ALFA Mutual Insurance Company v. Nicholson et al

Filing 136

MEMORANDUM OPINION AND ORDER: it is ORDERED that Oshkosh's Daubert motion to exclude Miller's testimony (Doc. 86 ) and its motion to strike Miller's affidavit (Doc. 121 ) are DENIED. It is further ORDERED that Oshkosh's motion f or summary judgment is GRANTED in part and DENIED in part. The summary judgment motion is GRANTED as to Plaintiffs' claim of wantonness in Count II of the First Amended Complaint and their "combined and concurring" claim in Count III of the First Amended Complaint. The summary judgment motion is DENIED in all other respects. Signed by Chief Judge William Keith Watkins on 3/4/2016. (kh, )

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
CLAUDE RONNIE
NICHOLSON, et al.,
Plaintiffs,
v.
CLINTON P. PICKETT, et al.,
Defendants.

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CASE NO. 1:13-CV-322-WKW

MEMORANDUM OPINION AND ORDER
This matter is before the court on the following motions filed by Defendant
Oshkosh Corporation (“Oshkosh”): (1) motion for summary judgment (Doc. 81); (2)
a Daubert motion to exclude the testimony of Plaintiffs’ expert, Charlie Miller (Doc.
86); and (3) a motion to strike the affidavit of Charlie Miller (Doc. 121).1 For the
reasons discussed, the court will deny Oshkosh’s motions to exclude and to strike and
will grant in part and deny in part Oshkosh’s motion for summary judgment.

1

Defendant Clinton P. Pickett also has filed a motion for summary judgment (Doc. 89)
and motion to dismiss for lack of jurisdiction (Doc. 131). These motions are pending. On
February 19, 2016, Plaintiffs and Pickett notified the court that they “have reached a pro tanto
settlement as to the claims and causes of action brought against . . . Pickett.” (Doc. 133). The
parties requested additional time “to submit documents necessary to finalize and complete the
pro tanto settlement.” (Id.). The court subsequently ordered Plaintiffs and Pickett to file a joint
stipulation of dismissal on or before March 23, 2016. (Doc. 134).

I. BACKGROUND AND OPERATIVE FACTS2
This lawsuit arises out of a motor vehicle accident. On April 29, 2011,
Plaintiffs Claude and Myra Nicholson were traveling in their passenger vehicle near
Enterprise, Alabama, when a large, unmanned military vehicle rolled down a hill and
into their path. The two vehicles collided, and Plaintiffs were injured.
The HEMTT3 M1120 motor vehicle that is the subject of this case was
manufactured by Oshkosh in October of 2009. (Doc. 108-1 at p.1; 108-4 at p. 2). In
or around November, 2010, the HEMTT was delivered to the Alabama National
Guard in Montgomery, Alabama. (Doc. 108-1 at p. 1). At or near the time of
delivery, the HEMTT underwent an inspection that revealed a defect. (Doc. 108-2).
Specifically, an inspection report identified as “PM HTV - Oshkosh Equipment
Deficiency Report” found that the vehicle’s spring brake valve was defective. (Id.).
The inspection report further describes that the following corrective action was taken:

2

The following statements are the “facts” for summary judgment purposes only, and may
not be the actual facts. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386,
1400 (11th Cir.1994). The court has gleaned these statements from the parties’ submissions of
facts claimed to be undisputed, their respective responses to those submissions, and the court’s
own examination of the evidentiary record. All reasonable doubts about the facts have been
resolved in favor of the nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta,
281 F.3d 1220, 1224 (11th Cir. 2002).
3

HEMTT stands for Heavy Expanded Mobility Tactical Truck. An illustration of a
HEMTT is in the court’s record at Doc. 83-8, p. 4.
2

“Parts ordered by FSR 11-02-10 and installed.” (Id.). The odometer reading on the
HEMTT, at the time of inspection, was 71.6 miles. (Doc. 108-1 at p. 1).
Plaintiffs have included as part of the record a document entitled “Motor
Vehicle Safety Plan” (“Safety Plan”). The Safety Plan, which was adopted by the
Alabama National Guard, references the procedure of “chocking” as follows:
Ensure that Army wheeled vehicles are equipped with and drivers use
chock block pairs when parked on inclines or when maintenance is being
performed. If chock blocks pairs have not been issued, they may be
made locally using 8-inch wood stock cut at 45 degree angles. Chock
blocks will be used as pairs, placing one block in front of and one block
behind the tire being chocked.
(Doc. 109-3 at p. 6). In a document entitled “Operator Maintenance [-] Operate
Parking Brakes,” Oshkosh set forth warnings regarding the need to chock the wheels
on HEMTT vehicles in certain circumstances. (Doc. 83-8). Specifically, the
operations manual warned that, “[w]hen parking on an incline, if vehicle is equipped
with C-Kit armor, ensure vehicle remains stationary before exiting the cab [and]
[c]hock wheels immediately.” (Id. at p. 1). With regard to installing wheel chocks,
the operations manual noted that the vehicle “is equipped with four wheel chocks,”
and instructed the operator to: (1) “[a]lways chock tires if vehicle is shut down on
uneven terrain;” (2) [a]lways chock tires if vehicle parking brake is inoperative;” and
(3) [e]nsure local policy for chocking vehicle tires is followed.” (Id. at p. 4).

3

In late April of 2011, Alabama was suffering the immediate aftermath of a
string of especially severe, deadly tornados and storms. The storms garnered national
press attention, resulted in a presidential visit to Alabama, and were among the worst
natural disasters in the state’s history. There are towns that simply no longer exist as
they did the day before the storms, having been laid completely to waste. The City
of Tuscaloosa, Alabama, in the western part of the state was especially damaged.
A state of emergency was declared, and the Governor mobilized the Alabama
National Guard to provide relief to areas damaged by the storm. Sergeant Clinton P.
Pickett and Specialist Xavier Clayton,4 who are members of the 131st Forward
Support company of the Alabama National Guard based in Enterprise, Alabama, were
among the Guard members called to duty. Pickett, who was an enlisted soldier and
not an officer, outranked Clayton. They were among those soldiers who were to travel
to Tuscaloosa. Sometime after the subject HEMTT arrived in Montgomery, it was
transferred to the 131st Forward Supply Company in Enterprise. (Doc. 108-5 at p. 2).
The distance from Montgomery to Enterprise is approximately eighty-five (85) miles.

On April 29, 2011, the day of the collision, Pickett was assigned the
responsibility of driving the HEMTT from Enterprise to Tuscaloosa, Alabama. (Doc.

4

Clayton is not a party to this lawsuit.
4

108-6 at p. 2). Clayton was assigned to be Pickett’s assistant driver. (Id. at p. 3).
Pickett had experience driving large commercial vehicles, including a different
HEMTT frame, but he had not driven this specific HEMTT model and was not
licensed to do so. (Id. at pp. 2, 8). At the time the Guard assigned the HEMTT to
Pickett, he raised his lack of training and his license issue with the assigning Guard
member. The Guard member’s response was to “fix” Pickett’s driver’s license to
show HEMTT certification. (Id. at p. 2). While having previous experience with
other large commercial vehicles, Clayton had no experience with a HEMTT. (Doc.
108-7 at p. 2).
After the HEMTT was assigned to Pickett and Clayton, Pickett found the
HEMTT in the motor pool and performed an inspection that included checking fluid
levels and walking around the vehicle. (Doc. 108-6 at p. 3). Pickett started the
HEMTT’s engine and was ground guided from the vehicle’s parked position to the
gate leading from the motor pool area of the National Guard facility. (Id.). After
Pickett stopped the vehicle on a concrete surface at the top of a hill near the gate, he
initiated the HEMTT’s parking brake. (Id. at pp. 3-4; Doc. 108-7 at p. 3). Clayton
confirmed that the parking brake was set when Pickett stopped the HEMTT at the
gate, as he observed Pickett applying the brake and heard the audible sound associated
with the parking brake’s application. (Doc. 108-7 at p. 3).
5

While parked at the gate, Pickett directed Clayton to go into the Armory and
retrieve a fuel card so they could obtain fuel for the HEMTT. (Doc. 108-6 at p. 3).
Pickett stayed inside the HEMTT and waited for Clayton to return. (Id.). After
waiting roughly twenty minutes, Pickett put the HEMTT’s transmission in neutral,
took the actions he thought were necessary to set the parking brake, and left the
HEMTT to look for wheel chocks “from a string of trailers on the fence and other
vehicles close by,” but he found none. (Id.). He returned to the HEMTT, assured
himself that the vehicle was in neutral and the parking brake was engaged insofar as
he could discern, and he left the HEMTT with the engine running to go find Clayton.
(Id. at pp. 3, 10).
Pickett succeeded in locating his assistant driver, but the Armory was not yet
distributing fuel cards. (Id. at p. 3). Pickett was imminently expected at a sergeant’s
meeting, and he instructed Clayton to return to the HEMTT to turn off the engine. (Id.
at p. 4). After returning to the vehicle and while turning off its engine, Clayton did
not touch the setting for the parking brake, and he only pressed the engine control
mechanism. (Doc. 108-7 at p. 5).
Fifteen minutes into the sergeant’s meeting, a loud booming noise was heard
and the power failed. (Doc. 108-7 at p. 7). A soldier ran into the meeting room and
informed the group that a vehicle had rolled down a hill and struck another vehicle.
6

