Grieco v. Tecumseh Products Company et al
Filing
41
ORDER granting 24 Motion to exclude testimony; granting in part and denying in part 25 Motion for Summary Judgment. Signed by Judge B. Avant Edenfield on 10/23/13. (bcw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOHN A. GRIECO,
Plaintiff,
V
4: 12-cv-195
.
TECUMSEH PRODUCTS COMPANY
and TECUMSEH COMPRESSOR
COMPANY,
Defendants.
ORDER
I. INTRODUCTION
Before the Court is Tecumseh Products
Company's and Tecumseh Compressor
Company's ("Tecumseh") motion to exclude
plaintiff's witness, ECF No. 24, and Motion
for Summary Judgment. ECF No. 25.
Tecumseh argues that the Court should
exclude Travis Browning's testimony as that
of an unqualified expert with unreliable
opinions. ECF No. 24 at 1, 4-5. The Court
agrees that Browning lacks the necessary
qualifications and so GRANTS Tecumseh's
motion to exclude.
Tecumseh then contends that summary
judgment is appropriate on all ten of
Grieco's claims. ECF No. 25 at 3. The
Court GRANTS IN PART AND DENIES
IN PART Tecumseh's motion.
II. BACKGROUND
On July 22, 2010, Grieco worked to
repair a Tecumseh compressor unit on the
walk-in cooler of Charley's Subs in the
Savannah Mall. ECF No. 25 at 1. Grieco
verified power to the unit and then turned
the circuit breaker to off. Id. He saw
burned wires at the connection point to the
thermal protector on the compressor and
subsequently discovered that the thermal
protector was also burned. Id. at 2. Grieco
installed several new components on the
cooler, including a terminal protector, start
Id.
capacitor, and a compressor relay.
Grieco then turned on the unit. Id. The
compressor caught fire and blew out flames,
burning Grieco's hair, shoulder, and arms.
Id
The compressor had a warning sticker
attached to its exterior. Id. The sticker
cautioned of burns from terminal venting on
the compressor. Id. Grieco did not read this
warning when he saw the sticker. ECF No.
25-1 at 6.
Grieco filed this lawsuit in July, 2012
alleging ten products liability and breach of
warranty claims. ECF No. 1 at 6-12.
III. DISCUSSION
The Court's analysis proceeds in two
parts. First, it addresses Tecumseh's motion
to exclude Grieco's expert witness. And
second, it evaluates Tecumseh's motion for
summary judgment.
A. Tecumseh's Motion to Exclude
Federal Rule of Evidence 702 governs
the admissibility of expert testimony and
states that:
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: . . . (c)
the testimony is the product of
In fact, Browning has never
Id
manufactured a compressor, designed a
compressor, or worked for a company that
does either. ECF No. 24-2 at 28-29.
reliable principles and methods;
and (d) the expert has reliably
applied the principles and
methods to the facts of the case.
Id.
The district court possesses a
gatekeeping function in evaluating the
reliability of expert testimony. Rink v.
Cheminova, Inc., 400 F.3d 1286, 1291 (11th
Cir. 2005). The party offering the expert
testimony must prove by a preponderance of
the evidence that the expert is qualified and
that the testimony is reliable. Id. at 1292.
Nevertheless, the Eleventh Circuit
recognizes a clear "conceptual distinction
between an expert's qualifications and the
reliability of' his testimony. Quiet Tech.
DC-8, Inc. v. Hurel-Dubois UK Ltd, 326
F.3d 1333, 1342 (11th Cir. 2003).
Browning is a high-school graduate but
never attended college, much less an
engineering school. ECF No. 24 at 7.
Browning claims to have a "life experience
degree" from Alameda University, but he
admits, "[y]ou don't actually have to take a
test or anything." ECF No. 24-2 at 26-27.
At Alameda, graduates need only "show
them [their] years of experience" in order to
"graduate." Id Browning does, however,
have at least two professional certifications
on specific products: advanced-state
electronics from Scotsman Ice Systems and
compressors from Carlyle. ECF No. 24-2 at
20.
