Accident Insurance Company v. Classic Building Design, LLC et al
ORDER finding as moot Plaintiff's 148 Motion to Clarify; granting Defendant Classic Building Design, LLC's 149 Motion for Summary Judgment; granting in part and denying in part Defendant Classic Building Design's 151 Motion in Li mine; granting Defendant Classic Design's 164 Motion for Summary Judgment; finding as moot Defendant Martha Pace's 168 Motion to Strike ; and denying Defendant Pace's 169 Motion to Strike. Signed by District Judge Keith Starrett on September 7, 2012 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ACCIDENT INSURANCE COMPANY
CIVIL ACTION NO. 2:11cv33KS-MTP
CLASSIC BUILDING DESIGN, LLC, et al.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Accident Insurance Company=s (AAIC@) Motion
for Order Declaring Rights and for Clarification (AMotion for Declaration@) ; Robert D.
Brewer and Classic Building Design, LLC=s (AClassic@) Motion for Summary Judgment on
Crossclaims  and Motion in Limine to Exclude Expert Testimony of James R. Neal
on Issues of Breach and Causation (AMotion in Limine@) ; and Martha Pace=s Motion
to Strike AIC=s Rebuttal and Amended and Revised Rebuttal (AMotion to Strike AIC’s
Rebuttal@)  and Motion to Strike Supplement to Motion for Summary Judgment and
Rebuttal Memorandum Brief Filed by Brewer and Classic (AMotion to Strike Supplement@)
. Having considered the submissions of the parties, the record and the applicable
law, the Court finds that: 1) Brewer and Classic=s Motion in Limine  should be
granted in part and denied in part; 2) Martha Pace=s Motion to Strike Supplement 
should be denied; 3) Brewer and Classic=s Motion for Summary Judgment on
Crossclaims  should be granted; 4) Martha Pace=s Motion to Strike AIC=s Rebuttal
 should be denied as moot; and 5) AIC=s Motion for Declaration  should be
denied as moot.
FACTUAL AND PROCEDURAL HISTORY
Martha Pace=s residence was constructed by Classic in 2005. On or about
February 26, 2010, Pace was struck in the head by a light fixture that fell from her
bathroom ceiling. On March 9, 2010, Pace=s attorney sent Robert D. Brewer, Classic=s
sole member, correspondence advising of the incident and alleging that the light fixture
was not properly installed when the house was built. (See March 9, 2010 Letter [1-2].)
The letter from Pace=s counsel requested that Brewer=s liability insurer contact him within
ten (10) days in order to avoid litigation.
Classic subsequently demanded coverage from AIC regarding Pace=s claim under
a commercial general liability insurance policy with effective dates being March 13, 2009,
through March 13, 2010 (the APolicy@). On February 16, 2011, AIC forwarded a
reservation of rights letter to Classic. (See February 16, 2011 Letter [8-2].)
On February 17, 2011, AIC filed its Complaint for Declaratory Judgment ,
requesting, inter alia, an order declaring that the Policy does not provide coverage for
Pace=s claims against Classic. The Complaint named Classic and Pace as Defendants.
Jurisdiction was asserted on the basis of diversity of citizenship under 28 U.S.C. ' 1332.
On March 18, 2011, Classic filed its Answer and Defenses to Complaint and
Counterclaim . Through its counterclaim, Classic requested a declaration that AIC has
a duty to defend and indemnify Classic with respect to Pace=s claims. Classic also sought
compensatory and punitive damages as a result of AIC=s alleged bad faith in including a
Contractors Special Condition endorsement in the Policy, and due to AIC refusing to
defend and indemnify Classic. The Court subsequently dismissed Classic=s request for
punitive damages without prejudice. (See Order  at p. 9.)
On March 22, 2011, Martha Pace filed her Answer, Counter-Complaint and
Cross-Complaint . Pace alleged that she suffered personal injury as a result of the light
fixture falling from her bathroom ceiling and striking her head. She further alleged that
Classic negligently and improperly installed the light fixture, and that Classic was
negligent in screening, training and supervising workers on the job site. (See Answer 
at p. 9.)
On June 9, 2011, the Court, sua sponte, ordered any party seeking to address the
issue of possible bifurcation between the liability issues on Pace=s crossclaim and the
coverage issues under the Policy to file a memorandum of law. (See Order .) Also
on June 9, Classic filed a Third-Party Complaint  against Danny Wilks and Danny
Wilks Insurance Agency, LLC (hereinafter collectively referred to as AWilks@). Classic
stated that the Policy was procured through Wilks. (See Third-Party Complaint  at &
7.) Classic alleged that Wilks was negligent in the procurement of the Policy since AIC
contended the Policy does not cover the claims for which Classic specifically sought
coverage. (See Third-Party Complaint  at & 10.)
On July 18, 2011, Pace filed a Third Party Complaint  against Robert D. Brewer.
Pace alleged that the light fixture was installed by Brewer Aindividually, and in his
capacity as owner of Classic . . . .@ (See Third Party Complaint  at & 7.) Pace further
made the same claims against Brewer that she had previously made against Classic.
(Compare Answer  at p. 9, with Third Party Complaint  at & 8.)
On August 5, 2011, Brewer and Classic moved to stay proceedings on the
coverage issues pending resolution of Pace=s liability claims against them. (See Motion
to Stay Discovery and Claims of AIC for Declaratory Relief .) AIC joined in the motion.
(See Joinder .) On September 7, 2011, the Court ruled on the Motion to Stay  and
the issue of bifurcation. (See Order ). The Court held that the insurance coverage
claims, included Classic=s third-party claims against Wilks, would be bifurcated from
Pace’s crossclaims for purposes of trial. Further, Pace=s crossclaims would be tried prior
to the coverage action. Discovery on all issues and claims would remain consolidated
and proceed on the same schedule.
On December 12, 2011, following a status conference with counsel for the parties,
the Court reset several case management deadlines relevant to the subject motions.
(See Order Resetting Case Deadlines ) (Martha Pace=s expert designation deadline
on crossclaims reset to March 1, 2012; Classic and Brewer=s expert designation deadline
regarding Pace=s crossclaims reset to April 2, 2012; discovery deadline for all claims and
defenses reset to June 1, 2012; and deadline for motions regarding liability on
crossclaims reset to June 15, 2012).1 On March 1, 2012, Pace timely served her
Designation of Experts , which included a signed report from James R. Neal, an
electrical inspector employed by the City of Hattiesburg. (See Inspection Report [103-1].)
On April 2, 2012, Classic and Brewer timely designated their expert witnesses. (See
Notice of Service ; Designation of Experts [164-4].) On April 10, 2012, Mr. Neal was
deposed and during that deposition he indicated, inter alia, that a portion of his Inspection
Report no longer reflected his opinion and that the Report should have been changed.
(See Neal Depo. [151-8] at 78:10-15, 81:15-19.) On July 2, 2012, Pace served Mr. Neal=s
Supplemental Report. (See Supplemental Report [147-1].)
On July 3, 2012, AIC filed its Motion for Declaration . AIC contends that an
issue central to the coverage and liability determinations is whether Mike Eubanks was
The deadline for motions was subsequently extended to July 6, 2012, pursuant to
an unopposed motion filed by Classic and Brewer.
working as an independent contractor or an employee of Classic at the time he installed
the subject light fixture in Pace=s residence. (See Motion for Declaration  at & 2.) AIC
requests that the Court declare that it will not be collaterally estopped from litigating the
issue of Eubanks=s employment status during the coverage phase of the action.
Alternatively, AIC seeks an order from the Court allowing it to participate in the trial of
Pace=s crossclaims for the limited purpose of advancing its position that Eubanks was an
On July 6, 2012, Classic and Brewer filed their Motion in Limine  and Motion
for Summary Judgment . In their Motion in Limine, Classic and Brewer request that
the Court strike as untimely James R. Neal=s Anew@ opinions given at his deposition and in
his Supplemental Report. Classic and Brewer further contend that Neal=s initial opinion
as to what caused the light fixture to fall should be excluded under Federal Rule of
Evidence 702 because it is unreliable. The Motion for Summary Judgment  largely
argues that without Neal=s opinions, Martha Pace has no evidence to support the breach
and causation elements of her negligence claim.
On August 6, 2012, Classic and Brewer filed a Supplement  to their Motion for
Summary Judgment and a Rebuttal Memorandum  in support of summary judgment.
These filings primarily address Pace=s reliance on the doctrine of res ipsa loquitur in
opposition to summary judgment. Pace=s Motion to Strike Supplement  contends
that Classic and Brewer=s aforementioned filings improperly raise new arguments and
facts in support of summary judgment.
Also on August 6, 2012, AIC filed a Rebuttal  and an Amended and Revised
Rebuttal  to Pace=s Response to Classic=s Motion for Summary Judgment. Through
these filings, AIC requests that the Court enter summary judgment in favor of Classic and
Brewer on the basis that Mike Eubanks (the individual that AIC alleges installed the
subject light fixture) was an independent contractor, as opposed to an employee of
Brewer or Classic. Pace=s Motion to Strike AIC=s Rebuttal  argues that AIC=s filings
should be rejected because they are untimely and because neither she nor Classic has
requested that the Court determine Eubanks=s employment status as a matter of law.