(Id.).5 Pickett went outside of the Armory with his fellow soldiers where he learned
that his unmanned HEMTT was the vehicle that rolled down the hill. (Doc. 108-6
at p. 5). Pickett observed two individuals, later identified as Plaintiffs, being removed
from their vehicle and carried to the armory side of the road. (Id.). The HEMTT
odometer reading was 158.6 miles immediately after the collision. (Doc. 108-4 at p.
2). When the HEMTT was retrieved after the collision, a soldier provided testimony
that the parking brake was still set and that he had to start the HEMTT’s engine so that
the brake could be disengaged to allow the vehicle to be towed. (Doc. 111-4 at p. 5).
Pickett testified that the accident more than likely would not have happened had
the wheel chocks been available and used. (Doc. 83-1 at pp. 5-6). However, the
corporate representative for Oshkosh, Jack Lackore, testified at his deposition that the
parking brake system should have held the HEMTT in place where it was parked if
it functioned properly. (See Doc. 108-8 at p. 8). The corporate representative
specifically testified that the grade on which the vehicle was parked was “slight” and
that it was less than a 20 percent grade. (Id.). The witness also testified as follows:

5

The parties use the verb “rolled” to describe the action the HEMTT took to get from the
top of the hill to the bottom, and the word is repeated here for description purposes only. No
finding of fact is made that the vehicle “rolled” — i.e., that the wheels turned while the vehicle
was in motion versus, for example, that the wheels remained locked by the brake and the vehicle
slid down the hill. For purposes of the motions at bar, a precise description of how the HEMTT
traveled down the hill is unnecessary.
7

Q:

Now, the FMVSS 121, does that mean that [the vehicle] should hold
there [where it was parked] without chocks?

A:

Yes.

(Doc. 108-8 at p. 8; see also Doc. 108-8 at p. 9 (“I would have expected the HEMTT,
if the parking brakes had been applied, to stay there.”). Lastly, Oshkosh’s corporate
representative agreed with Plaintiffs’ counsel at the deposition that one of two things
occurred to cause the HEMTT to roll down the hill and into the path of Plaintiffs’
vehicle: either the brakes were not applied or the parking brake was applied and did
not “function properly.” (Id. at p. 6).
II. PLAINTIFFS’ CLAIMS AGAINST OSHKOSH
Plaintiffs have asserted three claims against Oshkosh in their First Amended
Complaint. (Doc. 67). In Count II, Plaintiffs claim that Oshkosh “negligently,
recklessly or wantonly researched, formulated, designed, manufactured, packaged,
labeled, sold, distributed, inspected and/or repaired the HEMTT LHS vehicle,
including the brake system and other component parts thereof, which is believed to
have caused or contributed to cause the injuries and damages to” Plaintiffs. (Doc. 67
at p. 6). In Count III, Plaintiffs claims that Oshkosh, Pickett, and other defendants
“combined and concurred to proximately cause the Plaintiffs’ injuries and damages.”

8

(Id.).6 Finally, in Count IV, Plaintiffs assert a cause of action against Oshkosh under
the Alabama Extended Manufacturers Liability Doctrine (“AEMLD”). (Id. at p. 7).
III. DISCUSSION
A.

Motion to Exclude the Testimony of Plaintiffs’ Expert
1.

General Legal Principles

The admissibility of expert testimony is governed by Federal Rule of Evidence
702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993), and its progeny. Rule 702 provides:
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:
(a)

the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue;

(b)

the testimony is based on sufficient facts or data;

(c)

the testimony is the product of reliable principles;
and methods; and

(d)

the expert has reliably applied the principles and
methods to the facts of the case.

Fed. R. Evid. 702.

6

One of the defendants, Bendix Commercial Vehicle Systems, LLC (“Bendix”), filed a
summary judgment motion on July 3, 2015. (Doc. 94). Plaintiffs subsequently filed a notice of
settlement with Bendix, and its summary judgment motion was dismissed as moot. (Doc. 129).
9

In Daubert, the Supreme Court emphasized that Rule 702 assigns the trial court
a gatekeeping role to “ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589 & 597, 113
S.Ct. 2786; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct.
1167, 143 L.Ed.2d 238 (1999) (“[T]he Federal Rules of Evidence ‘assign to the trial
judge the task of ensuring that an expert’s testimony rests both on a reliable
foundation and is relevant to the task at hand.’” (quoting Daubert, 509 U.S. at 596,
113 S.Ct. 2786)). This gatekeeping responsibility is the same when the trial court is
considering the admissibility of testimony based upon “‘technical’ and ‘other
specialized knowledge.’” Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167 (quoting Fed.
R. Evid. 702).
In light of Daubert’s “gatekeeping requirement,” the Eleventh Circuit requires
district courts to engage in a “rigorous three-part inquiry” for assessing the
admissibility of expert testimony under Rule 702:
Trial courts must consider whether: “(1) [T]he expert is qualified to
testify competently regarding the matters he intends to address; (2) the
methodology by which the expert reaches his conclusions is sufficiently
reliable as determined by the sort of inquiry mandated in 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.”

10

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting City of
Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1999)). These
requirements are known as the “qualifications,” “reliability,” and “helpfulness”
prongs. See id. “The burden of establishing qualification, reliability, and helpfulness
rests on the proponent of the expert opinion,” id., and the proponent must meet its
burden by a preponderance of the evidence. Boca Raton Cmty. Hosp., Inc. v. Tenet
Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009); see also Allison v. McGhan
Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999) (In addition, we note that “[t]he
burden of laying the proper foundation for the admission of expert testimony is on the
party offering the expert, and the admissibility must be shown by a preponderance of
the evidence.” (citing Daubert, 509 U.S. at 592, n. 10, 113 S.Ct. 2786)).
As to qualifications, “experts may be qualified in various ways,” including by
scientific training, education, and experience. Frazier, 387 F.3d at 1260. When
evaluating the reliability of scientific expert testimony, the [district court] must assess
“whether the reasoning or methodology underlying the testimony is scientifically valid
and . . . whether that reasoning or methodology properly can be applied to the facts
in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. Factors that may bear on the
reliability of expert testimony include (1) whether the expert’s theory can be and has
been tested, (2) whether the theory has been subjected to peer review and publication,
11

(3) whether the known or potential rate of error of the methodology is acceptable, and
(4) whether the theory is generally accepted in the proper scientific community.
McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004) (citing Daubert, 509 U.S.
at 593-94, 113 S.Ct. 2786). These factors are not definitive, however. Other
potentially relevant factors, depending upon the facts, include “whether the proposed
expert ruled out other alternative explanations” and “whether the proposed expert
sufficiently connected the proposed testimony with the facts of the case.” Lauzon v.
Senco Prods., Inc., 270 F.3d 681, 687 (8th Cir. 2001) (collecting cases). In short, trial
courts retain “considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.” Kumho Tire, 526 U.S.
at 152, 119 S.Ct. 1167. At the same time, trial courts must remain mindful that
“Daubert does not require certainty; it requires only reliability.” Hendrix ex rel. G.P.
v. Evenflo Co., 609 F.3d 1183, 1198 n. 10 (11th Cir. 2010). The focus of reliability
“must be solely on principles and methodology, not on the conclusions they generate.”
Daubert, 509 U.S. at 595, 113 S.Ct. 2786.
The Supreme Court further recognizes that Daubert’s general holding applies
not only to testimony based on scientific knowledge, but also to testimony based on
“technical” or any “other specialized knowledge.” Kumho Tire, 526 U.S. at 141, 119
S.Ct. 1167 (quoting Fed. R. Civ. P. 702). A district court is free to decide that any
12

such nonscientific expert testimony is reliable based upon the expert’s “personal
knowledge or experience.” Id. at 150, 119 S.Ct. 1167. “Thus, even where an expert
witness posits an experience-based opinion, as opposed to a purely scientific opinion,
‘a trial court may consider one or more of the specific factors that Daubert mentioned
when doing so will help determine that testimony’s reliability.’” Senn v. Carolina
Eartern, Inc., 111 F. Supp. 2d 1218, 1221 (M.D. Ala. 2000) (quoting Kumho Tire, 526
U.S. at 141, 119 S.Ct. 1167). While recognizing that a district court has broad latitude
in deciding how to determine reliability, it must “make certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho Tire, 526 U.S. at 151, 119 S.Ct. 1167).
Finally, whether the expert testimony will assist the trier of fact in
understanding the evidence or a fact in issue “goes primarily to relevance.” Id. at 591,
113 S.Ct. 2786. “Expert testimony which does not relate to any issue in the case is not
relevant and, ergo, non-helpful.” Id. (citation and internal quotation marks omitted).
“The ‘basic standard of relevance . . . is a liberal one,’ but if an expert opinion does
not have a ‘valid scientific connection to the pertinent inquiry[,]’ it should be excluded
because there is no ‘fit.’” Boca Raton Cmty. Hosp., 582 F.3d at 1232 (quoting
Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786). Hence, under this third inquiry, “even
13

if an expert’s testimony [is] admissible under the first two prongs of the Daubert
analysis, it may still be insufficient to create an issue of fact to overcome summary
judgment.” Gulf States Reorganization Group, Inc. v. Nucor Corp., 822 F. Supp. 2d
1201, 1232 (N.D. Ala. 2011); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146,
118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (District courts may reject expert testimony
that is based on sound methodology when “there is simply too great an analytical gap
between the data and the opinion proffered.”).
In the end, the court’s gatekeeping role under Daubert “is not intended to
supplant the adversary system or the role of the jury.” Allison, 184 F.3d at 1311.
Where the basis of expert testimony satisfies Rule 702, “vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 596, 113 S.Ct. 2786.
2.

