Gaddy v. Terex Corporation et al

Filing 469

OPINION AND ORDER denying Plaintiff Jeffrey Gaddy's Motion to Exclude Certain Opinion Testimony of Dr. Vijay Saraf 378 . Signed by Judge William S. Duffey, Jr on 10/13/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JEFFREY GADDY,
Plaintiff,
v.

1:14-cv-1928-WSD

TEREX CORPORATION, TEREX
SOUTH DAKOTA, INC., and
TEREX UTILITIES, INC.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Jeffrey Gaddy’s (“Plaintiff”)
Motion to Exclude Certain Opinion Testimony of Vijay K. Saraf, Ph.D., P.E. [378]
(the “Motion”).
I.

BACKGROUND
Defendants Terex Corporation, Terex South Dakota, Inc., and Terex

Utilities, Inc. (collectively, “Defendants”) intend to offer Dr. Saraf, a registered
professional engineer with a doctorate in civil engineering, to testify at trial as an
expert in structural mechanics, fatigue design, and stress concentration areas.
(Brief in Opposition to Plaintiff’s Motion to Exclude Certain Opinion Testimony
of Vijay Saraf [389] (“Response”) [389] at 4). Dr. Saraf specializes in the

investigation of failures of steel, concrete, composite, and wood structures and
components, damage assessment and design of repairs, and analysis of the effects
of blast or impact. (Dr. Saraf’s Expert Report [378.2] (“Expert Report”) at 6).
Dr. Saraf’s expertise extends to the evaluation of bridges, buildings and building
components, pipelines and other buried structures, storage tanks and silos, shoring
systems, cranes and mechanical equipment, and marine structures. (Id. at 38).
Dr. Saraf has performed numerous reviews of design and construction/installation
procedures to check for code compliance and/or assess available margin of safety
in manners relating to structural or process failure. (Id.). He states that “[he] is
familiar with the ANSI Standard for ‘vehicle mounted elevating and rotating aerial
devices,’ ANSI 92.2, and other SAE and ANSI Standards regarding cranes and
lifting devices.” (Id. at v). Dr. Saraf received his Ph.D. in civil engineering from
the University of Michigan in 1997. He is a member of the American Society of
Civil Engineers, the American Institute of Steel Construction, and the Society of
Petroleum Engineers. (Id.at 39). He has also published numerous articles—
primarily related to engineering issues surrounding bridges. (Id. at 39-40).
The opinions Dr. Saraf may offer at trial, and which Plaintiff seeks in his
Motion to exclude, are as follows:
(1)

The fatigue cracks at the failure location likely existed for many years
prior to the accident and would have been observed had the unit been
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properly inspected and maintained. . . . Mr. Morrill’s FEA models are
also inconsistent with Plaintiff’s expert Dr. David Pope’s assertion
that it took over five years for the cracks to form in the incident boom.
. . . Dr. David Pope testified that the cracks that led to the boom
failure were quite significant in length and had existed for several
years prior to the boom failure. ([378.2] at vi, vii, 21, 26).
(2)

II.

At the time of the incident, both the incident aerial device and Ace
Tree Surgery’s other XT Series aerial device (S/N 2030621804)
contained several cracks that would have been discovered had they
been properly inspected and maintained. The incident bucket was
badly damaged from years of use and should have been repaired prior
to the incident. . . . Post-incident inspections revealed additional
cracks at the turntable weldment (Figure 6a), the lower boom cylinder
connection to the elbow cylinder in the incident boom (Figure 6b),
and in the upper boom connection to the elbow cylinder in both aerial
devices (Figure 7). These are large cracks and should have been
discovered during routine and periodic inspection if these inspections
had been performed. ([378.2] at vi, 8).

DISCUSSION
A.

Legal Standard

Under the Federal Rules of Evidence, expert testimony is admissible if:
(1) the expert is qualified to testify regarding the subject matter of his or her
testimony; (2) the methodology that the expert used to reach his or her conclusions
is sufficiently reliable; and (3) the expert’s testimony will assist the trier of fact in
understanding the evidence or in determining a fact at issue. United States
v. Scott, 403 F. App’x 392, 397 (11th Cir. 2010) (citing United States v. Frazier,
387 F.3d 1244, 1260 (11th Cir. 2004)) (en banc); Fed. R. Evid. 702.