Classic and Brewer=s Motion in Limine 
Whether the Breach and Causation Opinions Expressed by
James R. Neal at His Deposition and in His Supplemental
Report Should Be Excluded Due to Untimeliness
Under Rule 26 of the Federal Rules of Civil Procedure, Aa party must disclose to
the other parties the identity of any witness it may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705.@ Fed. R. Civ. P. 26(a)(2). As to a retained
expert witness, a party=s disclosure must include a written report prepared by the witness
containing, inter alia, Aa complete statement of all opinions the witness will express and
the basis and reasons for them; [and] the facts or data considered by the witness in
forming them . . . .@ Fed. R. Civ. P. 26(a)(2)(B). The purpose behind the expert report
requirement Ais to avoid the disclosure of >sketchy and vague= expert information, as was
the practice under the former rule.@ Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.,
73 F.3d 546, 571 (5th Cir. 1996) (citing Fed. R. Civ. P. 26 advisory committee=s note).
Expert disclosures are to be made in the sequence ordered by the court and are to
be supplemented in accordance with Rule 26(e). See Fed. R. Civ. P. 26(a)(2)(D)-(E); Fed.
R. Civ. P. 26(e)(1)(A) (Timely supplementation is required if a party learns that a
disclosure is in some material respect Aincomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process or in writing . . . .@). Additions or changes to expert witness information
must be disclosed by the time a party=s pretrial disclosures are due under Rule 26(a)(3).
See Fed. R. Civ. P. 26(e)(2). AUnless the court orders otherwise,@ pretrial disclosures are
due 30 days before trial. Fed. R. Civ. P. 26(a)(3)(B). The Court has ordered otherwise
via Local Rule 26(a)(5). AA party is under a duty to supplement disclosures at appropriate
intervals under Fed.R.Civ.P. 26(e) and in no event later than the discovery deadline
established by the case management order.@ L.U.Civ.R. 26(a)(5).
Classic and Brewer (hereinafter sometimes collectively referred to as AClassic@)
contend that James R. Neal presented “new” and “untimely” opinions at his deposition
and in his Supplemental Report [147-1]. Classic further contends that the Anew@ opinions
should be excluded as a discovery sanction under Federal Rule of Civil Procedure 37.
Pace argues that the subject opinions merely Asupplemented@ Neal=s original Inspection
Report [103-1]. The last day for the parties to supplement expert disclosures was June
1, 2012, the discovery deadline. See L.U.Civ.R. 26(a)(5). Neal=s Supplemental Report
[147-1] was filed on July 2, 2012. Therefore, the Supplemental Report was untimely
whether or not it contained new opinions and the Court will determine whether it should
be excluded under Rule 37. See Elliot v. Amadas Indus., Inc., 796 F. Supp. 2d 796, 803
(S.D. Miss. 2011). Neal=s deposition was taken on April 10, 2012, before the discovery
deadline, but after Pace=s expert designation deadline of March 1. Therefore, the
timeliness of the disclosure of Neal=s deposition opinions turns on whether the opinions
are considered to be Anew@ or Asupplemental@ to his Inspection Report [103-1].
An examination of the potential differences between Neal=s Inspection Report and
the opinions expressed at his deposition requires a general understanding of the
components of the subject light fixture, the terminology the parties assign to those
components, and the manner in which the light fixture was secured to the ceiling of Pace=s
residence. The light fixture consists of a circular base mounted to the ceiling with a
hemisphere-shaped glass globe covering a light bulb.2 First, a metal mounting strap is
attached to an electrical box in the ceiling with screws. Then, the circular light fixture base
attaches to the metal mounting strap with screws. The fixture base includes the light bulb
socket assembly. Next, a multi-piece hardware assembly is used to attach the
hemisphere-shaped glass globe to the fixture base. The part of the hardware assembly
on the attic side of the fixture base (hereinafter referred to as the Atop assembly@) consists
of a short Aall-thread barrel@3 (sometimes referred to as a “short threaded pipe”) secured
to the attic side of the fixture base with a hex nut and a lock washer.4 The short all-thread
barrel extends through the ceiling and into a hole in the fixture base. The all-thread barrel
then screws into a threaded Acoupler@ or Acoupling@ on the bottom of the base, which
secures the top assembly to the fixture base. The part of the hardware assembly on the
ceiling side of the fixture base (as opposed to the attic side) primarily consists of a
Athreaded pipe@ several inches in length (sometimes referred to as a “long threaded pipe”)
A photograph of a similar light fixture is in the record. (See Doc. No. [151-2].)
The short all-thread barrel is approximately one-half inch in length.
Photographs of the top assembly are in the record. (See Doc. Nos. [151-3,
and the aforementioned coupler or coupling.5 The threaded pipe screws into the bottom
of the coupler and the glass globe is then pushed up and over the threaded pipe through
a hole in the bottom of the globe. A Aguarnicion@ (small trim piece) and Afinial@ (ornamental
terminating piece) are then secured to the end of the threaded pipe protruding from the
bottom of the glass globe and hold the glass globe in place.
The Inspection Report
After setting forth his qualifications, Neal stated that he inspected the subject light
fixture at Pace=s residence approximately two (2) years after it fell. (See Inspection
Report [103-1] at p. 1.) Parts from the light fixture that had fallen from the ceiling were in
a box which contained broken glass, washers, the threaded pipe, guarnicion and finial.
(See Inspection Report [103-1] at pp. 1-2.) Pace told Neal that the mounting strap did not
fall. (See Inspection Report [103-1] at p. 2.) Neal was further advised that after the light
fixture fell, the home builder came to Pace=s residence and installed another glass globe
that he took out of one of Pace=s closets. (See Inspection Report [103-1] at p. 2.) After
describing the type of light fixture at issue in this case, Neal provided the following:
It is obvious from the pieces of the light fixture in the box, that the part
of the light fixture that fell did so because the threaded pipe came loose
from the coupling. The coupling was still in the ceiling, but the threaded pipe
fell along with the globe, guarnicion and finial. When the threaded pipe
came loose from the coupling, the glass globe, the guarnicion and finial
were all attached to the threaded pipe and came down with it. So the
immediate cause of the fixture falling was that the threaded pipe came loose
from the coupling.
(Inspection Report [103-1] at pp. 2-3.) Neal further stated that he inspected the coupler
An illustration of a similar light fixture with a coupling, threaded pipe and various
other components is in the record. (See Doc. No. [151-5].)
and threaded pipe and could not find any defects, such as stripped threads, to explain
why the pipe came loose from the coupling. Neal further opined:
[I]f this light fixture had been properly installed it could not have fallen
from the ceiling. lf the light fixture had been properly installed, the part that
fell on Mrs. Pace could only be removed from the ceiling by someone
intentionally unscrewing the threaded pipe from the coupler. There would
not be any reason for a homeowner to unscrew the threaded pipe from the
coupler, and Mr. and Mrs. Pace both stated that no one had touched that
light fixture at all since they moved into the house.
(Inspection Report [103-1] at p. 3.) Neal further stated:
It is my opinion that the light fixture in the Pace water closet that fell
from the ceiling on February 26, 2010 had not been properly installed, and
that improper installation was the cause of the fixture falling from the ceiling.
More specifically, it is my opinion that the threaded pipe had not been
properly screwed into the coupler. The applicable industry standards
require that any such mountings and installations be firmly secured,
E3806.8.1, E3806.8.3, E3304.7, IRC 2006. ln order to firmly secure the
threaded pipe to the coupler in this light fixture, the pipe should have been
wrench tightened. I could not find any markings indicating that the pipe and
coupler had been wrench tightened. Also, even though the fittings should
have been wrench tightened to be completely safe, it is my opinion that the
fittings were not even hand tightened all the way. While hand tightening is
not as good as wrench tightening, the fixture probably would not have fallen
from the ceiling if it had even been hand tightened as much as possible.
(Inspection Report [103-1] at p. 4.) Neal inspected another light fixture in Pace’s
residence and found it to “be incredibly loose.” (Inspection Report [103-1] at p. 5.) This
confirmed his opinion that the light fixtures in the house had been improperly installed and
secured. (Inspection Report [103-1] at p. 5.)
James R. Neal=s Deposition Testimony
Classic contends that the following portions of Neal=s deposition testimony exhibit
new and untimely expert opinions:
Yeah. What came aloose from what?
Well, I learned something, that the - - what they call that - - the hex nut that
came apart, the thing that was loose that you got to make sure is tight
before you put anything in it, had fell, not what she had gave me.
(Neal Depo. [151-8] at 79:8-13.)
Okay. So, Mr. Neal, which part came loose from which part? Tell me which
parts came loose from each other that caused the globe to fall.
Well, we=re going to assume that it came loose from - - the coupling came
loose. The coupling came loose.
Okay. And what=s the coupling attached to?
(Neal Depo. [151-8] at 82:10-18.)
You don't know whether the coupling on the light fixture that was installed in
Ms. Pace's bathroom that she says fell - - the globe fell on her, you don't
know if that coupling was attached at the factory or if it was installed by the
person installing the light fixture, do you?
You better make sure it's tight when they do it.
All right. So you are taking the position that an installer is to check all
(Neal Depo. [151-8] at 86:3-19.)
Variances between Neal=s Inspection Report and his deposition testimony appear
to be due to the light fixture components he inspected either not being the same, or all of
the components that fell from Pace’s ceiling. Shortly after the subject incident, Martha
Pace=s husband and son placed hardware from the fallen fixture into a box. (See Melvin
Pace Depo. [151-6] at 36:6-19; Farris Pace Depo. [151-7] at 32:8-12; Martha Pace Depo.
