Opinion
NO. 2012 CA 1580
03-22-2013
JAMES E. DAWSON, JR. v. HARMONY, L.L.C., AND/OR TURNER INDUSTRIES HOLDING COMPANY, L.L.C., AND/OR TURNER INDUSTRIES GROUP, L.L.C., FORMOSA PLASTICS CORPORATION LOUISIANA, FORMOSA TRANSRAIL CORPORATION, TRINITY INDUSTRIES, INC., AND ABC INSURANCE COMPANY
Michael C Palmintier Jonathan E. Mitchell Baton Rouge, Louisiana Attorneys for Plaintiff/Appellant, James E. Dawson, Jr. Michael R. Sistrunk Kyle P. Kirsch Metairie, Louisiana Attorneys for Defendant/Appellee, Trinity Industries, Inc.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court,
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 530,173
The Honorable Timothy E. Kelley, Judge Presiding
Michael C Palmintier
Jonathan E. Mitchell
Baton Rouge, Louisiana
Attorneys for Plaintiff/Appellant,
James E. Dawson, Jr.
Michael R. Sistrunk
Kyle P. Kirsch
Metairie, Louisiana
Attorneys for Defendant/Appellee,
Trinity Industries, Inc.
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
GRAIN, J.
James E. Dawson, Jr. (Dawson) appeals the granting of a motion in limine and a summary judgment in favor of Trinity Industries, Inc. (Trinity) in connection with a claim filed under the Louisiana Products Liability Act (LPLA). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
At the time of the accident giving rise to this litigation, Dawson was employed as a caustic loading foreman with Harmony, LLC. His duties included working on a crew that moved railcars to different locations at the Formosa Plastics Corporation plant in East Baton Rouge Parish. The job routinely required Dawson to disengage a brake located on the railcar. He accessed the brake using a ladder permanently attached to the side of the railcar.
Dawson asserts that on March 16, 2004, while descending the ladder, his foot slipped on the bottom rung causing him to fall under the railcar with his right lower extremity landing partially on the railroad track. The railcar then rolled backwards onto his right foot causing extensive injuries. Dawson testified at his deposition that the ladder was slippery and that there "could have been a substance" on it.
Dawson sued numerous defendants, including Trinity under the LPLA as the manufacturer of the railcar and upon the assertion that the bottom two ladder rungs rendered the railcar unreasonably dangerous for its reasonably anticipated use. Dawson alleged that the railcar was therefore "defective in construction or composition and/or design and/or a product that contained an inadequate warning."
The LPLA is set forth in Louisiana Revised Statutes 9:2800.51 - 2800.60.
To establish his claim under the LPLA, Dawson relied upon the opinions of Andrew J. McPhate, Sr., P.E. (McPhate), a mechanical engineer who inspected the railcar at Dawson's request. McPhate rendered the following two opinions set forth in a written report and an affidavit:
Based upon my training, knowledge, education and experience as an engineer, it is my opinion that the failure to provide any type of anti-skid devices, such as serrated treads, on the bottom two rungs of the ladder on the railcar in question, constitutes a design defect and creates an unreasonably dangerous condition.The "anti-skid device" suggested by McPhate consisted of rung covers that are advertised as increasing traction on ladder rungs.
* * *
It is my further opinion, based upon my training, knowledge, education and experience, and based on the materials provided to me and on the facts of this case, if the rungs had been designed to have some type of anti-skid device, it is more probable than not that James Dawson would not have suffered the injures which he did.
Trinity filed a motion in limine seeking to exclude the opinions of McPhate arguing that he lacks the necessary qualifications to testify as an expert in railcar safety and that the methodology used to arrive at his opinions did not meet the standards for expert witness testimony required by Louisiana Code of Evidence article 702 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Trinity also filed a motion for summary judgment asserting that Dawson could not present sufficient evidence to establish that he could meet his burden of proof at trial for his LPLA claim against Trinity.
In support of the motion for summary judgment, Trinity presented excerpts of the depositions of Dawson, McPhate, Andy McClure, and Richard Dawson, along with the Petition for Damages, a written report by McPhate, an affidavit of McPhate, product information for ladder rung covers provided by McPhate, and the written report of Richard Dawson. In opposition to both motions, Dawson submitted the depositions of Dawson and McPhate, excerpts of the depositions of Richard Dawson and Andy McClure, and a written report by McPhate.
