Watkins v. Telsmith, Inc.

• Decision Date: 16 September 1997
• Docket Number: No. 96-60084.,96-60084.
• Citation: 121 F.3d 984
• Parties: Loretta WATKINS, Administrator of the Estate of Eugene Watkins, Deceased, and Individually as the Wrongful Death Beneficiary of Eugene Watkins, Deceased, Plaintiff-Appellant, v. TELSMITH, INC., et al., Defendants, Telsmith, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

121 F.3d 984

Loretta WATKINS, Administrator of the Estate of Eugene Watkins, Deceased, and Individually as the Wrongful Death Beneficiary of Eugene Watkins, Deceased, Plaintiff-Appellant, v. TELSMITH, INC., et al., Defendants Telsmith, Inc., Defendant-Appellee.

No. 96-60084.

United States Court of Appeals, Fifth Circuit.

September 16, 1997.

Daniel Briggs Smith, Jr., Wallace Alfred Welshans, Smith, Phillips, Mitchell, Scott & Rutherford, Batesville, MS, for Plaintiff-Appellant.

Richard W. Bethea, Stophel & Stophel, Chattanooga, TN, Edward A. Moss, Holcomb, Dunbar, Connell, Chaffin & Willard, Oxford, MS, Janet G. Arnold, Holcomb & Dunbar, Southaven, MS, for Defendant-Appellee.

Before JOLLY, JONES and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Loretta Watkins sued Telsmith, Inc., after a conveyor manufactured by Telsmith's predecessor caused the death of her husband, Eugene Watkins. Telsmith removed the case to federal court, and the case proceeded to trial under the theory that the conveyor embodied an unreasonably dangerous design. Upon a motion by Telsmith, the district court heard outside the jury's presence and then excluded the testimony of Watkins's proffered expert under Fed. Rule of Evidence 702. As this exclusion was fatal to the plaintiff's case, the district court also granted Telsmith's motion for judgment as a matter of law. Watkins appeals, alleging that the court improperly applied Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to exclude the expert testimony. Finding no abuse of discretion, we affirm.

I.

Eugene Watkins was a superintendent at Memphis Stone and Gravel Co. During a visit to the company's Batesville, Mississippi gravel wash plant on November 16, 1989, Watkins and Tommy Bolton were working with a Model 374 portable conveyor, or "radial stacker," that was manufactured in 1943 by Barber-Greene Company, Telsmith's predecessor-in-interest. In order to move the conveyor, they began clearing away sand accumulated around its base. At some point, Eugene Watkins walked under the conveyor, the wire rope supporting the conveyor snapped, and the conveyor fell on him. He died the next day.

The Model 374 conveyor arm, on which the conveyor belt ran, was attached to a base that sat on wheels. The conveyor was portable and could be towed at low speeds. The conveyor arm could be moved vertically via an elevator system and could also be moved radially. Neither of these functions had been used in recent years. The parties stipulated that the machine had been modified several times by Memphis Stone and Gravel and earlier owners.

The conveyor arm is upheld by a continuous piece of wire rope that runs the length of the conveyor and wraps around both ends. The conveyor arm is raised and lowered by a hydraulic cylinder that acts on the wire rope. At the base of the conveyor, near its wheels, sand that had fallen off the conveyor over time had hidden the wire rope from view, and it was in this area that the wire rope failed.

Loretta Watkins's lawsuit originally alleged negligence, defective design, and failure to warn claims, but only the defective design claim went to trial. Her theory was that the conveyor was an unreasonably dangerous product because the conveyor arm was only supported by one wire rope.

Watkins offered the testimony of Marcus Dean Williams as an expert to assert that the conveyor was unsafe and that alternative designs were feasible. The alternative designs were: 1) supporting the conveyor with two wire ropes, 2) rerouting the cable to enable easier inspection, 3) supporting the conveyor with two hydraulic cylinders attached to the frame itself, 4) using side posts or "outriggers" to hold the conveyor up in the event the wire rope failed, and 5) using a cross bar or stop plate to lock the conveyor in place when elevated.

Watkins also intended to introduce the 1987 American National Standards Institute (ANSI) Safety Standards for Conveyors and Related Equipment, as well as evidence of Telsmith's post-1943 designs to buttress the feasibility of her proposed design changes. Telsmith filed two motions in limine to exclude Williams's testimony and evidence of the post-manufacture standards.

