Ainsworth v. Cargotec USA Inc. et al
ORDER granting in part and denying in part Defendants' 163 Motion for Summary Judgment; and denying as moot Defendants' 167 195 Motions to Strike. The Court denies the Motion for Summary Judgment with respect to Plaintiff's negligence claim, but the Court grants it in all other respects. Signed by District Judge Keith Starrett on January 30, 2014 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
MARY P. AINSWORTH
CIVIL ACTION NO. 2:10-CV-236-KS-MTP
CARGOTEC USA, INC. et al.
MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants in part and denies in part
Defendant’s Motion for Summary Judgment  and denies as moot Defendant’s
Motions to Strike [167, 195].
James T. Ainsworth was an employee of Wayne Farms, a chicken producer in
Jones County, Mississippi. On October 1, 2007, Mr. Ainsworth was working as a
“catcher,” picking up chickens and placing them in cages for transport. One of his
coworkers, Samuel Walters, operated a Moffett P5000 forklift, loading the chicken
cages – each one ninety-six inches long, forty-five inches wide, and fifty-one and threequarters inches high – on to trucks. While returning an empty cage to the chicken
house, Mr. Samuels struck Mr. Ainsworth from behind and ran over him with the
loaded forklift. Mr. Ainsworth was fatally injured.
Mary P. Ainsworth, Mr. Ainsworth’s widow, filed this lawsuit against Moffett
Engineering, Ltd., the forklift’s manufacturer. She asserted design and warning defect
claims under the Mississippi Product Liability Act (“MPLA”). MISS. CODE ANN. § 11-163. She also claims that Moffett negligently failed to train the employees of Wayne
Farms to safely operate the forklift. Moffett filed a Motion for Summary Judgment
 and related evidentiary motions [167, 195], which are now ripe for review.
II. MOTION FOR SUMMARY JUDGMENT 
Rule 56 provides that “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Sierra Club, Inc.
v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “Where the
burden of production at trial ultimately rests on the nonmovant, the movant must
merely demonstrate an absence of evidentiary support in the record for the
nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (punctuation omitted). The nonmovant “must come forward with specific facts
showing that there is a genuine issue for trial.” Id. (punctuation omitted). “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627
F.3d at 138. “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.” Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Plaintiff claims that the Moffett forklift did not adequately warn drivers of
limited visibility when fully loaded. Defendant argues that this claim fails because it
is undisputed that the forklift’s driver, Samuel Walters, already knew that the forklift
had blind spots and that a full load impaired visibility.
The MPLA provides, in pertinent part:
The manufacturer . . . of the product shall not be liable if the
claimant does not prove by the preponderance of the evidence that
at the time the product left the control of the manufacturer or
. . . The product was defective because it failed to contain
adequate warnings or instructions, . . . ; and
The defective and unreasonably dangerous condition of the
product proximately caused the damages for which recovery
MISS. CODE ANN. § 11-1-63(a). The Mississippi Supreme Court explained the statute’s
[I]n a failure-to-warn case, plaintiff must prove that the alleged defective
warnings rendered the product unreasonably dangerous to the user or
consumer; and that this condition proximately caused the damages for
which recovery is sought. A key element of causation for a failure-to-warn
claim is proof of a causal link between the plaintiff’s injuries and the
product’s allegedly lacking a warning or having an inadequate warning.
In other words, the failure to warn must be the proximate cause of the
injuries suffered or it is irrelevant.
3M Co. v. Johnson, 895 So. 2d 151, 166 (Miss. 2005) (citations omitted). A plaintiff
must offer evidence, therefore, “that some other warning would have given them
additional information that they did not already know and that they would have acted
upon that new information in a manner that would have avoided the injuries.” Id.
When asked whether he could “see over the cage,” Samuel Walters – the
forklift’s driver – answered [163-5]: “No,” that he could not see “what was in front of
[him] and where [he was] going . . . .” He explained:
You can’t see in front of them things that good. You’ve got to . . . do your
best to watch what you’re doing, and some things is just out of your
control. . . . There’s vehicles, of course, that we know have blind spots and
you just have to watch yourself on these. And one of the things about
these is that like in any vehicle that’s out there, . . . in my opinion is that
you do have a certain degree of blind spots that you can’t see coming.