[151-9] at 118:17-20.) A picture of that box taken by Pace=s son either the day of the
accident or the next day appears to show the long threaded pipe still attached to the
coupler. (See Farris Pace Depo. [151-7] at 33:19-25, 42:5-15, 43:21-44:12; Martha Pace
Depo. [151-9] at 117:13-118:23, and Exhibit 7 to Depo.) During his inspection nearly two
years later, Neal found the long threaded pipe in the box, but the coupler still in the light
fixture in the ceiling. (See Inspection Report [103-1] at pp. 2-3.) Neal did not view the
picture taken by Pace=s son before drafting his Inspection Report. (See Neal Depo.
[151-8] at 74:2-13.) He did, however, view the picture before his deposition and
acknowledged at the deposition that it was no longer his opinion that the threaded pipe
came loose from the coupler, and that his Inspection Report should have been changed.
(See Neal Depo. [151-8] at 78:1-15, 81:15-19.) Further, Pace=s attorney Astipulate[d] that
the fixture came loose at the coupling instead of the threaded pipe coming loose from the
coupling@ in light of the aforementioned photograph. (See Neal Depo. [151-8] at 81:3-12.)
Taking into account the forgoing circumstances, the Court concludes that the
subject opinions expressed by Neal at his deposition were not supplemental within the
meaning of Rule 26(e). The thrust of Neal=s Inspection Report is that the light fixture fell
because the installer failed to adequately secure the long threaded pipe to the coupler.
Neal effectively abandoned this theory at his deposition and offered various other
hypotheses as to how or why the light fixture fell. (See Neal Depo. [151-8] at 79:8-13,
82:10-18, 86:3-18.) (The hex nut came apart and fell; the coupling came loose from the
fixture; the installer is to check all factory attachments.) ACourts have made it clear that
supplemental expert reports cannot be used to >fix= problems in initial reports.@ Cooper
Tire & Rubber Co. v. Farese, No. 3:02cv210, 2008 WL 5104745, at *4 (N.D. Miss. Nov.
26, 2008) (citing Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 258 (5th
Cir. 1997)) (other citations omitted); see also United States ex rel. Gudur v. Deloitte
Consulting LLP, No. H-00-1169, 2007 WL 4322433, at *5 (S.D. Tex. Mar. 5, 2007)
(Asupplemental report that effectively replaces an earlier report is not >supplemental=
within the meaning of Rule 26(a)@) (citing Brennan=s, Inc. v. Dickie Brennan & Co., Inc.,
376 F.3d 356, 375 (5th Cir. 2004)).
Moreover, Neal=s deposition theories could have been offered by Pace=s expert
designation deadline of March 1, 2012, since the apparent need for them was the
photograph taken by Pace=s son in February of 2010. ACourts have routinely rejected
untimely >supplemental= expert testimony where the opinions are based on information
available prior to the missed deadline for service of initial disclosures.@ Buxton v. Lil= Drug
Store Prods. Inc., No. 2:02cv178, 2007 WL 2254492, at *5 (S.D. Miss. Aug. 1, 2007), aff=d,
294 Fed. Appx. 92 (5th Cir. 2008) (citing Sierra Club, 73 F.3d at 571) (other citations
omitted); see also Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C. 2002)
(Rule 26(e) Adoes not cover failures of omission because the expert did an inadequate or
incomplete preparation.@). Furthermore, expert opinions should be disclosed before, and
not at expert depositions. See Booker v. Moore, No. 5:08cv309, 2010 WL 2426013, at *2
(S.D. Miss. June 10, 2010) (A>The purpose of Rule 26(a)(2) is to provide notice to
opposing counsel B before the deposition B as to what the expert will testify . . . .=@)
(quoting Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008)).
Pursuant to the above-cited authorities, Neal=s challenged deposition opinions
were not timely disclosed and the Court will now determine whether they, along with the
Supplemental Report [147-1], should be excluded under Rule 37.
District courts possess broad, considerable discretion in discovery matters. See
Sierra Club, 73 F.3d at 569. In determining whether to exclude expert witness testimony,
that discretion is to be guided by the following four factors: A(1) the importance of the
witness=s testimony; (2) the prejudice to the opposing party of allowing the witness to
testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the
explanation, if any, for the party=s failure to identify the witness.@ Bradley v. United States,
866 F.2d 120, 125 (5th Cir. 1989) (citing Murphy v. Magnolia Elec. Power Ass=n, 639 F.2d
232, 235 (5th Cir. 1981)). The Court will apply the preceding factors to Neal=s challenged
deposition testimony and Supplemental Report [147-1] separately since they were
disclosed at different times.
First Factor (Importance) B Deposition Testimony
Assuming arguendo that Neal=s testimony is admissible, it is important to Pace=s
case. Neal is Pace=s only expert witness who is expected to testify that the subject light
fixture was improperly installed and that such improper installation caused the light fixture
to fall and strike Pace. (See Pace=s Designation of Experts .) However, the
importance of Neal=s testimony only Aunderscores how critical it was@ for the testimony to
have been timely disclosed. Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875,
883 (5th Cir. 2004). Thus, this factor only slightly militates against exclusion.
Second Factor (Prejudice) B Deposition Testimony
This factor weighs heavily against exclusion. Neal was deposed on April 10, 2012,
forty-nine (49) days before Classic=s experts were deposed on May 29, and fifty-two (52)
days before the deadline to submit supplemental expert disclosures on June 1. Classic=s
experts had sufficient time prior to their depositions to consider any new opinions offered
by Neal at his deposition. Further, Classic had ample time before the discovery deadline
to disclose any supplemental opinions from its experts resulting from Neal=s deposition
testimony. This is not a situation where late disclosure of expert testimony Adisrupted the
court=s discovery schedule and the opponent=s [trial] preparation.@ Geiserman v.
MacDonald, 893 F.2d 787, 791 (5th Cir. 1990).
Third Factor (Continuance) B Deposition Testimony
This factor also weighs against the exclusion of Neal=s deposition opinions. As
noted in the preceding section, Classic had sufficient time to consider Neal=s deposition
testimony prior to its experts being deposed and prior to the deadline to supplement
expert disclosures. In the absence of any malady (prejudice), there is no need for a cure
Fourth Factor (Explanation) B Deposition Testimony
Pace has not offered a sufficient explanation for Neal=s disclosure of new opinions
at his deposition. Pace contends that: AAll Mr. Neal did at his deposition was supplement
his earlier report to take into account the photograph pointed out by Defendants= expert,
which was relevant to the question of where the light separated.@ (See Pace=s Memo. in
Opp.  at p. 11.) This is a bit of an understatement. The breach of the standard of
care opinion in Neal=s original Inspection Report centers upon the contention Athat the
threaded pipe had not been properly screwed into the coupler.@ (Inspection Report [103-1]
at p. 4.) Neal essentially renounced this opinion at his deposition when he testified that it
was no longer his opinion that the threaded pipe came loose from the coupler, and that
his Inspection Report should have been changed. (See Neal Depo. [151-8] at 78:1-15,
81:15-19.) Further, the photograph Apointed out by Defendants= expert,@ causing this
change in opinion was taken by Pace=s son approximately two (2) years before Neal=s
deposition. The failure of Pace=s counsel to show Neal the photograph prior to Pace=s
expert designation deadline does not justify the untimely disclosure of Neal=s alternative
theories as to how or why the light fixture fell. Cf. Barrett v. Atl. Richfield Co., 95 F.3d 375,
381 (5th Cir. 1996) (no Aplausible explanation@ for failure to comply with deadline where
expert=s inability to meet the deadline was due in large part to counsel=s failure to furnish
In balancing the preceding factors, the Court finds that exclusion of Neal=s
challenged deposition opinions is not warranted. Most importantly, Classic will not be
prejudiced if Neal testifies at trial in accordance with the opinions since Classic was on
notice of the opinions nearly two (2) months before the close of discovery. Cf. Martin v.
Wal-Mart Stores, Inc., No. 2:10cv268, 2011 WL 6370107, at *3 (S.D. Miss. Dec. 19, 2011)
(refusing to strike expert affidavit in the absence of prejudice to the moving party). Thus,
Classic=s request to exclude Neal’s deposition testimony will be denied.
First Factor (Importance) B Supplemental Report
This factor slightly militates against exclusion for the same reasons stated under
the analysis of Neal=s deposition testimony.
Second Factor (Prejudice) B Supplemental Report
Unlike Neal=s deposition testimony, his Supplemental Report [147-1] was provided
after Classic=s experts were deposed and after the close of discovery. Therefore, Classic
did not have an opportunity to review the Supplemental Report and submit supplemental
opinions from its experts before the discovery deadline.
Classic primarily objects to the following opinion in the Supplemental Report:
Regardless of whether the light fixture in the Pace home came
apart where the long threaded pipe screws into the coupler as
I originally thought, or whether the coupler came loose from
the short threaded pipe, or whether the short threaded pipe
came loose from the hex nut, my opinion is the same, that the
installer should have double checked all of those connections
and made sure they were tight and secure prior to fastening
the fixture to the ceiling.