At trial, relying on his perception that Telsmith had conceded that the proposed alternate designs were feasible, Watkins's counsel agreed not to introduce the 1987 ANSI standards or evidence of subsequent designs.¹

The next motion was the exclusion of Williams. As part of the hearing on this motion pursuant to Rule 104(a) of the Federal Rules of Evidence, the court heard testimony from Williams as well as from Dr. Raymond Neathery, the defense expert.

Williams received a Bachelor of Science in Civil Engineering from Mississippi State University in 1949 and was a registered professional engineer. He was a B-17 pilot in World War II, and as a part of his duties served as a maintenance supervisor. His work in that capacity at least tangentially exposed him to the use of conveyors. Later, he worked for Boeing in facility engineering and tool design. Williams also served with the Army Corps of Engineers in the early 1960's. He worked for the Mississippi Highway Department for two periods totaling approximately seven years. In addition, Williams taught drafting, surveying, structural design and engineering materials at Northwest Mississippi Junior College.

Williams testified that he had extensive experience in building roads and bridges and other structural engineering projects, in all of which he observed conveyors in use. For the Army, Williams participated in setting up a gravel wash facility. There was a portable conveyor at that wash plant, but he could not remember how the conveyor arm was supported. Williams had seen conveyors using hydraulic cylinders, outriggers, and stop plates or bars, but none using two wire ropes. He could neither remember many of the types and brands of conveyors that he had worked with nor clearly describe whether his work directly utilized conveyors.² Williams did not know if any conveyors were built in 1943 using his alternative proposed designs.

He also stated that he was familiar with the safety factors employed in using wire rope and has tested the strength of wire rope. Williams used his education in materials strength and structural design, information that was "common knowledge" among engineers, and his experience with conveyors to analyze the design in question. He considered the problem "not really enough to be a good engineering project."

Williams lacks education in mechanical engineering, and his experience in machine design is limited to a project he conducted in one of his engineering classes in which he designed the base of a chair. He has never designed a conveyor, although he claimed to have designed "nuts and bolts and that kind of thing one at a time." Williams has performed accident reconstruction for three conveyor cases, but only one was a belt conveyor; in those cases, he investigated whether the conveyors should have been designed with guards to prevent workers from being caught in the conveyor.

Preparing for this case, Williams twice examined the reconstructed conveyor as it operated on site. He reviewed manufacturer's design drawings for the Model 374 conveyor and studied photographs of the conveyor. He also considered the 1987 ANSI standard. Although Williams testified that he made some sketches and calculations as part of his analysis, he had kept none of them because he did not consider them to be important. He made no design drawings and conducted no tests of his proposed alternatives. Williams did not analyze how much the alternative designs would cost or what impact they would have on the conveyor's utility. He admitted that he reached his opinion in this case after one day's work.

Raymond Neathery testified as an expert for Telsmith. Neathery has a Master of Science degree in Mechanical Engineering and a Ph.D. in Engineering Mechanics and is a professor of mechanical design. He testified that the process of design, although varying slightly by product and company, includes several essential steps: identifying the problem, conceptualizing possible solutions, investigating the present art, evaluating the concept through engineering analysis, modeling, and testing, and selecting the alternative. Neathery described this as an iterative process that requires a number of attempts at each step. He testified that Williams's analysis reveals only an attempt at problem identification and proposing solutions, but no investigation of other designs, analysis, or testing of alternatives.

On cross-examination, Neathery testified that the designs proposed by Williams were "conceptual ways of supporting the conveyor, and ways which, given time and effort, might be properly designed to do it." But according to Neathery's analysis, Williams's proposed alternatives "interfere with function." Neathery conceded, however, that the conveyor could probably be operated with two cables, and that a locking pin or other device could be used to secure the conveyor at a particular height. Neathery also agreed that the defendant had manufactured a conveyor that used a hydraulic cylinder lift rather than a cable, but he did not know whether such a conveyor was manufactured in the 1940s. In response to questioning by the court, Neathery stated that the proposed alternatives would not be "exorbitant in cost."

The next day, the district court excluded Williams's testimony. The court found Williams unqualified as an expert because his training is in civil engineering, while the expertise required by this case, of which Williams possesses little, lies in mechanical engineering. The court found Williams's testimony substantively inadequate under Rule 702, Daubert and applicable Mississippi products liability law. Watkins now appeals the exclusion of the expert evidence and the resulting...