Ravenell v. Pugmill Systems Inc et al
Filing
148
ORDER granting 92 Motion in Limine; granting 97 Motion in Limine; granting 114 Motion for Summary Judgment; granting 115 Motion for Summary Judgment Signed by Honorable Patrick Michael Duffy on December 15, 2014.(tlim, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
The Estate of Lamar Ravenell, by his
personal representative, Debbie Ravenell
)
)
)
Plaintiff,
)
)
v.
)
)
Pugmill Systems, Inc.; WEG Electric
)
Corporation; and CMI Terex Corporation, )
)
Defendants.
)
____________________________________)
C.A. No.: 2:13-cv-00815-PMD
ORDER
This matter is before the Court on Defendants CMI Terex Corporation’s (“CMI Terex”)
and Pugmill Systems, Inc.’s (“Pugmill Systems”) (collectively “Defendants”) respective motions
in limine to exclude the opinions of Plaintiff’s proposed expert witness Stephen Fournier, P.E.
(ECF Nos. 92, 97) (collectively “Motions to Exclude Plaintiff’s Expert”), as well as Defendants’
separate motions for summary judgment (ECF Nos. 114, 115) (collectively “Motions for
Summary Judgment”). The Court held a hearing on October 7, 2014, and entertained argument
on all pending motions.1 At that time, the Court granted Defendants’ Motions to Exclude
Plaintiff’s Expert and Defendants’ Motions for Summary Judgment. This written Order serves to
memorialize the Court’s oral rulings and to resolve any remaining issues taken under
advisement.
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1. The following motions are also pending before the Court: Plaintiff’s Motion in Limine (ECF No. 71), CMI
Terex’s Motion to Strike Plaintiff’s Supplemental Identification of Witnesses (ECF No. 93), CMI Terex’s Motion in
Limine to Exclude Testimony as to the Character and Habits of Lamar Ravenell (ECF No. 95), CMI Terex’s Motion
in Limine to Exclude Cumulative Testimony (ECF No. 99), CMI Terex’s Motion in Limine to Exclude Opinions of
Lay Witnesses (ECF No. 100), Pugmill Systems’ Motion in Limine to Exclude Character Evidence (ECF No. 102),
Pugmill Systems’ Motion in Limine to Exclude Evidence of Other Incidents (ECF No. 105), CMI Terex’s Motion in
Limine to Exclude Evidence of Other Accidents (ECF No. 106), and CMI Terex’s Motion in Limine to Exclude
Certain Photos (ECF No. 107). This Order effectively disposes of, or renders moot, all pending motions.
BACKGROUND
On March 6, 2012, Lamar Ravenell, an employee of Sanders Brothers Construction
Company (“Sanders Brothers”), was fatally injured while performing maintenance on an asphalt
mixer known as a pugmill. A pugmill is a component of a hot-mix asphalt plant. A hot-mix
asphalt plant is an assembly of mechanical and electronic equipment where aggregates, recycled
materials, or other additives are blended, heated, dried, and mixed with binder to produce asphalt
mixtures meeting specified requirements. Pugmill Systems manufactured this particular pugmill,
and WEG Electric Corporation (“WEG”) manufactured the pugmill’s motor. Pugmill Systems
sold the pugmill at issue to CMI Corporation, a predecessor of CMI Terex, which in turn sold the
pugmill to Sanders Brothers on or about September 8, 1995, as part of an asphalt plant designed
by CMI Terex. The asphalt plant, including the pugmill, was delivered to Sanders Brothers’
Summerville, South Carolina location in November 1995.
At the time of the accident, Mr. Ravenell was attempting to clean or otherwise maintain
the pugmill’s paddles. The covers to the pugmill had been removed, and Mr. Ravenell was
positioned inside of the mixer. It is undisputed that prior to entering the machine, Mr. Ravenell
did not properly “lockout” and “tagout” the pugmill’s energy supply.2 While Mr. Ravenell was
inside of the pugmill, a fellow employee, Marques Raspberry, entered the asphalt plant’s energy
center to test a different piece of equipment. Mr. Raspberry mistakenly activated and started the
pugmill, trapping Mr. Ravenell inside of the pugmill. Due to the injuries he sustained in the
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2. In short, to properly lockout and tagout the pugmill, an individual must shut off the pugmill’s power sources in
the electrical room by turning off the corresponding breaker, or breakers; place a lock and tag on the requisite valves
and switches; and place the key to the lock, or locks, in their pocket. Such a procedure is designed to ensure that the
pugmill may not be activated inadvertently by another individual. OSHA regulations, as well as Sanders Brothers’
operating procedures and training, mandated that Mr. Ravenell “lockout” and “tagout” the pugmill before entering
the machine.
2
accident, and the resulting hemorrhaging
and cardiopulmonary arrest, Mr. Ravenell was
subsequently pronounced dead at the hospital.
On February 5, 2013, Mr. Ravenell’s 56-year-old, disabled widow, Debbie Ravenell
(“Plaintiff”), as the personal representative of her husband’s estate, instituted this products
liability action in state court against Pugmill Systems and WEG.3 Plaintiff’s Complaint alleged
claims as to each Defendant based on theories of: (1) strict products liability, (2) products
liability based on negligence, (3) breach of implied warranty of merchantability, and (4) breach
of implied warranty of fitness for a particular purpose. The claims are based on theories of
inadequate warnings and improper design. In particular, Plaintiff alleges that the pugmill was
defective because it had neither an emergency stop (“e-stop”) nor an interlock device that
prevented the machine from operating when the covers were removed, as well as because it
lacked adequate warnings. Plaintiff seeks actual, consequential, and punitive damages in an
amount to be determined by a jury. On March 26, 2013, Pugmill Systems removed the case to
this Court on the basis of diversity jurisdiction. Plaintiff filed an Amended Complaint on May
28, 2013, asserting identical claims against CMI Terex.
