Jones et al v. The Raymond Corporation
ORDER AND MEMORANDUM OPINION on Motions [109, 111, 113, 115, 117, 119, 121, 123, 125, 127]. The Plaintiffs' punitive damages claim is dismissed with prejudice. Signed by District Judge Sharion Aycock on 1/18/23. (sko)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
RODNEY JONES, et al.
CIVIL ACTION NO. 3:20-CV-308-SA-RP
THE RAYMOND CORPORATION
ORDER AND MEMORANDUM OPINION
On November 18, 2020, Rodney Jones and Deangela Battle initiated this civil action by
filing their Complaint  against The Raymond Corporation. The parties have engaged in
extensive motion practice, and there are currently ten pending Motions [109, 111, 113, 115, 117,
119, 121, 123, 125, 127] in the case. Having reviewed the filings, as well as the applicable
authorities, the Court is prepared to rule.
Relevant Factual and Procedural Background
Rodney Jones was previously employed by Abacus Corporation, a temp agency. Through
this employment, Jones was contracted to operate a lift truck at a FedEx Supply Chain warehouse
in Olive Branch, Mississippi. On August 29, 2019, Jones was operating a lift truck when he was
involved in an accident, during which his left foot left the operators’ compartment of the lift truck.
Jones’ left leg was crushed. Due to the severity of Jones’ injuries, doctors were forced to amputate
his left leg below the knee. The Raymond Corporation manufactured the lift truck Jones was
operating at the time of the accident. This lawsuit followed.
The lift truck which Jones was operating at the time of the accident was a Raymond 4250
counterbalanced stand-up narrow-aisle forklift. As stated by one of the Plaintiffs’ designated
experts, John Meyer: “The Raymond 4250 stand-up forklift is a compact machine that was
designed and sold for use in tightly defined spaces such as the narrow-aisle warehouse
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environment. . . It was expected to frequently be operated in a forks-trailing fashion with numerous
stops, starts and other maneuvers.” , Ex. 2 at p. 1-2.
For purposes of the present filings, there are three noteworthy components of this type of
lift truck. There is a multi-function control handle which “controls direction (forward/reverse) and
speed” and a steering tiller which is “utilized by the operator to steer[.]”  at p. 2. There is also
a deadman pedal—a feature used for emergency stops—located in the area where the operator’s
feet are located.
To operate the lift truck, the operator places one foot (typically the right foot) on the
deadman pedal and moves the multi-function control handle forward or backward in the direction
the operator desires to go. To stop the lift truck, the operator moves the multi-function control
handle “through neutral to the direction opposite his current path of travel.” Id. at p. 3. This
technique is referred to as “plugging.” Id. In an emergency situation, the operator can also stop the
lift truck “by quickly lifting his foot off the deadman pedal, which stops the truck in the shortest
possible distance.” Id. To the operator’s left, there is an opening which is wide enough for the
operator to enter or exit the forklift. The subject forklift did not have a door—thus, the opening
remained open at all times, including during Jones’ use of it.
Turning to the specific facts of this case, the Court quotes a portion of Raymond’s
Memorandum , which is in essence a summary of Jones’ deposition testimony:
Prior to the accident, Mr. Jones’ right hand was on the multiple
function control, his left hand was on the steer, and his right foot
was on the deadman (emergency brake) pedal. He did not remember
whether he was leaning against the back pad in the compartment,
but testified that he did not always do so. Mr. Jones testified that, as
he was turning, he felt like he ran over something, which caused his
body to jump and lose control of the steer. He claims he pulled up
on the steer tiller in an attempt to stay in the truck, which according
to him caused the lift truck to accelerate and hit a nearby rack. Mr.
Jones’ left foot was outside of the compartment at the time of impact
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and was crushed. Mr. Jones testified that he did not know how his
left foot exited the compartment, and that he did not know exactly
how his leg was crushed.
 at p. 5.
Jones asserts seven claims against Raymond, specifically contending Raymond should be
held liable for: (1) defective design; (2) failure to warn; (3) negligence; (4) breach of express
warranties; (5) breach of implied warranty of merchantability; (6) breach of implied warranty of
fitness for particular purpose; and (7) strict liability. In addition to compensatory damages, Jones
asserts a claim for punitive damages. Deangela Battle (Jones’ wife) (collectively “the Plaintiffs”)
also brings a loss of consortium claim.1
The Plaintiffs have designated three experts, John Meyer, PhD, PE; Jason Kerrigan, PhD;
and John Jeka, PhD. Each of these experts has prepared a written report. Raymond has filed
separate Motions [109, 111, 113] as to each of them, seeking to strike their respective testimonies
in full. Conversely, the Plaintiffs have filed dueling Motions [119, 121, 123] as to each of their
own experts, seeking “a ruling from this Court that [the experts’] opinions and testimony . . . meet
the requirements of Federal Rule of Evidence 702.”  at p. 1;  at p. 1;  at p. 1. On
the other hand, the Plaintiffs have filed Motions [125, 127] seeking to exclude the testimony of
Raymond’s experts, Kathleen A. Rodowicz, PhD and Michael Rogers, PE.
Raymond has also filed a Motion for Summary Judgment , as well as a separate
Motion for Partial Summary Judgment  which relates solely to the Plaintiffs’ punitive
New Hampshire Insurance Company, the company that provided workers’ compensation insurance
coverage for Abacus Corporation at the time of the accident, has filed an Intervenor Complaint ,
asserting entitlement to reimbursement for payments made to Jones as a result of this accident.
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Analysis and Discussion
The Court will first address the parties’ respective requests to exclude the opposing party’s
experts. Then, the Court will resolve Raymond’s requests for summary judgment.
Expert Testimony in General
The parameters of admissible expert testimony are set forth in Rule 702 of the Federal
Rules of Evidence. FED. R. EVID. 702; Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012).
The Rule 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
(d) the expert has reliably applied the principles and methods
to the facts of the case.
FED. R. EVID. 702.
“In Daubert, the Supreme Court ‘explained that Rule 702 assigns to the district judge a
gatekeeping role to ensure that scientific testimony is both reliable and relevant.’” Johnson, 685
F.3d at 459 (quoting Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999); Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 459 (1993)). The
first prong—reliability—“mandates that expert opinion ‘be grounded in the methods and
procedures of science and . . . be more than unsupported speculation or subjective belief.’” Id.
(quoting Curtis, 174 F.3d at 668; Daubert, 509 U.S. at 590) (additional citation omitted). As to the
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relevance prong, the testimony must “assist the trier of fact to understand the evidence or to
determine a fact in issue.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir. 2002) (citation
omitted). The proponent must “demonstrate that the expert’s ‘reasoning or methodology can be
properly applied to the facts in issue.’” Johnson, 685 F.3d at 459 (quoting Curtis, 174 F.3d at 668;
Daubert, 509 U.S. at 592-93).
