to fall; (4) that the warnings in connection with the ladder were inadequate or that defendant failed to warn of a known hazard. Upon consideration of the evidence, the court agrees and finds that defendant's motion should be granted.
FINDINGS OF FACT
The evidence adduced at trial establishes that plaintiff John Fitzpatrick fell from a FS2008 stepladder manufactured by defendant Louisville Ladder. Mr. Fitzpatrick testified that he could not remember the fall and could not remember what had caused him to fall. He testified that there is no doubt that he "set" the ladder; that is, he made sure all four feet of the ladder were securely on the floor before he climbed the ladder. He stated that he would never climb a ladder that did not have all four feet on the floor. He also testified that the floor was flat and clean. He was ascending the ladder to measure a conveyor belt on a production line. He is left-handed and was working on his left side. He testified that the ladder was about two inches away from the conveyor belt. He ascended the ladder once to the fourth step without incident and waited there for several minutes. In performing the task of measuring the conveyor belt, Fitzpatrick was assisted by his coworker, Gary Ryan, and his supervisor, Charlie Castile, who is now deceased.
Ryan and Castile were attempting to start the conveyor belt at another location. Fitzpatrick testified that he was tired of waiting for them to start the belt and descended the ladder to find out why they were taking so long. At some point Fitzpatrick returned to the ladder and the conveyor belt started running. Fitzpatrick testified that he remembered starting up the ladder the second time but does not remember anything after the fourth step. He stated that he climbed the ladder the second time the same way as he climbed the ladder the first time. He stated that he had both feet on the rung, but could not recall what he did with his hands. He did not know whether he had placed the measuring wheel on the conveyor before he fell. He stated he had no recollection of what happened when he got on the ladder.
No one witnessed the actual fall, but Ryan testified that he was several feet away from Fitzgerald and saw him hit the ladder and then hit the floor. A coworker, Gregory Quinn, testified that he had problems with the same or a similar ladder on the previous shift. He testified that the ladder flew out from under him, or "walked," twice during the prior shift.
Whether the ladder was the ladder from which John Fitzpatrick fell or a similar ladder is irrelevant to the courts analysis, since John Fitzpatrick alleges only defective design and not defective manufacture.
John Morse, Ph. D., an engineer, testified that he had tested the ladder and had performed an accident reconstruction. In his opinion, the FS 2008 stepladder was prone to excessive "racking." Dr. Morse explained that the base of a ladder normally forms a rectangle, with four ninety-degree angles. He defined "racking" as a situation where a rear leg of the ladder is off the ground and the base of the ladder forms a parallelogram instead of a rectangle. According to Dr. Morse, this action creates a "tipping line" that is crossed as one ascends the ladder. Dr. Morse described two types of racking: type-one racking which is caused by puffing a side force on the ladder; and type-two racking which involves puffing a small force on the side rail as a user ascends the ladder, causing the rear legs to swing sideways. Dr. Morse testified that, in his opinion, type-two racking was involved in this case. Dr. Morse testified that:
in the accident, the way it occurred, was that the ladder became racked as Mr. Fitzpatrick climbed it and then as he was standing on it and made this move to the southeast to measure the belt, that's when his body crossed over this stability line here. The right rear leg is up. Then if you move to the right, turn to the right, that can make you cross over that line and that in fact is what happened to him.
Transcript of Testimony of John S. Morse (Transcript), November 8, 2001, at 65.
Dr. Morse testified that he based this conclusion on the testimony of Gregory Quinn that a ladder that he climbed the previous shift had become unstable at the fourth step and on the observations of coworkers. Based on Gary
Ryan's statement, he assumed that Fitzpatrick "had placed a measuring roller on the conveyor belt and the way the conveyor is structured and the way you had to set a ladder up next to it, you physically can't get tangled up in the conveyor belt and what he had resting on the conveyor was this little measuring roller." Transcript 64-65. Dr. Morse opined that "as Mr. Fitzpatrick climbed the ladder he exerted a small force on the right side rail and racked the ladder, unbeknownst to him . . . then he made this movement to the southeast to get his measuring wheel on the conveyor . . . and that's when his center of gravity crossed over that tipping line and so the ladder, sitting on those three legs, tipped a little bit until the rear leg would come down and that movement of the ladder as it tilts caused Mr. Fitzpatrick to lose his balance and fall from the ladder." Transcript at 68-69.
Dr. Morse conceded that the ladder at issue met industry standards for racking and that any ladder could rack. He also conceded that there is no testimony that shows an unbalanced load was applied to the ladder. He further conceded that one can fall from a ladder without the ladder being racked.
CONCLUSIONS OF LAW
1. Standard of review
In a Rule 50 motion for judgment as a matter of law, the inquiry is 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. Kinserlow v. CMI Corp., 217 F.3d 1021, 1025 (8th Cir. 2000). Under Rule 50(a), "the judge in a jury trial may enter judgment against a party with respect to a claim or defense `that cannot under the controlling law be maintained or defeated without a favorable finding on that issue,' when the party has been fully heard on the issue and `there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on the issue.'" Id. (quoting Fed.R.Civ.P. 50(a)). The court must view the evidence in the light most favorable to the nonmoving party and must not engage in a weighing or evaluation of the evidence or consider questions of credibility. Id. The court should grant judgment as a matter of law only when all of the evidence points one way and is susceptible of no reasonable inference sustaining the position of the nonmoving party. Id.