In advance of trial, the Parties filed a number of motions in limine, including the present
requests to exclude the opinions of Stephen Fournier, P.E. (“Fournier” or “Mr. Fournier”) filed
by CMI Terex and Pugmill Systems on May 2, 2014, and May 13, 2014, respectively. Plaintiff
responded in opposition to the Motions to Exclude Plaintiff’s Expert on May 14, 2014, and
Defendants each filed a Reply on May 27, 2014. Additionally, on May 28, 2014, CMI Terex and
Pugmill Systems separately moved for summary judgment on all of Plaintiff’s claims. Plaintiff
responded in opposition to the Motions for Summary Judgment on June 16, 2014, and
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3. On Plaintiff’s motion, and with WEG’s consent, the Court dismissed WEG from this action without prejudice
on September 4, 2013. On November 6, 2014, the Court issued an Order approving a settlement of Plaintiff’s claims
against WEG.
3
Defendants each filed a Reply on June 26, 2014. Accordingly, the pending motions are ripe for
consideration. Following extensive briefing and oral argument, the Court now issues the instant
Order.
JURISDICTION
The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332,
as there is complete diversity of citizenship among the Parties and the amount in controversy
exceeds $75,000. Plaintiff is a citizen and resident of the State of South Carolina. Pugmill
Systems is a corporation organized under the laws of Tennessee with its principal place of
business in Tennessee. CMI Terex is a corporation organized under the laws of Oklahoma with
its principal place of business in Oklahoma. Finally, Plaintiff seeks damages in excess of
$75,000. Therefore, this Court has diversity jurisdiction over this case.
STANDARD OF REVIEW
I.
Expert Testimony
The introduction and admissibility of expert testimony is governed by Rule 702 of the
Federal Rules of Evidence. Rule 702 provides as follows:
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 the case.
Fed. R. Evid. 702.
The party offering the expert witness testimony bears the burden of
demonstrating “its admissibility by a preponderance of proof.” Cooper v. Smith & Nephew, Inc.,
259 F.3d 194, 199 (4th Cir. 2001).
4
The Supreme Court has recognized that, under Rule 702, trial judges serve as gatekeepers
to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but
reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). This “basic
gatekeeping obligation” identified in Daubert, and now embraced by Rule 702, applies not only
to scientific testimony but to all expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999).
The gatekeeping obligation, like other determinations of the admissibility of
evidence, requires the trial judge to exercise an informed and broad discretion, “guided by the
overarching criteria of relevance and reliability.” Oglesby v. Gen. Motors Corp., 190 F.3d 244,
250 (4th Cir. 1999). Although the trial court is granted broad discretion, see Cooper, 259 F.3d at
199; United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994), the rejection of proposed
expert witness testimony is the exception rather than the rule, see SMD Software, Inc. v. EMove,
Inc., 945 F. Supp. 2d 628, 634–35 (E.D.N.C. 2013) (citing Fed. R. Evid. 702 advisory
committee’s note (2000)); see also United States v. Crisp, 324 F.3d 261, 269–70 (4th Cir. 2003)
(“The Supreme Court emphasized in Daubert that ‘vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.’” (quoting Daubert, 509 U.S. at
596)).
II.
Summary Judgment
To grant a motion for summary judgment, the court must find that “there is no genuine
dispute as to any material fact.” Fed. R. Civ. P. 56(a). The judge is not to weigh the evidence
but rather must determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). All evidence should be viewed in the light most favorable to the
nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990).
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“[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is appropriate.” Teamsters Joint Council No.
83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991). Summary judgment is not “a disfavored
procedural shortcut,” but an important mechanism for weeding out “claims and defenses [that]
have no factual basis.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Indeed, “the plain
language of Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Id. at 322; see also Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir.
1995) (“[T]his obligation of the nonmoving party is ‘particularly strong when the nonmoving
party bears the burden of proof.’” (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th
Cir. 1990))).
DISCUSSION
I.
Defendants’ Motions to Exclude Plaintiff’s Expert
On July 5, 2013, the deadline for disclosing her expert witnesses, Plaintiff identified Mr.
Fournier, of Robson Forensic, Inc., as Plaintiff’s proposed expert witness on the issue of liability.
Plaintiff also filed a copy of Mr. Fournier’s report. Mr. Fournier is Plaintiff’s only putative
expert witness with regard to pugmill design and safety.4 As stated in Mr. Fournier’s report, the
purpose of his investigation was to “determine if one of the causes of the subject incident and
fatal injuries sustained was a failure to provide an interlock and/or an E-Stop as part of the pug
mill equipment.” (Fournier Report, ECF No. 18-1, at 3). Mr. Fournier noted that his report was
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4. In his report, Mr. Fournier did not criticize the warnings or set forth alternative warnings and acknowledged
that he is not an expert on the subject of warnings. Plaintiff has, however, separately identified Tricia Yount, CPA,
MAFF, as a damages expert.
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based on the Complaint, a copy of the OSHA file regarding the incident, and his inspection of
the subject pugmill on May 10, 2013.
In his report, which has not been amended or supplemented since it was filed, Mr.
Fournier summarized his findings and concluded, in relevant part, as follows:
2.