The proponent bears the burden to establish that the proposed expert testimony meets this
standard. See Curtis, 174 F.3d at 668 (quoting Moore v. Ashland Chem., Inc., 151 F.3d 269, 276
(5th Cir. 1998)); see also Andrews v. Rosewood Hotels & Resorts, LLC, 575 F.Supp.3d 728, 733
(N.D. Tex. 2021) (“The burden is on the proponent of the expert testimony to establish its
admissibility by a preponderance of the evidence.”). Importantly, the district court’s role as
gatekeeper “is not meant ‘to serve as a replacement for the adversary system: Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but admissible evidence.’” Andrews, 575
F.Supp.3d at 735 (quoting Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th
Cir. 2004) (additional citations omitted).
Prior to addressing the parties’ specific requests to exclude certain expert testimony, the
Court will address one preliminary matter at the outset. The Plaintiffs have filed three separate
Motions [119, 121, 123] concerning their own experts. All of these Motions [119, 121, 123] make
essentially the same argument—specifically seeking “a ruling from this Court that [the experts’]
opinions and testimony . . . meet the requirements of Federal Rule of Evidence 702.”  at p. 1.
Although the Plaintiffs state that they “do not seek to have [the experts’] opinions admitted before
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trial,” they do request a finding that if any of the three experts are offered as an expert in the trial
of this matter, that “the opinions identified herein meet the demands of Rule 702.” Id.
The District Court for the Middle District of Florida, in a case involving many of the same
attorneys who represent the Plaintiffs in the case sub judice, denied motions of this precise nature
(involving the same experts) on procedural grounds. McHale v. Crown Equip. Corp., 2021 WL
289346, at *2 (M.D. Fla. Jan. 28, 2021). In McHale, the district court concluded:
Plaintiffs seek to admit, and Crown seeks to exclude, expert
opinions of John Meyer, Ph.D, P.E. In summary, as Crown correctly
contends, Plaintiffs’ motion is premature. Even if Meyer is
permitted to testify as an expert, Plaintiffs must lay the proper
foundation for his opinion testimony at trial.
Id. (emphasis added).2
This Court recognizes that McHale is not binding. However, the Court finds its reasoning
persuasive. The Plaintiffs’ requests are premature and, in essence, ask the Court to issue an
advisory opinion as to the admissibility of the potential expert testimony of the Plaintiffs’ own
experts. The Court will not do so. However, the Court will hereinafter analyze Raymond’s
arguments in opposition to the proposed testimony, thereby addressing many of the potential issues
associated with the testimony.
The Motions [119, 121, 123] are DENIED. The Court will address the admissibility of any
offered expert testimony at trial so that all considerations, such as whether there has been a proper
foundation, can be taken into account.
For the sake of clarity, the Court notes that Crown Equipment Corporation—the defendant in McHale—
is one of Raymond’s competitors in the forklift market. As discussed in more detail below, there have been
numerous lawsuits filed across the country (many of which have been filed by the same counsel representing
the Plaintiffs in the case sub judice) against both Raymond and Crown for injuries of this nature.
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Plaintiffs’ Expert John Meyer, PhD, PE
The Plaintiffs timely designated John Meyer to testify as an expert in support of their
claims. Raymond has filed a Motion  seeking to strike Meyer’s proposed testimony in full.
Meyer submitted a written report which contains fifteen opinions and conclusions, but
Raymond has summarized and classified those opinions into four categories of alleged ways that
the lift truck was defective: “(a) it lacked a door that would trap the operator into the operator’s
compartment, (b) its pedal design was defective, (c) it lacked a presence sensing switch in the
backrest, and (d) the multifunction control joystick allows an operator who loses balance to
accelerate the forklift rearward.”  at p. 1. Raymond raises four separate arguments as to why
it believes Meyer should be precluded from providing any expert testimony at trial.
First, Raymond contends that Meyer “is not qualified to offer design opinions related to
the Raymond Model 4250 because he has no relevant experience, education, or training related to
the design and operation of lift trucks, particularly the Model 4250.”  at p. 2. Raymond makes
numerous sub-arguments in support of this contention, emphasizing that Meyer has never designed
a stand-up lift truck, never designed a component of a stand-up lift truck, never designed a warning
or instruction for a stand-up lift truck, and (prior to being retained by the Plaintiffs’ counsel) never
worked on any matters involving stand-up lift trucks. Raymond also notes that Meyer has never
published any written work regarding forklifts and that he is not an expert lift truck operator.
Meyer’s curriculum vitae (“CV”) is attached to his written report. The Court has reviewed
it carefully and notes that Meyer’s qualifications include extensive education, experience,
affiliations, and honors. Furthermore, Meyer provided copies of extensive documentation he
reviewed and considered in developing the opinion listed in his report.
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As to Raymond’s contention that Meyer’s testimony must be excluded because he has
never specialized solely in stand-up lift trucks, the Plaintiffs direct the Court’s attention to a
relatively recent per curiam Fifth Circuit opinion. Cedar Lodge Plantation, LLC v. CSHV Fairway
View I, LLC, 753 F. App’x 191 (5th Cir. 2018). In that case, Cedar Lodge, an entity that owned
property adjacent to the Fairway View Apartments, filed suit against Fairway View on the basis
that a pond on Cedar Lodge’s property had become contaminated due to “the negligence of
Fairway View . . . [which] resulted in the discharge of harmful or hazardous substances, pollutants,
or contaminants, including raw sewage, onto Cedar Lodge’s property.” Id. at 194. The district
court found that Cedar Lodge’s environment expert (Suresh Sharma) “was not qualified to offer
reliable expert testimony because his experience was related to the resolution of hazardous waste
matters for commercial and industrial facilities, rather than sewerage systems for apartment
complexes or multi-family residential communities.” Id. at 195. On appeal, the Fifth Circuit
reversed this decision, noting that “Sharma has extensive experience in analysis and evaluation of
environmental contaminants, the area in which he was offered as an expert, . . . His lack of
specialization in sewage facilities for multi-family residential units like those in this case does not
render his testimony unreliable.” Id. at 195-96 (emphasis added).
Similarly here, although Meyer may not have specifically specialized in stand-up lift
trucks, he has experience in engineering design, product design, accident investigation, and
accident reconstruction. The Court rejects Raymond’s argument that Meyer is not qualified.
Raymond’s concerns as to any of Meyer’s perceived deficiencies may be addressed at trial through
cross-examination, but they do not constitute appropriate reasons to altogether exclude Meyer’s
testimony. To the extent Raymond seeks exclusion of Meyer’s testimony on this basis, its request
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Next, Raymond contends that all of Meyer’s opinions are unreliable because: “None of his
design opinions are based on the application of a reliable engineering methodology[.]”  at p.