(Supplemental Report [147-1] at pp. 2-3.) Classic should not have been wholly surprised
by this opinion. At deposition, Neal testified that the light fixture fell because the hex nut
came apart and/or because the coupling came loose from the fixture. (Neal Depo. [151-8]
at 79:8-13, 82:10-18.) Neal further testified that the installer is to check all factory
connections. (Neal Depo. [151-8] at 86:16-19.) Nonetheless, those deposition opinions
were themselves untimely and Classic would be prejudiced if its experts were not allowed
to address Neal=s more cogent and refined opinion stated in his Supplemental Report.
See Geiserman, 893 F.2d at 791 (AAlthough Attorney might not suffer the degree of unfair
surprise associated with the last-second designation of an unscheduled witness, the trial
court has latitude to control discovery abuses and cure prejudice by excluding improperly
designated evidence.@) (internal citation omitted); accord Elliot, 796 F. Supp. 2d at 804
(finding prejudice where defendants would be required to prepare supplemental expert
testimony to rebut plaintiffs= expert’s late testimony). The second Aprejudice@ factor
weighs in favor of excluding the Supplemental Report.
Third Factor (Continuance) B Supplemental Report
A continuance would likely cure any prejudice to Classic by allowing time for its
experts to prepare supplemental testimony in rebuttal to the opinions stated in Neal=s
Supplemental Report. On the other hand, a continuance would also result Ain additional
delay and increase the expense of defending the lawsuit.@ Geiserman, 893 F.2d at 792.
Further, Aa continuance would not deter future dilatory behavior, nor serve to enforce local
rules or court imposed scheduling orders.@ Id. Therefore, the Court finds the third factor
to weigh slightly in favor of excluding the Supplemental Report.
Fourth Factor (Explanation) B Supplemental Report
The first sentence of the Supplemental Report provides that it Ais made to respond
to the opinions expressed by the Defendants= expert witnesses in their deposition
testimony.@ (Supplemental Report [147-1] at p. 1.) Also, Pace argues that the
Supplemental Report was Areasonably timely@ since Defendants delayed in scheduling
their experts= depositions and since the report was submitted only two (2) days after
Pace=s counsel received transcripts from the expert depositions. (See Pace Memo. in
Opp.  at p. 8.)
Pace=s explanation for the untimely submission of the Supplemental Report is not
convincing. The deposition testimony of Classic=s experts referenced in the
Supplemental Report on July 2, 2012,6 is materially the same as the expert opinions
disclosed in Classic=s Designation of Experts [164-4] on April 2, 2012.7 Neal had
The Supplemental Report references the following three points from Defendants=
experts= depositions: 1) the Alight fixture came apart where the short threaded pipe
screws into a hex nut on the top side of the light fixture[;]@ 2) the experts Aclaim that one
of the photographs taken of the fallen part of the fixture shortly after the incident shows
the top of the short threaded pipe sticking out of the coupler[;]@ and 3) the experts
Acontend that the short threaded pipe and the nut that holds it in place are fastened
together at the factory in China, and therefore it is not the installer=s responsibility or fault
if that connection is not tight or secure.@ (Supplemental Report [147-1] at p. 1.)
A[I]t is clear to me that the point of failure was the short barrel all thread separating
from the hex nut on the top side of the fixture base, which is installed at the factory.@
(George C. Strickland, III Report [164-4 at ECF p. 14].) AThe point of failure was obviously
the top assembly=s hex nut separating from the top assembly=s short althread.@ (Perry E.
Doleac Report [164-4 at ECF p. 8].) AThe photographs taken shortly following the incident
according to the Pace family shows that the short althread from the top assembly, the
coupling, and the threaded stem are all still attached.@ (Doleac Report [164-4 at ECF p.
sufficient time between April 2, Classic=s expert designation deadline, and June 1, the
discovery deadline, to submit any supplemental opinions arising from the opinions of
Classic=s experts. As opposed to the Supplemental Report being submitted to rebut the
deposition opinions of Classic=s experts, the Court finds it more plausible that the report
was submitted to correct Neal=s original Inspection Report, which Neal acknowledged at
his deposition should have been changed. (Neal Depo. [151-8] at 81:15-19.)
Supplemental expert reports are not to be used to correct initial reports. See Cooper Tire
& Rubber Co., 2008 WL 5104745, at *4. Given the insufficiency of Pace=s explanation for
the untimely Supplemental Report, the fourth factor also weighs in favor of exclusion.
The above-referenced factors, in total, support the exclusion of the Supplemental
Report [147-1]. However, for the sake argument and because there does not appear to
be a clear record of delay in the prosecution of Pace=s crossclaims (and because, as
discussed below, the content of the Supplemental Report does not preclude a grant of
summary judgment in Classic=s favor), the Court will deny Classic=s exclusion request.
See Buxton, 2007 WL 2254492, at *8 (considering a supplemental affidavit in ruling on a
motion for summary judgment even though the balance of factors weighed in favor of
8].) A[T]he factory installed coupler and top assembly short barrel all thread is shown in
the Pace family=s pictures to be still attached to the threaded stem that holds the
globe . . . .@ (Strickland Report [164-4 at ECF p. 14].) A[T]he top assembly, from the top
of the base and the coupling from the bottom of the base, are attached and secured to the
base at the factory. . . . There was no improper installation by the electrician in my
opinion.@ (Doleac Report [164-4 at ECF p. 8].) A[T]here was no improper installation in
my opinion. . . . [T]he coupling assembly was not properly completed by the
manufacturer.@ (Strickland Report [164-4 at ECF p. 14].)
Whether the Breach and Causation Opinions Stated in Neal=s
Inspection Report [103-1] Should Be Excluded Under Federal
Rule of Evidence 702
Standard of Review
Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of
Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the United States Supreme Court held that Rule
A702 imposes a special obligation upon a trial judge to >ensure that any and all scientific
testimony . . . is not only relevant, but reliable.=@ Kuhmo Tire Co. v. Carmichael, 526 U.S.
137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (quoting Daubert, 509 U.S. at 589);
accord Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (A[W]hen expert
testimony is offered, the trial judge must perform a screening function to ensure that the
expert=s opinion is reliable and relevant to the facts at issue in the case.@). In Kuhmo Tire,
the Supreme Court held that the trial court=s Agatekeeping obligation@ applies to all expert
testimony, and not only to scientific testimony. 526 U.S. at 147. In order to be reliable,
the expert opinion must A>be grounded in the methods and procedures of science and . . .
be more than unsupported speculation or subjective belief.=@ Johnson v. Arkema, Inc.,
685 F.3d 452, 459 (5th Cir. 2012) (quoting Curtis v. M & S Petroleum, Inc., 174 F.3d 661,
668 (5th Cir. 1999)) (quoting Daubert, 509 U.S. at 597). Rule 702's relevance prong
Arequires the proponent to demonstrate that the expert=s reasoning or methodology can
be properly applied to the facts at issue.@ Id. (citation and internal quotation marks
Daubert set forth several factors that might Abear on@ the trial court=s consideration
of the admissibility of expert testimony, including, but not limited to: whether the theory
can be tested, whether the theory Ahas been subjected to peer review and publication@,
and the Ageneral acceptance@ of the theory. 509 U.S. at 593-94. The Supreme Court
later recognized that Daubert=s factors Amay or may not be pertinent in assessing
reliability,@ since the specific issue, the subject of the expert=s testimony and the expert=s
area of expertise will vary from case to case. Kumho Tire, 526 U.S. at 150. Nonetheless,
Aa trial court should consider the specific factors identified in Daubert where they are
reasonable measures of the reliability of the expert testimony.@ Id. at 152.
This Court=s responsibility Ais to make certain that an expert, whether basing
testimony upon professional studies or personal experience, employs in the courtroom
the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.@ Id. However, the Court=s role as gatekeeper is not meant to supplant the
adversary system since A[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional means of attacking shaky
but admissible evidence.@ Daubert, 509 U.S. at 596 (citation omitted). A>The proponent
need not prove to the judge that the expert=s testimony is correct, but she must prove by
a preponderance of the evidence that the testimony is reliable.=@ Johnson, 685 F.3d at
459 (quoting Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998)). Although
the court’s focus should be on the expert=s principles and methodology, as opposed to the
conclusions they generate, Anothing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert.@ Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct.
512, 139 L. Ed. 2d 508 (1997). AThe relevance and reliability of expert testimony turns
upon its nature and the purpose for which its proponent offers it.@ United States v.
Valencia, 600 F.3d 389, 424 (5th Cir. 2010), cert. denied, 131 S. Ct. 285 (2010).
Classic contends that Neal’s original opinion that the installer failed to screw the
threaded pipe into the coupler properly is inadmissible under Rule 702 because it is based
on insufficient and/or erroneous information. Classic asserts that photographs of the light
fixture taken immediately after it fell show the coupler still attached to the threaded pipe.
Further, Neal did not see those photographs before he prepared his Inspection Report
Pace contends that whether or not Neal agrees with Classic’s experts as to the
specific point of failure in the light fixture’s various components does not render his
original findings erroneous. According to Pace, “it does not matter which of the three (3)
connections came apart” since Neal’s opinion is that the installer should have tightly
secured all of the connections. (Pace Memo. in Opp.  at p. 14.) Pace also appears
to argue that Neal’s initial belief as to the point of separation in the light fixture is
supported by the deposition testimony of Robert Brewer.