He said, in this case “the blind spot was directly in front of you.” Likewise, Kenneth
Knight, a Wayne Farms employee, testified [195-3] that forklift drivers had told him
“that you can’t see that good” with a cage on the forklift, and Plaintiff  testified
that her husband knew that “sometimes the vision was blocked” when driving the
James Gieger, another Wayne Farms employee at the time of the accident,
testified  that a Moffett employee provided safety training to Wayne Farms
employees which included “talk about blind spots” in response to “[q]uestions . . . about
being able to see around the load because of where the operator was sitting on the piece
of equipment.” According to the sign-in list , both Mr. Ainsworth and Mr. Walters
attended Moffett’s training session. Gieger also testified that Mr. Knight led a safety
training session titled “Dealing With Blind Spots,” which concerned “the blind spots
when moving the vehicles . . . .” He explained:
[W]e knew when operating the Moffett, the driver operators had
complained or had talked about not being able to see this particular area,
so what this would have been was giving them a way, telling them how
they should clear that particular side of their vehicle. . . . It was very
much to make them aware that they needed to be out of the blind spots
and to tell them – to let the operators actually – the best that I can recall,
is that the operators – you know, they wanted to make sure that truck
drivers knew to stay out of their particular line of sight.
According to the sign-in list , both Mr. Ainsworth and Mr. Walters attended the
Finally, Plaintiff’s expert, Tyler Kress, testified  that “clearly . . . if they’re
traveling forward, which I think is foreseeable, . . . it’s hard to keep a clear view if
there’s a large load that obstructs one’s view,” and that “[w]e have evidence that there’s
a large load, and . . . everyone agrees that it obstructs part of your forward view . . . .”
He agreed that “operators know from their own eyeballs where they can see and where
they cannot see.”
In summary, the record contains undisputed evidence that Wayne Farms
employees were already aware that a forklift driver’s visibility was limited when
carrying a load, and that both Mr. Ainsworth (the decedent) and Mr. Walters (the
forklift’s driver) received safety training which specifically addressed the forklift’s
visibility problems and blind spots. To survive summary judgment on her warning
defect claim, Plaintiff must demonstrate that there exists a genuine dispute of material
fact as to whether a warning “would have given them additional information that they
did not already know and that they would have acted upon that new information in a
manner that would have avoided the injuries.” Id. Plaintiff failed to provide any such
evidence. Therefore, the Court grants Defendant’s Motion for Summary Judgment with
respect to Plaintiff’s warning defect claim.
Plaintiff claims that the forklift was defective in design because it did not
contain certain components which would either solve the machine’s visibility problems
or reduce the risk of the driver hitting a bystander. Plaintiff’s expert intends to testify
that mirrors, a camera mounted on top of the forklift’s mast, and an alarm system to
warn bystanders when the forklift is moving forward are all feasible design
alternatives that could have been used by Defendant. Defendant argues that Plaintiff
has not provided sufficient evidence of a feasible design alternative that would to a
reasonable certainty have prevented the harm without impairing the forklift’s utility,
usefulness, practicality, or desirability.
The MPLA provides, in pertinent part:
In any action alleging that a product is defective because of its
design . . . , the manufacturer . . . shall not be liable if the claimant
does not prove by the preponderance of the evidence that at the
time the product left the control of the manufacturer . . . :
The product failed to function as expected and there existed
a feasible design alternative that would have to a
reasonable probability prevented the harm. A feasible
design alternative is a design that would have to a
reasonable probability prevented the harm without
impairing the utility, usefulness, practicality or desirability
of the product to users or consumers.
MISS. CODE ANN. § 11-1-63(f). As this Court has previously noted, the statute requires
proof of a specific design alternative, rather than a merely conceptual one. See Graves
ex rel. W. A. G. v. Toyota Motor Corp., No. 2:09-CV-169, 2012 U.S. Dist. LEXIS 63173,
at *11-*13 (S.D. Miss. 2012). “[T]he mere mention of a design alternative by an expert
comes well-short of lending evidentiary guidance to a court.” Williams v. Bennett, 921
So. 2d 1269, 1275 (Miss. 2006). There must be a “basis of comparison from which to
determine that the design of the [product] was indeed defective,” and the plaintiff must
“demonstrate the extent of the risk that the alternative design would have avoided or
how the alternative design would have affected [the product’s] utility.” Id. at 1277.1
Plaintiff’s expert, Tyler Kress, stated in his report that the forklift’s blind spots
“could have been reduced or minimized . . . through the use of inexpensive mirror
components incorporated into the design of the forklift,” but he failed to provide any
specific information regarding, among other things, the proposed mirrors’ shapes, sizes,
placement, orientation, or the extent to which they would increase the forklift driver’s
field of vision.2 Similarly, Plaintiff’s expert mentioned the possibility of a camera
system or a forward alarm during his deposition [164, 195-1], but he failed to provide
a specific design for such components or engage in the type of comparative analysis
Cf. Guy v. Crown Equip. Corp., 394 F.3d 320, 327 (5th Cir. 2004) (where
expert never presented a specific feasible design alternative, his opinions were not
admissible); Watkins v. Telsmith, Inc., 121 F.3d 984, 992 (5th Cir. 1997) (the proper
methodology for proposing alternative designs includes more than just
The Court also notes that it is undisputed that forklift did, in fact, have
mirrors, as demonstrated by photographs  taken the day after the accident.