6.
7.
8.
9.
10.
The primary cause of Mr. Ravenell’s fatal incident was the failure of
another Sander’s [sic] worker to properly follow the lock-out/tag-out
procedure. The failure to provide a limit switch or interlock on the pug
mill covers was also a cause of the incident. The failure to provide an
emergency shut-off (ESO) would not have prevented the incident, but
would have likely minimized the injuries sustained by Mr. Ravenell.
....
Use of the above-described interlock system on the covers complies with
reasonable engineering controls to eliminate a hazard for a medium
classified risk.
Use of such an interlock system on the subject pug mill would have
prevented the incident involving Mr. Ravenell and the fatal injuries he
sustained as a result of the incident.
The pug mill supplied by Pug Mill [sic] Systems, Inc. did not have such an
interlock system and this made the pug mill defective in manner that was a
cause of the incident that fatally injured Mr. Ravenell.
If the pug mill were supplied with an emergency stop located near the top
of the mixing chamber, a coworker of Mr. Ravenell could have stopped
the equipment in a matter of seconds. While Mr. R[]avenell would have
still likely been injured by an unintentional start up of the equipment, the
presence and use of an emergency stop would have likely minimized his
injuries and he would not have sustained the fatal injuries he did receive.
The pug mill supplied by Pug Mill [sic] Systems, Inc. was not provided
with an emergency stop system and this made the pug mill defective in
manner that was a cause of the fatal injuries sustained by Mr. Ravenell.
(Id. at 9). Mr. Fournier did not provide reasonable, or feasible, alternative designs of the pugmill
in his report that included his proposed interlock device or e-stop.
Defendants CMI Terex and Pugmill Systems have each filed a motion in limine, seeking
to exclude Mr. Fournier’s opinions. Although Defendants filed separate motions in limine, their
arguments are largely the same. In short, both Defendants assert that Plaintiff has failed to
sustain her burden of showing: (1) that Mr. Fournier is qualified to render opinions in this case
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and (2) that Mr. Fournier’s opinions are reliable. The Court will address Defendants’ arguments
seriatim.
A.
Mr. Fournier is not qualified to provide expert testimony in this case
As a threshold matter, before a witness may be permitted to provide expert testimony, he
must be qualified as an expert. Barnthouse v. Wild Dunes Resort, L.L.C., 2:08-CV-2546-PMD,
2010 WL 3169358, at *3 (D.S.C. Aug. 5, 2010) (citing Thompson v. Queen City, Inc., CIV.A.
2:00-2359-18-DCN, 2002 WL 32345733, at *1 (D.S.C. July 9, 2002)). The qualifications of a
witness to render an expert opinion are “liberally judged by Rule 702.” Kopf v. Skyrm, 993 F.2d
374, 377 (4th Cir. 1993). “Inasmuch as the rule uses the disjunctive, a person may qualify to
render expert testimony in any one of the five ways listed: knowledge, skill, experience, training,
or education.” Id. (citing Friendship Heights Assocs. v. Vlastimil Koubek, A.I.A., 785 F.2d 1154,
1159 (4th Cir. 1986)). The Fourth Circuit has stated that:
Where the expert’s qualifications are challenged, the test for exclusion is a strict
one, and the purported expert must have neither satisfactory knowledge, skill,
experience, training nor education on the issue for which the opinion is proffered.
One knowledgeable about a particular subject need not be precisely informed
about all details of the issues raised in order to offer an opinion.
Id. (emphasis added) (quoting Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 799 (4th
Cir. 1989)) (internal quotation marks omitted).
“[T]here are many different kinds of experts, and many different kinds of expertise.”
Kumho Tire Co., 526 U.S. at 150. “An expert’s qualification depends on the nature of the
opinion he offers.” Bombardiere v. Schlumberger Tech. Corp., 934 F. Supp. 2d 843, 846
(N.D.W. Va. 2013). Therefore, under Rule 702, to be “qualified” as an expert, a witness must
have “knowledge, skill, experience, training, or education” in the subject area in which he
intends to testify. See Fed. R. Evid. 702. “The fact that a proposed witness is an expert in one
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area, does not ipso facto qualify him to testify as an expert in all related areas.” Shreve v. Sears,
Roebuck & Co., 166 F. Supp. 2d 378, 391 (D. Md. 2001) (collecting cases). “While the fit
between an expert’s specialized knowledge and experience and the issues before the court need
not be exact, an expert’s opinion is helpful to the trier of fact, and therefore relevant under Rule
702, ‘only to the extent the expert draws on some special skill, knowledge or experience to
formulate that opinion; the opinion must be an expert opinion (that is, an opinion informed by
the witness’ expertise) rather than simply an opinion broached by a purported expert.’” Id. at
392–93 (citations omitted) (quoting Ancho v. Pentek Corp., 157 F.3d 512, 518 (7th Cir. 1998)).
Citing Mr. Fournier’s background and experience, both CMI Terex and Pugmill Systems
argue that Mr. Fournier is not qualified to offer his opinions and testimony in this case because
he lacks the requisite expertise in asphalt plants and pugmills. In her Response, Plaintiff insists
that specific expertise is not necessary and that Mr. Fournier’s lack of specialization should only
“affect the weight of the opinion rather than [its] admissibility.” (Pl.’s Resp. 6–7, ECF No. 98).
Moreover, Plaintiff contends that Mr. Fournier has the knowledge, education, training,
experience, and expertise to testify as an expert in the general field of professional engineering.
