Briley v. U.S. United Barge Line, LLC

Filing 162

MEMORANDUM & ORDER denying 103 Motion for Summary Judgment; granting 108 Motion for Partial Summary Judgment; granting 109 Motion for Summary Judgment; denying 110 Motion in Limine. Signed by Senior Judge Thomas B. Russell on 6/20/2012. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:10-CV-00046-R
MICHAEL BRILEY

PLAINTIFF

v.
U.S. UNITED BARGE LINE, LLC

DEFENDANT/
THIRD-PARTY PLAINTIFF

v.
DIXIE INDUSTRIES, a division of
COLUMBUS MCKINNON CORP.

THIRD-PARTY DEFENDANT

MEMORANDUM AND ORDER
In advance of the final pretrial conference, the parties for this matter have filed four
motions for the Court’s consideration. Plaintiff Michael Briley (“Briley”) moves for partial
summary judgment on his claim of unseaworthiness under admiralty law (DN 103). Defendant
U.S. United Barge Line, LLC (“UBL”) moves for partial summary judgment on Briley’s claim
of retaliatory discharge, also under admiralty law (DN 108). Third-Party Defendant Dixie
Industries, a division Columbus McKinnon Corporation (“Dixie”), moves to exclude testimony
from UBL’s expert, Dr. John E. Slater (DN 110). Dixie also moves for summary judgment on
the design defect and manufacturing defect claims UBL alleges against it (DN 109). The
motions are fully briefed (DN 112; DN 113; DN 117; DN 118; DN 119; DN 120; DN 121; DN
122; DN 123; DN 124) and now ripe for adjudication. Below, the Court issues its rulings.
BACKGROUND
The facts surrounding this matter are largely undisputed. Between 2005 and December
2009, Briley worked as a member of the crew aboard the M/V CAROL McMANUS
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(“MCMANUS”), a tugboat owned and operated by UBL. UBL is a barge company that hauls
freight along the Mississippi and Ohio Rivers. At the time of this accident, Briley was the first
mate aboard the vessel.
Individual barges are interconnected to one another and to the tugboat hauling them with
a system of wire ropes (a group of barges controlled by a single tugboat is called its “tow”). The
wire ropes are coupled to the individual barges along a series of ratchets affixed to the barges.
Atop the ratchets are pelican hooks where the wire ropes are fastened (wires and ratchets are
referred to as a barge’s “rigging”). When barges are dropped from tow, the wiring must be
removed by a tugboat’s crew members. Briley and other crew members are tasked with
removing the rigging when barges are dropped off at their destination.
The size of the barges and the weight of their cargo create great strain on a tow’s rigging.
The seamen who offered depositions in this matter said it is not uncommon for the wire ropes to
break as a result of the extreme tension that builds as the barges in a tugboat’s tow drift away
from one another. The same seamen uniformly agreed that when undue pressure is placed on the
tow’s rigging, the wire ropes snap before the stress affects the ratchet and the pelican hooks to
which they are attached. See Briley Depo, DN 112-2 p. 39; Picou Depo., DN 112-3 p. 12; More
Depo., DN 112-5 p. 27; Wampler Depo., DN 112-6 p. 14; Simoneaux Depo., DN 112-4 p. 9.
None of the seamen who gave testimony have ever seen a ratchet or pelican hook break as a
result of increased strain from the rigging. Briley Depo, DN 112-2 p. 39; Picou Depo., DN 1123 p. 12; More Depo., DN 112-5 p. 27; Wampler Depo., DN 112-6 p. 14; Simoneaux Depo., DN
112-4 p. 9.
In the early hours of December 21, 2009, the MCMANUS was depositing three barges

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into the Upper St. Rose Fleet, north of New Orleans on the Mississippi River. Two other harbor
tugboats, the M/V ANGELA (“ANGELA”) and the M/V ROBERT (“ROBERT”), were located
near the MCMANUS to assist in the delivery. Briley and another crew member were charged
with removing the wire ropes between the barges in preparation for their arrival. On the barge
furthest astern, the men encountered difficulty removing the rigging between the final two
barges. Briley claims the tension on the wire rope was too great to detach it from the ratchet’s
pelican hook. At some point during his attempt to loosen the wire, Briley radioed the crews of
the ANGELA and ROBERT and asked them to reposition the barges, which would slacken the
wire and facilitate its unfastening. The captain of the ANGELA indicated after the fact that he
was unable to move his ship in time to assist. Picou Depo., DN 112-3 p. 10. The ROBERT’s
captain testified his vessel was not near the MCMANUS or its tow when the request went out.
Moments after the radio transmission, the ratchet on the barge failed and either it, or the wire
rope recoiling from the release of tension, struck Briley’s leg and fractured it.
A subsequent investigation of the accident revealed that the pelican hook attached to the
ratchet failed under the weight of the MCMANUS’s tow. While there was some sheering on the
hook from prior use, the parties concede that the equipment appeared to be in good condition
before the incident. No obvious defects have been subsequently located either on or within the
ratchet and pelican hook.
Briley pursues this action against UBL, alleging negligence under the Jones Act and
claims of unseaworthiness, retaliatory discharge, maintenance, cure, and wages under general
maritime law. Several months after the action’s initiation, UBL filed a third-party complaint
against Dixie, the manufacturer of the ratchet and pelican hook. UBL argues Dixie is