Nevertheless, even under this exacting standard, the nonmoving party is only entitled to the benefit of reasonable inferences. Id. (emphasis added). A reasonable inference is one which may be drawn from the evidence without resort to speculation. Id. When the record contains no proof beyond speculation to support the verdict, judgment as a matter of law is appropriate. Id.
2. Analysis
A. Strict Liability and negligence
With those standards in mind, the court has evaluated the evidence presented at trial and finds Louisville Ladder's motion for judgment as a matter of law should be granted. To recover against a defendant on a claim of strict liability for defective design under Nebraska law, the plaintiff must prove by a preponderance of evidence, each of the five elements of the cause of action: (1) that the defendant placed the product on the market knowing that it would not be inspected for defects before use; (2) that the product was defective when sold; (3) that the alleged defect was a proximate cause of the injuries plaintiff sustained while using the product in the way and for the general purpose for which it was designed and intended; (4) that the alleged defect made the product unreasonably dangerous and unsafe for its intended use; and (5) that plaintiff's damages were a direct and proximate result of the alleged defect. Haag v. Bongers, 589 N.W.2d 318, 328 (Neb. 1999). Without such proof plaintiff fails to sustain the necessary elements of his claim and defendant is entitled to a directed verdict. Umberger v. Sankey, 38 N.W.2d 221, 25 (1949).
Similarly, a plaintiff in a negligence action is required to adduce evidence showing that there was a negligent act on the part of defendant and that such act was the cause of the plaintiff's injury. King v. Crowell Memorial Home, 622 N.W.2d 588, 594 (Neb. 2001). A "proximate cause" is a cause that produces a result in a natural and continuous sequence, without which the result would not have occurred. Id. Determination of causation is ordinarily a question for the trier of fact. Id. However, an allegation of negligence is insufficient where the finder of fact must guess the cause of the accident. Id.
Although circumstantial evidence may be used to prove causation, the evidence must be sufficient to justify the conclusion that the defendant's negligence was the proximate cause of the plaintiff's injury. Id. Speculation and conjecture are not sufficient to establish causation — the evidence must be sufficient to make the theory of causation reasonable and not merely possible. Id. The burden of proving a cause of action is not sustained by evidence from which a jury can arrive at its conclusion only by guess, speculation, conjecture, or choice of possibilities; there must be something more which would lead a reasoning mind to one conclusion rather than to another. Id. Moreover, in a case involving circumstantial evidence, "where several inferences are deducible from the facts presented, a plaintiff does not sustain his position by reliance on only the inferences which would entitle her to recover." Kroeger v. Ford Motor Co., 527 N.W.2d 178, 183 (Neb. 1995). A directed verdict is required if more than one conclusion can reasonably be drawn from the circumstantial evidence presented. Id.
A review of the evidence presented at trial demonstrates a complete failure of proof of the element of proximate cause. For purposes of this analysis, the court fully credits the testimony of Dr. Morse that the ladder at issue is prone to excessive racking. Even assuming that fact, there is no evidence from which the jury could find that this ladder did, indeed, rack. Moreover, there is no evidence that racking, instead of mere loss of balance or other such occurrence, caused the fall.
The court notes that Dr. Morse's testimony barely passes the admissibility threshold under Daubert See Lauzon v. Senco Prods., Inc., 270 F.3d 681, 687-88 (8th Cir. 2001). In order to be admissible, expert testimony based on scientific, technical, or other specialized knowledge must be useful to the finder of fact; the witness must be qualified; and the evidence must be reliable and trustworthy in an evidentiary sense. Id. at 686. The district court, in its gatekeeper role, can apply a number of factors to determine whether the prerequisites have been met, e.g., whether the theory has been tested; whether the theory has been subjected to peer review and publication; whether the expertise was developed for litigation; whether the expert ruled out other explanations and whether the expert sufficiently connected his testimony to the facts of the case. Id. at 687-695.
Dr. Morse's testimony is woefully deficient on most of these points. Dr. Morse's testing of the ladder was barely adequate — he premised the testing on several erroneous assumptions. His theory has not been subjected to rigorous peer review and has not been published in any widely-accepted journals. There has been no showing of widespread acceptance of his theory. His research was not conducted independent of litigation. Moreover, Dr. Morse was unable to rule out other possibilities. Most importantly, Dr. Morse was unable to connect his theory in a meaningful way to the facts of this case. The underpinnings of his theory were assumptions. of course, an expert's causation conclusion should not be excluded because he has failed to rule out every possible alternative cause. Lauzon, 270 F.3d at 693. Nevertheless, although his opinion is admissible, it could hardly be afforded much weight. In short, although the court credits the testimony for purposes of this motion, the court notes that the evidence in support of Dr. Morse's theory is exceedingly thin.
