Harris v. JLG Indus.

• Decision Date: 02 August 2016
• Docket Number: CIVIL ACTION: 15-00365-KD-B
• Parties: DEMETRIUS HARRIS, Plaintiff, v. JLG INDUSTRIES, Defendant.
• Court: U.S. District Court — Southern District of Alabama

DEMETRIUS HARRIS, Plaintiff, v. JLG INDUSTRIES, Defendant.

CIVIL ACTION: 15-00365-KD-B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

August 2, 2016

ORDER

This matter is before the Court on Plaintiff's Motion to Strike the Deposition Errata of Brent Hoover (Doc. 59) and Defendant's Response (Doc. 65); Plaintiff's Motion to Strike the Affidavit of Brent Hoover (Doc. 70) and Defendant's Response (Doc. 75); and Defendant's Motion for Summary Judgment (Doc. 60), Plaintiff's Response (Docs. 66 (SEALED), 69), Defendant's Reply (Doc. 71) and Plaintiff's Sur-Replies (Doc. 78).

I. Findings of Fact¹

On August 11, 2012, Peyton Boat employee Demetrius Harris (Harris) sustained on-the-job injuries in Coden, Alabama while sub-contracted out to Rodriguez Boat Builders, when a coworker ran over his left ankle and foot with a forklift. The forklift in question is a SkyTrak Model 8042 rough terrain forklift. The forklift was designed by Trak International (Trak) in 1992 and sold by Trak in early 1999 to Gaedcke Equipment. In 2003, JLG acquired certain assets and liabilities of Trak International. When sold by Trak, the forklift was equipped with a functioning backup alarm that sounded when placed in reverse, rearview mirrorson the right and left side of the operator's cab, and two manuals (an EMI Rough Terrain Forklift Safety Manual and the SkyTrak Model 8042/10042 Owners/Operators Manual). Before January 2012, the forklift was acquired by Rodriguez Boat Builders.

The details regarding Harris' accident consist of the following: On August 11, 2012 Harris was walking across the Rodriguez job site to speak with supervisor Ryan Peyton (Fruit), who was standing near the forklift. (Doc. 60-8 (Dep. Harris at 112-114, 125)). As Harris walked towards Fruit, another employee (Ralph Raley) drove the forklift in a forward direction. (Id. at 115, 118, 125). The forklift passed within 3-7 feet of Fruit, continued past him, and then stopped. (Id. at 126, 128, 138). Once it stopped, Fruit was off to the right side of the forklift, 10-20 feet away. (Id. at 130). Harris was standing to the side of the forklift's right rear tire, talking to Fruit for 2-4 minutes, only an arm's length away -- close enough to touch the right rear wheel. (Id. at 130-131, 142-143). Harris did not hear the forklift engine turn over or the noise of the engine stop while talking to Fruit, so he believes it was running the entire time. (Id. at 136, 138-139). Harris did not see any change of position of the forklift boom and did not hear a backup alarm. (Id. at 73, 143). Harris then heard Fruit say "oh shoot[,]" prompting him to turn around and see the forklift moving, at which time he tried to get out of the way, but the forklift backed over his left ankle before he could move, resulting in an Achilles' tear and avulsion to his left foot/ankle. (Id. at 135, 141).

The Monday following the accident, Rodriguez's mechanic Marty McCluer (McCluer) inspected the forklift's backup alarm and mirrors, and made some repairs to the forklift's backup alarm. (Doc. 69-2 (Dep. McCluer at 17-18, 28-33, 36-37, 41, 49, 53)). McCluer noted that the backup alarm's wiring harness had come into contact with the hot engine, and it had burnedloose. (Id. (Dep. McCluer at 29-33)). The backup alarm wire was also causing itself to short out and so McCluer rerouted the alarm's wiring harness. (Id.) McCluer also inspected the mirrors, which were in the same place as they were at the time of the accident. (Id. (Dep. McCluer at 53)).

On July 23, 2014, Harris initiated this action in the Circuit Court of Mobile County, Alabama (CV-2014-902132, Demetrius Harris v. Marty McClure et al.), for the injuries he sustained. (Doc. 1-1). Harris alleges the following claims against Defendant JLG Industries² (JLG), the alleged manufacturer of the fork lift: negligence, gross negligence and wantonness (Count 1); AEMLD product liability (Count 2); and breach of warranty (Count 3).³ Harris asserts that the forklift was defective because it lacked a properly functioning backup alarm and an unobstructed rearview mirror, and also asserts a failure to warn claim. (Doc. 1-1 at ¶ 11). Specifically,

-Harris claims a mirror located on the right-hand side of the forklift could have been obscured by the extendable boom of the forklift, if the boom was in the lowered position.

