Thomas v. Barnett et al
Filing
221
ORDER granting in part and denying in part Defendant's 136 Motion for Summary Judgment. The Court grants the motion as to Plaintiff's design defect claim, but it denies the motion as to Plaintiff's warning defect claim. Signed by District Judge Keith Starrett on November 10, 2016 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
RICKY BARNETT
PLAINTIFF
V.
CIVIL ACTION NO. 2:15-CV-2-KS-MTP
DEERE & COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER
This is a product liability case. The Court discussed its factual background in
a previous opinion. See Memorandum Opinion and Order at 1-2, No. 2:15-CV-2-KSMTP (S.D. Miss. May 15, 2015), ECF No. 26. Defendant filed a Motion for Summary
Judgment [136]. For the reasons below, the motion is granted in part and denied
in part. Specifically, the motion is granted as to Plaintiff’s design defect claim, but it
is denied as to Plaintiff’s warning defect claim.
I. STANDARD OF REVIEW
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). “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 v. Houston Indep. Sch. Dist., 626
F.3d 808, 812 (5th Cir. 2010).
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).
II. DISCUSSION
Plaintiff asserted claims of strict liability and negligence. The Mississippi
Product Liability Act (“MPLA”) governs “any action for damages caused by a product,
including but not limited to, any action based on a theory of strict liability in tort,
negligence or breach of implied warranty . . . .” MISS. CODE ANN. § 11-1-63. The statute
provides the “exclusive remedy for products-liability claims,” and it applies to any
claim arising from damages caused by a product, including claims of “warnings or
instruction defects, [and] design defects . . . .” Elliott v. El Paso Corp., 181 So. 3d 263,
268 (Miss. 2015). All other theories of tort liability – such as negligence or strict
liability – are abrogated in product liability cases, “and the MPLA now provides the
roadmap for such claims.” Id. Applying the MPLA’s framework to Plaintiff’s Amended
Complaint [39], it appears that Plaintiff asserted claims of design defect and warning
defect.
A.
Design Defect
To succeed on a design defect claim, Plaintiff must meet the MPLA’s evidentiary
2
requirements, including the following provisions:
(a)
The manufacturer, designer or seller 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, designer or seller:
(i)
. . . The product was designed in a defective manner . . . ;
and
(ii)
The defective condition rendered the product unreasonably
dangerous to the user or consumer; and
(iii)
The defective and unreasonably dangerous condition of the
product proximately caused the damages for which recovery
is sought.
***
(f)
In any action alleging that a product is defective because of its
design pursuant to paragraph (a)(i)(3) of this section, the
manufacturer, designer or product seller 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,
designer or seller:
(i)
The manufacturer or seller knew, or in light of reasonably
available knowledge or in the exercise of reasonable care
should have known, about the danger that caused the
damage for which recovery is sought; and
(ii)
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(a), (f).
Among other things, Defendant argues that Plaintiff has no admissible evidence
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of a feasible alternative design, as defined by the MPLA. As recited above, “[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)(ii). “The proper
methodology for proposing alternative designs includes more than just conceptualizing
possibilities.” Guy v. Crown Equip. Corp., 394 F.3d 320, 327 (5th Cir. 2004). “[E]xperts
are not required to physically build a model of a design alternative,” Brown v. Ford
Motor Co., 121 F. Supp. 3d 606, 617 (S.D. Miss. 2015) (citing Hyundai Motor Am. v.
Applewhite, 53 So. 3d 749, 756 (Miss. 2011)), but they must “be able to independently
establish the technical basis for the utility and safety of the proposed alternative
design.” Elliot v. Amadas Indus., 796 F. Supp. 2d 796, 808 (S.D. Miss. 2011). “While
it might be the best practice for an expert to actually test the proposed design
alternative, omitting this step does not render the expert’s conclusions automatically
invalid under the Daubert standard.” Graves v. Toyota Motor Co., No. 2:09-CV-169-KSMTP, 2012 U.S. Dist. LEXIS 63173, at *14-*15 (S.D. Miss. May 4, 2012); see also
Watkins v. Telsmith, Inc., 121 F.3d 984, 992 (5th Cir. 1997). For example, an expert
witness may examine a manufacturer’s own tests and designs and draw conclusions
about feasible design alternatives. Guy, 394 F.3d at 327. Overall, the expert must “offer
something demonstrating that he or she exercised the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field.” Brown, 121 F. Supp.