The Court agrees that any dispute Neal may have with Classic’s experts as to
which of the light fixture’s connections failed does not render his original opinions
erroneous. The problem for Pace, however, is that Neal’s original Inspection Report
[103-1] only mentions one specific connection in the subject light fixture that the installer
failed to properly secure. “[I]t is my opinion that the threaded pipe had not been properly
screwed into the coupler.” (Inspection Report [103-1] at p. 4.) This opinion was clearly
based on Neal’s observation approximately two (2) years after the subject incident that
“the coupling was still in the ceiling, but the threaded pipe fell along with the globe . . . .”
(Inspection Report [103-1] at p. 2.) At his deposition, Neal acknowledged that a
photograph taken before his inspection showed the coupler still attached to the threaded
pipe. (Neal Depo. [151-8] at 79:14-19.) In light of this photograph, Neal testified that it
was no longer his opinion that the threaded pipe came loose from the coupling (Neal
Depo. [151-8] at 78:10-15); that his original opinion as to the point of failure in the light
fixture was possibly based on incorrect information (Neal Depo. [151-8] at 79:20-24); and
that his original report should have been changed (Neal Depo. [151-8] at 81:15-19).
Pace’s counsel even stipulated “that the fixture came loose at the coupling instead of the
threaded pipe coming loose from the coupling” in light of the photograph. (Neal Depo.
[151-8] at 81:3-12.) This stipulation was binding on Pace,8 and it is too late for Pace, her
counsel or Neal to go back and again contend that the light fixture might have fallen
because the threaded pipe came loose from the coupling.9
It is well settled under Mississippi law that an attorney has the authority to bind his
client to stipulations or admissions of fact. See, e.g., Pace v. Fin. Sec. Life of Miss., 608
So. 2d 1135, 1138 (Miss. 1992); Lane v. Woodland Hills Baptist Church, 285 So. 2d 901,
905 (Miss. 1973).
Pace’s reliance on Brewer’s deposition testimony in support of Neal’s original
“When an expert opinion is not supported by sufficient facts to validate it in the
eyes of the law, or when indisputable record facts contradict or otherwise render the
opinion unreasonable, it cannot support a jury’s verdict.” Brooke Group Ltd. v. Brown &
Williamson Tobacco Corp., 509 U.S. 209, 242, 113 S. Ct. 2578, 125 L. Ed. 2d 168 (1993).
“Expert evidence based on a fictitious set of facts is just as unreliable as evidence based
upon no research at all.” Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1331 (5th Cir.
1996). Further, “an opinion based totally on incorrect facts will not speak to the case at
hand and hence will be irrelevant.” Id. (citing Christopherson v. Allied-Signal Corp., 939
F.2d 1106, 1114 (5th Cir. 1991)). In conjunction with these premises, courts routinely
reject expert opinions based on incorrect factual bases. See, e.g., Paz v. Brush
Engineered Materials, Inc., 555 F.3d 383, 388-89 (5th Cir. 2009) (affirming the district
court’s exclusion of expert testimony based on a false assumption); Kemp v. Biolab, Inc.,
1:04cv478, 2005 WL 1595669, at *7 (S.D. Miss. June 22, 2005) (finding an expert’s
opinion to be “unreliable because there are simply no facts to support it”); Davis v.
Ashcroft, No. 01-331, 2003 WL 25665777, at *1 (D.D.C. Aug. 19, 2003) (excluding expert
testimony based on incorrect data).
The photograph showing parts of the light fixture that fell from Pace’s ceiling, along
with the deposition testimony of Pace, Pace’s son, and Neal, and the stipulation of Pace’s
counsel at Neal’s deposition, establish that the coupler was still attached to the threaded
opinion is misplaced. Brewer’s deposition took place months before Pace’s counsel’s
stipulation. Thus, Pace cannot contend that any new, previously unavailable information
was disclosed at Brewer’s deposition which could possibly negate the effect of the
stipulation. Furthermore, Brewer’s deposition testimony could be reasonably construed
to mean that he unscrewed and replaced the threaded pipe and coupler together as one
unit in changing out the light fixture from Pace’s closet to her bathroom.
pipe after the fixture fell. Neal’s original breach and causation opinions were based on a
different, incorrect assumption: that the coupler remained in the ceiling after the light
fixture fell. (Inspection Report [103-1] at p. 2.) Neal’s original opinions are “unreliable”
and “irrelevant” (and thus inadmissible under Rule 702), since they were based on this
erroneous assumption. Guillory, 95 F.3d at 1331. Pace has fallen far short of proving by
a preponderance of the evidence that Neal’s original breach and causation opinions are
reliable, and this Court will not set a precedent by accepting an opinion in an expert’s
report that the expert later abandoned at deposition and acknowledged “should have
[been] changed”. (Neal Depo. [151-8] at 81:15-19).
Brewer and Classic=s Motion in Limine  is denied to the extent it seeks the
exclusion of James R. Neal’s opinions expressed at his deposition and in his
Supplemental Report [147-1] on the basis of untimeliness. The Motion in Limine is
granted under Rule 702 to the extent it seeks the exclusion of Neal’s original opinion that
the light fixture fell because the threaded pipe was not properly screwed into the coupler.
Martha Pace=s Motion to Strike Supplement 
Pace contends that Classic’s Supplement  to Motion for Summary Judgment
and Rebuttal Memorandum  improperly raise new arguments and facts in support of
summary judgment well past the motion deadline. The arguments in Classic’s Rebuttal
Memorandum  which could be considered new are in response to Pace’s invocation
of the doctrine of res ipsa loquitur in opposition to summary judgment. The pleadings
setting forth Pace’s crossclaims10 do not explicitly or implicitly invoke this doctrine.
Classic was entitled to address Pace’s reliance on res ipsa loquitur in its Rebuttal
Memorandum  since it does not appear that Pace raised this issue until she filed her
Response  to the Motion for Summary Judgment.
Classic’s Supplement  presents exhibits, such as excerpts from Brewer’s
deposition and Defendants’ Designation of Experts, in further support of summary
judgment. Classic’s Rebuttal Memorandum  references the exhibits in addressing
Pace’s reliance on res ipsa loquitur. Pace does not contend that Classic failed to produce
the materials attached as exhibits to the Supplement prior to the discovery deadline.
Classic was also entitled to rely on documents disclosed during discovery in addressing
Pace’s invocation of the doctrine of res ipsa loquitur in opposition to summary judgment.
For the preceding reasons, Martha Pace’s Motion to Strike Supplement  is not
well taken and is denied.
Classic’s Motion for Summary Judgment on Crossclaims 
Standard of Review
Federal Rule of Civil Procedure 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). “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) (citation and
internal quotation marks omitted), cert. denied, 131 S. Ct. 2972 (2011). The nonmovant
(See Answer ; Third Party Complaint .)
“must come forward with specific facts showing that there is a genuine issue for trial.” Id.
“‘An issue is material if its resolution could affect the outcome of the action.’” Sierra Club,
Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting
Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “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 inferences 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). Summary judgment is mandatory “‘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.’” Brown v. Offshore
Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011), cert. denied, 132 S. Ct.
2103 (2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.
Ed. 2d 265 (1986)).
Classic argues that summary judgment is appropriate because James R. Neal’s
opinions are the only evidence Pace has offered on the negligence elements of breach
and causation and, pursuant to the Motion in Limine , Pace should not be allowed to
utilize Neal’s opinions in support of her claims. As detailed above, the Court has
determined that Neal’s breach and causation opinions stated in his Inspection Report
[103-1] should be excluded under Federal Rule of Evidence 702. Thus, the Court will not
credit Pace with those opinions in considering the Motion for Summary Judgment.
Although Classic moved to exclude Neal’s breach and causation opinions stated in his
deposition testimony and Supplemental Report [147-1] on the basis of untimeliness as
opposed to Rule 702, the Court will consider the reliability of those opinions in its
summary judgment analysis given its gatekeeping obligation under Daubert. “The ability
of a district court to evaluate expert testimony sua sponte and exclude such testimony
where appropriate has been recognized by several courts.” Brenord v. Catholic Med. Ctr.,
133 F. Supp. 2d 179, 188 n.4 (E.D.N.Y. 2001) (citing Kirstein v. Parks Corp., 159 F.3d
1065, 1067 (7th Cir. 1998)) (“we have not required that the Daubert inquiry take any
specific form and have, in fact, upheld a judge’s sua sponte consideration on the
admissibility of expert testimony) (other citations omitted); see also Miller v. Baker
Implement Co., 439 F.3d 407, 413 (8th Cir. 2006) (concluding that the district court “did
not abuse its discretion by undertaking a sua sponte Daubert analysis” where the parties
had addressed Daubert in earlier filings and the expert’s report was before the district
Pace alleges that Brewer and/or Classic “negligently and improperly installed” the
Classic’s Motion in Limine  addresses Daubert, and Neal’s breach and
causation opinions stated in his deposition testimony [151-8, 159-4] and Supplemental
Report [147-1] are in the record.
subject light fixture. (See Answer  at p. 9; Third Party Complaint  at ¶ 7.) “A
negligence claim has four elements: duty, breach of duty, causation, and damages.”