2. Raymond emphasizes that Meyer “conducted no testing in this case” and “the bulk of [his] work
in this case merely involved reviewing materials provided to him[.]” Id. at p. 6, 7. Further,
Though Dr. Meyer claims he performed “analysis” of whether
certain of his alternative designs would have made a difference in
Mr. Jones’ accident, he lacks critical data points to make such a
determination. Specifically, Dr. Meyer does not know the speed of
the subject lift truck at the time of impact. Nor does Dr. Meyer know
how close the subject list truck was to the point of impact when Mr.
Jones removed his left foot from the operator’s platform.
Id. at p. 7 (citations and emphasis omitted).
As noted above, Meyer identified four separate theories as to how the lift truck was
defective—(1) that the lift truck should have had a door; (2) that there should have been a brake
pedal under each foot; (3) that there should be an operating presence sensing switch in the backrest;
and (4) that the multifunction control handle should have been designed so that it would not
accelerate when an operator pulls it in an emergency situation as occurred in this case. Meyer
identified alternative designs for each of these areas—the inclusion of a door, a modified pedal
design which is similar to the pedals of an automobile, the inclusion of a sensor in the backrest
which would ensure “that the operator remains in the most stable operating position,” and a
modified control handle which “does not accelerate when the joystick is pulled on towards the
opening of the operator compartment as the operator falls out[.]”  at p. 11-13.
Regarding Raymond’s argument as to Meyer’s lack of knowledge as to the precise speed
of the lift truck at the time of the accident, “an expert’s knowledge of the specifics of a crash ‘go
primarily to the weight, not the reliability, of his opinions.’” Hankins v. Ford Motor Co., 2011 WL
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6046304, at *3 (S.D. Miss. Dec. 5, 2011) (quoting Betts v. General Motors Corp., 2008 WL
2789524, at *6 (N.D. Miss. July 16, 2008)). Stated differently, “an expert’s role or lack thereof in
testing a defective product (or its proposed remedy, etc.) typically goes toward weight.” Wells v.
Robinson Helicopter Co., Inc., 2015 WL 1427528, at *2 (S.D. Miss. Mar. 27, 2015) (citing
Hankins, 2011 WL 6046304 at *4).
Despite Raymond’s contentions, the Court is satisfied that Meyer’s proposed testimony
satisfies Daubert. Meyer’s report sets forth in significant detail the methodology which he used,
including the materials which he reviewed, in reaching his conclusions. Meyer engaged in a
reconstruction of the accident and ultimately concluded: “My reconstruction of this event allows
me to reach four primary conclusions, to a reasonable degree of engineering certainty, as to the
causal link between the design of the forklift and Mr. Jones’ injuries.” , Ex. 2 at p. 37. The
report then goes on to explain the conclusions.
Having considered Meyer’s report, the Court rejects Raymond’s argument that Meyer’s
opinions are altogether unreliable. The Court will not exclude Meyer’s proposed testimony on this
basis, but Raymond will be permitted to question Meyer regarding the same at trial.
Raymond’s third argument relates solely to Meyer’s opinion concerning the need for a
door. Specifically, Raymond contends that “Meyer’s door opinions are unreliable because they are
universally rejected by the relevant scientific community.”  at p. 15. In urging the Court to
exclude this opinion, Raymond argues that the safety standards promulgated by the American
National Standards Institute (“ANSI”) “specifically requires that lift trucks such as the Model 4250
be designed with open operator compartments.” Id. at p. 16. Raymond specifically directs the
Court’s attention to a case originating from the District Court for the Northern District of Ohio,
wherein that court excluded the plaintiff’s expert, Thomas Berry, from testifying in a case against
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Raymond involving nearly synonymous facts. Lawrence v. Raymond Corp., 2011 WL 3418324
(N.D. Ohio Aug. 4, 2011).
In Lawrence, the plaintiff sought to admit Berry’s opinion that the lift truck “was
defectively designed because it did not have a latching rear door.” Id. at *6. In finding that the
opinion should be excluded, the district court emphasized that “Berry claims to have originally
formulated his opinion while working on a project for ATI and there is no clear statement of the
amount of work ATI did in connection with litigation and it is unclear where the project Berry
worked on when he formulated his opinion concerning latching rear doors was connected with
litigation.” Id. The district court further explained flaws in Berry’s testing, such as incomplete
statistical analysis and the fact that his physical testing as to the potential damages that could occur
did not “establish that the [machine] is riskier without a latching door than with one. Without even
addressing design flaws, Berry has only addressed the potential damage from one of the two types
of accidents and one aspect of the alternative design.” Id. at *7. Specifically noting Berry’s “lack
of detail and reliance on obviously incomplete data and testing,” the district court found his
methods to be unreliable. Id. at *8. The district court also noted that “no manufacturer offers
standard rear doors, let alone a latching door,” such as the one for which Berry advocated. Id.
Overarching all of this analysis was the general rule in the Sixth Circuit that “if a proposed expert
is a quintessential expert for hire, then it seems well within a trial judge’s discretion to apply the
Daubert factors with greater rigor.” Id. at *6 (quoting Johnson v. Manitowoc Boom Trucks, Inc.,
484 F.3d 426, 434 (6th Cir. 2007)) (internal quotation marks omitted). The district court excluded
Berry’s testimony, and that ruling was affirmed on appeal. See Lawrence v. Raymond Corp., 501
F. App’x 515, 518 (6th Cir. 2012).
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This Court finds Lawrence distinguishable. First, the district court there applied a
heightened rigorous standard since Berry was a quintessential expert for hire. This was in
accordance with Sixth Circuit law, but Raymond cites no such authority from the Fifth Circuit, nor
does it argue that the Court should apply such a standard here. Furthermore, this Court does not
have the same concerns with Meyer’s methods in the case sub judice as the Lawrence court did,
which included the utilization of incomplete data and testing as to only some damages. In short,
Lawrence is inapposite.
Recognizing Raymond’s arguments, the Plaintiffs emphasize that “[a]s just one example
of a door suggested by Dr. Meyer, Raymond sells a door that is designed to fit the Raymond 4250
forklift. Raymond offers a full door assembly that includes the door, hinges, screws, pad, decal,
and guard. If this door assembly was installed on Jones’s forklift he would not have been injured.”
 at p. 11-12 (internal citations omitted). The Court finds this argument to be persuasive.