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responsible for indemnity and contribution because the ratchet and pelican hook were defectively
designed and/or manufactured.
PENDING MOTIONS
I. Briley’s Motion for Summary Judgment
Briley moves for summary judgment on his claim of unseaworthiness. He alleges the
parties are in agreement on a number of pivotal facts: (1) the ratchet and pelican hook were
being used for their ordinary and approved purposes when the accident occurred, (2) the pelican
hook broke during that ordinary use, indicating it was defective equipment under the law of
unseaworthiness, and (3) the failure of the pelican hook proximately caused his injury. As the
doctrine of unseaworthiness is akin to strict liability, Briley proclaims judgement as a matter of
law should follow from these concessions.1
A. Standard for Summary Judgment
Summary judgment is appropriate where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In
determining whether summary judgment is appropriate, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether

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The Court previously considered a motion for summary judgment by Briley on his
claim of unseaworthiness and found it to be premature. Memorandum Opinion & Order, DN 82.
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the party bearing the burden of proof has presented a jury question as to each element in the
case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a
mere scintilla of evidence in support of his position; the plaintiff must present evidence on which
the trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for
summary judgment: “the mere existence of a colorable factual dispute will not defeat a properly
supported motion for summary judgment. A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
B. Law of Unseaworthiness
Seaworthiness is often compared to strict liability claims or those under a no-fault
regime. See Gravatt v. City of New York, 226 F.3d 108, 116 (2d Cir. 2000); Barlas v. United
States, 279 F. Supp. 2d 201, 206 (S.D.N.Y. 2003). These analogies follow from a shipowner’s
“absolute duty to maintain a seaworthy ship, the breach of which imposes liability without fault.”
Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 602 (6th Cir. 2001) (citing Brown v.
Dravo Corp., 258 F.2d 704, 706 (3d Cir. 1958)). Irrespective of this standard, a vessel is not
required to be “free from all possibility of mishap, for the seaworthiness of a ship is a relative
concept, dependent in each instance upon circumstances.” Id.
Litigants asserting a claim of unseaworthiness must show (1) the vessel’s appurtenances
were not “reasonably fit for their intended use” and (2) the unseaworthy condition proximately
caused the seaman’s injuries. Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 904 (6th Cir.
2006); accord Vankuiken v. Cent. Marine Logistics, Inc., No. 07-14543, 2008 WL 4601379, at

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*5-6 (E.D. Mich. Oct. 15 2008). For proximate cause, “‘[a] plaintiff must prove that the
unseaworthy condition played a substantial part in bringing about or actually causing the injury
and that the injury was either a direct result or a reasonably probable consequence of the
unseaworthiness.’” Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1463 (6th Cir. 1993)
(quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir.), cert. denied, 488
U.S. 968 (1988)). The “source of the malfunction” that causes the injury is irrelevant under
unseaworthiness; after all, the doctrine is but a “condition, and how that condition came into
being - where by negligence or otherwise - is quite irrelevant to the owner’s liability for personal
injuries resulting from it.” Perkins, 246 F.3d at 602 n. 6 (citing Ferrara v. A. & V. Fishing, Inc.,
99 F.3d 449, 453 (1st Cir. 1996)) (emphasis in original).
“[U]nseaworthiness is [generally] a question of fact for the jury and should not be
resolved by the district court as a matter of law.” Churchwell, 444 F.3d at 904. When however
“neither party can explain phenomena illustrative of a vessel or appurtenance not reasonably fit
for its intended use, the shipowner is liable as a matter of law.” Johnson v. Donjon Marine Co.,
No. 05-CV-1543, 2006 WL 3240730, at *3 (E.D.N.Y. Nov. 8, 2006) (citing Van Carpals v. S. S.
Am. Harvester, 297 F.2d 9 (2d Cir. 1962)). Liability for equipment failure can be sidestepped if
a “genuine dispute as to whether the injury was caused by an unseaworthy condition or, instead,
by an isolated act of negligence.” Id. (citing Sotell v. Maritime Overseas Inc., 474 F.2d 794, 796
(2d Cir. 1973)). Yet, the shipowner is required to show the seaman’s negligent act was the lone
cause of the injury; if the seaman’s negligence “only contributed to the consequences of a
preexisting unseaworthy condition,” it is insufficient to preclude summary judgment for the
plaintiff. Id.

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C. Discussion
Restating the relevant standard, Briley is entitled to summary judgment if he can show
the ratchet and pelican hook were not reasonably fit for their intended use and their condition
caused his injury. See Churchwell, 444 F.3d at 904. No one disputes the pelican hook broke
under the strain of the barges and its failure caused his injury. The parties also concede that
before the accident, the ratchet and pelican hook appeared to be in working order and there were
no obvious flaws or imperfections. In his motion, Briley asserts that UBL and Dixie agree that
the pelican hook was being used for its ordinary and intended purpose. He insists the testimony
of Dr. John E. Slater, UBL’s expert, on the defectively manufactured pelican hook is
uncontradicted. Briley argues that the parties’ concessions pave an uncontested path to judgment
on unseaworthiness.
The record is not as harmonious as Briley believes. Dixie refutes his contention that the
ratchet and pelican hook were defectively manufactured or designed. To rebut Slater, Dixie
introduces testimony from experts Dr. R. Craig Jerner and Mr. Steven J. Roensch. Together,
these witnesses opine that the pelican hook broke because it was overloaded. Had it been used in
conformity with the proper and preestablished working load, they affirm that the pelican hook
would not have failed.
These opinions bear on Briley’s belief that the pelican hook qualifies as an unseaworthy
condition. Where a ship’s equipment unexpectedly malfunctions and injures a seaman, the ship
is unseaworthy only when the equipment’s failure arose out of its “proper and expected use.”
Perkins, 246 F.3d at 602. UBL and Dixie urge denial of this motion because if the pelican hook
failed when overloaded, the result followed from its improper use.