The reports of McPhate submitted by Trinity and Dawson are slightly different. The four page report dated August 15, 2010 and submitted by Trinity contains additional information in the "Basis" section on page two and additional product information on rung covers in the "Basis" section on pages three and four.
The motions were heard on April 16, 2012. The trial court granted both the motion in limine and the motion for summary judgment. A judgment was signed on May 15, 2012, dismissing with prejudice all claims by Dawson against Trinity. Dawson filed a motion for new trial which was denied on June 7, 2012. Dawson appeals the trial court's granting of the motion in limine and the motion for summary judgment and the denial of the motion for new trial.
MOTION IN LIMINE
Because it effects the disposition of the motion for summary judgment, we first consider the appeal of the trial court's granting of the motion in limine.
Expert testimony is governed by Louisiana Code of Evidence article 702, which provides:
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.
In Cheairs v. State ex rel. Department of Transp, and Development, 03-0680 (La. 12/3/03), 861 So. 2d 536, 542, the Louisiana Supreme Court adopted the following three part inquiry for determining whether the admission of expert testimony is proper:
1. Is the expert qualified to testify competently regarding the matters he intends to address?
2. Is the methodology by which the expert reaches his conclusions sufficiently reliable as determined by the sort of inquiry mandated in Daubert?
3. Will the testimony assist the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue?
The court's adoption of this three part inquiry was not a repudiation of the "excellent principles for evaluating the methodology employed by expert witnesses set forth in Daubert and its progeny, including Foret", as those "principles will continue to govern the second of the three prongs in the inquiry we adopt herein." Cheairs, 861 So. 2d at 542-543.
The mention of "Foret" is a reference to State v. Foret, 628 So. 2d 1116 (La. 1993), wherein the Louisiana Supreme Court adopted the federal guidelines set forth in Daubert for admissibility of an expert's opinions.
To ensure reliability, Daubert requires that the expert's opinions be grounded in methods and procedures of science, rather than subjective belief or unsupported speculation. Consequently, before expert testimony is admitted, the court must make a preliminary assessment that the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue. Daubert, 509 U.S. at 589-93; Devall v. East Baton Rouge Fire Dept., 070156 (La. App. 1 Cir. 11/2/07), 979 So. 2d 500, 502. The quality of the factual basis for an expert's opinion determines the reliability. Carrier v. City of Amite, 08-1092 (La. App. 1 Cir. 2/13/09), 6 So. 3d 893, 897, writ denied, 09-0919 (La. 6/5/09), 9 So. 3d 874.
The following illustrative considerations may be used to determine whether the reasoning and methodology underlying expert testimony is scientifically valid and can properly be applied to the facts at issue: (1) whether the expert's theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error; and (4) whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 593-94; Devall, 979 So.2d at 502-503.
A trial court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. Cheairs, 861 So. 2d at 541. An appellate court should not disturb a trial court's evidentiary ruling on the admissibility of expert opinion evidence at summary judgment absent an abuse of discretion. MSOF Corp. v. Exxon Corp., 04-0988 (La. App, 1 Cir. .12/22/05), 934. So. 2d 708, 717, writ denied, 06-1669 (La. 10/6/06), 938 So. 2d 78. In performing its gatekeeping analysis at the summary judgment stage, the court must focus solely on the principles and methodology, not on the conclusions they generate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So. 2d 226, 236.
In his deposition, McPhate testified about the information he reviewed and the work he performed in arriving at his opinions. In addition to inspecting the railcar, he reviewed Dawson's deposition, photographs of the railcar, and information obtained through an internet search for ladder rung covers. He testified that he did not review any federal regulations governing railcars, took no measurements of the ladder, performed no tests, and did no accident reconstruction, dynamic analysis, or physical modeling. McPhate further testified that he did not perform a cost analysis or obtain a material quote for the covers, and did not determine if the anti-skid products were available when the railcar was manufactured. Similarly, he did not inquire as to whether the rung covers had any application to railcars.
When asked if he did any testing, McPhate replied:
No, I did not do any specific testing to see if - I simply know this: If his foot slipped, the more friction you have, the less likely you are to slip. There are other aspects that - I wasn't there. . . . I did not measure how his foot slipped. What I'm saying is, I don't have the exquisite dynamics of how his foot slipped . . . . [L]oss of friction would be the principal reason for slipping. Enhanced friction would help prevent slipping. Now, whether or not - I didn't do any testing because I really didn't have a baseline to start.