Although federal law controls the
admissibility of evidence in cases of
diversity, McDowell v. Brown, 392 F.3d
1283, 1294 (11th Cir. 2004), state law, as
the progenitor of products liability and
warranty claims, has something to say about
the substantive qualifications an expert must
have in those areas.
Browning is "new in the consulting
business," has never testified as an expert
witness in a case involving a compressor,
and admits he is not a warnings expert. Id.
at 5, 17-18, 54.
The methodology Browning used to
develop his testimony here consisted of
comparing the placement of the compressor
terminals relative to the bottom oil sump in a
variety of manufacturers' compressors. ECF
No. 24-2 at 44-45. He found that
comparable Copelands [sic] and Bristol
models have terminals higher up in the
crankcase than Tecumseh's compressors.
Id at 44. Danfoss and Embraco
compressors have terminals positioned
similarly to the Tecumseh model in
question. Id at 45.
1. Browning's qualifications and
methodology
"Browning
is
a
self-employed
mechanical contractor and consultant," ECF
No. 24 at 7, specializing in "deconstructive
forensics" for the past twenty-nine years.
Id.; ECF No. 27 at 2. A self-described
generalist in mechanical air-conditioning,
refrigeration, heat transfer, and fluid transfer
systems, Browning has limited experience in
the design and manufacture of compressors.
"Deconstructive forensics" means nothing more
than taking things apart to see what failed.
2
Grieco contends that proven experience
in a trade or business is sufficient to qualify
a witness as an expert, and thus that
Brownings's experience with compressors
renders him personally familiar with their
design differences. ECF No. 27 at 5, 7.
Coupled with Browning's professional
certifications, Grieco argues that
Browning's experience qualifies him to
testify about compressor designs. Id. at 7.
The Court disagrees.
2. Expert qualifications and Georgia
products liability law
An expert testifying about product
design defects in Georgia must be qualified
to engage in a risk-utility analysis. Folsom
v. Kawasaki Motors Corp., 509 F. Supp. 2d
1364, 1378 (M.D. Ga. 2007) (citing Dean v.
Toyota Indus. Equip. Mfg., Inc., 540 S.E.2d
233, 237 (Ga. Ct. App. 2000)). In other
words, an expert on design defects must
have the knowledge, skill, experience,
training, and education to discuss the
inherent risks, utility, and benefits of a
product. Id.
By his own admission, Browning is not
qualified as a warnings expert. ECF No. 242 at 54. Browning has no engineering
education. ECF Nos. 24 at 7; 24-2 at 26-27.
His professional trainings are not in product
design or risk evaluation. See ECF No. 24-2
at 20. Browning may be experienced,
skilled, and knowledgeable in system
deconstruction, but he has never designed a
compressor or worked for a company that
designs compressors.
Id. at 28-29.
Ultimately, Browning's qualifications leave
him ill-fit to testify about the inherent risks,
utility, and benefits of compressors. See
Folsom, 509 F. Supp. 2d at 1378 (citing
Dean, 540 S.E.2d at 237).
Factors relevant to the risk-utility
analysis include "the usefulness of the
product; the gravity and severity of the
danger posed by the design; the likelihood
of that danger, the avoidability of the danger
the ability to eliminate danger without
impairing the usefulness of the product or
making it too expensive . . . the feasibility of
an alternative design; the availability of an
effective substitute for the product which
meets the same need but is safer; the
financial cost of the improved design; and
the adverse effects from the alternative."
Banks v. ICIAms., Inc., 450 S.E.2d 671, 675
n.6 (Ga. 1994).
Tecumseh cites to several cases that
bolster that conclusion. In Walker v. CSX
Transportation Inc., the Eleventh Circuit
affirmed the exclusion of a witness as
unqualified. 650 F.3d 1392, 1397 n.19 (11th
Cir. 2011). While the purported expert had
"significant experience" working in the
railroad industry, he had infrequent exposure
to the apparatus in question, was not an
engineer, and had never investigated an
accident involving the bulkhead door of a
railroad car. Id.
Tecumseh argues that (1) although
Browning has practical experience with
maintenance of compressor systems, he has
no experience with the design or
manufacturing of such systems, ECF No. 24
at 9; (2) Browning is not an engineer and
lacks such education,, id at 8; and (3) that
Browning himself admitted that he is
unqualified as a warnings expert. Id.