Dr. Morse formulated his opinion on the cause of the fall on nothing more than a guess. Mr. Fitzpatrick has no recollection of either climbing the ladder, being on the ladder, or falling from the ladder. Gary Ryan testified that he was facing the other way when Fitzpatrick fell, the turned and "all I seen [sic] was him hitting the ladder and the floor." There is no evidence that Mr. Fitzpatrick turned to the southeast in accordance with Dr. Morse's theory. Nor is there any evidence that one leg of the ladder lifted off the ground. Dr. Morse opined that Fitzpatrick "unbeknownst to him" exerted extra force on one handrail and caused the ladder to rack, but the court and the jury were not provided with any evidence suggesting how an experienced ladder climber could fail to notice that a leg of the ladder was off the ground as he climbed. In fact, Mr. Fitzpatrick's testimony that he set all four legs of the ladder on the ground before climbing refutes Dr. Morse's theory. Dr. Morse's theory with respect to causation is nothing more than pure speculation and is not consistent with the evidence.
In addition, Gregory Quinn's testimony regarding events that transpired on an earlier shift with the same or similar ladder does not support Dr. Morse's theory. Quinn testified that he was leaning straight over the top of the ladder, not turning, as Dr. Morse theorized Fitzpatrick had been, and he testified that the ladder "walked" out from under him, not that it racked. Quinn's testimony relates to a different type of occurrence and does not add to any probability that the ladder racked at the time of Fitzpatrick's fall.
In connection with Gregory Quinn's testimony, the court further notes that Quinn's testimony, if the jury were to find that the incident involved the same ladder, tends to negate plaintiffs required showing that the ladder was in the same or similar condition as when it left defendant's control. Quinn's mishap could well have damaged the ladder.
In short, there is no evidence from which a jury could have concluded that the ladder at issue racked, much less that racking caused Fitzpatrick to fall. It is equally probable that Fitzpatrick simply lost his balance and fell. The evidence shows that it is possible to fall from a ladder in the absence of any negligence in design. Evidence that an accident has occurred is not sufficient to establish a defect. Delgado v. Inryco, Inc., 433 N.W.2d 179, 185 (Neb. 1988). Plaintiff relies on a circular argument — we can infer the ladder racked because the plaintiff fell. This type of inference cannot support submission of this case to a jury. Plaintiff established only that this ladder, as well as any other ladders with a similar design, can rack. There was no evidence presented from which the jury could infer the cause of the accident; the evidence suggested several equally probable causes. Embracing plaintiff's position would be akin to adopting a res ipsa loquitur theory in a conventional negligence case. See Roberts v. Weber Sons, Co., 533 N.W.2d 664, 667-668 (Neb. 1995) (noting "the mere occurrence of an accident which causes injury and does damage does not create a presumption of negligence or authorize an inference of negligence").
B. Failure to warn
Although a product may be free from manufacturing or design defects, it nonetheless may be defective if the manufacturer fails to warn or inadequately warns users about dangers inherent in the use of the product that the manufacturer knows exist and about which the user is likely to be unaware. See Haag, 589 N.W.2d at 329 (noting "it is generally the law that a product may be defective and unreasonably dangerous because the manufacturer sold the product without sufficient warnings or instructions"); Restatement (Second) of Torts § 402A cmt. j (1965). The duty to warn does not arise, however, "if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product." Strong v. E.I. DuPont de Nemours Co., 667 F.2d 682, 687 (8th Cir. 1981) (applying Nebraska law in negligent failure to warn case).
The evidence shows that the ladder at issue was equipped with explicit warnings. "Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous." Restatement (Second) of Torts § 402A cmt. j. Because Dr. Morse had not been certified as an expert to testify regarding the warning issue, plaintiff adduced no evidence regarding the adequacy of warnings. Finally, even assuming that plaintiff could show the warnings were somehow inadequate, the plaintiff has not made any showing that any such inadequacy was the proximate cause of his injuries. "It despite deficient warnings by the manufacturer, a user is fully aware of the danger which a warning would alert him or her of, then the lack of warning is not the proximate cause of the injury." Strong, 667 F.2d at 688. Fitzpatrick testified he was aware of the risks of climbing the ladder. All the risks, including racking, were known to plaintiff, based on his own admission. Accordingly, defendant is entitled to judgment as a matter of law on plaintiff's failure to warn claim.
For the foregoing reasons, the court finds defendant's motion for judgment as a matter of law should be granted. Accordingly,
IT IS HEREBY ORDERED that defendant's motion for judgment as a matter of law is granted; judgment will be entered accordingly.
JUDGMENT
Pursuant to a Memorandum Opinion entered this date, the court finds that defendants' motion for judgment as a matter of law should be granted. Accordingly,
IT IS HEREBY ORDERED THAT:
1. Defendants' motion for judgment as a matter of law is granted; and
2. Judgment is entered in favor of defendants and against plaintiff, and plaintiff's action is dismissed.