Ladner v. Holleman, 90 So. 3d 655, 659 (¶ 13) (Miss. Ct. App. 2012) (citing Price v. Park
Mgmt., Inc., 831 So. 2d 550, 551 (¶ 5) (Miss. Ct. App. 2002) (citing Carpenter v. Nobile,
620 So. 2d 961, 964 (Miss. 1993)). Classic does not contend that Pace lacks evidence to
show that Brewer and/or Classic owed a duty to install the light fixture properly. Thus, a
jury issue exists as to the first essential element of Pace’s negligence claim.12
Classic contends that without Neal’s testimony, Pace “has produced no evidence
whatsoever to support the essential elements of breach or causation.” (See Classic’s
Memorandum Brief  at p. 4.) In response, Pace argues “that in addition to the expert
testimony of Mr. Neal on the causation issue, the doctrine of res ipsa loquitur would
apply.” (See Pace Memo. In Opp. to SJ  at p. 2.) Res ipsa loquitur “is simply one
form of circumstantial evidence” that allows negligence to be inferred in certain factual
settings. Gray v. BellSouth Telecomms., Inc., 11 So. 3d 1269, 1272 (¶ 11) (Miss. Ct. App.
2009) (emphasis added and citations omitted). In raising the res ipsa loquitur doctrine,
Pace has essentially conceded that outside of Neal’s testimony, no direct evidence exists
to support the breach and causation elements of her negligence claim. Thus, the Court
must examine Neal’s opinions which have not been previously excluded to determine if
they create a fact issue precluding a grant of summary judgment. Pace’s res ipsa loquitur
Classic has also not requested summary judgment on the basis of an
independent contractor defense. In fact, Classic and Brewer assume arguendo for the
purposes of summary judgment “that one of them installed the light fixture.” (See
Rebuttal Memorandum  at p. 6 n.3.) Therefore, the Court will not determine whether
as a matter of law the light fixture was installed by an independent contractor or employee
argument will be addressed in a subsection section of this opinion.
At deposition, Neal offered the following testimony which, broadly construed, could
be said to touch upon the issues of breach and causation:
It was - - when I got this, of course, it had to come - - it had to come from
there, you know. It wasn’t nothing else there, you know. Okay. But
regardless of how it came apart, it wasn’t put up right.
But why do you say that?
Because it came apart. It fell.
(Neal Depo. [151-8] at 78:22-79:3.) Along similar lines, Neal’s Supplemental
Report offers the following:
Regardless of whether the light fixture in the Pace home came
apart where the long threaded pipe screws into the coupler as
I originally thought, or whether the coupler came loose from
the short threaded pipe, or whether the short threaded pipe
came loose from the hex nut, my opinion is the same, that the
installer should have double checked all of those connections
and made sure they were tight and secure prior to fastening
the fixture to the ceiling. The installer’s failure to make sure
all of those connections were secure is the reason the subject
light fixture fell from the ceiling and hit Mrs. Pace on the head,
and that failure is a violation of the standard of care expected
of a reasonably prudent electrician and light installer.
(Supplemental Report [147-1] at pp. 2-3.) Several authorities are instructive in
determining whether these opinions preclude a grant of summary judgment in Classic’s
favor. See Brown v. Parker-Hannifan Corp., 919 F.2d 308 (5th Cir. 1990); Buxton, 2007
WL 2254492; Rudd v. Montgomery Elevator Co., 618 So. 2d 68 (Miss. 1993); Rogers v.
Barlow Eddy Jenkins P.A., 22 So. 3d 1219 (Miss. Ct. App. 2009).
In Brown, the plaintiff brought suit after sustaining injuries while pressure testing oil
field equipment. 919 F.2d at 309. Plaintiff alleged that his injuries were caused either by
a defect in a quick release coupling manufactured by the defendant, or by the defendant’s
failure to label the coupling’s pressure rating. Id. The district court excluded the
testimony of plaintiff’s expert on the basis “that it was speculative and of no assistance to
the trier of fact” and then granted defendant’s motion for a directed verdict. Id. at 310-11.
On appeal, the Fifth Circuit provided that the failure of the coupling, by itself, did not result
in liability. “Sooner or later, all mechanical parts wear out and fail. To recover from . . .
[the defendant, plaintiff] had to show not only that the coupling failed but also that a defect
in the coupling, or the failure to label the coupling with its pressure rating, caused the
failure.” Id. at 310. The Fifth Circuit found that the trial court properly excluded the
testimony of Plaintiff’s expert because he admitted at deposition that “corrosion, abuse,
or normal wear and tear could have caused the [coupling’s] failure” and this explained the
failure just as well as the expert’s negligence theories. Id. at 312. “Without some basis to
establish that one of . . . [the expert’s] theories is the most likely cause of the failure on this
occasion, his testimony amounts to speculation and is of no assistance to the jury.” Id.
The district court’s decision to grant a directed verdict was affirmed. Id.
In Buxton, plaintiff filed a products liability action alleging that her daughter
suffered a heart attack and stroke as a result of using an over-the-counter cough
suppressant. 2007 WL 2254492, at *1. One of plaintiff’s experts, Dr. Ramsey, submitted
three affidavits during the course of proceedings. Id. at *3-4. Defendants moved for
summary judgment and the plaintiff had to “produce admissible expert testimony that she
had a stroke” in order to defeat the motion. Id. at *9. Defendants argued that Dr.
Ramsey’s opinion that plaintiff suffered a stroke was “conclusory ipse dixit, unsupported
by any objective evidence in plaintiff’s medical records, in contradiction to the opinions
and testimony of both of her treating physicians, and not scientifically valid or
reliable . . . .” Id. at *10. The Court agreed. Dr. Ramsey did not identify any medical
records that supported his theory and no other physician opined that plaintiff’s brain injury
resulted from a stroke. Id. at *12. Further, Dr. Ramsey did not attempt to rule out cardiac
arrest as the cause of injury in his first two affidavits and his changing opinion as to what
exactly happened to the plaintiff over the course of his three affidavits underscored a lack
of reliability. Id. at *13-14. The Court thus excluded Dr. Ramsey’s opinions under Rule
702 and granted summary judgment in favor of defendants. Id. at *14.
The plaintiff in Rudd alleged personal injuries arising from an elevator malfunction.
618 So. 2d at 69. The trial court granted defendant’s motion for a judgment
notwithstanding the verdict, finding that Plaintiff’s proposed elevator expert did not qualify
as an expert under Mississippi Rule of Evidence 701 or 702. Id. at 72. The sole issue
before the Mississippi Supreme Court was “whether there was sufficient evidence
presented to make a jury issue that Montgomery negligently failed to properly inspect and
maintain the elevator which caused it to malfunction . . . .” Id. The court provided the
following in considering the issue:
All things mechanical are subject to breakdown upon occasion even with
the best maintenance. To make a jury issue on liability in this case, it was
incumbent upon Rudd to establish by competent evidence that Montgomery
was somehow negligent in its maintenance and repair of the elevator and
that this negligence caused it to malfunction that day.
Id. The testimony of Plaintiff’s expert, that the elevator malfunction was caused by a
misaligned roller which should have been obvious to the defendant’s service mechanic,
was based on speculation and conjecture and failed to create a jury issue. Id. at 72-73.
Plaintiff’s expert did not inspect the elevator until a year and a half following the accident,
and the defendant’s service mechanic testified that he found the elevator rollers properly
aligned on the date of the accident. Id. Although the service mechanic found a
misalignment the day following the accident, only “pure speculation” supported the
contention that the mechanic “somehow missed this the previous day.” Id. at 73. Further,
the elevator operated “smoothly without mishap for at least another eighteen to twenty
hours.” Id. Not only was Plaintiff’s expert’s testimony regarding the existence of the
misalignment pure speculation, “even more speculative is that somehow it would not have
occurred with even the best of maintenance.” Id. The defendant’s dismissal was affirmed.
Rogers was a wrongful death action brought by the widow of Robert Gary Rogers.
22 So. 3d at 1220 (¶ 1). Rogers died after falling off a wall-mounted ladder at the Hinds
County Youth Detention Center (the “Center”). Id. Plaintiff alleged that the Center’s
architects were negligent because they were responsible for the ladder’s design,
construction and placement, and the wall-mounted ladder did not meet the Occupational
Safety and Health Administration’s (“OSHA”) specified dimensions. Id. at 1221 (¶ 5).
Plaintiff offered the testimony of two expert witnesses, Dr. Hall and Dr. Shenefelt, to
establish that the design and installation of the ladder caused Rogers’ fall. Id. at 1223 (¶
14). The trial court found plaintiffs’ experts’ opinions to be insufficient and granted
summary judgment in favor of defendants. Id. at 1222 (¶ 8). The Mississippi Court of
Appeals affirmed. Id. at 1220 (¶ 1). The court found Dr. Hall and Dr. Shenefelt’s opinions
to constitute “a mere guess, speculation, or conjecture on their part.” Id. at 1223 (¶ 14).
Dr. Hall testified that the ladder’s condition more likely than not contributed to Rogers’s fall,
but he could not rule out “other things,” such as Rogers’s health, that might have caused
him to fall. Id. at 1223-24 (¶¶ 15-16). Dr. Shenefelt similarly testified that circumstances
other than the ladder’s design, such as Rogers possibly suffering a stroke, could have
caused him to fall. Id. at 1224 (¶ 17). Dr. Shenefelt felt that “cause and effect” were
established by the fact that the ladder did not meet OSHA’s design dimensions and since
Rogers fell from the ladder. Id. at 1224 (¶ 18). The court held that without Dr. Hall and
Dr. Shenefelt’s “conclusory statements and speculation, there is no way to make the leap
from the failure to meet OSHA’s ladder dimensions to the proximate cause of Rogers’s
fall.” Id. at 1225-26 (¶ 24).