The Opinions and Testimony of Plaintiffs’ Expert

Plaintiffs retained Charlie Miller, owner of Merigold Automotive, Inc., as their
expert. (Doc. 108-3 at ¶ 1). Miller has “worked in the automobile and commercial
vehicle repair industry since 1969” and has “participated in the investigation and
failure analysis of several hundred motor vehicle accidents involving design and
manufacturing issues.” (Id.). Miller initially inspected the HEMTT vehicle on
14

December 6, 2012. (Doc. 111-9 at p. 2). In preparing his expert report dated February
6, 2015, Miller reviewed the complaint, as well as numerous documents, transcripts,
vehicle inspection report, photographs, and video from Oshkosh’s May 18, 2011
inspection of the HEMTT. (Id.). Miller reached the following conclusions in his
expert report:
(1)

the air brake system, including the parking brake components,
valves, lines and other component parts, are substantially similar
to the air brake systems found on any similar nonmilitary
commercial vehicle.

(2)

the spring brake valve failed by allowing compressed air into the
spring brake chamber sufficient to release the spring brakes that
were otherwise properly set and correctly applied by Pickett.

(3)

the failure of the spring brake valve was the result of debris or
other material that was allowed to remain in the brake system
during the manufacture of the components of the spring brake
system, in the assembly of the components, and/or as a result of
the design of the subject spring brake system, or both.

(4)

the fact that the spring brake valve was determined in a predelivery inspection to be defective is consistent with these
findings.

(5)

neither the remedy nor the repair of the pre-inspection issues with
the spring brake valve has been identified or made available.

(Id. at pp. 4-6).
Miller subsequently participated in a second, more detailed inspection of the
HEMTT vehicle on March 18, 2015. (Doc. 108-3 at ¶ 2). At his deposition conducted
15

on April 16, 2015, Miller testified that he conducted various tests and operations on
the HEMTT and observed nothing out of the ordinary with regard to the air brake
system, which was working properly at the time of the tests. (Doc. 88-1 at p. 12).
Miller nevertheless testified with regard to the incident at issue that: (1) either the dash
valve or the SR-7 modulating valve was malfunctioning and thereby allowing air to
return to one of the chambers; (2) to the extent he believes debris was allowed to
remain in the brake system causing a valve malfunction, it would be a manufacturing
defect; and (3) chock blocks were unnecessary on level ground where brake systems
similar to the one used by the HEMTT were working properly. (Id. at 88-1 at pp. 1617, 20, 22).
Following his detailed inspection and deposition, Miller executed an affidavit
which was submitted as evidence in response to Oshkosh’s summary judgment
motion. (Doc. 108-3). Based on his extensive experience in the automobile and
commercial vehicle repair industry, and after conducting his inspections and
reviewing the evidence in this case, Miller determined that:
The parking spring brake system for the HEMTT uses a spring system
that is referred to as a spring brake. The spring brake system and
components used in the HEMTT are similar to, if not exactly like, the
spring brake system utilized in most heavy commercial trucks. The
vehicle locks the brake and holds the truck stationary by releasing air
from the spring brake chambers. Once this air is released from the
spring brake chambers it is impossible for the brake to be released or for
the truck to move until compressed air is reintroduced into the spring
16

brake chambers of a sufficient capacity to compress the springs and
release the brake. The only way compressed air can reach the spring
brake chambers is through the valve controlling the parking brake
system. If the driver or operator does not move the valve manually to
apply this air, and the air gets to the spring brake chamber to release the
brake, there has to be a defective and improperly operating spring brake
valve to allow air to get into the chamber.
(Id. at ¶ 3).7
Miller reaffirmed in his affidavit his essential conclusions set forth in his initial
expert affidavit that: (1) the evidence shows that the parking brakes were properly set
and rechecked, and there otherwise is no evidence that compressed air was
reintroduced to the brake chambers by human interventions; (2) the spring brake valve
failed by allowing compressed air into the spring brake chamber sufficient to release
the spring brakes that were otherwise properly set and correctly applied by Pickett;
and (3) “this failure was the result of debris or other material that was allowed to
remain in the brake system during the manufacture of the components of the spring
brake system or in the assembly of the components.” (Id. at ¶ 6, 9). Miller further
explained his belief that:
the debris was expelled from the system during the inspection of the
HEMTT performed by Oshkosh shortly after the accident on May 18,
2011. During this inspection, compressed air was introduced into the air
brake system and released many times. This acted as a flushing

7

Mr. Miller’s conclusion regarding his analysis of the spring brake system in the
HEMTT essentially echo his conclusions stated in his initial report. (See Doc. 111-9 at p. 3).
17

mechanism for the system and would have expelled any debris causing
a malfunction of the spring brake valve. Neither the [Plaintiffs] nor their
representatives were invited to attend and observe this destructive
inspection.
(Id. at ¶ 9).8
Miller again recognized that the spring brake valve in the HEMTT was
determined to be defective in its pre-inspection delivery and that he did not believe the
problems associated with the defective spring brake valve were ever resolved before
the incident involving Plaintiffs on April 29, 2011. (Id. at ¶ 11). Specifically, Miller
concluded that:
The condition of the vehicle indicates the spring brake system and
associated component parts were the same factory installed parts and had
not been modified. The factory installed SR-7 valve manufactured by
Bendix and found to be defective during the pre-delivery inspection
appears to be the same valve present on the HEMTT at the time of my
inspection. The SR-7 valve present on the HEMTT on April 29, 2011,
I covered with the same factory applied CARC paint covering the
exterior of the HEMTT. There are no tool marks present on the supply
lines connecting to the SR-7 to indicate that the valve was replaced
following the November, 2010 inspection when the spring valve was
determined to be defective and not operating properly.
(Id. at ¶ 11).

8

After the collision, but before the lawsuit was filed, Oshkosh undertook what has been
described as “destructive testing” on the brake system in the HEMTT, and certain parts were
replaced. Neither Plaintiffs nor their representatives were invited to participate in the testing or
were present. Moreover, the parts that were replaced or destroyed were not preserved, and
Plaintiffs were not permitted an opportunity to conduct an independent inspection of their own.
Plaintiffs have not moved for an adverse inference of fact with respect to the evidence that was
destroyed. Therefore, no adverse inference is afforded for purposes of the pending motions.
18

Miller then observed on film several reenactments of the accident sequence that
were conducted “in an area generally accepted as the area where the subject truck was
parked by Pickett, and in proximity to the concrete pad expansion joint.” (Id. at ¶
14). Miller concluded after reviewing the reenactments that “[i]t is likely the truck
was parked either on, or to the left of, the expansion joint, and remained parked there
until enough air leaked into the brake chamber to release the brakes over the
approximate fifty (50) minute period described by Pickett, thereby allowing the truck
to then roll down the hill and cause the accident made the basis of this lawsuit.” (Id.
at ¶ 18).
3.

Oshkosh’s and Plaintiffs’ Contentions

In its motion to exclude expert testimony, Oshkosh acknowledges that Miller
is qualified to testify about brakes based on his overall experience as a mechanic taken
together with the courses he took before starting his career. (Doc. 87 at p. 10 n.3).
Oshkosh instead contends that Miller’s methods are unreliable and that his speculative
testimony will not assist the jury. (Id. at pp. 11, 16).
On the issue of reliability, Oshkosh contends that Miller has:
performed no independent tests to confirm his hypothesis, and his entire
investigation into the cause of this accident is limited to two visual
inspections of the HEMTT and its brake system – inspections that
demonstrated proper operation of the HEMTT and its brake system.
This thread-bare foundation for his theory is not enough to demonstrate
reliability.
19

(Id. at 13 (emphasis in original)). Oshkosh further contends that Miller has failed “to
explain how his experience and personal knowledge ‘from reading different books’
substantiates his conclusion that debris in the brake valves caused this accident.” (Id.
at 14). After citing the fact that Miller’s theory has neither been tested nor “been
subjected to any sort of peer review or publication,” Oshkosh asserts that “it is
impossible to determine any error rates for his investigative techniques or whether
these techniques would be generally accepted in the scientific community.” (Id. at 1415). According to Oshkosh, the lack of reliability is demonstrated by Miller’s
deposition testimony with regard to his unfamiliarity with the HEMTT vehicle and its
brake system, his lack of experience in never offering an expert opinion on the design
and manufacture of a military truck like the HEMTT, and his lack of both publishing
papers and teaching industrial courses. (Id. at pp. 15-16).
Oshkosh next asserts that Miller’s unreliable testimony will not assist the jury
as it “does not ‘fit’ with the facts of the case” and is “imprecise, unspecific, and not
based in fact.” (Id. at p. 17). Specifically, Oshkosh contends that:
First, Miller’s theory is belied by the facts and admissions of the
witnesses in this case. Clinton Pickett, the driver of the HEMTT,
testified that but for his failure to place wheel chocks under the HEMTT,
this accident would not have happened. Second, Miller admits that
placing wheel chocks is required by both the Army and Oshkosh. Third,
Miller admits that he never found any debris in the brake valves. Fourth,
Miller does not know which valve allegedly malfunctioned. Fifth, all of
his inspections and testing demonstrated the brake system was operating
20

properly. Sixth, despite his theory of the cause of the accident, he has no
evidence of a manufacturing defect.
(Id.). According to Oshkosh, Miller’s testimony “offers nothing more than an
insufficient and conclusory explanation for the accident” and otherwise “is nothing
more than a collection of speculative conclusions.” (Id. at p. 18).
Plaintiffs counter that Miller’s opinions are sufficiently reliable by first
explaining that his reliance “on deposition testimony and reports and analyzing
photographs is a reliable and accepted methodology under Daubert.” (Doc. 110 at p.
13). Despite the fact that Oshkosh’s “destructive testing” rendered it impossible for
Miller to recreate the spring brake failure,” his opinion regarding the proper cause of
the accident is offered “within a reasonable degree of certainty based upon [his]
education, training, and service over the past 45 years.” (Id. at 16). Contending that
Miller’s methodology was sufficiently reliable, Plaintiffs cite his review of the various
reenactments, his physical assessment of the HEMTT and its air brake system, and his
long-time experience and work as a mechanic. (Id. at pp. 17-18).