91
cases for some claims. The Court groups
the claims into five categories and analyzes
each separately: defective design; defective
manufacturing; defective warning;
negligence claims; and warranty claims.
So too in Folsom, where the court found
that two professional, highly experienced
personal watercraft riders lacked sufficient
qualifications as experts under Rule 702 to
testify as to the design of personal
watercrafts. 509 F. Supp. 2d at 1377.
Although the professional riders were
experts in the operation of personal
watercrafts, they were unqualified to
compare designs of watercraft rudders. Id.
at 1378.
1. Standard of Review
"Summary judgment is appropriate when
the record evidence, including depositions,
sworn declarations, and other materials,
shows 'that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law." Feliciano
v. City of Miami Beach, 707 F.3d 1244,
1247 (11th Cir. 2013) (quoting Fed. R. Civ.
P. 56(a)).
All evidence and factual
inferences, however, must be viewed "in the
light most favorable to the non-moving
party," and "all reasonable doubts" resolved
in his favor. Id. Nevertheless, should the
moving party meet its initial burden to point
out the absence of evidence supporting an
essential element on which the non-moving
party bears the burden of proof, the nonmoving party "must do more than simply
show that there is some metaphysical doubt
as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). With that review
lens established, the Court turns to an
evaluation of Grieco's claims.
Browning, like the excluded experts in
Walker and Folsom, is highly experienced
but lacks the education—namely, an
engineering degree—that might compensate
for his lack of design experience. Browning
may have the experience to qualify him to
testify about deconstruction of a compressor,
or even how to assemble one. But nothing
about his experience gives him the
knowledge or skill necessary to testify about
compressor design, much like riding ajet ski
did not give the supposed experts in Folsom
the knowledge or skill necessary to design
one. Folsom, 509 F. Supp. 2d at 1377.
Having found Browning unqualified as
an expert to engage in the Georgia riskutility analysis for defectively designed
products, the Court need not address the
reliability of Browning's opinions. The
Court therefore excludes Browning's
testimony. With that evidence off the table,
the Court turns to Tecumseh's Motion for
Summary Judgment.
2. Defective Design Claim
Georgia courts recognize three forms of
product defects: manufacturing, design, and
marketing/packaging. Banks, 450 S.E.2d at
672. For design defects, courts ask whether
a defendant failed to adopt a reasonable
alternative design which would have
reduced the foreseeable risks of harm
B. Tecumseh's Motion for Summary
Judgment
Tecumseh argues no dispute exists as to
any material fact and, more specifically,
insufficient evidence to support prima facie
4
presented by the product.
Jones v.
NordicTraclç Inc., 550 S.E.2d 101, 103 (Ga.
2001); see also Banks, 450 S.E.2d at 675 n.6
(setting out a series of factors for balancing
risk and utility).
manufacturing defect claims and Tecumseh
has met its burden to point out that absence.
Grieco's manufacturing defect claims
therefore fail as a matter of law.
Tecumseh argues that Grieco fails to
prove any reasonable alternative design.
ECF No. 25 at 5. Tecumseh also contends
that Grieco failed to present any evidence of
a safer alternative design which would have
prevented injury. Id.
A seller's duty to warn may be breached
in one of two ways: "by (1) failing to
adequately communicate the warning to the
ultimate user or (2) by failing to provide an
adequate warning of the product's risks."
Wilson Food Corp. v. Turner, 460 S.E.2d
532, 534 (Ga. Ct. App. 1995). A failure to
communicate a warning can involve issues
like the "location and presentation of the
warning." Id. The failure to adequately
warn, by contrast, depends upon the
substance of the warning. Id. Proximate
cause is a necessary element for both forms
of warning defect claims. See id.
Grieco's only on-point evidence came
from Browning's testimony, which the
Court has excluded. The record is barren of
any other evidence as to a reasonable
alternative design. Grieco cannot raise a
genuine dispute of fact and therefore the
Court grants summary judgment on his
defective design claim.
