Maxson v. Calder Brothers Corporation

Filing 33

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiff's motion to exclude the expert testimony and opinions of Bob Joynt is DENIED as moot in part, and DENIED on the merits in part, as set forth above. (Doc. No. 27 .) Signed by District Judge Audrey G. Fleissig on 8/7/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANIEL MAXSON,
Plaintiff,
v.
CALDER BROTHERS CORPORATION,
Defendant.

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No. 4:14CV01360 AGF

MEMORANDUM AND ORDER

Plaintiff in this products liability action is a mechanic who was injured while
“troubleshooting” an asphalt paver that was designed, manufactured, and sold by
Defendant Calder Brothers Corp. The matter is now before the Court on Plaintiff’s motion
to exclude expert testimony and opinions of Bob Joynt, a mechanic with experience on
pavers, retained by Defendant. For the reasons set forth below, this motion shall be denied
as moot in part, and denied on the merits in remaining part.
BACKGROUND
The complaint alleges that on December 16, 2009, Maxson’s right foot fell into an
opening between two metal foot rests on the subject paver machine and was caught in the
machine’s moving hydraulic auger. As a result, Plaintiff suffered serious and permanent
injuries to his right foot and toes. Plaintiff asserted that the paver was defective and
unreasonably dangerous at the time of its original design, manufacture, and sale by
Defendants. He seeks damages under theories of strict liability and negligence. The
record shows that the accident occurred while Plaintiff was “troubleshooting” the paver to
determine why the hydraulic auger was not operating. While Plaintiff was manipulating

the wiring, a loose or broken wire made a connection and the auger kicked on. Plaintiff’s
foot was then caught and sucked into an augur. (Doc. No. 28 at 2.) Defendants filed an
affirmative defense of comparative fault under Missouri law.
In Joynt’s report dated April 28, 2015, Joynt opined, in relevant part, as follows:
[T]he accident in this case was not caused by or resulted from any defective
or unreasonably dangerous design of the asphalt paver manufactured by
Calder Brothers. Rather, the accident was the result of Mr. Maxson’s own
fault in failing to provide maintenance on the paver in a manner anticipated
by Calder Brothers, and consistent with reasonable maintenance practices
in the industry . . . .
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. . . . Rather than taking steps to ensure that the auger would not be
energized, he deliberately tried to start the auger while positioning himself
at risk. Alternative and reasonably safe means were available to
accomplish this task. For example, he could have used a volt meter or
some other testing device to determine the location of the electrical problem
before starting the engine; or positioned himself and/or the equipment so as
to be in a safe position. He also could have operated the switches on the
machine to ensure that the auger would not inadvertently start when he was
positioned over it.
(Doc. No. 28-1)
The report states that Joynt’s opinions were based upon his experience as a
mechanic, and upon his review of a medical report, depositions taken in connection with
the case, all exhibits to those depositions, and photographs of the subject paver and other
pavers. Id.
In his deposition of June 11, 2015, Joynt testified that he had over 37 years of
experience as either a mechanic or a supervising mechanic on road paving equipment, and
extensive experience operating and fixing pavers like the one involved in this case. He
explained that the report was prepared by Defendant’s attorney and sent to him for