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Judging from their responses to this motion, UBL and Dixie conceive of two possible
outcomes for Briley’s unseaworthiness claim. The first is a ruling that the ratchet and pelican
hook were defectively manufactured. Neither UBL nor Dixie disputes that defective parts and
equipment create an unseaworthy condition aboard a vessel. See Perkins, 246 F.3d at 602 n. 6.
For the second, UBL and Dixie claim Jerner’s and Roensch’s testimony could persuade the jury
that the pelican hook failed due to an improper load. If so, the pelican hook broke outside its
“intended use” and the vessel was not unseaworthy.
Distilled down, UBL and Dixie appear to request a finding that the MCMANUS’s crew
improperly used the pelican hook when they overloaded it. Even though the isolated misuse of
equipment may inhibit an unseaworthiness claim, e.g., Scindia Steam Nav. Co., Ltd. v. De Los
Santos, 451 U.S. 156, 164-65 (1981) (a single act of operational negligence does not render a
vessel unseaworthy (citing Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971))), the
crew’s misuse of the vessel’s appurtenances may create a claim for unseaworthiness if the
misuse occurs at the direction of a supervisor. Churchwell, 444 F.3d at 904. If the misuse
happens at the direction of a seaman’s superior, then whether the equipment would have
functioned properly under its normal and appropriate use is immaterial. See Taylor v. TECO
Barge Line, Inc., 517 F.3d 372, 383 (6th Cir. 2008). Accordingly, Briley could still recover as a
matter of law on his unseaworthiness claim if he and the other crew had been trained or ordered
to load the ratchet and pelican hook in the fashion that led it to fail. See Nichols v. Weeks
Marine, Inc., 513 F. Supp. 2d 627, 635 (E.D. La. 2007) (“A vessel is unseaworthy when an
unsafe method of work is used to perform vessel services.” (citations omitted)).
Notwithstanding the precedent on equipment misuse, evidence on the process by which

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the rigging is fastened to the barges is absent from the record. Should Briley introduce evidence
at trial whereby the crew of the MCMANUS loaded the ratchet and pelican hook in accordance
with a pre-approved practice or under the supervision of their superiors, judgment as matter of
law may be justified even if the equipment was overborne by an excessive amount of pressure.
However, the Court cannot intelligently confront whether the MCMANUS was unseaworthy as a
result of defective equipment, or equipment misuse, or incorrect training on the load-bearing
capabilities of the incident ratchet and pelican hook. Rather than issue judgment in favor of
Briley at this time, the Court will deny this motion and await a more thorough airing of this
claim at trial, after which, he may move for judgment as a matter of law.
Accordingly, Briley’s motion for summary judgment is denied.
II. UBL’s Motion for Partial Summary Judgment
A claim of retaliatory discharge under admiralty law against UBL was added in Briley’s
first amended complaint. He alleges UBL terminated him in retaliation for having filed the
present lawsuit. First Amended Complaint, DN 58 ¶¶ 5-6. UBL moves to dismiss this claim
because Briley recognized he could not perform the material duties of his position and resigned
on his own.
The record underscores the serious nature of Briley’s accident and its impact on his
physical health. On June 17 and 18, 2010, Briley underwent a functional capacity exam (“FCE”)
in Paducah, Kentucky, to measure the injury’s affect on his leg and to determine if he could
continue on as first mate. The results showed Briley “might” have limitations that would prevent
him from being able to perform the essential tasks of his job. King Affidavit, DN 180-2 ¶ 3.
The physical therapist who examined him found new physical limitations that would hinder his

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job performance. Hutto Depo., DN 108-6 p. 1. Briley realized his own physical limitations as
well. He admitted during his deposition that he could not return to work and act as first mate.
Briley Depo., DN 108-7 p. 1. This admission was followed shortly thereafter by an attempt to
collect long-term disability with UBL’s insurance carrier. DN 108-4. Briley’s working
relationship with UBL came to an end when he submitted his resignation letter, in which he
indicated he was unable to preform his position’s duties. DN 108-5.
“From the earliest times maritime nations have recognized that unique hazards,
emphasized by unusual tenure and control, attend the work of seamen.” Aguilar v. Standard Oil
Co. of N.J., 318 U.S. 724, 727 (1943). To provide a degree of respite from the hardships,
admiralty law provides safeguards that are normally unavailable to the laborers of other
professions. A prohibition on retaliatory discharge of a seaman for filing a personal injury claim
has been incorporated into the umbrella of protection afforded seamen. Smith v. Atlas Off–Shore
Boat Service, Inc., 653 F.2d 1057, 1058 (5th Cir. 1981); Dibble v. Grand Trunk Western R. Co.,
699 F. Supp. 123, 127 (E.D. Mich. 1988). The legal right emerges from the policy that an
“employer should not be permitted to use his absolute discharge right to retaliate against a
seaman for seeking to recover what is due him or to intimidate the seaman from seeking legal
redress.” Atlas, 653 F.2d at 1062.
This is not to say an injured seaman may not be terminated. On the contrary, “absent
specific contractual provisions, sailors are at-will employees whose employment is ‘terminable
at will by either party.’” Baetge-Hall v. American Overseas Marine Corp., 624 F. Supp. 2d 148,
155 (D. Mass. 2009) (quoting Atlas, 653 F.2d at 1060). “[A] seaman is an at-will employee, and
may be discharged for ‘good cause, for no cause, or even, in most circumstances, for a morally