3. Defective Manufacturing Claim
A product has a manufacturing defect if
it deviates from properly manufactured
items of the same line. Banks, 450 S.E.2d at
733-34.
Tecumseh argues that Grieco has
abandoned his manufacturing defect claim,
or alternatively, that the claim fails as a
matter of law. The Court disagrees that
Grieco has abandoned the claim, but finds
the record devoid of evidence to support his
claim.
Browning initially contended that
Tecumseh "was negligent in manufacture
due to its using a rubber-like material to seal
the terminal area." ECF No. 25 at 6.
Browning subsequently retracted that
statement in his deposition. ECF No. 24-2
at 4748. No other evidence supports the
4. Defective Warning Claim
Tecumseh argues that Grieco's failure to
read the warning label entitles it to summary
judgment on these claims. ECF No. 25 at 78. Grieco admitted in his deposition that he
did not read the warning when he installed
the machine (in 2009, prior to the accident)
and contends that he could not read the
warning on the date of the accident because
of the placement of the warning label. ECF
No. 25-1 at 5-7.
The Court cannot grant summary
judgment against Grieco's failure to
communicate claim. "[F]ailure to read a
warning does not bar recovery when the
plaintiff is challenging the adequacy of the
efforts of the manufacturer or seller to
communicate the dangers of the product to
the buyer or user." Camden Oil Co. v.
Jackson, 609 S.E.2d 356, 359 (Ga. Ct. App.
2004). Actually, Grieco's "failure to read
the warning may be circumstantial evidence
of the inadequacy of the warning." Id. The
position, color, size, and print of the warning
label will be factual matters for a jury to
consider in deciding whether Tecumseh
failed to adequately communicate the
dangers of the compressor. Id
Although Grieco's failure to read the
warning may enhance his failure to
communicate claim, it fatally undermines
his claim that the warning itself was
inadequate. Id. at 358 ("[W]here a plaintiff
does not read an allegedly inadequate
warning, the adequacy of the warning's
contents cannot be a proximate cause of the
plaintiff's injuries . . . ."). So, Grieco's
defective warning claim survives
Tecumseh's motion for summary judgment,
but Grieco will only be allowed to present to
the jury a theory of inadequate
communication of the warning.
5. Negligence Claims
Grieco asserts additional claims for
general negligence, negligent testing,
negligent failure to instruct, and negligent
failure to advise the consuming public of
attendant hazards. ECF No. 1 at 6, 8-10.
None survive summary judgment.
General negligence is a theory of
liability in a products liability claim. It is
not a stand-alone cause of action. "With
respect to claims for manufacturing defects,
marketing defects and inadvertent design
defects, there is no difference between
liability based on strict product liability and
liability based on negligence." Wheat v.
Sofamor, S.N.C., 46 F. Supp. 2d 1351, 1360
n.8 (N.D. Ga. 1999). Grieco's stand-alone
negligence claim fails.
Also, Georgia does not recognize a
cause of action for negligent testing.
Villegas v. Deer & Co., 135 F. App'x 279,
281 (11th Cir. 2005). Because a federal
court sitting in diversity must apply the
substantive law of the forum state,
Horowitch v. Diamond Aircraft Indus., Inc.,
645 F.3d 1254, 1257 (11th Cir. 2011) (citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64,
(1938)), the Court grants summary judgment
in favor of Tecumseh on that claim.
Grieco's negligent failure to instruct
claim fails for the same reason as the failure
to provide adequate warning claim. "The
alleged inadequacy of the installation
instructions cannot be the proximate cause
of the [accident and plaintiffs injury] when
the installer did not read the installation
directions * . . ." Powell v. Harsco Corp.,
433 S.E.2d 608, 610 (Ga. Ct. App. 1993).
As with the failure to adequately warn
claim, so too here—it fails.
Lastly, Grieco's negligent failure to
advise the consuming public of attendant
hazards claim is nothing more than a
dressed-up version of the negligent failure to
warn claim. A warning is "[t]he pointing
out of a danger, especially to one who would
not otherwise be aware of it." Black's Law
Dictionary 1722 (9th ed. 2009). Warning
the public is synonymous with advising
them of attendant hazards. This claim also
must perish.