Arguing that

Miller’s testimony will assist the jury, Plaintiffs maintain that “Miller’s extensive
knowledge is clearly beyond a layman’s understanding and is based on 45 years as a
mechanic.” (Id. at 22). Contrary to Oshkosh’s contention that Miller’s testimony is
mere speculation, Plaintiffs state that “it is the only logical mechanical and/or
scientific conclusion that could possibly be reached based on the evidence of record.”
21

(Id.). According to Plaintiffs, Miller’s testimony will assist the trier of fact: (1) “in
determining how the braking system on the HEMTT works and ultimately failed;” (2)
by explaining “how the brake locks and hold[s] the truck stationary by releasing air
from the spring brake chambers;” (3) by explaining “how compressed air reaches the
brake system through a valve system to compress the spring and ultimately release the
brake;” and (4) by explaining how there has to be present a defective and improperly
operating spring valve to allow air to get into the chamber in the absence of any
human involvement. (Id. at 23). To the extent Oshkosh points to the lack of any
debris currently present in the HEMTT’s braking system, Plaintiffs contend that such
evidence goes to the weight of Miller’s testimony and not its reliability. (Id.).

4.

Analysis
Reliability

Is the methodology employed by Miller to reach his conclusions sufficiently
reliable? Oshkosh has conceded that Miller is qualified to render an expert opinion
based on his extensive background, training, and experience in the automobile and
commercial vehicle repair industry. Miller’s extensive qualifications, while by no
22

means a guarantor of reliability, “may bear on the reliability of his proffered
testimony.” Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,
1341 (11th Cir. 2003). The testimony proffered by Miller in his expert report,
deposition, and affidavit is based on his experience, as well as the following
methodology employed:
(1)

reviewed the complaint, as well as numerous documents,
transcripts, vehicle inspection report, photographs, and video from
Oshkosh’s May 18, 2011 inspection of the HEMTT.

(2)

conducted two inspections of the HEMTT vehicle with the first
inspection conducted on December 6, 2012, and the second more
detailed inspection conducted on March 18, 2015.

(3)

performed various tests and measurements, in connection with the
second inspection, on the HEMTT’s braking system; and

(4)

observed on film several reenactments of the accident sequence.

(Doc. 111-9 at pp. 1-2; Doc. 108-3 at ¶¶ 2, 14, and 18; Doc. 88-1 at pp. 6-13).
When considering Miller’s experience and the methodology used by him, the
court finds that his expert testimony is sufficiently reliable. Oshkosh’s own corporate
representative testified that one of two things occurred to cause the HEMTT to roll
down the hill and into the path of Plaintiffs’ vehicle: either the brakes were not
applied or the parking brake was applied and did not “function properly.” (Doc. 108-8
at p. 6). As part of his methodology outlined above, Miller eliminated the first theory
as his review of the pertinent evidence revealed that the parking brake was properly
23

applied and no human interaction otherwise occurred to release the brakes prior to the
HEMTT rolling down the hill.
Oshkosh further offers the alternative theory that, based on Pickett’s testimony,
the accident was caused by Pickett’s failure to place wheel chocks under the HEMTT.
However, Miller explained at his deposition that the wheel chocks were unnecessary
on relatively level ground where brake systems similar to the one used by the HEMTT
were working properly. (Doc. 88-1 at 20). Miller’s rejection of this theory as the
cause of the accident is supported by Oshkosh’s corporate representative who testified
that wheel chocks were unnecessary as he would have expected the HEMTT to stay
if the parking brakes had been applied. (Doc. 108-8 at p. 9). Thus, Miller’s testimony
provides sound reasons for rejecting alternative explanations as to what caused the
HEMTT to roll down the hill. See Rudd v. Gen. Motors Corp., 127 F. Supp. 2d 1330,
1342 (11th Cir. 2001) (recognizing that the expert’s ability to settle on a cause
“through a process of eliminating alternative possible causes is, by a preponderance
of the evidence, a reliable one”).
Oshkosh further contends that Miller’s expert testimony is not sufficiently
reliable because he has performed no test to confirm his hypothesis, he has failed to
show that his theory has been subjected to any sort of peer review or publication, and
all of his inspections and testing demonstrated the brake system was operating
24

properly. (Doc. 87 at pp. 11-16). Miller attempted to confirm his hypotheses by
conducting various tests and operations on the HEMTT during his April 18, 2015
inspection. (Doc. 88-1 at p. 12). According to Miller, however, he was unable to
detect any debris within the brake system during his inspections of the HEMTT, or
any other abnormality, as any such debris had more than likely been expelled from the
system during the inspection of the HEMTT performed by Oshkosh shortly after the
incident on May 18, 2011. Even though he was unable to test the HEMTT in its
condition immediately following the incident, Miller’s analysis of the relevant
evidence included reviewing several reenactments of the accident sequence on film.
Miller’s analysis of the film served to support his theory that a manufacturing defect
in the spring brake valve allowed air to slowly leak into the brake chamber and cause
the brakes to release after the passage of time. (Doc. 108-3 at ¶¶ 14-18).
While Oshkosh also attacks the reliability of Miller’s opinions as to his lack of
experience with the HEMTT vehicle, Miller specifically remarks that the spring brake
system and components used in the HEMTT are similar to, if not exactly like, the
spring brake system utilized in most heavy commercial trucks. (Id. at ¶¶ 3, 12).
Based on his experience in the commercial vehicle repair industry and review of the
pertinent depositions, films, and reports, Miller outlines with sufficient reliability the
braking process in such a large commercial vehicle and explains in detail why the
25

brake system in the HEMTT more likely than not failed due to a manufacturing defect
caused by debris remaining in the braking system. See Am. Gen. Life Ins. Co. v.
Schoenthal Family, LLC, 555 F.3d 1331, 1338 (11th Cir. 2009) (“Standards of
scientific reliability, such as testability and peer review, do not apply to all forms of
expert testimony,” and court has discretion to deem expert testimony reliable based
upon personal knowledge or experience); Clay v. Ford Motor, Co., 215 F.3d 663, 66869 (6th Cir. 2000) (recognizing that reliance on depositions, reports, statements, and
photographs is a reliable and accepted methodology under Daubert); Reid v. BMW of
North America, 430 F. Supp. 2d 1365, 1370 (N.D. Ga. 2006) (holding that the expert’s
testimony based on his own personal experiences and analysis of the evidence are
deemed reliable and any attacks against such testimony go toward the weight of the
testimony and not its admissibility).
Miller’s expert testimony, as contained in his report, deposition, and affidavit,
is not without its flaws. In both his expert report and affidavit, Miller unequivocally
states that the HEMTT’s spring brake valve failed and that it failed as the result of a
manufacturing defect due to debris that was allowed to remain in the brake system.
(See Doc. 108-3 at ¶ 9; Doc. 111-9 at p. 5). Miller was not quite so emphatic in his
deposition as he was unable to identify the specific valve that malfunctioned or
identify the manufacturing process that introduced debris into the braking system.
26

(Doc. 88-1 at pp. 16, 18, 24). Furthermore, in contrast to his report and affidavit,
Miller identifies the possibility that a part—such as a piston—could have been
defective. (Id. at 17). Miller, however, then proceeded to reject this type of
manufacturing defect as it “more likely than not would still be manifesting itself, and
it would still be malfunctioning.” (Id.).
The court nevertheless finds that Miller’s deposition testimony, as a whole, is
consistent with his report and affidavit in that he generally opines the accident was
caused by a manufacturing defect due to debris remaining in the system that led a
spring brake valve to fail.9 To the extent that Oshkosh has various concerns with
respect to Miller’s expert testimony, such arguments go to the weight, rather than the
admissibility, of his testimony. See Daubert, 509 U.S. at 596, 113 S.Ct. 2786
(“Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence”); Jones v. Otis Elevator Co., 861 F.2d 655,
663 (11th Cir. 1988) (“[W]eaknesses in the underpinnings of the expert’s opinions go
to its weight rather than its admissibility.”).
Assist the Trier of Fact

9

Oshkosh moves to strike Miller’s affidavit as a “sham” affidavit. (Doc. 121).
However, as discussed below, this motion is due to be denied.
27

The court next considers the third part of the Daubert inquiry – whether the
expert’s testimony assists the trier of fact. An expert’s testimony will assist the jury
when it offers something “beyond the understanding and experience of the average
citizen.” United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985). Miller’s
testimony, which is based on his extensive experience and knowledge in the field of
commercial vehicle repair and his analysis of the relevant materials in this case, relates
to determining the precise cause for why the HEMTT rolled down the hill and will
clearly assist the jury in making such a determination. Accordingly, Oshkosh’s
motion to exclude Miller’s testimony is due to be denied.
B.