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reprehensible cause.’” Kasper v. Oglebay Norton Co., No. 3:97 CV 7701, 1998 WL 229597, at
*1 (N.D. Ohio Feb. 18, 1998) (quoting Atlas, 653 F.2d 1063). “The discharge of a seaman who
is not fit for duty, whether or not his disability results from the employer’s negligence, would
not, of course, be wrongful.” Atlas, 653 F.2d at 1063.
Smith v. Atlas Off–Shore Boat Service, Inc., the seminal case for claims of retaliatory
discharge, established a difficult set of precepts for a seaman to prove.
In order to prevail on the retaliatory discharge claim, the seaman must affirmatively
establish that the employer's decision was motivated in substantial part by the
knowledge that the seaman either intends to file, or has already filed, a personal
injury action against the employer. The employer may, on the other hand, defeat the
seaman's action by demonstrating that the personal injury action was not a substantial
motivating factor for the discharge.
Id. at 1063-64 (footnotes omitted). Courts have looked to retaliatory discharge in other legal
arenas when deciding what qualifies as “motivated in substantial part.” See Schuppman v. Port
Imperial Ferry Corp., No. 99-CV-3597-SWK, 2001 WL 262687, at *2 (S.D.N.Y. Mar. 15 2001)
(citing to cases reviewing retaliatory discharge under Title VII). The causal connection between
a seaman’s discharge and a negligence suit can be shown “directly through evidence of
retaliatory animus directed against the plaintiff [or] indirectly by showing that the protected
activity was followed closely by the discriminatory treatment or through other evidence such as
disparate treatment of fellow employees who engaged in similar conduct.” Id. (citations and
quotation marks omitted).
The impetus for UBL’s motion for summary judgment is the absence of proof. The
company states Briley’s own actions and statements demonstrate he was not terminated for filing
a Jones Act lawsuit. Admittedly, much of the evidence submitted alongside this motion
contradicts Briley’s allegations. He said that he could not perform the duties of first mate and
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conceded as much when he applied for disability. He made a similar admission in his
resignation letter; the one-paragraph correspondence does not include allegations or insinuations
that Briley has been forced to resign as a result of the personal injury lawsuit. Taking the
evidence in Briley’s favor, his retaliatory discharge claim lacks even a scintilla of proof.
Instead of responding to UBL’s arguments, Briley remolds the allegations of retaliatory
discharge. He now says UBL failed to rehire him into a position that he was physically capable
of performing. Briley proposes that this failure to rehire constitutes a cognizable claim of
retaliatory discharge.
Briley cites a single district court case from the Western District of Washington for the
proposition that failure to rehire is actionable under maritime law. See Folstrom v. Northern
Jager Partners, L.P., No. C96–124C, 1997 WL 824813, at *3 (W.D. Wash. Jan. 21, 1997). The
case does not stand for the proposition for which he cites it. Rather than recognizing retaliatory
discharge in the context of rehiring, the court in Folstrom rejected this theory of recovery and
only alluded to it in the decision’s dicta. Perhaps more important, the Court has not encountered
a single decision in this circuit that extends a seaman’s claim for retaliatory discharge to include
the failure to rehire.
Even supposing that the Court was willing to recognize this theory of recovery, no
factual issue exists to warrant submission to a jury. Nothing more than conclusory allegations
support Briley’s belief that UBL terminated and refused to rehire him as a result of the lawsuit.
The only allusion to the record he makes is a cursory reference to the temporal proximity of his
lawsuit and the alleged retaliation. Still, temporal proximity without more is rarely enough to
prove a retaliatory motive. Cf. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir.

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2000); Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999); Conner v. Schnuck Mkts., Inc., 121
F.3d 1390, 1397-98 (10th Cir. 1997). As such, the record lacks any evidence to support this
particular claim.
Considering the clarity of the record and Briley’s failed attempt to invent a new cause of
action, the Court will grant this motion and dismiss the allegation of retaliatory discharge.
III. Dixie’s Motion in Limine
UBL has retained Dr. John E. Slater to present his expert opinion on the failure of the
pelican hook. He has examined the incident ratchet and pelican hook, the depositions of Briley
and the other seamen, photographs of other ratchets used in the coupling process between barges,
and reports on the accident. Slater has performed a variety of tests to calculate and measure the
strength and metallurgical properties of the ratchet and pelican hook. From his analysis, he
concludes the incident hook was defectively manufactured. Slater Report, DN 112-13 p. 3.
Currently, Dixie requests the exclusion of Slater’s testimony because it does not meet the
relevant evidentiary prerequisites.
A. Daubert Standard
Pursuant to Federal Rule of Evidence 702 and the seminal opinion of Daubert v. Merrill
Dow Pharm., Inc., 509 U.S. 579 (1993), scientific, technical, or other specialized knowledge is
admissible in opinion form if it will assist the jury to decide a factual issue. An expert’s opinion
is admissible if it satisfies three requirements: “First, the witness must be qualified by
‘knowledge, skill, experience, training, or education.’ Second, the testimony must be relevant,
meaning that it ‘will assist the trier of fact to understand the evidence or to determine a fact in
issue.’ Third, the testimony must be reliable.” In re Scrap Metal Antitrust Litigation, 527 F.3d