At the outset, the Court notes that Mr. Fournier himself indicated that the purpose of his
investigation was to “determine if one of the causes of the subject incident and fatal injuries
sustained was a failure to provide an interlock and/or an E-Stop as part of the pug mill
equipment.” (Fournier Report 3). Accordingly, Mr. Fournier’s qualifications must be evaluated
in light of this purpose and his stated conclusions. E.g., Bombardiere, 934 F. Supp. 2d at 846.
Having carefully reviewed Mr. Fournier’s report, curriculum vitae (“CV”), and deposition
testimony, as well as the Parties’ briefing, the Court concludes, for the reasons detailed further
herein, that Mr. Fournier is not qualified to render expert opinions in this case.
9
According to his CV, Mr. Fournier received a B.S. in Civil Engineering from
Northeastern University in 1971 and is a Professional Engineer, holding licenses in a number of
states, including South Carolina. Mr. Fournier is currently an associate with Robson Forensic.
In this capacity, Mr. Fournier “[p]rovide[s] technical investigations, analysis, reports, and
testimony for failure analysis, and towards the resolution of commercial and personal injury
litigation involving: construction in progress, completed construction, time and economic claims,
workmanship, code compliance, and personal injury accidents.” (Fournier CV, ECF No. 18-1, at
26). Additionally, Mr. Fournier’s CV indicates that he is a principal with Fournier, Robson &
Associates, LLC, and as such, “[p]rovide[s] technical assistance and safety services to the
construction industry, industrial clients, homeowners, and insurance companies.” (Id.).
Mr. Fournier’s status as a licensed Professional Engineer is not, in and of itself, sufficient
to qualify him as an expert in this case. E.g., Wright v. Case Corp., CIV.A. 1:03-CV-1618-JEC,
2006 WL 278384, at *3 (N.D. Ga. Feb. 1, 2006) (collecting cases in which courts refused to
qualify engineers as experts without relevant experience and expertise).
Moreover, Mr.
Fournier’s degree is in civil engineering. Thompson, 2002 WL 32345733, at *1 (“Courts have
found that a proffered expert who is an engineer is not necessarily qualified to testify as an
expert on any issue within the vast field of engineering.”); see also Shreve, 166 F. Supp. 2d at
392 (collecting cases in which courts have concluded that expert witness in one area does not
automatically qualify as expert witness in another area). By Mr. Fournier’s own admission, a
civil engineering degree is a broad-based degree that involves the design and construction of
infrastructure and can be distinguished from degrees and fields such as mechanical, electrical, or
industrial engineering. (See Fournier Dep. 23:10–19, Apr. 16, 2014, ECF No. 92-2, at 24).
Nevertheless, the issues Mr. Fournier was tasked with investigating—and thus, the conclusions
10
he reached and the opinions he offered—involve topics more appropriately addressed by an
electrical, mechanical, or industrial engineer. See Silva v. Am. Airlines, Inc., 960 F. Supp. 528,
531 (D.P.R. 1997). As a part of his studies, Mr. Fournier did not take any classes dealing with
the design, manufacture, or operation of an asphalt plant, or the design, manufacture, or
operation of an interlock or e-stop. (Fournier Dep. 25:18–26:3, 48:15–19). In short, Mr.
Fournier’s deposition testimony reveals that, while he may have an engineering degree, he has
very little, if any, education or training related to the type of equipment involved in this case.
Accordingly, absent evidence of “satisfactory knowledge, skill, [or] experience,” Kopf, 993 F.2d
at 377 (quoting Thomas J. Kline, Inc., 878 F.2d at 799) (internal quotation marks omitted),
regarding interlocks, e-stops, pugmills, or asphalt plants, Mr. Fournier must be excluded as
unqualified to render the opinions and conclusions contained in his report.
After thorough review and thoughtful consideration, the Court finds that there is nothing
in Mr. Fournier’s CV or in his deposition testimony that reveals any particular knowledge, skill,
or experience related to interlocks, e-stops, pugmills, asphalt plants, or even industrial equipment
similar to the equipment involved in the accident in question. To the contrary, Mr. Fournier’s
CV and deposition testimony reveal quite the opposite. Mr. Fournier himself acknowledged that
he has not worked for, consulted for, or been retained by a company that owns, designs, or
manufactures asphalt plants or pugmills. Further, Mr. Fournier has not himself designed an
asphalt plant, pugmill or other similar mixer, interlock system, or e-stop for any product, and he
has not previously spoken about or been published on any related topics. Moreover, he has
neither operated an asphalt plant or pugmill nor so much as observed an asphalt plant or pugmill
in operation. Indeed, the first time he saw a pugmill was at the site inspection for this litigation.
Mr. Fournier has never addressed or attended a seminar regarding asphalt plants, and he does not
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know the different types of asphalt plants. According to Mr. Fournier, he does not hold himself
out as an expert on asphalt plants or pugmills. Thus, not surprisingly, he has never testified as an
expert regarding or in any case involving the design, manufacture, or operation of an asphalt
plant or pugmill. See Hein v. Deere & Co., C11-0113, 2013 WL 3816699, at *6 (N.D. Iowa July
22, 2013) (concluding that proposed expert was not qualified to render expert opinion on
combine design where he had a degree in mechanical engineering, had ridden once in a combine,
had no prior experience in the design of combines or similar equipment, and had no training or
education in the design or operation of combines and other agricultural equipment).
Mr.