Although Lawrence is distinguishable, the Court notes that Raymond points to many other
cases wherein experts seeking to testify against it have been excluded by various courts across the
country. See, e.g., Brown v. Raymond Corp., 318 F.Supp.2d 591, 599 (W.D. Tenn. May 4, 2004)
(excluding expert on the basis that “while [the expert’s] hypotheses are capable of being tested,
they have not been. . . He has no basis for concluding that the forklifts are unreasonably dangerous
based on design defect.”). For their part, the Plaintiffs point to numerous cases across the country
wherein courts have permitted testimony of this precise nature as well. See, e.g., Vazquez v.
Raymond Corp., 2019 WL 176106, at *4 (Jan. 11, 2019) (denying motion to exclude testimony of
Thomas Berry); Reinard v. Crown Equip. Corp., 2018 WL 547239, at *1 (N.D. Iowa Jan. 24,
2018) (denying motion to exclude experts (including Thomas Berry) because “after reviewing the
[plaintiffs’] extensive responses to the motions to exclude the testimony of these experts, my
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‘preliminary assessment’ is that these experts are qualified to state their proffered opinions, the
reasoning and methodology underlying the challenged opinions are scientifically valid, and the
experts’ reasoning and methodology can be applied to the facts in issue.”). While it will not
compare and contrast the facts of every one of these cases to the case sub judice (and the list
provided above is not an exhaustive one), the Court feels compelled to note its cognizance of them,
considering that the parties expend considerable time in their briefs referring to the cases which
have been decided in their favor.
However, considering the specific facts of this case and having taken into account
Raymond’s arguments, the Court finds that exclusion is not warranted at this time. The Court finds
particularly persuasive the District Court for the Middle District of Florida’s holding on this topic
In Opinions 1, 2, 3, 4, and 7, Meyer opines that McHale’s injury
resulted from the lack of a door, which constitutes an unacceptable
risk of injury, and that the addition of a door or right brake pedal
would reduce risk. Crown’s challenge to these opinions focuses on
the rejection of the ‘door theory’ by some courts under Daubert. See,
e.g., Dhillon v. Crown Controls Corp., 269 F.3d 865 (7th Cir. 2001).
However, in reaching his opinions, Meyer relies on testing, data, and
alternative designs that were not considered in Dhillon. Further,
courts in this Circuit have found that ‘where the proposed alternative
design has been produced and put to practical use in the industry,
the expert does not need to personally test it to satisfy Daubert.
McHale, 2021 WL 289346 at *3 (some internal citations omitted).
This Court likewise finds that Meyer has explained his reliance on testing, data, and
alternative designs in reaching his conclusions. Although the Court is aware of Raymond’s
arguments in opposition to Meyer’s testimony, they do not warrant exclusion but can instead be
addressed through cross-examination.
The Court also feels compelled to address another contention raised by Raymond:
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Even in the cases in which Plaintiffs’ counsel was able to persuade
trial judges to permit door opinions to be presented to the jury, the
jury returned verdicts all in favor of either Raymond or Crown. In
other words, these door opinion[s] have either been excluded pretrial
or rejected by jurors at the end of a trial. Given Dr. Meyer’s lack of
any experience with lift truck design or testing, the Court should not
waste its precious trial time in this instance.
 at p. 15 n. 8.
This argument misses the mark. The Court’s role at this stage of the proceedings is to act
as a gatekeeper to ensure that reliable and relevant testimony is presented to the jury—not to invade
the province of a jury. See, e.g., Coleman v. BP Exploration & Prod., Inc., --- F.Supp.3d ---, 2022
WL 2314400, at *3 (E.D. La. June 28, 2022) (quoting U.S. v. 14.38 Acres of Land, More or Less
Situated in Leflore Cnty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1980)) (“[I]n determining the
admissibility of expert testimony, the district court must accord the proper deference to ‘the jury’s
role as the proper arbiter of disputes between conflicting opinions.’”). The Court rejects this
argument in full.3
For these reasons, Raymond’s Motion  to strike the expert testimony of Meyer is
Plaintiffs’ Expert Jason Kerrigan, PhD
In his written report, Kerrigan provides the following overarching opinion:
In general, it is my opinion that the subject forklift, and, more
generally, standup counterbalanced forklifts, are unreasonably
dangerous. The subject forklift incorporates several design features
that present unreasonable risks to operators including the absence of
restraints and an occupant compartment door, the location of the
open occupant compartment doorway, the configuration of the righthand controls, and the location of the “deadman” brake. All of these
deficiencies could have been mitigated by the use of alternative
Raymond also raises an argument that Meyer’s testimony should be excluded because he is “simply
parroting the defect opinions of other purported experts, including Mr. Berry[.]”  at p. 17. The Court
sees no need to address this issue in great detail, as it has already explained above its finding that Meyer
has himself engaged in appropriate methodology to support his opinions. This argument is rejected.
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designs that were readily available at the time the forklift was
designed and which would not have negatively affected the utility
of the forklift for its primary purposes of lifting, carrying and
, Ex. 5 at p. 7.
Kerrigan also notes his awareness that defense experts in other similar cases “have argued
that standup forklifts should not have doors because doors would increase operator egress time
beyond the available time operators have to safety exit a moving forklift at the time of a tip-over
or off-dock accident.” Id. at p. 14. He notes that defense experts often rely on results from accident
tests performed with anthropomorphic test devices (“ATDs”) to “predict human injury risk in such
accidents [and] show that severe injuries can occur when occupants stay on forklifts during offdocks and tip-overs.” Id. However, Kerrigan holds the opinion that ATD testing is not substantially
similar to the manner in which accidents of this nature actually occur and therefore should not be
utilized as a basis in making engineering decisions.
Raymond attacks Kerrigan’s opinions on multiple fronts, contending that he should be
prohibited from testifying altogether. First, Raymond contends that Kerrigan “is not qualified to
offer lift truck design opinions.”  at p. 9. Raymond concedes that Kerrigan is a biomechanical
engineer with extensive experience but takes the position that he “lacks any relevant experience,
education, or training related to the design or operation of stand-up lift trucks,” specifically
emphasizing that has never designed a forklift truck and has only himself spent a minimal amount
of time physically on a forklift. Id. The Court finds noteworthy one particular point of clarification
in the Plaintiffs’ Memorandum —specifically, they state that “Dr. Kerrigan is not offering
‘design’ opinions in the traditional sense. Rather, he explains how the alternative designs Dr. John
Meyer offers would have prevented or reduced the likelihood of Jones’s injuries.”  at p. 5.
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This clarification is noted and will be enforced at trial. To the extent Raymond seeks to
prohibit Kerrigan from offering design opinions, the request is granted. However, the Court finds
that he is otherwise qualified to testify regarding the alternative designs offered by Meyer and his
opinion as to the effect those designs would have had.