Motion to Strike Mr. Miller’s Affidavit

Oshkosh moves to strike Miller’s affidavit that was attached to Plaintiffs’
summary judgment motion. (Doc. 121). Contending that Miller’s affidavit is a
“sham” affidavit, Oshkosh cites several discrepancies between Miller’s deposition and
his testimony provided in the later-filed affidavit. (Doc. 121 at pp. 5-10). According
to Oshkosh, Miller’s affidavit contains different opinions consisting of purportedly
new testimony that: (1) identifies the specific valve in the braking system with the
manufacturing defect; (2) describes the failure as stemming from debris that was
allowed to remain in the brake system; (3) concludes without equivocation that the
brake system’s failure was the result of debris in the system causing the malfunction;
28

and (4) attempts to offer theories regarding the accident despite his claim in the
deposition that he was not an accident reconstruction expert. (Id.).
The court “may find an affidavit which contradicts testimony on deposition a
sham when the party merely contradicts its prior testimony without giving any valid
explanation.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 656
(11th Cir. 1984). The “sham affidavit rule,” however, should be applied sparingly.
Kernal Records Oy v. Mosley, 694 F.3d 1294, 1303 n.6 (11th Cir. 2012). “[I]n light
of the jury’s role in resolving questions of credibility,” a district court should not
strike an affidavit merely because “it is at odds with statements made in an earlier
deposition.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980). An
affidavit may be deemed a “sham” only when “clear answers to unambiguous
questions . . . [contradict,] without explanation, previously given clear testimony.”
Van T. Junkins, 736 F.2d at 657. “Every discrepancy contained in an affidavit does
not justify a district court’s refusal to give credence to such evidence.” Tippens v.
Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986).
A review of Miller’s affidavit reflects that his opinions challenged by Oshkosh
regarding the precise cause of the accident reaffirm his opinions provided in his
expert report that pre-dated the deposition testimony. In any event, none of the
opinions offered in Miller’s affidavit directly contradict his opinions offered in the
29

deposition testimony. To the extent that his deposition testimony is different from
both his expert report and affidavit, such discrepancies may “create an issue of
credibility or go to the weight of the evidence.”

Tippens, 805 F.2d at 953.

Accordingly, Miller’s affidavit should not be stricken pursuant to the sham affidavit
rule.
C.

Oshkosh’s Motion for Summary Judgment
1.

Standard of Review

A motion for summary judgment looks to “pierce the pleadings and to assess
the proof in order to see whether there is a genuine need for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). Summary judgment is appropriate “‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there
is no genuine [dispute] as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d
1258, 1263 (11th Cir. 2007) (per curiam) (citation omitted); see also Fed. R. Civ. P.
56(c) (Summary judgment “should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine [dispute]

30

as to any material fact and that the movant is entitled to judgment as a matter of
law.”).10
The party moving for summary judgment “always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of the [record, including pleadings, discovery materials and affidavits], which
it believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 477 (1986). The
movant may meet this burden by presenting evidence which would be admissible at
trial indicating there is no dispute of material fact or by showing that the nonmoving
party has failed to present evidence in support of some element of its case on which
it bears the ultimate burden of proof. Id. at 322–324.
Once the movant meets his evidentiary burden and demonstrates the absence
of a genuine dispute of material fact, the burden shifts to the non-moving party to
establish, with appropriate evidence beyond the pleadings, that a genuine dispute
material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Fed.R.Civ.P. 56(e)(2) (“When a

10

Effective December 1, 2010, the language of Rule 56(a) was amended. The word
“dispute” replaced the word “issue” to “better reflect [ ] the focus of a summary-judgment
determination.” Fed. R. Civ. P. 56(a), Advisory Committee Notes, 2010 Amendments.

31

motion for summary judgment is properly made and supported, an opposing party may
not rely merely on allegations or denials in its own pleading; rather, its response must
. . . set out specific facts showing a genuine [dispute] for trial.”). A genuine dispute
of material fact exists when the nonmoving party produces evidence that would allow
a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263.

To survive the movant’s properly supported motion for summary judgment, a
party is required to produce “sufficient [favorable] evidence . . . that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “If the evidence [on which the
nonmoving party relies] is merely colorable . . . or is not significantly probative . . .
summary judgment may be granted.” Id. at 249–250. “A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be enough of a
showing that the [trier of fact] could reasonably find for that party.” Walker v. Darby,
911 F.2d 1573, 1576–1577 (11th Cir. 1990) (quoting Anderson, supra).
All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th
Cir. 2000); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
Conclusory allegations based on subjective beliefs, however, are insufficient to create
32

a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for
summary judgment. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275,
1279 (11th Cir. 2001). Hence, when a nonmoving party fails to set forth specific facts
supported by appropriate evidence sufficient to establish the existence of an element
essential to its case and on which the nonmovant will bear the burden of proof at trial,
summary judgment is due to be granted in favor of the moving party. Celotex, 477
U.S. at 322, 106 S.Ct. 2548 (“[F]ailure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.”).
Importantly, however, “the court may not weigh conflicting evidence to resolve
disputed factual issues; if a genuine dispute is found, summary judgment must be
denied.” Carlin Commc'n, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1356
(11th Cir. 1986); see also Aurich v. Sanchez, No. 08-801133, 2011 WL 5838233, at *1
(S.D. Fla. Nov. 21, 2011) (“If a reasonable fact finder could draw more than one
inference from the facts, and that inference creates an issue of material fact, then the
court must not grant summary judgment.”). In particular, summary judgment is
inappropriate where the court would be required to weigh conflicting renditions of
material fact or determine witness credibility. See Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 919 (11th Cir. 1993) (noting a court must not weigh conflicting
surveillance nor make credibility determinations when ruling on a motion for
33

summary judgment); Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.
1996) (“It is not the court’s role to weigh conflicting evidence or to make credibility
determinations; the non-movant’s evidence is to be accepted for purposes of summary
judgment.”); Gary v. Modena, No. 05-16973, 2006 WL 3741364, at *16 (11th Cir.
Dec. 21, 2006) (Rule 56 precludes summary judgment where court would be required
to reconcile conflicting testimony or assess witness credibility).
2.

Claims against Oshkosh
AEMLD

The court will first consider Plaintiffs’ claim against Oshkosh under the
AEMLD. The Alabama Supreme Court first announced the adoption of the AEMLD
in Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala. 1976). Under this doctrine,
“a manufacturer, or supplier, or seller, who markets a product not reasonably safe
when applied to its intended use in the usual and customary manner, constitutes
negligence as a [m]atter of law.” Id. at 132. To establish a prima facie case under the
AEMLD, Plaintiffs must show that: (1) Oshkosh manufactured, designed, or sold a
defective, unreasonably dangerous product; (2) that the product reached the consumer
in substantially the same condition in which it was sold; and (3) that the product
injured the consumer when it was put to its intended use. Beam v. Tramco, Inc., 655
So. 2d 979, 981 (Ala. 1995). Furthermore, “it makes no difference whether it is
34

dangerous by design or defect. The important factor is whether it is safe or dangerous
when the product is used or was intended to be used.” Cooper v. Toshiba Home Tech.
Corp., 76 F. Supp. 2d 1269, 1276 (M.D. Ala. 1999) (quoting Casrell, 335 So. 2d at
133).
In Townsend v. General Motors Corp., 642 So. 2d 411 (Ala. 1994), the
Alabama Supreme Court recognized that:
[T]he manufacturer of a product is not an insurer against all harm that
may be caused by the product, and the manufacturer or designer is not
obligated to produce an accident-proof or injury-proof product.
Likewise, the failure of a product does not presuppose the existence of
a defect. Proof of an accident and injury is not in itself sufficient to
establish liability under the AEMLD; a defect in the product must be
affirmatively shown.
Id. at 415. To survive summary judgment, therefore, a plaintiff must present
“substantial evidence” to establish a defect under the AEMLD. Id. at 418. “Pure
speculation or conjecture will not suffice.” Cooper, 76 F. Supp. 2d at 1276. “When
the product in question is of a complex and technical nature such that a lay juror could
not, in the absence of expert testimony, infer that a defective condition of the product
caused the resulting injury to a plaintiff, expert testimony is a necessary component
of a plaintiff’s case.” Id. (citing Townsend, 642 So. 2d at 415 and Brooks v. Colonial
Chevrolet-Buick, 579 So. 2d 1328, 1333 (Ala. 1991)).