Fournier also admitted in his deposition that he has never been retained to audit the safety of an
asphalt plant or of workers at or around an asphalt plant. Similarly, he has not been hired to
audit such an operation, or its equipment, to determine if there was a need for additional safety
devices. Finally, since joining Robson Forensic in 1990, he has not been retained to design or
revise a lockout/tagout procedure for any company.
Although Mr. Fournier’s CV indicates that he has been qualified as a civil engineer with
special knowledge in construction and construction engineering on approximately ninety
occasions and that he has investigated over 800 construction-related cases, it appears that most of
these matters involved questions related to the design or construction of various structures.
Therefore, in offering his opinions in the present case regarding the technical specifications of a
pugmill and asphalt plant and the need for an interlock or e-stop,5 Mr. Fournier is not drawing on
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5. While Plaintiff notes that Mr. Fournier previously worked for a precast concrete supplier and has investigated
accidents involving concrete-placement equipment, Mr. Fournier’s proposed testimony in this matter deals
specifically with the design of asphalt equipment. One can assume that any testimony Mr. Fournier may have
offered regarding accidents involving concrete-placement equipment was based on his specific knowledge and
experience working in that field. Here, it is undisputed that Mr. Fournier has not worked in the asphalt or paving
industry, and he readily admits that he is not familiar whatsoever with the equipment involved in this accident.
Again, Mr. Fournier admits that he has never even witnessed a pugmill in operation. Further, Mr. Fournier is not
well-versed on the topics of e-stops and interlocks—concepts that serve as the very basis of his conclusions in this
case.
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any special skill, knowledge, or experience “concerning the particular issue before the [C]ourt,”
Shreve, 166 F. Supp. 2d at 392, or related to “the issue for which [his] opinion is proffered,”
Kopf, 993 F.2d at 377 (quoting Thomas J. Kline, Inc., 878 F.2d at 799) (internal quotation marks
omitted).
Further, it is readily apparent that Mr. Fournier’s opinions and proposed expert
testimony are not limited “only to general engineering principles.” Shreve, 166 F. Supp. 2d at
392.
In sum, based on the foregoing, the Court concludes that Mr. Fournier does not have the
requisite skill, knowledge, training, education, or experience to qualify as an expert on e-stops,
interlocks, pugmills, or asphalt plants. See Shreve, 166 F. Supp. 2d at 393 (concluding that
expert was not qualified to render opinion where the expert (1) did not conduct a review of the
literature on snow throwers; (2) had never been involved in any industry or government
oversight body; (3) had never even owned or operated a snow blower; and (4) but for the
litigation, would never have laid a hand on a snow blower). It is clear that Mr. Fournier is not
“precisely informed about all details of the issues raised” in this litigation. Kopf, 993 F.2d at 377
(quoting Thomas J. Kline, Inc., 878 F.2d at 799) (internal quotation marks omitted). Critically,
however, Plaintiff has failed to demonstrate that Mr. Fournier is even “knowledgeable about a
particular subject” related to Plaintiff’s theory of liability. Id. (quoting Thomas J. Kline, Inc.,
878 F.2d at 799) (internal quotation marks omitted). Indeed, the record is devoid of any
indication that Mr. Fournier has “satisfactory knowledge, skill, experience, training []or
education on the issue for which [his] opinion is proffered.” Id. (quoting Thomas J. Kline, Inc.,
878 F.2d at 799) (internal quotation marks omitted). Rather, the entirety of Mr. Fournier’s
understanding of pugmills, asphalt plants, interlocks, and e-stops is attributable only to his
retention in connection with this litigation.
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Although the Court is sympathetic to the fact that it may have been difficult to locate an
expert familiar with pugmills, it certainly would not have been onerous to find an expert
qualified to render opinions on industrial equipment more generally or on possible electrical or
mechanical safety devices for heavy equipment. See Stagl v. Delta Air Lines, Inc., 117 F.3d 76,
81 (2d Cir. 1997) (“In determining whether an expert is sufficiently knowledgeable to be
admitted to testify, one of the factors that the district court ought to consider is whether other
experts exist who are more specifically qualified and who are nonetheless not in the employ of
the company or industry whose practices are being challenged.”). With these principles and
considerations in mind, the Court concludes that Mr. Fournier is not qualified to provide expert
opinions in the area of the design or safety of asphalt plants, pugmills, or their component parts.
Accordingly, Mr. Fournier’s opinions and testimony shall be excluded.
B.
Mr. Fournier’s opinions are not reliable
Defendants next argue that Mr. Fournier’s report and opinion testimony are inadmissible
because Mr. Fournier’s opinions are not sufficiently reliable. Although Plaintiff argues that Mr.
Fournier’s report and opinions are relevant, Plaintiff does not specifically address the reliability
of Mr. Fournier’s opinions and conclusions. Notwithstanding the Court’s conclusion that Mr.
Fournier is not qualified as an expert regarding the design or safety of asphalt plants, pugmills, or
their component parts, to the extent Mr. Fournier could arguably be qualified to render one or
more of the opinions reflected in his report, the Court will briefly address the reliability, or lack
thereof, of the opinions and conclusions he reached in this case.
Rule 702 imposes an obligation on the trial judge to ensure that any expert testimony
grounded in scientific, technical, or other specialized knowledge “is not only relevant, but
reliable.” Daubert, 509 U.S. at 589. In Daubert, the Supreme Court provided a list of four non-
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exclusive factors to consider in assessing the reliability of an expert’s testimony: (1) whether the
expert’s theory or technique can be, and has been, tested; (2) whether the theory or technique has
been subjected to peer review and publication; (3) the known or potential rate of error when the
technique or theory is applied; (4) and whether the theory or technique enjoys “general
acceptance” in the relevant community. Id. at 593–94. The Daubert factors are not exclusive,
and the trial judge may consider any factors that speak to the overarching inquiry into the
testimony’s scientific reliability. Id. at 593.