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517, 528-29 (6th Cir. 2008). “As a gatekeeper, the trial judge has discretion in determining
whether a proposed expert’s testimony is admissible based on whether the testimony is both
relevant and reliable.” Rose v. Truck Centers, Inc., No. 09-3597, 2010 WL 3069613, at *4 (6th
Cir. Aug. 6, 2010) (citing Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429 (6th Cir.
2007)); see Daubert, 509 U.S. at 589). The trial judge must assess “whether the reasoning of
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.
Notwithstanding his or her role as gatekeeper, a trial judge is not the court’s “armed
guard.” Ruiz-Troche v. Pepsi Cola of P.R., 161 F.3d 77, 86 (1st Cir. 1998). “[T]he rejection of
expert testimony [under Daubert] is the exception rather than the rule.” Fed. R. Evid. 702
(advisory committee notes). The expert’s proponent needs only to show by a “preponderance of
the evidence that the expert’s reasoning and methodology is scientifically valid.” Charles
Wright & Victor Gold, 29 Fed. Prac. & Proc. Evid. § 6266 at 276 (1997) (citation omitted).
Once the court is satisfied this standard has been met, the expert’s testimony “should be tested
by the adversary process - competing expert testimony and active cross-examination - rather than
excluded from jurors’ scrutiny for fear that they will not grasp its complexities or satisfactorily
weigh its inadequacies.” Ruiz, 161 F.3d at 85 (citing Daubert, 509 U.S. at 590).
B. Slater’s experience, testing, and conclusions
In the fields of metallurgy and failure analysis, Slater wields an impressive educational
pedigree and amount of experience. He has a masters and Ph.D. in metallurgy from the
University of Cambridge and performed his post-doctoral research at the Ohio State University.
DN 112-7. He has worked as a failure analyst and materials engineer since 1985 for Invetech

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Inc., for which he is now the principal. He has published and lectured extensively on metallurgy
and the corrosion of metals. The Court finds Slater qualified to offer opinion testimony at trial,
insofar as it is reliable and relevant.
As for Slater’s testing and methodology, he was retained to examine the incident ratchet
and pelican hook, measure its metallurgical properties, and compare those findings to an
exemplar ratchet and pelican hook. He performed two examinations of the incident ratchet and
each yielded a separate expert report, published respectively on January 16, 2012 and January
30, 2012 (herein “January 16 test” and “January 30 test”). DN 112-8; DN 112-12.
The January 16 test was a “non-destructive examination,” where Slater inspected the
incident ratchet without performing a chemical or molecular analysis. DN 118-8 at 2. Based on
his observations and measurements, Slater determined that the minimum breaking strength of the
ratchet and pelican hook was 126,000 lbs, with a working load limit of 42,000 lbs. DN 112-8 p.
2. The wire rope in service at the time of the accident had a minimum breaking strength of
83,600 lbs, meaning the pelican hook should have been one third stronger than the wire rope.
DN 112-8 p. 3. The ratchet showed signs that it was “largely brittle,” in particular the “small
shear lip” and the “minor throat spreading” at the point of fracture.2 DN 112-8 p. 2. Slater

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Slater’s opinions are better understood with a brief refresher on certain metallurgical

terms.
• The “ductility” of a metal is “the property that enables solid substances, particularly
metals, to undergo cold, visible, plastic deformation. The metal thus becomes
permanently extended . . . with corresponding reduction in cross-sectional areas without
actual fracturing or separation.” C.R. Tottle, An Encyclopedia of Metallurgy and
Materials 80 (Macdonald and Evans 1984) (herein “Encyclopedia of Metallurgy”).
• A “brittle fracture” is “the sudden and catastrophic failure of engineering components
without prior plastic deformation.” Encyclopedia of Metallurgy, p. 30.
• The term “plastic deformation” is “used in reference to the permanent (inelastic)
distortion of metals under applied stresses which strain the material beyond its elastic
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explained in his deposition that the presence of a “minor” shear lip in the incident ratchet meant
that the metal did not display the expected ductility during the fracture. Rather, the minor shear
lip was evidence of a “brittle fracture,” which Slater analogized to breaking a piece of chalk
instead of the bend-and-give normally associated with metals under high stress. Slater Depo.,
DN 110-2 p. 10-11. The lack of “throat spreading” further signaled a brittle fracture because it
precluded the plastic deformation associated with ductile metal. Slater Depo., DN 110-2 p. 2425. According to Slater, the absence of plastic deformation in the incident ratchet at the fracture
site signified that the metallurgical properties of the ratchet and pelican hook were “less than
optimum.” DN 112-8 p. 3. He anticipated that chemical, hardness, and microscopic tests would
show that the metal used to create the hook was exposed to excessive quantities of heat. DN
112-8 p. 3. Slater also hypothesized that a properly functioning ratchet and pelican hook would
not have failed before the rigging’s wire ropes. DN 112-8 p. 3.
For the January 30 tests, Slater and his associates removed samples of the incident ratchet
and the exemplar ratchet to conduct hardness tests and metallography and chemical analysis.
DN 112-12 p. 1. The hardness measurements revealed differences between the exterior and the
interior of the pelican hook. DN 112-12 p. 2. The incident ratchet also exhibited higher scores
on the hardness scale relative to the exemplar ratchet. DN 112-12 p. 2. Since a harder metal is
less ductile, the higher hardness score meant the incident ratchet was more brittle than the