Next, Raymond contends that Kerrigan’s “design opinions are unreliable for the reason
that, other than the concept phase, he did not engage any of the engineering methodology which,
by his own admission, is necessary to the design process.”  at p. 10. Raymond further
emphasizes that Kerrigan “has admitted that he cannot offer the requisite causation opinions that
are necessary to make [his] ipse dixit design concepts relevant to this case. He only offers opinions
that the proposed alternative designs might have made a difference in Mr. Jones’ accident — not
that they would have made a difference.” Id. at p. 12.
The Court rejects these arguments. Despite Raymond’s characterization of his
methodology (or lack thereof), Kerrigan’s report is thorough and explains the steps in which
Kerrigan engaged to reach his opinions. Regarding the likelihood that the alternative designs
would have prevented Jones’ injuries, it is not required that an expert be absolutely certain that an
alternative design would have prevented any particular injury. See, e.g., Daubert, 509 U.S. at 590
(“[I]t would be unreasonable to conclude that the subject of scientific testimony must be ‘known’
to a certainty; arguably, there are no certainties in science.”). But Kerrigan’s report clearly includes
his opinion that “[i]f [the subject forklift] had incorporated design details that were readily
available at the time of Mr[.] Jones’ injury, it is my opinion to a reasonable degree of engineering
certainty that Mr. Jones would not have been injured.” , Ex. 5 at p. 5. This is sufficient.
Raymond then raises the argument that Kerrigan’s “door opinions are unreliable because
they are universally rejected by the relevant scientific community, and he may not simply be a
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mouthpiece for other non-testifying witnesses.”  at p. 12. Raymond admits that this is the
same argument raised in connection with Meyer. The Court has already addressed it above and
sees no need to address it further. However, the Court does again emphasize the clarification noted
above—particularly, that Kerrigan’s testimony regarding alternative designs will be limited to
“how the alternative designs Dr. John Meyer offers would have prevented or reduced the likelihood
of Jones’s injuries.” See  at p. 5.
Next, Raymond asserts that Kerrigan’s criticisms of Raymond’s utilization of ATD testing
should be excluded because they are not generally accepted by the relevant scientific community.
To summarize, Kerrigan’s opinion on that issue is that Raymond should not rely upon ATD testing
because it is not indicative of real-world accidents of this nature. In reaching this conclusion,
Kerrigan engaged in several steps which are set forth in his report and summarized in the Plaintiffs’
Memorandum . Kerrigan essentially engaged in six steps: (1) analyzed previous ATD testing
of Raymond and other forklift manufacturers; (2) reviewed research on history and development
of ATD devices; (3) analyzed the ability of the ATDs in the forklift ATD testing to predict human
injury; (4) analyzed whether the ATD testing mimicked what happens to forklift operators in realworld accidents; (5) analyzed the use of ATDs to predict injury potential and compared that
information to how ATDs are used in forklift testing; and (6) conducted research to determine the
veracity of Raymond’s claim that a real-life human would not be able to take self-protective
measures before a tip-over or off-dock.
After employing these steps, Kerrigan reached the conclusion that ATD testing should not
be utilized because the ATDs do not accurately mimic human behavior as it would actually occur
in an accident. Raymond counters by emphasizing that Kerrigan’s theory has only garnered
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minimal support, he “has no alternative solution for testing,” and “ATD use in this specific context
has been peer-reviewed and accepted by the relevant scientific community.”  at p. 14.
Although well-aware of Raymond’s arguments in opposition to Kerrigan’s opinions, the
Court finds that they go to the weight that a factfinder should assign to the opinions—not their
admissibility. Kerrigan has engaged in a thorough process to reach his conclusion and explained
the same in his report. Raymond can challenge Kerrigan’s opinions and credibility on crossexamination at trial. See Daubert, 509 U.S. at 596. The Court notes that the District Court for the
Northern District of Georgia recently reached the same conclusion in a forklift accident case
involving Raymond: “The proper remedy for Defendants’ concerns about Dr. Kerrigan is to
challenge the weight of the testimony and his credibility at trial.” Vazquez, 2019 WL 176106 at
Lastly, Raymond makes a brief argument that “Kerrigan’s review of Crown accident data
is unreliable and irrelevant.”  at p. 15. Raymond contends that Kerrigan should have looked
to accident reports from prior Raymond accidents—as opposed to data from Crown. On the other
hand, the Plaintiffs assert that Raymond does not keep such data. The Court finds that this issue
can be resolved at trial and does not constitute a basis for exclusion at this time. The argument is
Kerrigan’s design opinions will, consistent with the explanation provided above, be
limited. To the extent Raymond’s Motion  sought such a limitation, it is GRANTED. The
Motion  is DENIED in all other respects.
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Plaintiffs’ Expert John Jeka, PhD
John Jeka holds a master’s degree in psychology and a PhD in neuroscience, and much of
his professional experience involves studying human balance. In his report, Jeka sets forth six
The operation and use of stand-up forklifts present
challenges to the operator’s balance.
The operator’s response to balance disturbances associated
with stand-up forklift operation foreseeably includes
movement of the operator’s left foot to the operator’s left.
The operator’s movement of his left foot as an aid to balance
is not voluntary.
The plaintiff operator’s left foot, more likely than not, to a
reasonable degree of scientific certainty, moved leftwards as
part of an automatic balance retention process, immediately
prior to the event, indicating and precipitating a loss of
balance that [led] him to partially fall from the forklift
resulting in the injuries suffered by the Plaintiff.
Manufacturers of standup forklifts must recognize that the
left foot can leave the operator compartment due to an
involuntary balance response and need to protect the
From a balance point of view, the design changes suggested
by Dr. John Meyer, Ph.D. make sense and more likely than
not, had they been implemented on the forklift being
operated by the Plaintiff Mr. Jones would have made [a]
difference in the outcome of the event and protected him
, Ex. 3 at p. 4 (emphasis in original).
Through the present Motion , Raymond raises two arguments for exclusion of Jeka’s
opinions. First, Raymond avers that Jeka is “not qualified to offer opinions about lift truck
operation or lift truck operator balance.”  at p. 8. More particularly, Raymond concedes that
Jeka “has general experience in the field of kinesiology, and with respect to human balance, but
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his education, training, and experience have never involved lift trucks until being retained by
Plaintiffs’ counsel about two years ago, and he has not done any work to connect his general
expertise to the issues relevant in this case to lift truck operation.” Id.
The Court is unpersuaded. Similar to its finding in connection with Raymond’s argument
to exclude Meyer’s testimony, the Court finds this argument to constitute as attempt to impose a
specialization far too specific. As emphasized above, “[a] lack of specialization should generally
go to the weight of the evidence rather than its admissibility, and an expert witness is not strictly
confined to his area of practice, but may testify concerning related applications.” Cedar Lodge,
753 F. App’x at 195 (citations omitted). Jeka is certainly well-qualified, and the Court rejects
Raymond’s contrary contention.