contemplated by Williams, cited above.
Kress also failed to address whether his proposed design alternatives would
have to a reasonable probability prevented the accident. He testified: “I haven’t been
asked to specifically go out and provide a design alternative of the subject design in
this case that I believe would eliminate the visibility problem in the poultry industry.”
When asked whether he was “aware of any design alternative that would be feasible
and would to a reasonable probability have prevented the accident in this case,” Kress
responded: “I don’t have an opinion about whether it would have prevented it or not,
whether he would have ran over him if it had these design alternatives.” Later he
testified, “I’m not addressing a specific cause intervention in this case.” He also stated
that he had not “expressed an opinion” as to whether “additional . . . design changes
would have had any causal connection with the outcome . . . .”
In summary, Plaintiff has no evidence of a specific, feasible design alternative
that would have to a reasonable probability prevented the accident in which her
husband was injured. See MISS. CODE ANN. § 11-1-63(f); Williams, 921 So. 2d at 127577. The testimony from her expert, Tyler Kress, is too general to fulfill the statute’s
requirement of a feasible design alternative. See Graves, 2012 U.S. Dist. LEXIS 63173
at *11-*13. And Kress expressly disclaimed that he was providing any opinion as to
causation. See Williams, 921 So. 2d at 1277. For these reasons, the Court grants
Defendant’s Motion for Summary Judgment as to Plaintiff’s design defect claim.
Defendant argues that Plaintiff’s negligence claim is a mere restatement of her
warning defect claim and should, therefore, be dismissed. The Court agrees that
general negligence claims based on a defective product are subsumed by the MPLA. See
Gardley-Starks v. Pfizer, Inc., 917 F. Supp. 2d 597, 602 (N.D. Miss. 2013); McSwain v.
Sunrise Med., Inc., 689 F. Supp. 2d 835, 844-45 (S.D. Miss. 2010). Plaintiff’s negligence
claim, however, does not arise from a defective product. Rather, it arises from
Defendant’s alleged failure to train Wayne Farms employees in proper use of the
forklift. See, e.g., Hall v. Miss. Chem. Express, Inc., 528 So. 2d 796, 800 (Miss. 1988)
(separately addressing product liability claim and negligent failure-to-train claim).
Defendant has not addressed Plaintiff’s negligent training claim. Therefore, the Court
denies Defendant’s Motion for Summary Judgment in that respect.
III. REMAINING MOTIONS [167, 195]
First, Defendant filed a Motion to Strike  the designation of Plaintiff’s
expert, Tyler Kress. Then Defendant filed a Motion to Strike  Exhibits 2 and 3 to
Plaintiff’s Response to Defendant’s Motion to Strike the designation. The Court denies
both motions as moot. Even if the Court considers the disputed evidence, Plaintiff can
not satisfy the MPLA’s requirements, for the reasons stated above.
It is unclear whether Plaintiff intends to present trial testimony from Mr. Kress
related to the remaining negligence claim. Based on the content of Defendant’s Motion
to Strike  Kress’s designation, the Court assumes that Defendant would object to
such testimony. But Defendant provided no argument specific to that issue, and the
Court shall not address it here.
For the reasons stated above, the Court grants in part and denies in part
Defendant’s Motion for Summary Judgment . The Court denies the motion with
respect to Plaintiff’s negligence claim, but the Court grants it in all other respects. The
Court also denies as moot Defendant’s Motions to Strike [167, 195].
SO ORDERED AND ADJUDGED this 30th day of January, 2014.
UNITED STATES DISTRICT JUDGE
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