Applying the Daubert factors to Mr. Fournier’s report and deposition testimony, the
Court concludes that Mr. Fournier’s purported expert opinions lack sufficient indicia of
reliability to be admitted into evidence under Rule 702. Most notably, despite contending that an
interlock system or e-stop would have prevented the accident or minimized Mr. Ravenell’s
injuries, Mr. Fournier did not prepare a reasonable alternative design for his proposed interlock
system or e-stop or otherwise subject his theory to testing of any kind.6 Although Plaintiff
contends that actual hands-on testing would have been impractical, and thus, is not required for
an expert’s opinions to be reliable, “the absence of testing is a consistent factor in court decisions
excluding expert testimony.”
McGee v. Evenflo Co., 5:02-CV-259-4(CAR), 2003 WL
23350439, at *9 (M.D. Ga. Dec. 11, 2003) (collecting cases). This is especially true in cases
dealing with product design. Id. Further still, Mr. Fournier did not produce a prototype of his
proposals and has not so much as reduced his conceptual ideas or suggestions to design
drawings. In fact, Mr. Fournier admitted in his deposition that he could not so much as identify
or explain what types of interlocks he would use or where the interlocks would be located.
______________________________________________________________________________
6. Mr. Fournier also acknowledged that, in the course of his investigation, he did not review any depositions or
interview any witnesses. Moreover, Mr. Fournier noted that although he did not have the opportunity or occasion to
inspect the pugmill while it was operating, he nevertheless did not examine the entire asphalt plant, inspect an
exemplar asphalt plant, review any product manuals, or conduct any secondary or Internet research regarding asphalt
plants.
15
Accordingly, aside from the fact that Mr. Fournier has not actually tested his opinions or
conclusions, it is difficult to even categorize his theory as capable of testing. Indeed, Mr.
Fournier himself stated that he is not aware of any testing of an interlock system on a pugmill.
Also troubling is Mr. Fournier’s testimony that, in the course of his investigation, he did not so
much as rule out alternate causes of the accident. Oglesby, 190 F.3d at 250 (concluding that
expert’s testimony did not have sufficient indicia of reliability under Daubert where the expert’s
theory did not, “as a matter of logic, . . . eliminate other equally plausible causes” of the incident
in question). Instead, Mr. Fournier has merely proffered that the absence of an interlock system
or e-stop was a cause, but not the primary cause, of Mr. Ravenell’s death.
Additionally, there is no evidence or indication that Mr. Fournier has published his
theoretical alternative designs or submitted them for any method of peer review. Therefore,
because Mr. Fournier’s opinions are merely untested and imprecise proposals, the “error rate” of
a pugmill with the recommended e-stop or interlock device is unquantifiable. Although difficult,
if not impossible, to determine, such an “error rate” is potentially significant. Indeed, Mr.
Fournier even stated in his report that an e-stop would not have prevented the accident in
question.
Finally, Mr. Fournier does not point to any industry standards or literature that reference
his theoretical design modifications. While Plaintiff asserts that Mr. Fournier referred to the
National Safety Council’s Accident Prevention Manual in attempting to evaluate the safety of the
pugmill and determine whether additional safety features should be added, Plaintiff’s argument
misses the mark. Notably, Mr. Fournier acknowledged in his deposition that he does not know
which standards apply to pugmills. Yet still, craving reference to general safety standards does
not in any way indicate that Mr. Fournier’s specific opinions are reliable or that his suggested
16
design alternatives or additions are actually feasible or reasonable. Although Mr. Fournier
testified in his deposition that Dust Master produced pugmills with his proposed safety features,
it appears that he is unsure both when such models were produced and whether his proposed
safety features were available in 1995. Therefore, it does not appear from the record that either
Mr. Fournier’s theoretical proposals or his opinions are “generally accepted.” Instead, it is clear
from his testimony that Mr. Fournier has done little more than “conceptualize his proposed
modifications.” McGee, 2003 WL 23350439, at *13. Daubert’s reliability prong, however,
requires more than “conceptualizing possibilities.” Id.
Accordingly, the Court concludes that neither Mr. Fournier’s opinions nor the
methodology he employed are sufficiently reliable. Cooper, 259 F.3d at 200 (“A reliable expert
opinion must be based on scientific, technical, or other specialized knowledge and not on belief
or speculation, and inferences must be derived using scientific or other valid methods.” (citing
Oglesby, 190 F.3d at 250)). Mr. Fournier’s opinions and conclusions are not based on or derived
from any specialized knowledge in a relevant field and have not been subjected to any form of
scientific or other testing. See Kumho Tire Co., 526 U.S. at 152 (explaining that in performing
its gatekeeping role, the court must ensure “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”). Assuming
arguendo that Mr. Fournier is or could be deemed qualified to render expert opinions in this
case, Plaintiff has failed to demonstrate that these opinions are reliable or that they would in any
way aid the trier of fact.