Given the evidence presented, we find that the trial court did not abuse its broad discretion in ruling that the methodology for McPhate's opinions did not satisfy the Daubert standards for reliability, the second prong of the Cheairs inquiry. His opinions that the ladder created an unreasonably dangerous condition and that rung covers would have prevented the accident are not supported by any objective data, tests results, friction measurements, or other observations that would allow for an informed scrutiny of his analysis and conclusions.
McPhate's opinions in this case appeal to rest, entirely on his belief that "the more friction you have, the less likely you are to slip." While perhaps true, that lone observation is not sufficient to support an opinion that the subject ladder, designed and constructed for use in connection with a railcar, was unreasonably dangerous and that rung covers would have prevented the accident. The trial court did not abuse its discretion in excluding the opinions of McPhate.
MOTION FOR SUMMARY JUDGMENT
Dawson also appeals the granting of the motion for summary judgment dismissing his claims against Trinity under the LPLA. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So. 3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So. 3d 387 Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966B(2). Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro, art. 966A(2).
Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether a summary judgment is appropriate. All Crane, 47 So. 3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La. Code Civ. Pro. art. 966C(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Pro. art. 966C(2); All Crane, 4.7 So. 3d at 1027.
The LPLA establishes the exclusive theories of liability for manufacturers for damages caused by their products. La. R.S. 9:2800.52; Payne v. Gardner, 10-2627 (La. 2/18/11), 56 So. 3d 229, 231. Under the LPLA, a plaintiff must establish four elements: (1) that the defendant is a manufacturer of the product; (2) that the claimant's damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product "unreasonably dangerous;" and (4) that the claimant's damage arose from a reasonably anticipated use of the product by the claimant or someone else. La. R.S. 9:2800.54A; Jack v. Alberto-Culver USA, Inc., 06-1883 (La. 2/22/07), 949 So, 2d 1256, 1258.
Louisiana Revised Statutes 9:2800.54B provides:
B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.
A product is unreasonably dangerous in design if, at the time it left the manufacturer's control, there existed an alternative design that was capable of preventing the claimant's damage and the likelihood and gravity of that damage outweighed the burden on the manufacturer of adopting the alternative design and any adverse effect on the product's utility. La. R.S. 9:2800.56; State Farm Mut. Auto. Ins. Co. v. Ford Motor Co ,044311, (La. App. 1 Cir. 6/15/05), 925 So. 2d 1, 11.
In support of the motion for summary judgment, Trinity presented a report by Richard Dawson and excerpts of his deposition. Richard Dawson, a mechanical engineer with experience in the design and construction of railcars, stated that he inspected the safety appliances on the railcar, including the subject ladder, and found them to be in full compliance with the applicable regulations of the United States Federal Railroad Administration. Richard Dawson opined that the appliances were in excellent condition and did not constitute a fall hazard. He also opined that the bottom rung of the ladder did not need any additional tread protection or anti-skid device. Based upon his knowledge of and experience with railcars, he posited an alternative theory for how Dawson was injured.
This evidence submitted on behalf of Trinity was sufficient to point out an absence of factual support for one or more elements essential to Dawson's claim. Therefore, the burden shifted to Dawson to produce evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Dawson relied upon McPhate's opinions that the ladder was unreasonably dangerous and that an alternative design existed at the time the product left the manufacturer's control that would have prevented his injury. However, we have affirmed the exclusion of those opinions. The remaining evidence presented by Dawson consisted of his deposition and excerpts of the depositions of Richard Dawson and Andy McClure. After reviewing that evidence, we find that Dawson failed to present evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Therefore, we affirm the granting of the summary judgment and find that the trial court did not abuse its discretion in denying the motion for new trial
In light of this holding, we need not address whether Dawson's claims are preempted by the Federal Railroad Safety Act at 49 U.S.C.A. 20101, et seq., and express no opinion in that regard.
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CONCLUSION
In conclusion, we affirm the granting of the motion in limine. We also affirm both the granting of summary judgment in favor of Trinity and the denial of Dawson's motion for new trial. Costs of this appeal are assessed to James E. Dawson, Jr.
AFFIRMED.