•

limit. The deformation is accompanied by changes in the internal state of the metal,
involving distortion of the crystal structure.” Encyclopedia of Metallurgy, p. 230.
A “shear lip” is “an area, at the edge of a flat fracture surface, where the plane of the
fracture is about 45' to the direction of the loading. It occurs by ductile shear at the final
stage of crack propagation leaving, usually, a sharp fracture edge.” Colin D. Brown,
Dictionary of Metallurgy 201 (John Wiley & Sons Ltd. 1998).
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exemplar ratchet. The metallographic analysis “revealed a relatively coarse almost barinitic
structure in both hooks,” but the second phase particles in the incident ratchet’s hook were
“significantly more prevalent.” DN 112-12 p. 2. Slater concluded the microstructure of the
incident ratchet displayed “undesirable features” that “would be expected to give a tendency to
brittle intergranular fracture[,] particularly under high rates of loading.” DN 112-12 p. 2.
These deficiencies at the elemental level of the ratchet, combined with the lack of plastic
deformation at the fracture site and the load-bearing capability of the wire ropes as opposed to
the ratchet, led Slater to conclude that the incident ratchet’s hook was “defectively
manufactured.” DN 112-12 p. 3. Put another way, Slater believes the ratchet and pelican hook
were defective because under the stress of the MCMANUS’s tow, the hook should have bent
before it broke apart. This bending (or “plastic deformation”) would have created a large shear
lip at the point of failure. The presence of a minor shear lip and the negative results from the
January 30 tests on the incident ratchet are demonstrative of a brittle fracture, which is the mark
of a defective ratchet and hook.
C. Dixie’s objections to Slater
Dixie does not challenge Slater’s qualifications but does object to the reliability and the
relevancy of his opinions. With regard to the former, it makes four assertions about the scientific
principles underlying his remarks. First, Dixie argues the presence of a shear lip at the point of
failure thwarts Slater’s scientific diagnosis of a brittle fracture. Second, even if the hook was
brittle, Slater has not shown a brittle hook is tantamount to a defective hook. Third, Dixie
charges that Slater’s calculations are flawed because he does not know the gauge of the wire
rope in use at the time of the accident. Fourth, Dixie attacks Slater’s methodology, specifically

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the situs of his hardness measurements and the type of tests he performed. After review, the
Court is unconvinced that these objections warrant the exclusion of his testimony.
Dixie says the presence of a shear lip on the pelican hook proves some degree of plastic
deformation occurred. With this evidence of ductility, it asserts Slater’s methodology actually
shows the absence of a brittle fracture. Dixie has misread Slater’s commentary on shear lips and
their impact on the brittleness of metals. The parties are in agreement that the shear lip on the
incident hook was relatively minor. In his deposition, Slater explained that the smaller the shear
lip at the fracture point, the less ductile and more brittle the metal. Slater depo., DN 110-2 p. 10.
Thus, the minor shear lip at the fracture site supports Slater’s opinion that the equipment was
brittle and defectively manufactured.
Next, Dixie argues that Slater has not made the connection between a brittle hook and a
defective hook. It contends that even if the Court were to accept Slater’s conclusion that the
ratchet and pelican hook were brittle, a finding of defect would not necessarily follow. Dixie
charges that Slater’s opinion, from his pronouncement of brittleness to his conclusion of defect,
constitutes a “logical leap” without any testable methodology.
The Court disagrees with this characterization. In the report issued after the January 30
tests, Slater stated that a brittle hook exhibits “improper and substandard metallurgical
properties” that affects its strength. DN 112-12 p. 3. He said that a ratchet that was not brittle
would be able to withstand significantly greater forces due to its higher breaking strength. DN
112-12 p. 3. He then provided explicit guidance on how this particular ratchet was defective:
Question: And then you go on to say that -- in the last conclusion that the incident
hook was thus defectively manufactured. Now, what is the basis for stating that it
was defectively manufactured?
Slater Answer: Because the properties that it exhibited in its failure were properties
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that a component such as that should not exhibit. In other words, a component such
as that should not -- should not fail no matter what you do to it in a brittle manner
such as this one did.
Slater depo., DN 110-2 p. 37. From a metallurgical standpoint, the brittle fracture and the lack
of ductility present serious questions about the structural integrity of this ratchet and pelican
hook.
One of Dixie’s own employees acknowledges the veracity of Slater’s conclusion. In his
deposition, Troy Raines, a product engineer for Dixie, explained the importance of brittle
fractures when measuring the ductility of the company’s products:
Question: Dixie strives to achieve ductility in the hooks which it manufactures
through this process. Correct?
Raines answer: Yes.
Question: Okay. If a hook is not ductile and fractures in a brittle manner, then it
does not meet the desired objectives in the manufacturing process, does it?
[objections]
Raines answer: So, hypothetically, if there were a hook that were brittle, it would not
meet our criteria.
Question: Okay. And that hook would be defective, would it not?
Raines answer: Yes.
Raines depo., DN 112-10 p. 11. Viewing Slater’s opinions alongside Raines’s admissions,
Slater’s comments on brittle fractures are adequate to establish a manufacturing defect. See
Wheeler v. HO Sports, Inc., 232 F.3d 754, 757 (10th Cir. 2000) (applying Oklahoma law) (“A
product is defective in manufacture if it deviates in some material way from its design or
performance standards.”); Gerber v. Hoffmann–La Roche, Inc., 392 F. Supp. 2d 907, 922 (S.D.
Tex. 2005) (applying Texas law) (“A manufacturing defect exists when a product does not
conform to the design standards and blueprints of the manufacturer and the flaw makes the
product more dangerous and therefore unfit for its intended or foreseeable uses.”). Slater’s
testing on the ratchet and pelican hook exposed overly hardened metal that risked a brittle
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fracture. These chemical measurements were corroborated by the minor shear lip at the fracture
point along with the difficulty reconciling the failure of the ratchet with the load-bearing
capability of the wire ropes. The Court finds Slater’s testimony and conclusions on brittleness
are supported by sound, reliable methodology. Cf. Scrap Metal, 527 F.3d at 529-30 (“The task
for the district court in deciding whether an expert's opinion is reliable is not to determine
whether it is correct, but rather to determine whether it rests upon a reliable foundation, as
opposed to, say, unsupported speculation.”).
Continuing in this vein, Dixie emphasizes that Slater does not know whether the hook
was being used for its intended purpose when it snapped, which precludes him from stating that
it was defectively manufactured. This argument ignores the preparation Slater embarked upon
when he created his opinions. His review of the seamen’s depositions allowed him to glean the
customary and intended use of ratchets and pelican hooks in a maritime setting. Any
unfamiliarity with the intricacies of work on a barge may be addressed on cross examination.
Furthermore, Slater’s conclusions about the pelican hook’s failure transcend the equipment’s
intended purpose. He is adamant that under no circumstances should the ratchet and pelican
hook have failed in the manner that they did. Slater depo., DN 110-2 p. 37. Ergo, precisely how
the ratchet and pelican hook were being used is immaterial when judging the admissibility of
Slater’s opinion.
Dixie stresses that Slater’s opinions should be excluded because he did not account for
the gauge of the wires in the rigging on the MCMANUS. Slater however referred to a wire rope
manual provided to him by the primary supplier of wire rope to UBL. He used the
measurements of the wire rope from this catalogue to reach his conclusions. This process for