***
In sum, for the foregoing reasons, as well as those stated at the October 7, 2014 hearing,
the Court grants Defendants’ Motions to Exclude Plaintiff’s Expert and hereby excludes the
17
opinions and testimony of Plaintiff’s proposed expert, Mr. Fournier. At the hearing, Plaintiff’s
counsel asked that Plaintiff be allowed to locate and identify a new putative expert witness in the
event the Court were to grant Defendants’ Motions to Exclude Plaintiff’s Expert. However,
because the deadline for Plaintiff’s identification of expert witnesses expired on July 5, 2013,
and because affording Plaintiff such an opportunity would seriously prejudice Defendants, the
Court will not entertain such a request. Therefore, if Plaintiff is to withstand Defendants’
Motions for Summary Judgment, she must do so without an expert.
II.
Defendants’ Motions for Summary Judgment
CMI Terex and Pugmill Systems have separately moved for summary judgment on all of
Plaintiff’s products liability claims.
Again, Plaintiff asserts causes of action against both
Defendants for strict products liability, negligence, breach of the implied warranty of fitness for a
particular purpose, and breach of the implied warranty of merchantability, based on theories of
inadequate warnings and improper design. However, the Court need not separately address
Plaintiff’s individual causes of action and theories of liability, because Plaintiff’s claims are
critically deficient in at least three shared respects. See, e.g., Branham v. Ford Motor Co., 701
S.E.2d 5, 8 (S.C. 2010) (concluding that because “all products liability actions, regardless of the
stated theory, have common elements . . . When an element common to multiple claims is not
established, all related claims must fail.” (citing Madden v. Cox, 328 S.E.2d 108, 112 (S.C. Ct.
App. 1985))); Holland ex rel. Knox v. Morbark, Inc., 754 S.E.2d 714, 721 (S.C. Ct. App. 2014)
(“All products liability claims share common elements . . . .”), reh’g denied (Mar. 10, 2014).
Under South Carolina law,7 “[i]n any products liability action, a plaintiff must establish
three things: (1) he was injured by the product; (2) the product was in essentially the same
______________________________________________________________________________
7. Mr. Ravenell’s injuries were sustained in South Carolina, and the instant action was removed based on the
diversity of citizenship among the Parties. See 28 U.S.C. § 1332. Therefore, this Court must apply the substantive
18
condition at the time of the accident as it was when it left the hands of the defendant, and (3) the
injury occurred because the product ‘was in a defective condition unreasonably dangerous to the
user.’” Graves v. CAS Med. Sys., Inc., 735 S.E.2d 650, 658 (2012) (quoting Madden, 328 S.E.2d
at 112), reh’g denied (Dec. 12, 2012); see Branham, 701 S.E.2d at 8 (quoting Madden, 328
S.E.2d at 112). A plaintiff must establish each of these three elements “regardless of whether the
theory under which he seeks to recover is strict liability, breach of warranty, or negligence.”
Dema v. Shore Enters., Ltd., 435 S.E.2d 875, 876 (S.C. Ct. App. 1993).
As an initial matter, the Court concludes that without the benefit and support of expert
testimony on the ultimate issue of liability,8 Plaintiff’s claims fall short as a matter of law. At the
very least, absent expert testimony, Plaintiff cannot establish that the accident, and Mr.
Ravenell’s resulting injuries and death, occurred because the pugmill was “in a defective
condition unreasonably dangerous to the user.”
Branham, 701 S.E.2d at 8; see Sunvillas
Homeowners Ass’n, Inc. v. Square D Co., 391 S.E.2d 868, 871 (S.C. Ct. App. 1990) (“A
products liability case may be brought under several theories including negligence, warranty, and
strict liability.
In each theory the plaintiff must establish the product was in a defective
condition.” (citing Madden, 328 S.E.2d 108)).
To establish defectiveness in a technically
complex case, a plaintiff must come forward with relevant and reliable expert testimony. See
Graves, 735 S.E.2d at 659 (discussing the need for expert testimony in complex cases). Here,
questions related to the design and operation of a pugmill necessarily require scientific,
law of South Carolina. See Oglesby, 190 F.3d at 251; see also Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S.
487, 496 (1941) (holding that the federal court applies the state court’s choice-of-law rules in a diversity action);
Lister v. NationsBank, 494 S.E.2d 449, 454 (S.C. Ct. App. 1997) (holding that under South Carolina choice-of-law
principles the “substantive law governing a tort action is determined by the state in which the injury occurred”
(citations omitted)).
8. Although Plaintiff identified a damages expert, Mr. Fourier was Plaintiff’s only proposed expert on the issue of
liability. Nevertheless, as noted above, Mr. Fournier did not address or seek to offer an opinion related to Plaintiff’s
warnings claims.
19
specialized, or technical testimony.9 Thus, the lack of reliable expert testimony on the issue of
liability, or more specifically, the alleged defectiveness of the pugmill, is fatal to Plaintiff’s
claims. See Schrom v. Budget Rent-A-Car Sys., Inc., No. CIV.A.6:04-21788-HFF, 2005 WL
3058454, at *5 (D.S.C. Nov. 14, 2005) (quoting Bragg v. Hi Ranger Inc., 462 S.E.2d 321, 326
(S.C. Ct. App. 1995)); Graves, 735 S.E.2d at 658–59; see also Oglesby, 190 F.3d at 249 (“[A]
plaintiff may not prevail in a products liability case by relying on the opinion of an expert
unsupported by any evidence such as test data or relevant literature in the field.” (quoting
Alevromagiros v. Hechinger Co., 993 F.2d 417, 422 (4th Cir. 1993) (internal quotation marks
omitted)). Accordingly, the Court concludes that Plaintiff has failed to demonstrate that the
pugmill was “in a defective condition unreasonably dangerous to the user.” Branham, 701
S.E.2d at 8. Although this critical deficiency alone warrants entry of summary judgment in favor
of Defendants as to all of Plaintiff’s claims, the Court will nevertheless note two additional
deficiencies.