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An expert “may be qualified in various ways.” U.S. v. Frazier, 387 F.3d
1244, 1260-61 (11th Cir. 2004). That is, “[w]hile scientific training or education
may provide a possible means to qualify, experience in a field may offer another
path to expert status.” Id. at 1261. Experience standing alone is not, however, “a
sufficient foundation rendering reliable any conceivable opinion the expert may
express.” Id. Instead, “the reliability criterion remains a discrete, independent,
and important requirement for admissibility.” Id.
The reliability of a scientific expert opinion may be established by
evaluating a number of factors, including (1) “whether the expert’s theory can be
and has been tested; (2) whether the theory has been subject to peer review and
publication; (3) the known or potential rate of error of the particular scientific
technique; and (4) whether the technique is generally accepted in the scientific
community.” Id. at 1262. Further, “[t]he same criteria [] used to assess the
reliability of a scientific opinion may be used to evaluate the reliability of nonscientific, experience-based testimony.” Id.; see also, Kumho Tire Co., Ltd. v.
Carmichael, 562 U.S. 137, 152 (1999).
The last requirement—that the opinion assist the trier of fact in
understanding the evidence or determining a fact at issue—may be satisfied where
“it concerns matters that are beyond the understanding of the average lay person.”

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Id. For example, expert testimony “generally will not help the trier of fact when it
offers nothing more than what lawyers for the parties can argue in closing
arguments.” Id. at 1262-63.
B.

Analysis

Plaintiff seeks to exclude Dr. Saraf’s testimony regarding the length of time
that the main crack existed in the Subject Boom prior to its collapse and the
preexistence of additional cracks in other areas of the Subject Truck. Plaintiff
argues that Dr. Saraf should be prohibited from offering these opinions for two
reasons. First, Plaintiff contends that Dr. Saraf’s opinions are metallurgical in
nature and Dr. Saraf is not a metallurgist. ([378] at 9). He thus should be
prohibited from providing metallurgical opinions or “parroting” those
metallurgical opinions of Plaintiff’s metallurgy expert, Dr. David Pope. (Id.).
Plaintiff next argues that Dr. Saraf has no basis for his conclusion that additional
cracks in the Subject Truck’s steel predated the Subject Boom’s collapse because
he examined only one photograph without performing additional testing or an
in-person inspection. (Id. at 14).
Plaintiff’s argument that Dr. Saraf must be a metallurgist to testify to the
existence of cracks or the likelihood of the length of their existence is
unconvincing. It is evident from Dr. Saraf’s extensive background and

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qualifications that he is qualified to testify to these topics. Dr. Saraf specializes in
failure analysis and damage assessment. ([378.2] at 38). He has “performed
numerous reviews of design and construction/installation procedures to check for
code compliance and/or assess available margin of safety in matters relating to
structural or process failure.” (Id.). He has more than ten publications relating to
failure and stress analysis and load testing of bridges and other structures. (Id at
39-40). Dr. Saraf need not provide an analysis or description of the molecular
composition of the materials exhibiting cracking to offer an expert opinion as to
how and when fatigued structures exhibit cracking.1
Plaintiff’s objection that Dr. Saraf possesses no basis for his conclusion that
additional cracks in the Subject Truck’s steel predated the Subject Boom’s collapse
because he analyzed only one photograph without performing additional testing or
an in-person inspection is also without merit. Defendants in their Response clarify

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Plaintiff argues that Dr. Saraf is “parroting” Plaintiff’s metallurgy expert,
Dr. David Pope (“Dr. Pope”). The Court holds Dr. Saraf is not. He is offering his
independent opinion based on the facts in this case, and the expertise and
experience that he has developed over the years enable him to opine on structural
failures. The Court notes that Dr. Saraf, like the Defendants’ other experts Jay
Sturm and David Blair, also may accept the testimony of Dr. Pope regarding how
long the crack or cracks existed in the Subject Boom in offering his opinions
regarding the stress and fatigue of the Subject Boom.

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that Dr. Saraf’s opinion is not “simply based on photographs, but also Dr. Saraf’s
independent analysis of the design of the XTs, including his understanding of load
capacity and reported cracking on other XT booms.” ([389] at 14-15).
Defendants also note that Dr. Saraf used “hundreds of high definition photographs
of every inch” of the Subject Truck in reaching his conclusion. (Id.). The Court
agrees that there is enough evidence to support that Dr. Saraf employed numerous
tools in conducting his analysis and reaching the conclusion that additional cracks
in the Subject Truck predated the Subject Boom’s collapse. Dr. Saraf is qualified
to opine on this topic, and the record shows that he has a reliable basis for doing
so.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff Jeffrey Gaddy’s Motion to

Exclude Certain Opinion Testimony of Dr. Vijay Saraf [378] is DENIED.
SO ORDERED this 13th day of October, 2017.

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