20

calculating the size and strength of the wire ropes in the rigging is a basis for cross examination
at trial, but not exclusion of Slater’s opinion. In re Welding Fume Products, No.
1:03–CV–17000, MDL 1535, 2005 WL 1868046, at *5 (N.D. Ohio Aug. 8, 2005) (“As long as
an expert’s scientific testimony rests upon ‘good grounds, based on what is known,’ it should be
tested by the adversary process-competing expert testimony and active cross-examination-rather
than excluded from jurors’ scrutiny for fear that they will not grasp its complexities or
satisfactorily weigh its inadequacies.” (quoting Ruiz-Troche, 161 F.3d at 85)).
Dixie’s final quibbles with Slater’s methodology - his samples for the hardness testing
were improperly gathered and he should have performed additional microscopic tests - are easily
discarded as well. The challenges to the metallography and chemical analysis do not render
Slater’s measurements and conclusions so unreliable that they should be excluded. These
objections should be addressed on cross examination instead of in this motion. See Daubert, 509
U.S. at 596 (“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.”).
Lastly, Dixie takes issue with the relevancy of Slater’s opinions. It asserts that UBL
must show a feasible alternative design for a prima facie case of defective design. Since Slater
makes no attempt to provide a secondary design for the pelican hook, Dixie posits that his
testimony is insufficient to support the ultimate conclusion that the ratchet and pelican were
defective.
Dixie omits from its analysis the law surrounding manufacturing defects. For general
maritime law, the Sixth Circuit permits recovery under products liability. Schaeffer v.

21

Michigan-Ohio Nav. Co., 416 F.2d 217, 221 (6th Cir. 1969). UBL pursues two separate theories
of defect under products liability law: manufacturing defect and design defect. Third-Party
Complaint, DN 48 ¶ 8. Liability for design defects follows when the “foreseeable risks of harm
posed by the product could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor.” Restatement (Third) of Torts: Product
Liability, § 2(b) (1998).3 Litigants under this theory are required to show that a reasonable
alternative design was available at the time of the sale or distribution. See id. § 2 cmt. d. A
manufacturing defect occurs when the “product departs from its intended design even though all
possible care was exercised in the preparation and marketing of the product.” Restatement
(Third) of Torts: Product Liability, § 2(a) (1998); accord Minda v. Biomet, Inc., 182 F.3d 900, at
*1 (2d Cir. 1999) (table) (“To prove the existence of a manufacturing defect, a plaintiff must
establish that the product was not built to specifications or that it did not conform to the
manufacturer's intended design.”). “Common examples of manufacturing defects are products
that are physically flawed, damaged, or incorrectly assembled.” Restatement (Third) of Torts:
Product Liability, § 2 cmt. c (1998). No showing of alternative design is required for a
manufacturing defect claim. Nationwide Agribusiness Ins. Co. v. SMA Elevator Const. Inc., 816
F. Supp. 2d 631, 663 (N.D. Iowa 2011) (acknowledging that manufacturing defects under
subsection (a) of the Third Restatement do not require a risk-utility assessment).

3

Other circuits have adopted the Restatement Third of Products Liability for maritime
cases. See Oswalt v. Resolute Industries, Inc., 642 F.3d 856, 860 (9th Cir. 2011); St. Paul Fire
& Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d 1181, 1190 n. 18 (11th Cir. 2009); Krummel v.
Bombardier Corp., 206 F.3d 548, 552 (5th Cir. 2000). The parties agree that the Restatement
(Third) is the source of law that should guide the present controversy. See Dixie Motion for
Summary Judgment, DN 109-1 p. 5; UBL Response to Motion, DN 113 p. 3. In light of this
precedent and the parties’ agreement, the Court will apply the rules from the Restatement Third.
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Though it may not be enough to support a claim of design defect, Slater’s testimony is
relevant because it bears upon the claim of manufacturing defect. Dixie is incorrect that the
testimony is irrelevant to the instant controversy.4
In sum, Slater’s opinion is based on his substantial experience in metallurgy, supported
by a reliable and testable methodology, and relevant to UBL’s theory that Dixie defectively
manufactured the ratchet and pelican hook. The protestations Dixie includes in its motion are
best reserved for cross examination. For that reason, its motion in limine is denied.
IV. Dixie’s Motion for Summary Judgment
Dixie moves for summary judgment on UBL’s claims of design defect and manufacturing
defect (DN 109). This motion for summary judgment and Dixie’s motion in limine are two sides
of the same coin. Without Slater’s expert testimony, Dixie urges dismissal of these product
liability claims. The Court’s unfavorable ruling on Dixie’s motion in limine stymies many of the
arguments in this motion.
As previously stated, for a manufacturing defect a plaintiff must present evidence that a
product “departs from it intended design even though all possible care was exercised in the
preparation and marketing of the product.” Restatement (Third) of Torts: Product Liability, §
2(a) (1998). The law requires a plaintiff to show that the “defendant sold or distributed the
product,” “was engaged in the business of selling or distributing the product,” that the product
“contained a manufacturing defect that departed from its intended design,” and the defect
proximately caused the harm. Nationwide Agribusiness, 816 F. Supp. 2d at 663 n. 8 (formatting