Rather, consistent with the applicable law as articulated by the Fifth Circuit, the Court will
“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.” Id. This
leads the Court to Raymond’s second argument—that Jeka’s opinions “do not result from applying
a reliable methodology[.]”  at p. 9. To support this argument, Raymond asserts that Jeka
“engaged in no methodology at all, other than reading some materials that Plaintiffs’ counsel found
for him, and talking to Mr. Jones and accepting his statements as true.”  at p. 10.
The Court finds Raymond’s argument to be an oversimplification. As the Plaintiffs
emphasize, Jeka’s report sets forth his qualifications related to human balance, discusses the
operation of a standup forklift and its connection with human balance, and explains how humans
“respond naturally when it is anticipated that they are about to experience a challenge to balance.”
 at p. 6. The Plaintiffs contend that he then “relates all of these issues to the available research
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on human balance.” Id. Jeka thereafter reaches the conclusion that Jones’ left foot moved leftward
as part of an automatic balance retention process.
The Court finds that Jeka should be permitted to testify on this topic, as his opinions are
relevant and reliable and will ultimately assist the trier of fact. In its Memorandum , Raymond
emphasizes that “Dr. Jeka spent just 3.66 hours on the conference talking with Mr. Jones and
writing his report. He spent another 1.85 hours preparing for his deposition.”  at p. 4 (citations
omitted). In the Court’s view, this goes to the weight which should be assigned to his testimony
and can be properly addressed through cross-examination.
Although finding that Jeka should be permitted to testify as to most of his opinions, the
Court does note an area that Jeka will not be permitted to delve into. First, the Court notes again
the sixth conclusion in Jeka’s report:
From a balance point of view, the design changes suggested
by Dr. John Meyer, Ph.D. make sense and more likely than
not, had they been implemented on the forklift being
operated by the Plaintiff Mr. Jones would have made [a]
difference in the outcome of the event and protected him
, Ex. 3 at p. 4.
When specifically questioned about this opinion in his deposition, Jeka provided the
following response: “You know, I think having a door on there would have been a good idea. But
I’m not a design expert, so I shouldn’t really be commenting on that in a strong way.” , Ex.
2 at p. 25 (emphasis added).
The Court finds Jeka’s admission telling. As emphasized above, Jeka is qualified to provide
expert testimony on human balance. He is not an engineer, and he has not otherwise shown that he
is qualified to provide any design opinions. Therefore, the Court finds that he is not qualified to
testify on that particular topic. In essence, the Court will permit Jeka to testify regarding human
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balance—the area in which he is an expert—but he cannot testify about design defects or other
areas that clearly exceed the scope of his expertise.
To the extent Raymond seeks exclusion of the sixth opinion listed in Jeka’s report, the
request is GRANTED. In all other respects, Raymond’s Motion  is DENIED.
Raymond’s Expert Kathleen A. Rodowicz, PhD, PE
Raymond designated Kathleen A. Rodowicz, a biomechanical engineer, as one of its
experts. Rodowicz prepared a written report which, after setting forth the reasoning and
methodology employed, states the following ten conclusions:
Mr. Jones voluntarily placed his left foot outside, to the left,
and below the operator compartment of his lift truck prior to
the impact with the wooden pallet/racking, consistent with
him attempting a fend-off maneuver;
The position and orientation of Mr. Jones’ left foot and leg
at the time of his injury is inconsistent with a loss of balance
or with him “broadening his stance” as a result of a challenge
to his balance;
Mr. Jones’ left foot and leg injuries occurred primarily due
to medial-lateral compression of his left foot and leg as his
foot and leg were compressed between the wooden
pallet/racking and his lift truck;
Had Mr. Jones remained within the operator compartment of
his lift truck during the subject accident, he would not have
The operator compartment of the subject lift truck provides
an operator with a base of support that is sufficient for him
to react to the motions of the truck in such a way that he can
maintain his position within the operator compartment
during normal operating procedures;
Plaintiffs’ experts provide no data to establish that a dualpedal design or an occupant presence sensor in the back pad
would have prevented or mitigated Mr. Jones’ injuries;
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Dr. Kerrigan has not provided design details regarding his
hypothetical restraint designs and no data to support his
opinion that such a design would have prevented Mr. Jones’
injuries during the subject accident;
There are no data to indicate that the presence of a rear door
would prevent an operator from volitionally placing a lower
extremity outside of the running lines of a lift truck or from
involuntarily pushing the door open and placing the lower
extremity outside of the running lines of the truck during an
alleged loss of balance, as Dr. Jeka opines. If Mr. Jones’ lift
truck had been equipped with a rear door and he moved
outside the operator compartment prior to the impact, his left
foot and leg would still have been at risk of comparable
As demonstrated by ATD testing and simulations conducted
by myself and others, an operator who remains within the
operator compartment of a stand-up lift truck during an offdock or tip-over event is at risk of sustaining a serious or
greater injury, including a fatal head injury.
The use of the Hybrid III ATD and/or a computational model
of the Hybrid III ATD to examine injury potential during lift
truck industrial accidents is a methodology that has been
accepted by the scientific community and published in the
, Ex. 2 at p. 27-28.
Of these opinions, the Plaintiffs take issue with Rodowicz being permitted to testify in
three broad areas. The first two contentions are that “[a]ll of Dr. Rodowicz’s opinions that an
operator compartment safety guard door, on a Raymond 4250 forklift, will make the forklift less
safe should be excluded” and that “all of Dr. Rodowicz’s opinions that a human being will be
seriously injured or killed if they go off a loading dock in a Raymond 4250 forklift should be
excluded.”  at p. 6, 8. The Plaintiffs’ main concern with these broad categories is that the
opinions are based on ATD testing—they argue that “what is learned from ATDs propped up in
falling forklifts does not fit a case in which the issue is what happens to human beings in falling
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forklifts.”  at p. 10. For clarification purposes, the Court notes that Rodowicz herself
describes the ATDs as “crash test dummies[.]” , Ex. 2 at p. 18. The Plaintiffs emphasize that
the ATD “does not act like a human” and that Rodowicz “does not know how her recreated event
compares to real off-dock events.”  at p. 13-14.
The Court cannot accept the Plaintiffs’ contentions. According to Rodowicz and (at least
implicitly) admitted by the Plaintiffs, ATD testing has been peer-reviewed and published and is
generally accepted in the relevant scientific community. Rodowicz dedicated a significant portion
of her report to explaining the utilization of ATDs to evaluate injury potential in various contexts,
such as motorcycles, bicycles, trains, and buses.
The Plaintiffs may certainly emphasize on cross-examination the points raised in their
Memorandum . But the Court declines to altogether exclude the testimony, as it meets the
requisite threshold for expert testimony.