James R. Neal’s opinions are similar in many aspects to the expert testimony at
issue in Brown, Buxton, Rudd and Rogers. Analogous to the expert opinions in Brown
and Rogers, Neal has provided that circumstances other than the alleged negligence of
the light installer could have caused the light fixture to fall. (See Inspection Report [103-1]
at p. 5.) (“[A]bsent an earthquake or tornado or similar event13 the pipe is not going to turn
enough to come loose from the coupler even if it is only hand tightened as long as it meets
the ‘4 thread rule’ which means 4 turns.”) (emphasis added). Also like Dr. Shenefelt in
Rogers, Mr. Neal presumes “cause and effect” as to breach and causation.
But why do you say . . . [regardless of how it came apart, it wasn’t put up
Because it came apart. It fell.
(Neal Depo. [151-8] at 78:25-79:3.)
The Court takes judicial notice of the fact that Hurricane Katrina significantly
affected the Hattiesburg area shortly before Pace purchased the subject residence in
Lamar County, Mississippi on September 2, 2005. (See Pace Memo. in Opp. to SJ 
at p. 1.)
Similar to Dr. Ramsey in Buxton, Neal’s shifting opinions “as to what exactly
happened to” the light fixture underscore a lack of reliability. 2007 WL 2254492, at *14.
“It is obvious from the pieces of the light fixture in the box, that the part of the light fixture
that fell did so because the threaded pipe came loose from the coupling.” (See Inspection
Report [103-1] at p. 2.)
My only question right now is whether or not that sentence that you just read
on page 2, the first sentence of the last paragraph of your opinion
expressed on March 1st, 2012, is that still your opinion?
(Neal Depo. [151-8] at 78:10-15.) “[T]he hex nut that came apart, the thing that was loose
that you got to make sure is tight before you put anything in it, had fell, not what she had
gave me.” (Neal Depo. [151-8] at 79:10-13.) “The coupling came loose.” (Neal Depo.
[151-8] at 82:14-15.) “Regardless of whether the light fixture in the Pace home came
apart where the long threaded pipe screws into the coupler as I originally thought, or
whether the coupler came loose from the short threaded pipe, or whether the short
threaded pipe came loose from the hex nut, my opinion is the same . . . .” (Supplemental
Report [147-1] at pp. 2-3.)
Furthermore, Neal’s breach and causation opinions stated in his deposition
testimony and Supplemental Report are based “on the ipse dixit of the expert[,]” as
opposed to objective evidence. Buxton, 2007 WL 2254492, at *10 (citation omitted).
Neal’s first breach/causation opinion was that the light fixture fell because the threaded
pipe was not properly screwed into the coupler. This was based on Neal’s findings that
there was no defect in the connection between the coupler and pipe and that there were
no wrench marks on the pipe to show that it had been wrench tightened to the coupler.
(See Inspection Report [103-1] at p. 3.) But for the fact that the threaded pipe did not
separate from the coupler, (see Neal Depo. [151-8] at p. 81), Neal’s initial
breach/causation opinion would appear to be supported by objective evidence.
Conversely, Neal’s subsequent breach/causation opinions seem to be supported only by
speculation and guesswork. For instance, neither Neal’s deposition testimony nor
Supplemental Report indicates that he was able to rule out any manufacturing defects
where the coupler connects to the short threaded pipe or where the short threaded pipe
connects to the hex nut. Moreover, Neal testified that he did not know if the connection
between the coupler and light fixture was made at the factory or by the light installer.
(Neal Depo. [151-8] at 82:13-25.) It is also not clear if Neal even examined the coupler
attached to the light fixture at the time of the incident or a coupler from the replacement
fixture that Robert Brewer installed after the incident. (See Inspection Report [103-1] at
p. 2.) Ultimately, Neal’s belief that the light fixture was improperly installed appears to be
based solely on the fact that “it came apart. It fell.” (Neal Depo. [151-8] at 78:22-79:3.)
Neal’s inspection of various light fixture components approximately two (2) years
after the fixture fell, (see Inspection Report [103-1] at p. 1.), and the fact that the light
fixture remained in place for more than four (4) years before it fell also highlight the
speculative nature of his opinions. See Rudd, 618 So. 2d at 73 (expert inspected the
elevator a year and a half following the incident and the elevator operated “without mishap
for at least another eighteen to twenty hours”); see also Dorsey v. Simon Prop. Group,
L.P., No. 3:08cv398, 2009 WL 1976526, at *3 (S.D. Miss. July 7, 2009) (finding relevant
that an escalator worked properly for eight days in holding “there is nothing but
speculation as to the cause of” a fall from the escalator), aff’d, 378 Fed. Appx. 476 (5th
Cir. 2010). Given that “[a]ll things mechanical are subject to breakdown upon occasion
even with the best of maintenance”, it was incumbent upon Pace “to offer something
beyond pure speculation that there was negligence” which caused the light fixture to fail.
Rudd, 618 So. 2d at 72, 73. Neal’s breach and causation opinions simply fail to rise
above the speculative level and do not create an issue of fact precluding summary
judgment. See Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994) (“Testimony
based on conjecture or speculation is insufficient to raise an issue of fact to defeat a
summary judgment motion because ‘there is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.’”)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2510-11,
91 L. Ed. 2d 202 (1986)).
Negligent Hiring and Supervision
Pace contends that Classic “negligently and improperly screened, trained and
supervised the employees and/or sub-contractors on the job and that said negligence
was a direct and proximate cause of the Third Party Plaintiff’s damages complained of
herein.” (Third Party Complaint  at ¶ 8). Pace further alleges that Classic “negligently
failed to properly inspect the work of the employees and/or sub-contractors on the subject
job site . . . .” (Third Party Complaint  at ¶ 8). The Court finds that these allegations
fit under the theories of negligent hiring and negligent supervision. A “claim of negligent
hiring, retention and supervision . . . is simply a negligence claim, requiring a finding of
duty, breach of duty, causation and damage.” Roman Catholic Diocese of Jackson v.
Morrison, 905 So. 2d 1213, 1229 (¶ 45) (Miss. 2005).
In Mississippi, a “plaintiff must prove the defendant had either actual or
constructive knowledge of an employee’s incompetence or unfitness before the employer
will become liable for the negligent hiring or retention of an employee who injures a third
party.” Doe v. Pontotoc County Sch. Dist., 957 So. 2d 410, 417 (¶ 16) (Miss. Ct. App.
2007) (citing Eagle Motor Lines v. Mitchell, 223 Miss. 398, 78 So. 2d 482, 487 (Miss.
1955)). Pace presents no evidence to show that Brewer or Classic knew or should have
known that the individual that installed the light fixture was unfit or incompetent. Instead,
Pace asserts, without citation to any supporting documentation, that “Classic and Brewer
hired an inexperienced electrician who was not licensed . . . .” (Pace Memo. in Opp. to
SJ  at p. 5.) “To defend against a proper summary judgment motion, one may not
rely on mere denial of material facts nor on unsworn allegations in the pleadings or
arguments and assertions in briefs or legal memoranda.” Roberts v. Walthall County
General Hosp., 96 F. Supp. 2d 559, 561 (S.D. Miss. 2000), aff’d, 240 F.3d 1075 (5th Cir.
2000). Pace’s failure to present factual evidence in support of her negligent hiring claim
dictates that there is no genuine issue for trial.
Pace’s negligent supervision (or inspection) allegation also fails due to the
absence of supporting evidence. Nowhere does Pace “come forward with specific facts
showing” Classic’s duty and the standard of care as to the supervision of employees or
independent contractors on a residential job site. Cuadra v. Houston Indep. Sch. Dist.,
626 F.3d at 812. Much less does Pace establish for purposes of summary judgment that
Classic breached the applicable standard of care. Cf. Estate of Guillotte v. Delta Health
Group, Inc., 5 So. 3d 393, 410 (¶ 43), 411 (¶ 46) (Miss. 2009) (affirming grant of summary
judgment on corporate negligence claim where no evidence was presented regarding the
defendants’ duty as to “supervision of staff” or “breach of the standard of care”). What
Pace does is essentially argue that Classic and Brewer failed to supervise the light
installer properly “as shown by the fact that light fixture he installed fell from the ceiling for
no apparent reason.” (Pace Memo. in Opp. to SJ  at p. 5.)14 This conclusory,
speculative allegation cannot defeat Classic’s Motion for Summary Judgment. See
Sanchez v. Carollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011)
(“Conclusional allegations and denials, speculation, and unsupported assertions are
insufficient to avoid summary judgment.”) (citation omitted).
Res Ipsa Loquitur
“Res ipsa loquitur is not, like negligence and strict liability, a theory of recovery.”
Rogers v. Elk River Safety Belt Co., No. 1:95cv115, 1996 WL 671316, at *4 (N.D. Miss.
Sept. 20, 1996). Instead, the doctrine is one form of circumstantial evidence that allows
negligence to be inferred in certain situations. Gray, 11 So. 3d at 1272 (¶ 11). Res ipsa
loquitur has three elements:
1. The instrumentality causing the damage must be under the exclusive control of
2. The occurrence must be such as in the ordinary course of things would not
happen if those in control of the instrumentality used proper care.