3d at 617.
The Court excluded the testimony of Plaintiff’s expert, Thomas Berry,
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concerning his proposed alternative design. See Barnett v. Deere & Co., No. 2:15-CV-2KS-MTP, 2016 U.S. Dist. LEXIS 154774 (S.D. Miss. Nov. 8, 2016). “[O]n a motion for
summary judgment, the evidence proffered by the plaintiff to satisfy his burden of
proof must be competent and admissible at trial.” Bellard v. Gautreaux, 675 F.3d 454,
460 (5th Cir. 2012). Therefore, the Court will not consider Berry’s testimony, reports,
affidavit, or opinions concerning his proposed alternative design when addressing the
current motion.
Beyond Berry’s testimony concerning a proposed alternative design, Plaintiff
presented evidence that Defendant included ROPS in the design of some commercial
zero-turn mowers, and that some of Defendant’s competitors have included ROPS in
the design of machines purportedly similar to the one which is the subject of this
lawsuit. See Exhibit A to Response at 75-76, Barnett v. Deere & Co., No. 2:15-CV-2-KSMTP (S.D. Miss. July 26, 2016), ECF No. 177-1. However, Plaintiff has presented no
admissible evidence of a specific alternative design of the machine which is the subject
of this lawsuit. Plaintiff’s evidence must consist of more than “conceptual[ ]
possibilities,” Guy, 394 F.3d at 327, and he must “independently establish the technical
basis for the utility and safety of the proposed alternative design.” Elliot, 796 F. Supp.
2d at 808. It is not enough to simply note that ROPS have been included in the designs
of other mowers, without any technical analysis of their similarity to the subject
mower, or of the utility, safety, or desirability of a ROPS installed on the subject
mower.
Therefore, the Court finds that Plaintiff failed to meet his burden of proof with
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respect to a feasible design alternative of the lawn mower which is the subject of this
action. Without evidence of a specific feasible alternative design, his design defect
claim fails.1 The Court grants Defendant’s Motion for Summary Judgment [136] as to
Plaintiff’s design defect claim.
B.
Warning Defect
To succeed on a warning defect claim, Plaintiff must meet the following
evidentiary requirements:
(a)
The manufacturer, designer or seller 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, designer or seller:
(i)
. . . The product was defective because it failed to contain
adequate warnings or instructions . . . ; and
(ii)
The defective condition rendered the product unreasonably
dangerous to the user or consumer; and
(iii)
The defective and unreasonably dangerous condition of the
product proximately caused the damages for which recovery
is sought.
***
(c)
(i)
In any action alleging that a product is defective because it
failed to contain adequate warnings or instructions
pursuant to paragraph (a)(i)(2) of this section, the
manufacturer, designer or seller shall not be liable if the
1
See, e.g. Guy, 394 F.3d at 327; Watkins, 121 F.3d at 992-93; Estes v. Lanx,
Inc., No. 1:14-CV-052-SA-DAS, 2015 U.S. Dist. LEXIS 171184, at *4 (N.D. Miss.
Dec. 23, 2015); Cauley v. Sabic Innovative Plastics, U.S., LLC, No. 1:10-CV-26-KSMTP, 2012 U.S. Dist. LEXIS 7047, at *9 (S.D. Miss. Jan. 23, 2012); Previto v. Ryobi
N. Am., Inc., No. 1:08-CV-177-HSO-JMR, 2011 U.S. Dist. LEXIS 3853, at *20-*22
(S.D. Miss. Jan. 14, 2011); Williams v. Bennett, 921 So. 2d 1269, 1277 (Miss. 2006).
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claimant does not prove by the preponderance of the
evidence that at the time the product left the control of the
manufacturer, designer or seller, the manufacturer,
designer or seller knew or in light of reasonably available
knowledge should have known about the danger that caused
the damage for which recovery is sought and that the
ordinary user or consumer would not realize its dangerous
condition.
(ii)
An adequate product warning or instruction is one that a
reasonably prudent person in the same or similar
circumstances would have provided with respect to the
danger and that communicates sufficient information on the
dangers and safe use of the product, taking into account the
characteristics of, and the ordinary knowledge common to
an ordinary consumer who purchases the product . . . .