35

While it is necessary to present “substantial evidence” in support of a defect,
a plaintiff “need not have evidence specifically identifying the exact nature of the
defect.” Rudd, 127 F. Supp. 2d at 1345.
From its earliest formulations, the AEMLD has been construed as
allowing plaintiffs to show a product was defective or unreasonably
dangerous despite a lack of direct evidence identifying a specific defect:
a defect is that which renders a product unreasonably dangerous, i.e., not
fit for its intended purpose . . . . [I]t makes no difference whether [the
product] is dangerous by design or defect. [P]roof of the specific defect,
i.e., the exact act, omission, process, construction, etc., resulting in the
product’s failing its intended use, is not required. If a product is
unreasonably dangerous, it is necessarily dangerous, it is necessarily
defective, and the consumer should not be required to prove
defectiveness as a separate matter.
Id. (internal citations and quotations omitted). After reviewing Alabama case law in
great detail, the Rudd court explained that a plaintiff may establish a prima facie case
under the AEMLD by presenting evidence “tending to exclude causes other than a
manufacturing defect, and despite a lack of any direct evidence to identify a specific
defect.” Id. at 1346.
Oshkosh asserts that Plaintiffs have failed to present sufficient evidence that
shows the existence of a manufacturing defect, and, thus, their AEMLD claim
necessarily fails. (Doc. 82 at p. 13). According to Oshkosh, Miller’s expert testimony
is conclusory, speculative, and without a sufficient evidentiary foundation to create
a genuine dispute of material fact. (Id. at p. 15). Plaintiffs maintain that they have
36

submitted substantial evidence of a manufacturing defect in the parking brake,
consisting of Miller’s expert testimony, as well as the testimony of Pickett and his
assistant driver. (Doc. 107 at p. 18). The court agrees, as discussed below, with
Plaintiffs that they have presented sufficient evidence of a manufacturing defect that
creates a genuine dispute of material fact as to their AEMLD claim.
Oshkosh’s own corporate representative testified that one of two events
occurred to cause the HEMTT to roll down the hill and into the path of Plaintiffs’
vehicle: either the brakes were not applied or the parking brake was applied and did
not “function properly.” (Doc. 108-8 at p. 6). The testimony of Pickett and Clayton
confirms that the HEMTT’s parking brake was set before the accident occurred. (Doc.
108-6 at pp. 3, 10; 108-7 at p. 3). Upon his review of this testimony, Miller
eliminated any possibility that the HEMTT rolled down the hill due to the parking
brake not being set or any other intervening human interaction with the vehicle.
Oshkosh further contends that, based on Pickett’s testimony, the accident was
caused by his failure to place wheel chocks under the HEMTT. Oshkosh’s corporate
representative, however, testified that: (1) the grade on which the vehicle was parked
was “slight” and less than a 20 percent grade; and (2) wheel chocks were unnecessary
as he would have expected the HEMTT to stay in place if the parking brakes had been
applied. (Doc. 108-8 at pp. 8-9). Miller considered and rejected the theory that the
37

lack of wheel chocks in place caused the accident when he explained at this deposition
that the wheel chocks were unnecessary on relatively level ground where brake
systems similar to the one used by the HEMTT were working properly. (Doc. 88-1
at 84).
Based on his experience in the commercial vehicle repair industry and review
of the pertinent depositions, films, and reports, Miller provided a thorough explanation
of the braking process in such a large commercial vehicle as the HEMTT and
described in detail why the brake system in the HEMTT, given there is no evidence
of human intervention, more likely than not failed due to a manufacturing defect
caused by debris remaining in the braking system. Miller specifically identified in
both his report and affidavit that: (1) the spring brake valve failed by allowing
compressed air into the spring brake chamber sufficient to release the spring brakes
that were otherwise properly set and correctly applied by Pickett;” and (2) “this failure
was the result of debris or other material that was allowed to remain in the brake
system during the manufacture of the components of the spring brake system or in the
assembly of the components.” (Doc. 111-9 at ¶ 5; Doc. 108-3 at ¶ 9).
Plaintiffs have also presented evidence showing that, when the HEMTT vehicle
was inspected at the time of delivery to the Alabama National Guard around
November of 2010, its spring brake valve was determined to be defective. (Doc. 10838

2). While no information was provided concerning the precise defect, the inspection
report further indicated the following corrective action: “Parts ordered by FSR 11-0210 and installed.” (Id.).
Miller, in affidavit testimony, stated that the finding of a defective spring brake
valve “is consistent with my opinion that the control system for the subject spring
brake was defective and unreasonably dangerous and as a result allowed compressed
air to be reintroduced into the brake chamber to release the brakes.” (Doc. 108-3 at
¶ 5). Miller further indicated his belief that any problems associated with the preinspection spring brake valve were not adequately resolved based on his observation
that the factory installed SR-7 valve “found to be defective during the pre-delivery
inspection appears to be the same valve present at the time of my inspection.” (Id.).
According to Miller, “the SR-7 valve present on the HEMTT on April 29, 2011, is
covered with the same factory-applied CARC paint covering the exterior of the
HEMTT” and “there are no toolmarks present on the supply lines connecting to the
SR-7 valve to indicate that the valve was replaced following the November, 2010
inspection when the spring brake valve was determined to be defective and not
operating properly.” (Id.).
Because it characterizes Miller’s opinions as speculative and conclusory,
Oshkosh contends that such opinion testimony does not constitute substantial evidence
39

of a defect. Oshkosh primarily relies on the Alabama Supreme Court’s opinion in
Townsend, supra, to support his contentions. In Townsend, the Alabama Supreme
Court affirmed summary judgment in favor of General Motors Corporation (“GM”),
the truck manufacturer, despite undisputed facts demonstrating that “the air brakes on
the truck failed and that the plaintiffs were injured as a result of that failure.”
Townsend, 642 So. 2d at 415.
The Alabama Supreme Court agreed with GM’s argument that there was “no
expert testimony (or any evidence for that matter) tending to show that the truck’s
brakes were defectively designed.” (Id.). Neither one of the plaintiff’s two expert
witnesses noted anything defective or unreasonably dangerous with the design of the
truck’s brakes. Id. at 416-18. One expert, Fred Monick, provided the following
testimony regarding whether there could have been a manufacturing defect in the air
brakes:
Q:

What criticism, if any, do you have of [GM] in this case?

A.

Well, my criticism is something failed, there was another failure
besides the push rod and, it could have been something that was
defective as it left [GM’s] hands.

Q.

You say something failed?

A.

Yes.

Q.

But you don’t know what that is?
40

A.

As we sit here, I don’t know what it is.

Q.

If I am understanding where you are going with this, Mr. Monick,
you believe that this particular truck was unique in whatever
malfunction may have happened?

A.

It could have had something, a part, a component was unique. It
wasn’t a design problem.

Q.

It’s not a design problem?

A.

That’s right.

Q.

Are you saying it’s a manufacturing problem?

A.

It could have been a manufacturing problem.

Q.

Can you tell me what component would have been defectively
manufactured?

A.

I can’t tell you that as we sit here.

Id. at 417. Because Mr. Monick could not offer an explanation regarding the failure
of the air brake at issue, the Alabama Supreme Court found that the plaintiff did not
“present substantial evidence to establish a defective design under the AEMLD.” (Id.
at 418.
This case is factually distinguishable from the situation present in Townsend.
Even though Mr. Monick hinted at the presence of a manufacturing defect, the issue
in Townsend revolved around whether the plaintiffs could establish an AEMLD claim
based on a defect in the design of the brakes. In contrast to the expert’s pure
41

speculation in Townsend that the air brake’s failure could have been caused by
manufacturing defect, Miller specifically opines that the spring brake valve on the
HEMTT failed and that its failure was the result of debris allowed to remain in the
brake system. In addition, Plaintiffs have presented evidence showing that one of the
valves in the braking system was defective in the pre-delivery of the inspection of the
HEMTT. Through Miller’s testimony, factual issues exist as to whether the defective
valve was properly replaced before the accident on April 29, 2011, and whether the
defective condition of the SR-7 valve had been resolved.11
When viewing the evidence and all justifiable inferences in favor of Plaintiffs,
the court finds that they have presented substantial evidence of a manufacturing defect
in the HEMTT’s braking system. The evidence submitted by Plaintiffs, including the
expert testimony of Miller, tends to negate human involvement or interaction as a
potential cause of the accident. A reasonable juror could infer from the evidence
presented that a manufacturing defect existed in the parking brake system of the
HEMTT that was unreasonably dangerous and caused the HEMTT to roll down the

11

In his reply brief, Oshkosh dismisses Miller’s opinions regarding whether
the defective valve was replaced as “disingenuous, speculative, and conclusory.”
(Doc. 120 at p. 9). However, as discussed above, Miller’s testimony has been
determined to be admissible and Oshkosh’s challenge to Miller’s testimony goes
toward its weight and not its admissibility.
42

hill even though the vehicle’s parking brake had been set. Accordingly, Oshkosh is
not entitled to summary judgment with respect to Plaintiffs’ AEMLD claim.
Negligence and Wantonness
Plaintiffs claim that Oshkosh “negligently, recklessly, or wantonly researched,
formulated, designed, manufactured, packaged, labeled, sold, distributed, inspected
and/or repaired the HEMTT LHS vehicle, including the brake system and other
component parts thereof, which is believed to have caused or contributed to cause the
injuries and damages to” Plaintiffs. (Doc. 67 at p. 6). Under Alabama law, Plaintiffs’
negligence and wantonness claims are distinct from their AEMLD claim. See Vesta
Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So. 2d 84, 102 (Ala. 2004) (rejecting
premise that AEMLD subsumes common-law tort actions of negligence and
wantonness); Spain v. Brown & Williamsson Tobacco Corp., 872 So. 2d 101, 105-06
(Ala. 2003) (explaining that AEMLD does not abrogate the common law, and that
negligence and wantonness claims may be viable alternatives to an AEMLD claim).
“Under Alabama law, there are four elements to establish a case of negligence
or wantonness: (1) duty, (2) breach of duty; (3) proximate cause, and (4) injury.”
Edmonson v. Cooper Cameron Corp., 374 F. Supp. 2d 1103, 1106 (M.D. Ala. 2005)
(citing Spain, 872 So. 2d at 104). “A wantonness cause of action imposes similar
requirements to a negligence claim, but with the enhanced culpability requirement that
43

the conduct be done recklessly or in conscious disregard of others’ rights.” Raley v.
Bank of America, N.A., No. 2:14-CV-857-WMA, 2014 WL 6684906, at *4 (N.D. Ala.
Nov. 25, 2014) (citing Edmonson, 374 F. Supp. 2d at 1106). “A finding of wanton
conduct depends upon circumstances, and must be based upon facts beyond mere
negligence.” Rommell v. Automobile Racing Club of Am., Inc., 964 F.2d 1090, 1096
(11th Cir. 1992).
“The manufacture of a defective product may be deemed negligence per se;
however, in the absence of a defective product, a manufacturer is liable under a
negligence theory only if he has breached some duty of due care in the manufacture
of the product. Pearl v. Mad Engine, Inc., No. 7:12-cv-2850-TMP, 2015 WL
5179517 (N.D. Ala. Sep. 4, 2015) (citing Atkins v. Am. Motors Corp., 335 So. 2d 134,
139–40 (Ala.1976)). In Alabama, a manufacturer has a duty to manufacture a product
which is reasonably safe for its intended use and purposes. See Ala. Power Co. v.
Marine Builders, Inc., 475 So. 2d 168, 178 (Ala. 1985). “[W]hether a party breached
a legal duty is a question of fact for the jury.” Proctor v. Fluor Enters., Inc., 494 F.3d
1337, 1348 (11th Cir. 2007).
Seeking summary judgment against Plaintiffs as to their negligence and
wantonness claims, Oshkosh contends that Plaintiffs “have no evidence, much less the
substantial evidence required to avoid summary judgment, of any act or omission by
44