4

The Court discusses the relevancy of Slater’s opinions and its sufficiency to establish a
manufacturing defect in Section IV of its opinion.
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altered) (reviewing the elements necessary for manufacturing defect claim under Restatement
(Third) of Products Liability). Dixie does not contest three of the four elements - that it is
involved in the manufacture and distribution of the ratchet and pelican hook and that the failure
caused Briley’s injury. Instead, Dixie puts forward that there is inadequate proof of a defect or
that the equipment departed from its intended design.
The Court finds that Slater’s expert testimony can shoulder the weight of UBL’s claim.
He indicted the metallurgical components of the hook showed deficiencies in the hardness test
and the metallographic analysis. He compared these shortcomings in the incident ratchet to an
exemplar ratchet, permitting him to draw the necessary scientific conclusions that the metal was
brittle and lacked ductility. In addition, Slater explained that irrespective of the forces placed on
the hook during the incident, it never should have failed in the manner that it did. This expert
opinion provides direct evidence of the manufacturing defect, which overrides any argument by
Dixie for summary judgment.
Additionally, the admissions of Troy Raines and the testimony of the seamen are reliable
circumstantial evidence of a manufacturing defect. Jurisdictions treat circumstantial evidence
differently when evaluating the sufficiency of evidence underlying a claim of manufacturing
defect. Some courts require expert testimony to accompany a suit for manufacturing defect, e.g.,
Whitted v. General Motors Corp., 58 F.3d 1200, 1208-09 (7th Cir. 1995) (finding that Indiana
law may use circumstantial evidence to establish manufacturing defect only if presented through
expert testimony); others permit the same claim to proceed to a jury on circumstantial evidence
alone. E.g., Ebenhoech v. Koppers Industries, Inc., 239 F. Supp. 2d 455, 472 (D.N.J. 2002)
(litigant may prove manufacturing defect either through expert testimony or by circumstantial

24

evidence under New Jersey law). In any event, circumstantial evidence plays an important role
to establish manufacturing defect claims, with or without the aid of expert testimony. See, e.g.,
Canning v. Broan-Nutone, LLC, 480 F. Supp. 2d 392, 404-05 (D. Me. 2007) (finding the
Restatement (Third) of Products Liability permits circumstantial evidence to prove
manufacturing defects); Arnold v. Krause, Inc., 232 F.R.D. 58, 71 (W.D.N.Y. 2004) (“To
establish a prima facie case of strict products liability based on a manufacturing defect, ‘plaintiff
may rely upon the circumstances of the accident and proof that the product did not perform as
intended.’” (quoting Brown v. Borruso, 238 A.D. 2d 884(N.Y. App. Div. 1997))).
The statements by Dixie’s own engineer and the seamen go a long way toward a finding
that the equipment was defectively manufactured. Raines testified that only substandard pelican
hooks would lack the ductility necessary to avoid a brittle fracture. Raines depo., DN 113-8 p. 5.
This acknowledgment about the importance of ductility in pelican hooks, along with Slater’s
conclusion that the incident pelican hook was not ductile, bears an inference that the equipment
in the present matter “depart[ed] from its intended design.” Restatement (Third) of Torts:
Product Liability, § 2(a) (1998). The seamen’s depositions offer an additional circumstantial
foundation for the claim of manufacturing defect. All agreed that pelican hooks and ratchets
suffering sudden failures are not just uncommon, but practically unheard of. The unanimity of
these statements corroborates Slater’s belief that the ratchet and hook were defectively
manufactured.
As for the claim of design defect, UBL has failed to put forth adequate evidence to
survive this motion for summary judgment. Products liability suits for design defects require a
reasonable alternative design, something Slater has failed to provided. Id. § 2 cmt. d. Without

25

an alternative design, this theory is ripe for dismissal.
Accordingly, Dixie’s motion for summary judgment is granted in part and denied in part.
UBL’s claim of manufacturing design may continue to the jury while the claim for defective
design is dismissed.
CONCLUSION
For the aforementioned reasons, IT IS HEREBY ORDERED:
(1)

Plaintiff’s motion for partial summary judgment (DN 103) is DENIED.

(2)

Defendant’s motion for partial summary judgment (DN 108) is GRANTED.
Plaintiff’s claim for retaliatory discharge is hereby dismissed.

(3)

Third-party Defendant’s motion in limine (DN 110) is DENIED.

(4)

Third-party Defendant’s motion for summary judgment (DN 109) is GRANTED
IN PART AND DENIED IN PART. Third-party Plaintiff’s claim for defective
design is hereby dismissed.

June 20, 2012

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