***
(e)
In any action alleging that a product is defective pursuant to
paragraph (a)(i)(2) of this section, the manufacturer, designer or
seller shall not be liable if the danger posed by the product is
known or is open and obvious to the user or consumer of the
product, or should have been known or open and obvious to the
user or consumer of the product, taking into account the
characteristics of, and the ordinary knowledge common to, the
persons who ordinarily use or consume the product.
MISS. CODE ANN. § 11-1-63(a), (c), (e).
First, Defendant argues Plaintiff failed to provide evidence of the type of
warning that should have been given. The Mississippi Supreme Court has indicated
that a warning defect claim requires “proof as to what type of warning should have
been given . . . .” Estate of Hunter v. GMC, 729 So. 2d 1264, 1277 (Miss. 1999); see also
3M Co. v. Johnson, 895 So. 2d 151, 166 (Miss. 2005). But Plaintiff did present such
evidence. His expert, Thomas Berry, stated in his report that Defendant “did not advise
users that the number one cause of deaths with ride-on mowers were rollovers and
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stability related accidents or of the need for rollover protection to protect users when
a rollover occurs.” Exhibit A to Response at 32, Barnett v. Deere & Co., No. 2:15-CV-2KS-MTP (S.D. Miss. July 26, 2016), ECF No. 177-1. Also, in his affidavit he stated that
“Deere provided no warning about the need for ROPS in the form of a decal or
otherwise that a ROPS was available anywhere on the Z425.” Id. at 2. Finally, he
testified at deposition that an “issue with the warnings in the manual” is that “they
don’t speak with respect to ROPS and the need for ROPS on the mower, and the
number of deaths that occur with respect to ride on mowers.” Exhibit H to Response
at 15, Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP (S.D. Miss. July 26, 2016), ECF
No. 179-8.
Defendant has not cited any case law requiring plaintiffs to provide more specific
evidence, or to actually create a placard or decal to affix to the machine. Berry clearly
stated, in general terms, the information that should have been communicated to
Plaintiff. This evidence is sufficient to meet Plaintiff’s summary judgment burden
regarding the type of warning that Plaintiff alleges should have been given.
Next, Defendant argues that Plaintiff provided no evidence that the alleged
warning defect proximately caused Plaintiff’s injuries. Plaintiff testified that he read
the instruction manual for the subject mower, and he was familiar with the safety
labels on the machine. Exhibit F to Response at 11-12, Barnett v. Deere & Co., No. 2:15CV-2-KS-MTP (S.D. Miss. July 26, 2016), ECF No. 177-6. Plaintiff’s expert, Thomas
Berry, stated in his initial report that “defects in the . . . warnings of the Deere Z425
EZ-Trak tractor/mower were causative of the severe injuries received by Ricky
8
Barnett.” Exhibit A [177-1], at 33. Berry also stated in his affidavit:
If brought to their attention, most operators will recognize that rollovers
can occur. However most if not all do not appreciate the true extent of the
hazard associated with rollovers. The relevant factors with regard to
whether a customer appreciates the need for ROPS, thereby overcoming
the belief that the mower is safe as equipped by the manufacturer, would
be whether the customer has an appreciation of the extent of the rollover
hazard, knowledge about the frequency of the rollovers, knowledge about
how fast rollovers occur as affecting their ability to escape in a rollover,
knowledge about the innumerable conditions that can cause rollovers,
and knowledge about the likelihood that he or she will or will not be able
to escape in a rollover.
Id. at 4. Taken as a whole, this evidence is sufficient to support a jury’s inference that
Plaintiff would have heeded a warning in line with Berry’s recommendations and,
therefore, that the allegedly insufficient warnings caused Plaintiff’s injuries.
Defendant notes that Berry’s testimony is contradictory. Indeed, Berry stated
in his rebuttal report that it was unreasonable to assume that an operator would read
and follow instructions and/or warnings in an operator’s manual or machine labels. Id.
at 66. He said: “It is not likely that each operator will read, remember and follow each
and every instruction in the operator’s manual or on the machine or in the safety
video.” Id. But the Court is not permitted to make credibility determinations or weigh
the evidence. Deville, 567 F.3d at 164.
III. CONCLUSION
For these reasons, the Court grants in part and denies in part Defendant’s
Motion for Summary Judgment [136]. The Court grants the motion as to Plaintiff’s
design defect claim, but it denies the motion as to Plaintiff’s warning defect claim.
SO ORDERED AND ADJUDGED this 10th day of November, 2016.
9
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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