Oshkosh that proximately led to their injuries.” (Doc. 82 at p. 22). Plaintiffs counter
that “[t]he facts of this case are sufficient for a jury to infer that Oshkosh was
negligent in its distribution, inspection and repair of the subject HEMTT. (Doc. 107
at p. 26). As discussed in the court’s analysis of the AEMLD claim, Plaintiffs have
offered substantial evidence of a manufacturing defect in the HEMTT’s braking
system that was unreasonably dangerous and caused the injuries suffered by Plaintiffs.
Based on the evidence presented, a reasonable juror could infer that Oshkosh was
negligent in connection with the manufacturing, inspection, and distribution of the
HEMTT vehicle. Accordingly, Oshkosh is not entitled to summary judgment with
respect to Plaintiffs’ negligence claim.
Oshkosh also seeks summary judgment with respect to Plaintiffs’ wantonness
claim. (Doc. 82 at p. 21). Responding to the summary judgment motion, Plaintiffs
advance arguments with respect to their negligence claim but do not address the issue
of wantonness. (See Doc. 107 at pp. 24-26). Consequently, Plaintiffs’ claim of
wantonness is deemed abandoned, and Oshkosh is entitled to summary judgment on
the claim of wantonness. See Fischer v. Fed. Bureau of Prisons, 349 F. App’x 372,
375 n.2 (11th Cir. 2009) (explaining that plaintiff waived a claim by not addressing
that issue in response to a summary judgment motion); Marable v. Marion Military
Institute, 906 F. Supp. 2d 1237, 1260 (S.D. Ala. 2012) (recognizing that “[g]rounds
45

alleged in the complaint but not relied upon in summary judgment are deemed
abandoned”).
Combined and Concurring Claim
Plaintiffs claim in Count III that Oshkosh, Pickett, and other defendants
“combined and concurred to proximately cause the Plaintiffs’ injuries and damages.”
(Doc. 67 at p. 6). The Alabama Supreme Court has held that “[w]here one is guilty
of negligence and this negligence concurs or coalesces with the negligence of another,
and the two combine to produce an injury, each is liable for damages, and the
negligence of each is considered the proximate cause of the injury producing the
damages.” Williams v. Woodman, 424 So. 2d 611, 613 (Ala. 1982). In other words,
“‘[j]oint tortfeasors’ are ‘those who act together in committing wrong, or whose acts
if independent of each other, unite in causing [a] single injury.’” Lowry v. Garrett,
792 So. 2d 1119, 1122 (Ala. Civ. App. 2001) (quoting Black’s Law Dictionary 839
(6th ed. 1990)). However, two defendants are not deemed to be “joint tortfeasors
where the acts of the two defendants ‘did not combine to cause any one injury.’” Id.
at 1123 (quoting State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 325 (Ala.
1999)).
Oshkosh contends that “there is no evidence that [its] acts . . . combined with
the actions of the other defendants to cause the [Plaintiffs’] injuries.” (Doc. 82 at p.
46

19). In addition to citing the lack of evidence of a defect in the HEMTT, Oshkosh
blames Pickett’s actions in failing to chock the wheel as the “but for” cause of the
accident. (Id.). Plaintiffs simply contend that, based on the evidence provided in
support of their summary judgment motions against both Oshkosh and Pickett, “their
cause of action for combined and concurring negligence is to be sustained.” Doc. 107
at pp. 26-27).
The court agrees with Oshkosh to the extent that it finds no evidence that the
acts of Oshkosh with regard to the manufacturing, inspection, and distribution of the
parking brake system combined with the actions of any other defendant, including
Pickett, to cause Plaintiffs’ injuries. As discussed above, substantial evidence has
been submitted to support Plaintiffs’ assertion in opposition to Oshkosh’s summary
judgment motion that a manufacturing defect within the HEMTT’s parking brake
system caused the HEMTT to roll down the hill and strike Plaintiffs’ vehicle. The
undisputed testimony of both Oshkosh’s corporate representative and Mr. Miller
indicates that the parking brake as set should have held the HEMTT in place where
it was parked on level ground and that wheel chocks were unnecessary. (See Doc. 881 at 84; Doc. 108-8 at 8-9). Accordingly, with respect to Plaintiffs’ claim in Count
III, Oshkosh’s summary judgment motion is due to be granted.
Government Contractor Defense
47

Oshkosh asserts that it cannot be liable for Plaintiffs’ injuries because it is
entitled to the protection of the government (or military) contractor defense. (Doc. 82
at p. 20).

The government contractor defense generally immunizes government

contractors from civil liability arising out of the performance of federal procurement
contracts. Boyle v. United Technologies Corp., 487 U.S. 500, 505-06, 108 S.Ct. 2510,
101 L.Ed.2d 442 (1988). In Boyle, the Supreme Court explained that the defense is:
(1) a federal common law doctrine in which state law is preempted in certain
situations because it presents a “significant conflict” with identifiable federal interests;
and (2) designed to protect the exercise of discretion by government officers in “the
selection of the appropriate design for military equipment to be used by our Armed
Forces.” Id. at 507, 511, 108 S.Ct. 2510.
In Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir. 1989), the
Eleventh Circuit analyzed Boyle’s formulation of the government contractor defense
and stated:
The Court grounded the contours of the defense in the discretionary
function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a),
that protects the United States from liability for its agents’ performance
of duties involving discretionary decisions. Without the defense, the
government’s own tort immunity for its discretionary functions would
be undermined. Contractors held liable for design features that were the
subject of discretionary approval by the government would predictably
pass on the costs of liability, ultimately imposing costs on the
government that its immunity was intended to preclude.
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The defense derives from the principle that where a contractor acts under
the authority and discretion of the United States, it shares the sovereign
immunity that is enjoyed by the government. In the military context, this
immunity serves this further important purpose by shielding sensitive
military decisions from scrutiny by the judiciary, the branch of
government least competent to review them. Application of ordinary tort
law to military design and procurement decisions is not appropriate, for
the government is required by the exigencies of our defense effort to
push technology toward its limit and thereby incur risks beyond those
that would be acceptable for ordinary consumer goods.
Harduvel, 878 F.2d at 1315-16 (internal citation and quotations omitted).
With these principles in mind, the Supreme Court in Boyle formulated the
government contractor defense as follows:
Liability for design defects in military equipment cannot be imposed,
pursuant to state law, when (1) the United States approved reasonably
precise specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United States about the
dangers in the use of the equipment that were known to the supplier but
not to the United States.
Id. at 512, 101 L.Ed.2d 442. “The three conditions serve to ensure that the defense
operates to immunize the contractor only where the government has actually
participated in discretionary design decisions, either by designing a product itself or
approving specifications prepared by the contractor.” Harduvel, 878 F.2d at 1316.
Because the government contractor defense is an affirmative defense, it is Oshkosh’s
burden to establish the conditions of the defense. See Boyle, 487 U.S. 514, 108 S.Ct.
2510. “[W]hether the facts establish the conditions of the defense is a question for the
49