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signature after conversations about Joynt’s opinions. He testified at one point that the
words in the report were his words “to the best of [his] recollection,” (Doc. No. 31-1 at 1112), but at another point he testified that “at least some of opinions in the report” were
outside the area of his expertise, and that the report did not reflect his current opinions “in
several ways.” (Doc. No. 28-2 at 21.) In addition, Joynt could not recall whether he had
read the medical report or depositions noted in his report. The record suggests that Joynt’s
report is identical to the reports of three other defense experts.
Joynt testified that he was not a design expert, and a review of his deposition
testimony indicates that it was on design matters that he did not adopt the opinions in his
report. But he testified that he did have expertise with respect to the operation and
maintenance of pavers like the one involved in this case, and specifically, with the auger
and electrical system of these machines. He opined that Plaintiff should have known not
to try to access the electrical wires while both the electrical and hydraulic systems of the
paver were operational. Joynt also offered alternative, safer ways Plaintiff could have
tried to figure out why the augur was not working. On these matters, Joynt’s testimony
was consistent with his expert report and not equivocal.
Plaintiff suggests that Joynt’s report is not reliable due to the method of its
preparation and Joynt’s testimony that it does not reflect his current opinions. In addition,
Plaintiff seeks to exclude Joynt’s testimony and opinions relating to “product design,
occupational safety codes and regulations, lock-out tag-out procedures, human factors,
warnings, and assignment of fault.” Plaintiff argues that Joynt’s qualifications and
methodology do not meet the requirements for admissibility under Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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In response, Defendant asserts that Joynt will not testify on any of these matters,
except “fault” and “causation.” This assertion moots a large portion of Plaintiff’s motion
now under consideration. What remains to be resolved is Plaintiff’s request to exclude
Joynt’s opinions regarding fault and causation. Defendant states that Joynt will testify to
the fault of Plaintiff in failing to “follow rudimentary safety precautions which would have
prevented the accident in this case.” In addition, Joynt will testify, as described in his
report,
to the basic safety procedures involved in repairing the auger, and how
Plaintiff repaired the auger in a way that intentionally exposed him to the
risk. Mr. Joynt will also discuss alternative reasonable ways that Plaintiff
could have repaired the auger which would not have exposed him to the
risk of the auger.
(Doc. No. 31 at 4-5.)
Plaintiff maintains that Joynt’s opinions on these issues would not assist the
jury, and were not based on any scientific methodology. Defendant argues that
such testimony is proper for an expert, and that Joynt’s qualifications on this
matter are adequate. Defendant also argues that the method of preparation of
Joynt’s report was proper, and that any inconsistency between the report and
Joynt’s deposition testimony, and any similarity between Joynt’s report and that of
other defense experts, go to the weight of his opinions, not their inadmissibility.
DISCUSSION
District courts are tasked with the gatekeeping function of determining whether to
allow an expert to testify. Daubert, 509 U.S. at 592. Generally, expert testimony is
admissible when it is reliable and will assist the trier of fact. Fed. R. Evid. 702.

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The objective of the Daubert inquiry is 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. . . . The trial
court has to decide whether this particular expert had sufficient specialized
knowledge to assist the jurors in deciding the particular issues in the case.
Am. Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720, 722-23 (8th Cir. 2015)
The 1993 amendments to Federal Rule of Civil Procedure 26 added to the provision
for identifying an expert witness, the requirement of a written report prepared and signed
by the expert. Rule 26(a)(2)(B) sets exacting requirements for the report: it must contain
a complete statement of all opinions to be expressed, the basis and reasons for those
opinions, the “data or other information” considered by the expert and any supporting
exhibits. Under Rule 37(c)(1), a court may exclude expert testimony which has not been
adequately disclosed pursuant to these requirements.
The Advisory Committee notes to the 1993 amendment contemplate the assistance
of counsel in preparing an expert’s report, as follows:
Rule 26(a)(2)(B) does not preclude counsel from providing assistance to
experts in preparing the reports, and indeed, with experts such as
automobile mechanics, this assistance may be needed. Nevertheless, the
report, which is intended to set forth the substance of the direct
examination, should be written in a manner that reflects the testimony to be
given by the witness and it must be signed by the witness.
Thus, generally, when an expert reads and signs a report prepared by
counsel, the report is viewed as the expert’s. See Abernathy v. Union Pac. R.R.
Co., No. 4:08CV04187-BRW, 2011 WL 1397439 (E.D. Ark. April 13, 2011);
Marek v. Moore, 171 F.R.D. 298, 301 (D. Kan. 1997). And so here, the Court
concludes that the method of preparation of Joynt’s report is not a ground for

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precluding him from testifying on his opinions, limited, of course, to those
opinions included in his report that he is qualified to testify about.
The Court concludes that Joynt’s deposition testimony disavowing some of
the opinions expressed in the report does not apply to his opinions on the subject
Defendants intend to offer him as an expert, namely, his opinions that Plaintiff did
not take proper precautions in the manner in which he sought to find out why the
auger wasn’t working, and that there were alternative, safer ways to proceed. The
Court understands Defendants’ position to be that this is the only area on which
they intend to use Joynt as an expert witness, and indeed, this is the only matter on
which Joynt will be permitted to testify. This is a proper subject for expert
testimony, and based on Joynt’s deposition testimony, the Court concludes that he
is a qualified expert, with the proper practical knowledge and experience, in this
area. Testimony that the accident was not caused by or resulted from any
defective or unreasonably defective design shall not be permitted by this witness.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to exclude the expert
testimony and opinions of Bob Joynt is DENIED as moot in part, and DENIED on the
merits in part, as set forth above. (Doc. No. 27.)

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 7th day of August, 2015.

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