Similarly, Plaintiff has failed to present the requisite evidence of a feasible, or reasonable,
alternative design. As the South Carolina Supreme Court held in Branham, “the exclusive test in
a products liability design case is the risk-utility test with its requirement of showing a feasible
alternative design.” 701 S.E.2d at 14. Thus, with design-defect claims, “proof of a reasonable
alternative design is necessary to establish whether a product is unreasonably dangerous.”
Holland ex rel. Knox, 754 S.E.2d at 720. Notwithstanding this mandate, Plaintiff has not
offered, via her putative expert or otherwise, evidence of a feasible alternative design for the
______________________________________________________________________________
9. While the South Carolina Supreme Court recently signaled in Graves that some measure of circumstantial
evidence may, in certain cases, be sufficient to withstand summary judgment, this Court, like the court in Graves,
has little trouble concluding that expert testimony is required under these circumstances. See Graves, 735 S.E.2d at
658 (“In this case, however, we need not determine what quantum of circumstantial evidence of a design defect is
necessary to withstand summary judgment because the lack of expert testimony is nevertheless dispositive of the
Graves’ claim.”).
20
pugmill with either the proposed interlocks or e-stops . Instead, Plaintiff’s proposed expert, who
has since been excluded, simply proposed a theoretical or conceptual alternative.
See id.
(“Because a conceptual design is insufficient to establish a reasonable alternative design, we find
Holland’s claim for design defect fails as a matter of law.”). Therefore, Plaintiff’s design-defect
claims must fail.
Further, because “[a]ll products liability claims share common
elements . . . [Plaintiff’s] failure to establish a reasonable alternative design in [her] design defect
claim prevents [Plaintiff] from succeeding on [her] failure to warn claim as a matter of law.” Id.
at 721. Accordingly, entry of summary judgment in favor of Defendants is appropriate both with
regard to Plaintiff’s design-defect claims and her warnings-based claims for want of a reasonable
alternative design.
Finally, Plaintiff has not carried her burden of demonstrating that either the pugmill’s
defective design or its inadequate warnings proximately caused Mr. Ravenell’s death. Under
South Carolina law, a products liability plaintiff must prove that the product defect proximately
caused the injury in question. “Proximate cause requires proof of both causation in fact and legal
cause, which is proved by establishing foreseeability.” Phillips v. Morbark, Inc., 481 F. Supp.
2d 461, 464 (D.S.C. 2007) (quoting Bray v. Marathon Corp., 588 S.E.2d 93, 95 (S.C. 2003))
(internal quotation marks omitted). This causation requirement, like the common elements
referenced above, applies to all products liability theories. E.g., Rife v. Hitachi Const. Mach.
Co., 609 S.E.2d 565, 569 (S.C. Ct. App. 2005) (“Under any products liability theory, a plaintiff
must prove the product defect was the proximate cause of the injury sustained.” (citing Bray, 588
S.E.2d at 93; Small v. Pioneer Mach., Inc., 494 S.E.2d 835, 842 (S.C. Ct. App. 1997))); see also
Young v. Tide Craft, Inc., 242 S.E.2d 671, 675 (S.C. 1978) (stating that “[p]roximate cause is an
essential element common to all three theories of recovery” where “actions were based on
21
alternative theories of negligence, breach of implied warranty, and strict liability in tort”).
Likewise, the failure to establish proximate causation is equally fatal to both design- and
warnings-based claims. See Morehouse v. Louisville Ladder, No. CIV.A. 3:03-887-22, 2004 WL
2431796, at *9 (D.S.C. June 28, 2004); Anderson v. Green Bull, Inc., 471 S.E.2d 708, 711 (S.C.
Ct. App. 1996). Moreover, “[c]ausation cannot be proved and a plaintiff may not prevail in a
products liability case by relying on the opinion of an expert unsupported by evidence such as
test data or relevant literature in the field.” Goodman v. Revco Disc. Drug Centers, Inc., No.
3:03-CV-2657-MBS, 2005 WL 6740407, at *5 (D.S.C. Aug. 18, 2005) (citing Oglesby, 190 F.3d
at 249). In the present case, the Court has excluded Plaintiff’s only proposed expert witness on
the issue of liability, and Plaintiff has failed to otherwise adduce sufficient evidence “which rises
above mere speculation or conjecture.” Phillips, 481 F. Supp. 2d at 464 (quoting Armstrong v.
Weiland, 225 S.E.2d 851, 853 (S.C. 1976)) (internal quotation marks omitted). Therefore,
Plaintiff’s claims collectively fall short for lack of evidence regarding proximate causation.
Again, because Plaintiff’s various products liability claims are critically, and collectively,
deficient in at least these three respects, the Court need not individually address Plaintiff’s
separate causes of action or theories of relief. In short, the Court concludes that without the
support of reliable expert testimony on the issue of the pugmill’s purported defectiveness,
without a reasonable alternative design, and without sufficient evidence as to proximate
causation, Plaintiff cannot survive summary judgment. Accordingly, the Court hereby grants
CMI Terex’s and Pugmill Systems’ respective Motions for Summary Judgment.
22
CONCLUSION
For the foregoing reasons, as well as those stated at the October 7, 2014 hearing, it is
ORDERED that Defendants’ Motions to Exclude Plaintiff’s Expert and Motions for Summary
Judgment are GRANTED.
AND IT IS SO ORDERED.
December 15, 2014
Charleston, South Carolina
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