-Harris contends due to the owner's lack of maintenance and repair, the backup alarm did not function or sound on the day of the accident. Harris claims the wiring and wiring harness to the backup alarm is defective in its design.

-While acknowledging that the owner and operators of the forklift did not repair the malfunctioning backup alarm, Harris claims the 1999 Trak manuals and warnings did not instruct operators to check the functioning of the backup alarm as part of a required daily prestart inspection. Harris also alleges the manuals and warnings failed to warn of the possibility the mirrors could become obstructed.

On July 23, 2015, JLG (and others) removed this action to this Court on the basis of federal diversity subject matter jurisdiction. (Doc. 1). JLG now moves for summary judgment.

II. Motions to Strike & Rule 56(c)(2) Objections

A. Motions to Strike

Harris filed two (2) motions to strike, one as to the deposition errata sheet of Brent Hoover and another as to the Affidavit of Brent Hoover (Hoover).⁴ Pursuant to Rule 56 of the Federal Rules of Civil Procedure, motions to strike on summary judgment have not been appropriate since December 2010. Instead, per Rule 56(c)(2), "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." The Advisory Committee Notes specify that:

Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.

Fed.R.Civ.P. 56, Adv. Comm. Notes, "Subdivision(c)" (2010 Amendments) (emphasis added). The Court thus construes Harris' motions to strike as Objections.

1. Hoover Deposition Errata

In relevant part, JLG submits the following errata to Hoover's deposition:

Page

Line

Testimony to Change

Errata Change

Reason

18

24

It appeared it was

No. After further review of

parts manual and engineering

drawing, the mirror is an

unauthorized modification.

Was not aware of exact

specifications at time of

my inspection.

33

12

I believe that it did

It did at the time of

manufacture.

To clarify the record

regarding the

unauthorized

modification.

Harris objects to the errata related to pages 18 and 33 of Hoover's prior deposition testimony⁵ concerning "whether the right hand mirror was original manufacturer's equipment." At his deposition, Hoover testified as follows:

Q ... did you inspect the right-hand mirror on the subject model lift?

A Yes, sir, I did.

Q ...Was the right-hand mirror original SkyTrak model equipment?

A It appeared that it was.

***

Q ...Would the model involved in this incident, would it have had a convex mirror on the right-hand side?

A I believe that it did.

(Doc. 59 at 1-2; Doc. 59-2 at 18 and 33 (Dep. Hoover)).

Rule 30(e)(1-2) of the Federal Rules of Civil Procedure provides as follows:

(1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

(2) Changes Indicated in the Officer's Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.

Fed.R.Civ.P. Rule 30(e)(1-2) (emphasis added). The parties do not dispute that the errata sheet was timely submitted. Rather, Harris contends the errata sheet is an attempt to materially alter Hoover's prior sworn testimony (i.e., changes in substance).⁶ JLG asserts that it is aclarification of his prior testimony and is cumulative given the other evidence submitted on summary judgment, adding that based on additional evidence it has submitted "the Court need not consider Mr. Hoover's errata sheet testimony in ruling on JLG's pending motion for summary judgment." (Doc. 65 at 3 at note 1, and 12). Per JLG's representation, the Court construes Hoover's errata sheet as withdrawn on summary judgment, rendering Harris' Objection (Doc. 59) MOOT, as the Court will not consider same at the present time.

2. Hoover Affidavit

Concerning Hoover's Affidavit (Doc. 60-1 (Aff. Hoover)), Harris asserts that it is a sham,⁷ contradicting his prior sworn deposition testimony. (Doc. 70). Harris also contendsthat the Affidavit improperly contains expert opinion testimony yet Hoover is not an expert.

The issue of Hoover's testimony regarding the modification of the mirror is MOOT as the plaintiff's expert has provided sufficient evidence to create an issue of fact as to whether the mirror was original.

However, Harris' objection to Hoover's opinion regarding whether the wiring system for the backup alarm was the original system is well taken. As JLG indicates, Hoover's opinion is based on his knowledge of electrical systems and his review of the electrical diagrams and the testimony of McCluer. (Doc. 75 at 11). This is a classic description of how an expert renders an opinion. Hoover's...