Lastly, the Plaintiffs assert that “[a]ll of Dr. Rodowicz’s opinions as to how and why Mr.
Jones exited the forklift, including those to the effect that Mr. Jones intentionally exited the forklift,
should be excluded.”  at p. 18. They contend that it would be improper for Rodowicz to
“argue to the jury that Mr. Jones ‘volitionally’ (i.e. intentionally) put his limb into harm’s way.”
Id. at p. 19. Raymond contends that, in making this argument, the Plaintiffs misconstrue
Rodowicz’s opinions. Specifically, Raymond states that Rodowicz “does not comment on Mr.
Jones’ intent in her report, and will not comment on Mr. Jones’ intent in her testimony.”  at
p. 21 (emphasis in original).
The Court sees nothing to exclude at this time. Certainly, Rodowicz should not be
permitted to testify as to Jones’ personal, subjective intent at the time of the accident, but her
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report, in the Court’s view, does not do so. Should she attempt to testify on that topic at trial, the
Court will address it at that time.
The Court rejects the Plaintiffs’ arguments as to Rodowicz’s opinions and her anticipated
testimony. The Motion  is DENIED.
Raymond’s Expert Michael Rogers, PE
Raymond has also designated as an expert Michael Rogers, a mechanical engineer. Rogers
prepared a thorough report, at the conclusion of which he lists twelve opinions. For the sake of
brevity, the Court will not list all twelve opinions since the Plaintiffs do not attack all of them;
instead, the Court will focus on the opinions which the Plaintiffs seek to exclude. As stated by the
Plaintiffs, the following opinions should be excluded:
All of Rogers’ opinions that an operator compartment safety
guard door, on a Raymond 4250 forklift, will make the
forklift less safe should be excluded;
All of Rogers’ opinions that there are no forces or
movements associated with the use of the Raymond 4250
forklift, that can cause, or contribute to, a loss of balance
should be excluded;
All of Rogers’ opinions as to how and why Mr. Jones exited
the forklift, including those to the effect that Mr. Jones
intentionally exited the forklift, should be excluded;
All of Rogers’ opinions about the statistical likelihood of a
Raymond [M]odel 4250 forklift, as well [as] other kinds of
standup forklifts, to be involved in an accident should be
All of Rogers’ opinions about the history and bases of the
ANSI/ITSDF B56.1 voluntary standards relating to ingress
and egress should be excluded.
 at p. 3.
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Concerning Rogers’ opinions that adding a guard door would make the forklift less safe,
the Plaintiffs first argue that Rogers’ opinion should be excluded because he is not an expert on
human actions. Raymond counters by noting that Rogers is an expert in accident reconstruction,
which is precisely what he did in this case. The Court agrees with Raymond. Rogers’ report
explains in great detail the accident reconstruction efforts in which Rogers engaged and his theory
as to how the accident occurred. Rogers is qualified to opine on that topic.
Additionally as to this topic, the Plaintiffs argue that the methodology underlying Rogers’
opinion is not scientifically reliable. This argument is again based upon the Plaintiffs’ disapproval
of ATD testing. However, as explained above, there has been no contention that such testing is not
the generally-accepted standard by the relevant scientific community. The Plaintiffs may crossexamine Rogers as to that topic, but the Court will not exclude the testimony.
Next, the Plaintiffs seek to exclude “all of Rogers’ opinions that there are no forces or
movements, associated with the use of the Raymond 4250 forklift, that can cause, or contribute to,
a loss of balance[.]”  at p. 23. To be clear, Rogers’ opinion on this topic is essentially that if
an operator follows the appropriate training, there are no forces that would act to cause a limb to
leave the compartment during normal operation and, as applied to this case, “[t]he forces acting
on Mr. Jones would not cause a loss of balance or force any part of his body out of the
compartment.”  at p. 4.
This contention again goes to the accident reconstruction which Rogers performed. The
report clearly explains the methods in which Rogers engaged to reconstruct the accident and
thereafter concluded that “Jones most probably inadvertently steered the lift truck towards the rack,
and accelerations from normal operation including steering are not sufficient to cause a loss of
balance to an operator who has four or five points of contact.”  at p. 8 (citations omitted).
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The Court finds that Rogers is sufficiently qualified to provide this opinion, which is based upon
his accident reconstruction and his experience with forklifts of this nature. Again, the Plaintiffs’
concerns can be adequately addressed through vigorous cross-examination. See Daubert, 509 U.S.
Third, the Plaintiffs ask the Court to exclude Rogers’ opinions “as to how and why Mr.
Jones exited the forklift, including those to the effect that Mr. Jones intentionally exited the
forklift[.]”  at p. 25.
The Court addressed this issue above in connection with the Plaintiffs’ Motion 
relating to Kathleen Rodowicz. As concluded in connection with that request, the Court agrees that
Rogers should not (and will not) be permitted to testify as to Jones’ subjective motive. However,
the Court does not read the report as to render such an opinion. For example, as emphasized by the
Plaintiffs in their Memorandum , Rogers’ report specifically states “[w]hat is clear is that Mr.
Jones steered the truck towards the rack, but it is unknown why he did.” , Ex. 3 at p. 20.
Rogers will be permitted to testify regarding his accident construction, but he will not be
permitted to testify about Jones’ subjective motivation at the time of the accident. If he attempts
to do so, the Court will take up that issue at trial.
Fourth, the Plaintiffs contend that Rogers should not be permitted to opine about the
statistical likelihood of a Raymond Model 4250 forklift (or other types of standup forklifts) being
involved in an accident. The Plaintiffs’ entire argument on this point is as follows:
Rogers intends to opine that the Raymond model 4250 is safe based
on Bureau of Labor Statistics data on forklift incidents. He cannot
share this data, or any opinion based on this data, because the data
includes all kinds of forklifts. Rogers is unable to discern what
percentage of the incidents relate to standup forklifts as compared
to the other classes of industrial trucks included in the data.
 at p. 26 (internal citations omitted).
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Raymond responds by emphasizing the manner in which Rogers uses the statistics: “Mr.
Rogers uses this information to make a general point about the importance of operator training, as
dictated by OSHA. The downward trend in accidents after OSHA instituted training requirements
shows a correlation between increased training and decreased accidents.”  at p. 15.
The Court agrees with Raymond. This information would likely be helpful to assist a jury
in understanding the need for training and the industry as a whole. Any concerns regarding the
testimony can be resolved through cross-examination.
Lastly, the Plaintiffs request exclusion of Rogers’ opinions regarding “the history and bases
of the ANSI/ITSDF B56.1 voluntary standards relating to ingress and egress[.]”  at p. 26. On
this point, the Plaintiffs contend that Rogers should not be permitted to testify about the B56.1
committee’s decision that doors should not be included on standup forklifts which are utilized in
warehouses such as the one where Jones was injured. The Plaintiffs emphasize that the B56.1
standards “are voluntary standards, not government standards, and that doors are not mentioned
anywhere in the standards.”  at p. 26.