3. The occurrence must not be due to any voluntary act on the part of the plaintiff.
Redhead v. Entergy Miss., Inc., 828 So. 2d 801, 814 (¶ 43) (Miss. Ct. App. 2001) (citing
Pace also alleges that her negligent supervision claim is supported by Robert
Brewer’s deposition testimony “that he did not know of anything that caused the subject
light fixture to fall other than improper installation . . . .” (Pace Memo. in Opp. to SJ 
at pp. 4-5). This is not an accurate representation of Brewer’s deposition testimony. In
response to the question of whether Brewer knew what caused the light fixture to fall other
than improper installation, Brewer stated: “Well, I’m not an engineer, and I don’t know,
you know, what might or might not have caused it to fall.” (Brewer Depo. [159-2] at
72:17-73:4.) Brewer’s actual testimony raises no inference of negligence.
Read v. S. Pine Elec. Power Assoc., 515 So. 2d 916, 919-20 (Miss. 1987)). “If there is
enough evidence to make a jury question on each of these elements, a jury may infer
negligence, and a plaintiff is entitled to an instruction to that effect.” Id. The doctrine
“‘should be strictly limited and cautiously applied.’” Edwards v. Sears, Roebuck & Co.,
512 F.2d 276, 287 (5th Cir. 1975) (quoting Clark v. Vardaman Manuf. Co., 249 Miss. 42,
162 So. 2d 857, 858 (Miss. 1964)).
The Court finds that sufficient facts exist to create a jury issue as to the first and
third elements of res ipsa loquitur, but not the second. Classic contends that the first
element fails because neither it nor Brewer “had ‘exclusive control’ over the light fixture
at issue in this case during the time after the house was sold to the Paces, which was
more than four years prior to Cross-Plaintiff’s injury.” (Rebuttal Memorandum  at p.
3.) This argument overlooks the meaning of “exclusive control” under Mississippi law:
the defendant “is only required to have control of the instrumentality at the time of the
negligent act which gives rise to the injury and not necessarily at the time of the accident
to the plaintiff.” Johnson v. Coca-Cola Bottling Co., 239 Miss. 759, 125 So. 2d 537, 539
(Miss. 1960). The alleged negligent act in this case was the improper installation of the
subject light fixture and Classic has admitted for purposes of summary judgment that it
installed the fixture. (See Rebuttal Memorandum  at p. 6 n.3.) Further, Pace
testified at deposition that neither she nor any member of her household changed out the
light bulb or did anything to the fixture prior to the subject incident. (Pace Depo. [159-1]
at 82:5-13, 103:21-104:16.) Classic’s argument that portions of Brewer’s deposition
testimony show that someone changed the light bulb in the fixture before it fell does not
support a grant of summary judgment. At best for Classic, Brewer’s testimony raises a
fact issue for the jury to decide.
With respect to the second element of res ipsa loquitur, the Mississippi Supreme
Court has provided “that the doctrine does not apply when, upon the whole case, there
has been specific proof which discloses some reasonable explanation for the happening
other than the negligence charged against the defendant.” Winters v. Wright, 869 So. 2d
357, 364 (¶ 15) (Miss. 2003) (citing Yazoo & M.V.R. Co. v. Skaggs, 181 Miss. 150, 179
So. 274, 277 (1938)). The plaintiff is required to present “‘evidence from which
reasonable men can say on the whole it is more likely that there was negligence
associated with the cause of the event than that there was not.’” Read, 515 So. 2d at 920
(quoting Prosser, Law of Torts § 39 (1971)). The “doctrine [is] inapplicable where
inference that damage was due to another cause is equally reasonable as inference that
defendant’s negligence was the cause.” Id. (citing Kincade v. Doll, 472 So. 2d 60 (La. Ct.
The Court concludes that circumstances other than Classic’s alleged negligent
installation of the light fixture were just as likely to have caused the light fixture to fall. One
of Classic’s expert witnesses, Perry Doleac, opined “that the installation process had
nothing to do with the light fixture globe assembly falling . . . .” (Doleac Report [164-4 at
ECF p. 8].) “[W]ithin a reasonable degree of certainty, . . . there was a manufacturing
assembly defect or human intervention subsequent to installation.” (Doleac Report
[164-4 at ECF p. 8].) Another of Classic’s experts, George Strickland, stated “that the
installation process had nothing to do with the light fixture globe assembly falling” and
“that the coupling assembly was not properly completed by the manufacturer.”
(Strickland Report [164-4 at ECF p. 14].) Even Plaintiff’s expert, James Neal,
acknowledged that “an earthquake or tornado or similar event”15 could cause a light
fixture that was secured pursuant to the “4 thread rule” to fall. (Inspection Report [103-1]
at p. 5) (emphasis added). Courts often find the “ordinary course of things” element of res
ipsa loquitur not met where experts determine that injuries could have resulted from
causes other than defendants’ negligence. See, e.g., Dorsey, 2009 WL 1976526, at *5;
Brown v. Baptist Mem. Hosp.-DeSoto, Inc., 806 So. 2d 1131, 1135 (¶ 18) (Miss. 2002);
Powell v. Methodist Health Care-Jackson Hosps., 856 So. 2d 353, 359 (¶ 20) (Miss. Ct.
App. 2003), aff’d, 876 So. 2d 347 (Miss. 2004).
Simple mechanical failure in some part of the light fixture assembly could also
explain why the light fixture fell. “All things mechanical are subject to breakdown upon
occasion even with the best maintenance.” Rudd, 618 So. 2d at 72; see also Brown, 919
F.2d at 310 (“Sooner or later, all mechanical parts wear out and fail.”). Since mechanical
failure can occur without anyone’s fault or negligence, this potential cause also weighs
against the applicability of res ipsa loquitur. Cf. Gooden v. Horn, No. 4:07cv72, 2009 WL
230038, at *2 (N.D. Miss. Jan. 29, 2009) (refusing to apply res ipsa loquitur where there
were “reasonable explanations of how the plaintiff’s son could have been struck by the
truck operated by . . . [Western Express’s employee] that do not absolutely require
The Court again takes judicial notice of the fact that Hurricane Katrina
significantly affected the Hattiesburg area just before Pace purchased the subject
residence in Lamar County, Mississippi on September 2, 2005. (See Pace Memo. in Opp.
to SJ  at p. 1.) The Court acknowledges that the likelihood of Hurricane Katrina
causing the light fixture to fall more than four years later is highly questionable; but, so is
Pace’s improper installation allegation since even more time passed between installation
and the light fixture falling in February of 2010.
negligence on the part of Western Express”); Redhead, 828 So. 2d at 814 (¶ 44)
(affirming the trial court’s refusal to apply the doctrine since “a fire could happen
regardless of whether” the defendant used proper care). Given that the doctrine of res
ipsa loquitur “should be cautiously applied” and that Pace’s “accident could have
happened without Defendants’ negligence, res ipsa loquitur does not apply” in this action.
Dorsey, 2009 WL 197626, at *4, 5.
“It is the universal rule in tort actions that mere proof of injury complained of raises
no presumption of negligence.” Smith v. United States, 284 F. Supp. 259, 261 (S.D. Miss.
1967), aff’d, 394 F.2d 482 (5th Cir. 1968) (citing Waddle v. Sutherland, 156 Miss. 540,
126 So. 201 (Miss. 1930)). In this case, proof that a light fixture fell from the ceiling of
Pace’s residence raises no presumption that Classic or Brewer improperly installed the
fixture. Pace was required to come forward with specific facts, as opposed to conjecture
and speculation, showing a genuine issue for trial as to each element of her negligence
claim. Pace failed to meet her burden and Classic and Brewer are entitled to summary
judgment as a matter of law.
Pace’s Motion to Strike AIC’s Rebuttal  and AIC’s Motion for
These Motions are denied as moot given the determination that Classic and
Brewer are entitled to summary judgment on Pace’s crossclaims.16
For the foregoing reasons,
It is also unnecessary to address Brewer’s contention that he is not a proper
party to this action under the Mississippi Limited Liability Company Act, given the Court’s
ruling on summary judgment.
IT IS ORDERED AND ADJUDGED that Classic and Brewer’s Motion in Limine
 is granted in part and denied in part. The breach and causation opinions expressed
by James R. Neal at his deposition and in his Supplemental Report [147-1] are not
excluded based upon untimeliness. James R. Neal’s initial opinion that the light fixture fell
because the threaded pipe was not properly screwed into the coupler is excluded under
Federal Rule of Evidence 702.
IT IS FURTHER ORDERED AND ADJUDGED that Martha Pace’s Motion to Strike
Supplement  is denied.
IT IS FURTHER ORDERED AND ADJUDGED that Brewer and Classic’s Motion
for Summary Judgment on Crossclaims  is granted and Pace’s crossclaims against
Brewer and Classic are dismissed with prejudice.
IT IS FURTHER ORDERED AND ADJUDGED that Martha Pace’s Motion to Strike
AIC’s Rebuttal  is denied as moot.
IT IS FURTHER ORDERED AND ADJUDGED that AIC’s Motion for Declaration
 is denied as moot.
IT IS FURTHER ORDERED AND ADJUDGED that the trial setting on Martha
Pace’s underlying liability claim is terminated and that the parties are to advise the Court
in writing within twenty-one (21) days of the entry of this Order of their respective positions
as to whether new case management deadlines and a trial date are necessary for the
resolution of the insurance coverage claims.
SO ORDERED AND ADJUDGED this the 7th day of September, 2012.
UNITED STATES DISTRICT JUDGE
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