6. Warranty Claims
Grieco claims Tecumseh breached its
compressor's (1) implied warranty of
merchantability; (2) implied warranty of
fitness for a particular purpose; and (3)
n
express warranty. ECF No. 1 at 10-12. All
three claims fail as a matter of law.
and (4) the seller had reason to know of the
buyer's reliance on the seller. Id.
The Georgia Uniform Commercial Code
creates an implied warranty of
merchantability that goods be fit for the
ordinary purposes for which such goods are
used. O.C.G.A. § 11-2-314. But the
Georgia Supreme Court has disapproved the
fit-for-use test in evaluating design defects,
see Banks, 450 S.E.2d at 674, favoring the
risk-utility test. Thus, a product found
defectively designed under the risk utility
test will not necessarily give rise to a claim
for breach of implied warranty of
merchantability in Georgia.
Accord J.
Kennard Neal, Georgia Products Liability
Law § 4:4 (4th ed. 2013).
Tecumseh only argues that the absence
of a defect dooms the claim for breach of an
implied warranty of fitness. ECF No. 25 at
10-11. But O.C.G.A. § 11-2-315 does not
mandate a defect. Unfit means unable to
fulfill the particular purpose, regardless of
the presence of a defect. By conflating
defect and fitness, Tecumseh fails to point
out the absence of evidence supporting an
essential element and so has not met its
summary judgment burden. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Finally, a seller creates an express
warranty under Georgia law when it makes
any affirmation of fact or promise related to
the goods, and the affirmation becomes part
of the basis of the bargain. O.C.G.A. § 112-313(1)(a). Grieco alleges that Tecumseh
breached an express warranty because it
assured Grieco through oral statements,
internet materials, and a written warranty
that the compressor would work. ECF No. 1
at 11. Grieco has provided no evidence—or
even further argument—to support those
allegations. Like Grieco's implied warranty
of merchantability, his express warranty
claim fails.
Grieco argues the design defect is
evidence of unfitness and cites to a Florida
case predicated upon the Death on the High
Seas Act and Federal Admiralty Law for
support. Shaw v. Grumman Aerospace
Corp., 593 F. Supp. 1066, 1073 (S.D. Fla.
1984). This case has no relevant
precedential value and Grieco provides no
other evidence that the compressor was unfit
for use. See ECF No 29 at 14-16. Grieco's
implied warranty of merchantability claim
therefore fails.
The Georgia Uniform Commercial Code
also creates an implied warranty of fitness
for a particular purpose. O.C.G.A. § 11-2315. To show breach of this warranty, a
plaintiff must prove that (1) the buyer had in
mind a particular purpose for the goods; (2)
the seller knew of this particular purpose;
(3) the buyer relied on the skill or judgment
of the seller to select or furnish the goods;
V. CONCLUSION
The Court finds that Browning is
unqualified as an expert witness because he
lacks sufficient knowledge, skill,
experience, training, or education to testify
about the inherent risks, utility, and benefits
of the compressor. Therefore the Court
7
GRANTS the motion to exclude Browning's
testimony.
The Court GRANTS IN PART and
DENIES IN PART Tecumseh's motion for
summary judgment. The Court GRANTS
summary judgment on Grieco's (1) design
defect claim because Grieco presents no
reasonable alternative designs for the
compressor; (2) manufacturing defect claim
because Grieco fails to present any evidence
as to such a defect; (3) negligence claims;
(4) breach of express warranty and implied
warranty of merchantability claims; and (5)
substantive inadequate warning theory
because Grieco failed to read the warning
label. The Court DENIES summary
judgment on (1) Grieco's defective warning
claim based on a theory of inadequate
communication of the warning, and (2)
Grieco's implied warranty of fitness for a
particular purpose claim because Tecumseh
fails to meet its burden on summary
judgment by not demonstrating an
evidentiary deficiency of any elements of
the claim.
The parties are ORDERED to submit a
joint pre-trial order within fourteen days of
this order's filing.
This
day of October 2013
B. AVANT EDENFIELD, UGW
UNITED STATES DISTRI COURT
SOUTHERN DISTRICT O#GEORGIA
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