Raymond emphasizes that Rogers has extensive knowledge about the B56.1 safety
standards because he is a sitting member of the committee. In his report, Rogers explains the
history of the committee’s consideration of doors.
The Court will defer ruling on this issue at the current time but will instead take up the
issue at trial (outside of the presence of the jury if necessary) so that the appropriate foundation
and context can be taken into account. Subject to that one caveat, the Plaintiffs’ Motion  is
The parties are directed to raise the issue associated with Rogers’ testimony at trial, and the Court will
take up the matter as necessary at that time.
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Raymond has filed two separate Motions for Summary Judgment [115, 117]. The Court
will address them separately.
First Motion for Summary Judgment 
Raymond’s first Motion for Summary Judgment  seeks dismissal of all claims and is
intertwined with its Motions to Strike [109, 111, 113] addressed above regarding the Plaintiffs’
experts. In particular, Raymond argues that those experts should be excluded from testifying and
“[w]ithout expert testimony of the purported defects and causation, their claims fail as a matter of
law.”  at p. 1. This argument is based upon the fact that lift truck designs and defects fall
beyond the scope of layman’s knowledge and require expert testimony. See, e.g., Brown v. Ford
Motor Co., 121 F.Supp.3d 606, 612 (S.D. Miss. 2015) (granting summary judgment in favor of
defendant after plaintiff failed to present expert testimony to support design defect theory).
Because the Court has already rejected Raymond’s arguments to exclude the testimony of
the Plaintiffs’ experts—the only basis for Raymond’s present request—the Motion  is
Second Motion for Summary Judgment 
Raymond’s second Motion  relates only to the Plaintiffs’ punitive damages claim. In
the Complaint , the Plaintiffs contend that, despite being aware that lift trucks of this nature are
dangerous and numerous operators have been injured while utilizing them, Raymond has refused
to modify its design, incorporate necessary safety features, and/or incorporate necessary warnings.
Raymond contends that the Plaintiffs have no evidence to satisfy the requisite threshold for
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Summary judgment is warranted when the evidence reveals no genuine dispute regarding
any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV.
P. 56(a). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Nabors v. Malone, 2019 WL 2617240, at *1 (N.D. Miss. June 26, 2019) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
“The moving party ‘bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the record which it believes demonstrate the
absence of a genuine issue of material fact.’” Id. (quoting Celotex, 477 U.S. at 323). “The
nonmoving party must then ‘go beyond the pleadings’ and ‘designate specific facts showing that
there is a genuine issue for trial.’” Id. (quoting Celotex, 477 U.S. at 324). Importantly, “the
inferences to be drawn from the underlying facts contained in the affidavits, depositions, and
exhibits of record must be viewed in the light most favorable to the party opposing the motion.”
Waste Mgmt. of La., LLC v. River Birch, Inc., 920 F.3d 958, 964 (5th Cir. 2019) (quoting Reingold
v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir. 1997)). However, “[c]onclusory allegations,
speculation, unsubstantiated assertions, and legalist arguments are not an adequate substitute for
specific facts showing a genuine issue for trial.” Nabors, 2019 WL 2617240 at *1 (citing TIG Ins.
Co. v. Sedgewick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)) (additional citations omitted).
“Mississippi law does not favor punitive damages; they are considered an extraordinary
remedy and are allowed within caution and within narrow limits.” Warren v. Derivaux, 996 So.2d
729, 738 (Miss. 2008) (citations and internal quotation marks omitted). “Punitive damages should
be awarded in addition to actual or compensatory damages where ‘the damages sustained import
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insult, fraud, or oppression and not merely injuries, but injuries inflicted in the spirit of wanton
disregard for the rights of others[.]’” Id. (quoting Bradfield v. Schwartz, 936 So.2d 931, 936 (Miss.
2006)). The primary purpose of punitive damages is to punish the wrongdoer and deter similar
future misconduct. Union Carbide Corp. v. Nix, Jr., 142 So.3d 374, 378 (Miss. 2014).
In the McHale case referenced multiple times above, the District Court for the Middle
District of Florida, although permitting the plaintiffs’ general liability claims to proceed to trial,
granted summary judgment on the plaintiffs’ request for punitive damages. See McHale, 2021 WL
808860 at *5. The district court specifically held that “although Plaintiffs raise several factual
disputes as to the existence of a design defect and causation, the disputes are not material to the
resolution of Plaintiffs’ claim for punitive damages. Rather, the record demonstrates that, because
Plaintiffs have not shown that Crown’s conduct constituted ‘intentional misconduct’ or ‘gross
negligence,’ punitive damages are not warranted.” Id. The court ultimately concluded that “even
if there are factual disputes about the benefits or risks involved with the addition of a door on the
[forklift], the possibility that an alternative design might prevent some injuries is insufficient to
establish that [the defendant’s] conduct constituted intentional misconduct or gross negligence.”
Id. at *6.
Although recognizing that McHale is in no way binding, this Court finds its reasoning on
point. Here, the Plaintiffs have pointed to no specific evidence that Raymond engaged in
intentional misconduct or wanton disregard for the safety of its consumers. Further, while the
Plaintiffs challenge Raymond’s reliance on ATD testing, there has been no dispute that Raymond
did in fact engage in such testing, nor have the Plaintiffs raised any dispute that such testing is
generally accepted in the industry. The Plaintiffs may ultimately prevail on their general theories
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of liability, but they have not come forward with any evidence to demonstrate that this case is one
which warrants the extraordinary remedy of punitive damages.
Raymond’s Motion  is GRANTED. The Plaintiffs’ punitive damages claim is
For the reasons set forth above, Raymond’s Motion to Strike Meyer’s Testimony  is
DENIED; Raymond’s Motion to Strike Kerrigan’s Testimony  is GRANTED IN PART and
DENIED IN PART; Raymond’s Motion to Strike Jeka’s Testimony  is GRANTED IN PART
and DENIED IN PART; the Plaintiffs’ Motion to Exclude Rodowicz’s Testimony  is
DENIED; and the Plaintiffs’ Motion to Exclude Rogers’ Testimony  is DENIED. The
Plaintiffs’ Motions [119, 121, 123] as to their own experts are DENIED.
Raymond’s Motion for Summary Judgment  is DENIED. Raymond’s Motion for
Partial Summary Judgment  as to punitive damages is GRANTED. The Plaintiffs’ punitive
damages claim is DISMISSED with prejudice.
SO ORDERED, this the 18th day of January, 2023.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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