jury, and summary judgment is only appropriate where the court finds no reasonable
jury could find for the plaintiff on the facts presented. Id.
Oshkosh contends that it has satisfied all three elements of the government
contractor defense. (Doc. 82 at pp. 20-27). Plaintiffs counter that: (1) the government
contractor defense is not applicable to manufacturing defects; and (2) Oshkosh cannot
satisfy the third element of the government contractor defense. (Doc. 107 at pp. 2729). Before considering whether Oshkosh can satisfy Boyle, it is first necessary to
address Plaintiffs’ contention that the government contractor defense is not applicable
to the manufacturing defect described in this case. As Plaintiffs point out, the
government contractor defense set forth in Boyle applies only to defects in design.
Boyle, 487 U.S. at 511, 108 S.Ct. 2510. It “‘does not relieve suppliers of military
equipment of liability in the manufacture of that equipment.’” Harduvel, 878 F.2d at
1317 (quoting McKay v. Rockwell Int’l Corp., 704 F.2d 444, 451 (9th Cir. 1983)).
The Eleventh Circuit in Harduvel considered the applicability of the
government contractor defense and the critical distinction between manufacturing and
design defects. In Harduvel, a General Dynamics F-16 fighter aircraft, piloted by
Captain Theordore Harduvel, crashed into a mountain ridge which resulted in the
pilot’s death. Id. at 1313-14. Captain Harduvel’s widow subsequently brought suit
against General Dynamics Corporation. According to the plaintiff’s expert witnesses,
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the F-16 “suffered a massive electrical failure that caused all of his flight instruments
to malfunction.” Id. at 1314. These experts propounded the theory that:
‘wire chafing’ – the rubbing of wires in the electrical system against
other wires, fasteners, or structural parts of the plane – caused electrical
shorts, overheating, and fire in the ‘right strake’ of the aircraft, a forward
extension of the wing located beneath and to the side of the cockpit.”
According to this theory, the electrical malfunction caused a loss of
power to the plane’s attitude indicators, the instruments that tell the pilot
the position of his wings and whether the nose of the aircraft is pointed
up or down.
Id.
At trial, the jury found in the plaintiff’s favor on the claims that “defendant was
negligent in designing the F-16, negligent in its manufacture, negligent in failing to
warn, strictly liable for design and manufacturing defects in the aircraft, and strictly
liable for failure to give adequate warnings.” Id. at 1315. The jury also determined
that General Dynamics was not entitled to the government contractor defense. Id.
The district court subsequently denied General Dynamics’ motion for judgment
notwithstanding the verdict (“JNOV”) regarding the design and manufacturing defect
claims, but set aside the verdict on the failure to warn claim.” Id. While noting that
General Dynamics did not challenge the jury verdict on the government contractor
defense, the district court observed that the defense “was unsuccessful.” Id. General
Dynamics appealed, relying specifically on the government contractor defense. Id.

51

On appeal, the Harduvel court considered the plaintiff’s “theory of wire
chaffing and electrical failure as one involving defective manufacture.” Id. at 1317.
In determining whether a claimed defect is one of “design” for purposes
of the government contractor defense, the proper focus is the protection
of discretionary government functions for which the defense is intended.
If a defect is one inherent in the product or system that the government
has approved, it will be covered by the defense. Where a defect is
merely an instance of shoddy workmanship, it implicates no federal
interest. This distinction between “aberrational” defect and defects
occurring throughout the entire line of products is frequently used in tort
law to separate defects of manufacture from those of design. Stated
another way, the distinction is between an unintended configuration, and
an intended configuration that may produce unintended and unwanted
results.
Harduvel, 878 F.2d at 1317 (internal citation omitted).
Applying these principles, the Eleventh Circuit in Harduvel first concluded that
the plaintiff’s claim was one “of defective design for purposes of the government
contractor defense.”

Id.

This conclusion was based on expert testimony:

(1) referencing “‘product-wide’ defects in the electrical system, and failure to follow
design procedures to avoid the possibility of chafing”; and (2) relying on the fact that
“wire chafing occurred in Harduvel’s craft on chafing reports involving many
different components of many different aircraft.” Id. at 1318. Additional evidence
was presented showing that “wire chafing was a problem with aircraft electrical
systems that had long been known both in the industry and to the Air Force.” Id.
Thus, according to the Eleventh Circuit, the “[p]laintiff has depicted Harduvel’s plane
52

not as an aberrational example of improper manufacture, but as a typical F-16 with a
design that includes a potential for unwanted wire chafing.” Id.
The Eleventh Circuit next concluded that the specific evidence relied on by the
plaintiff did not serve to prove the existence of a manufacturing defect on the F-16
fighter plane. Id. at 1318-20. The Eleventh Circuit determined that: (1) the expert’s
testimony supported the “theory that F-16s generally were susceptible to some wire
chafing” and failed to “identify any particular site of chafing on Harduvel’s plane;”
and (2) the failure to install a new “DC power panel” on Harduvel’s aircraft was not
a manufacturing defect since the Air Force had waived requiring the new panel to be
installed on the aircraft.
The plaintiff further cited as a manufacturing defect a maintenance report of
Harduvel’s aircraft, dated one month before it was accepted by the Air Force, which
described a protruding center screw that had caused some chafing damage. Id. The
Harduvel court concluded that this evidence did not amount to a manufacturing defect
because: (1) there was no evidence to indicate that any protruding screws had been
improperly installed on Harduvel’s aircraft; (2) protruding screws were a normal
condition in the F-16; and (3) no evidence was presented showing either that any F-16
entered active service with this particular chafing problem or that “this type of wire
chafing ever occurred on Harduvel’s craft.” Id. at 1319-20.
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The Harduvel court held that the district court had committed error in denying
the JNOV motion on the manufacturing defect claim because the plaintiff could not
prove the “presence of a manufacturing defect on the F-16.” Id. at 1320. After
applying “the three conditions for the government contractor defense, the Eleventh
Circuit ultimately concluded that the plaintiff’s claims are “subject to the . . . defense,
and that the record . . . establishes the conditions of the defense.” Id. at 1320-22.

Rather than address the critical issue as to whether Plaintiffs’ theory is based
on either a design defect or manufacturing defect,12 Oshkosh focuses its analysis on
establishing the three elements articulated in Boyle. (Doc. 82 at pp. 23-29; Doc. 120
at 11-13). Indeed, Oshkosh has presented various documents to show that: (1) the
United States Army set forth precise specifications for the HEMTT M1120 vehicle,
which included ensuring that the HEMTT parking brake could hold on a 20% grade
with the goal of being able to hold on a 40% grade (Doc. 83-4 at 6-7); (2) the
HEMTT conformed to the reasonably precise, government-approved specifications
and passed all tests before delivery to the military, including various tests performed
on the brakes and a final inspection report approved on June 1, 2009 (Doc. 83-4 at 9;
12

In its reply brief, Oshkosh argues that Plaintiffs have conceded that the government
contractor defense applies to design defect claims. (Doc. 120 at p. 11). While not disputing
Oshkosh on this point, Plaintiffs steadfastly maintain that the defense is inapplicable with respect
to the manufacturing defect identified by Mr. Miller.
54

Doc. 83-5; and Doc. 83-6); and (3) Oshkosh warned the U.S. Army in its operations
manual about the failure to use wheel chocks on an incline. (Doc. 83-8).
Miller has testified in both his deposition and his affidavit that: (1) a
manufacturing defect, and not a design defect, was present in the HEMTT’s braking
system; and (2) the manufacturing defect was caused by debris remaining in the brake
system that led to the failure of the spring brake valve. (Doc. 88-1 at 93; Doc. 108-3
at ¶ 9). “[W]hether a defect is properly designated as one of design or manufacture
is not governed by a witness’ choice of terminology.” Harduvel, 878 F.2d at 1317.
According to Plaintiffs, however, “[t]he presence of debris within the vehicle’s air
brake system is obviously an unintended phenomenon that is not part of the design
configuration of the HEMTT” and, therefore, constitutes a manufacturing defect
making the government contractor defense inapplicable. (Doc. 107 at p. 28).
Oshkosh has pointed to no evidence establishing that the theory advanced by
Miller is based on a generally defective design of the HEMTT’s braking system as
opposed to an “aberrational example of improper manufacture.” See Harduvel, 878
F.2d at 1317-18. Even though the HEMTT evidently passed several governmentapproved tests on its braking system, Plaintiffs have presented evidence that one of
the valves in the braking system on the subject HEMTT was defective in the predelivery inspection. (Doc. 108-2). As discussed above, Mr. Miller expressed his
55

opinion disputing whether the defective valve was properly replaced before the
accident on April 29, 2011, and whether the defective condition of the valve had been
properly resolved. (Doc. 108-3 at ¶ 5). Rather than proving the existence of a design
flaw inherent in the braking systems of all HEMTT vehicles produced, the evidence
adduced by Plaintiffs tends to focus on a particular defect in the subject HEMTT.13
At a minimum, when the evidence and all justifiable inferences are viewed in favor
of Plaintiffs, genuine disputes of material fact exist as to whether the claimed
manufacturing defect is one of “design” for purposes of the government contractor
defense.
With regard to the second condition of the Boyle test requiring the equipment
to conform to the specifications approved, the Eleventh Circuit remarked that “[t]his
prong involves essentially the same analysis that we have discussed with respect to
the distinction between manufacturing and design defects.” Harduvel, 878 F.2d
at 1321. In other words, “[t]o say that a product failed to conform to specifications
is just another way of saying that it was defectively manufactured.” Id. Plaintiffs
have submitted substantial evidence tending to support their assertion of a

13

Miller testified in his affidavit that he was aware of other instances where debris
within an air brake system had caused a malfunction in the spring brake valve and that this
problem resulted in a recall campaign. (Doc. 108-3 at ¶ 10). Miller, however, did not indicate
whether it was common among large military vehicles like the HEMTT to have a malfunction of
the spring brake valve.
56

manufacturing defect in the HEMTT’s braking system. This evidence allows for the
conclusion that Plaintiffs’ claims are not subject to the government contractor defense.
The issue as to whether the government contractor defense applies may be revisited
at trial after all of the evidence has been presented. However, Oshkosh is not entitled
to summary judgment on this issue at this time.
IV. CONCLUSION
Based on the foregoing analysis, it is ORDERED that Oshkosh’s Daubert
motion to exclude Miller’s testimony (Doc. 86) and its motion to strike Miller’s
affidavit (Doc. 121) are DENIED. It is further ORDERED that Oshkosh’s motion for
summary judgment is GRANTED in part and DENIED in part. The summary
judgment motion is GRANTED as to Plaintiffs’ claim of wantonness in Count II of
the First Amended Complaint and their “combined and concurring” claim in Count
III of the First Amended Complaint. The summary judgment motion is DENIED in
all other respects.
DONE this 4th day of March, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

57