Nicholson v. Pickett
| Decision Date | 04 March 2016 |
| Docket Number | CASE NO. 1:13-CV-322-WKW |
| Parties | CLAUDE RONNIE NICHOLSON, et al., Plaintiffs, v. CLINTON P. PICKETT, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
This matter is before the court on the following motions filed by Defendant Oshkosh Corporation ("Oshkosh"): (1) motion for summary judgment (Doc. 81); (2) a Daubert motion to exclude the testimony of Plaintiffs' expert, Charlie Miller (Doc. 86); and (3) a motion to strike the affidavit of Charlie Miller (Doc. 121).1 For the reasons discussed, the court will deny Oshkosh's motions to exclude and to strike and will grant in part and deny in part Oshkosh's motion for summary judgment.
This lawsuit arises out of a motor vehicle accident. On April 29, 2011, Plaintiffs Claude and Myra Nicholson were traveling in their passenger vehicle near Enterprise, Alabama, when a large, unmanned military vehicle rolled down a hill and into their path. The two vehicles collided, and Plaintiffs were injured.
The HEMTT3 M1120 motor vehicle that is the subject of this case was manufactured by Oshkosh in October of 2009. (Doc. 108-1 at p.1; 108-4 at p. 2). In or around November, 2010, the HEMTT was delivered to the Alabama National Guard in Montgomery, Alabama. (Doc. 108-1 at p. 1). At or near the time of delivery, the HEMTT underwent an inspection that revealed a defect. (Doc. 108-2). Specifically, an inspection report identified as "PM HTV - Oshkosh Equipment Deficiency Report" found that the vehicle's spring brake valve was defective. (Id.). The inspection report further describes that the following corrective action was taken:"Parts ordered by FSR 11-02-10 and installed." (Id.). The odometer reading on the HEMTT, at the time of inspection, was 71.6 miles. (Doc. 108-1 at p. 1).
Plaintiffs have included as part of the record a document entitled "Motor Vehicle Safety Plan" ("Safety Plan"). The Safety Plan, which was adopted by the Alabama National Guard, references the procedure of "chocking" as follows:
Ensure that Army wheeled vehicles are equipped with and drivers use chock block pairs when parked on inclines or when maintenance is being performed. If chock blocks pairs have not been issued, they may be made locally using 8-inch wood stock cut at 45 degree angles. Chock blocks will be used as pairs, placing one block in front of and one block behind the tire being chocked.
(Doc. 109-3 at p. 6). In a document entitled "Operator Maintenance [-] Operate Parking Brakes," Oshkosh set forth warnings regarding the need to chock the wheels on HEMTT vehicles in certain circumstances. (Doc. 83-8). Specifically, the operations manual warned that, "[w]hen parking on an incline, if vehicle is equipped with C-Kit armor, ensure vehicle remains stationary before exiting the cab [and] [c]hock wheels immediately." (Id. at p. 1). With regard to installing wheel chocks, the operations manual noted that the vehicle "is equipped with four wheel chocks," and instructed the operator to: (1) "[a]lways chock tires if vehicle is shut down on uneven terrain;" (2) [a]lways chock tires if vehicle parking brake is inoperative;" and (3) [e]nsure local policy for chocking vehicle tires is followed." (Id. at p. 4).
In late April of 2011, Alabama was suffering the immediate aftermath of a string of especially severe, deadly tornados and storms. The storms garnered national press attention, resulted in a presidential visit to Alabama, and were among the worst natural disasters in the state's history. There are towns that simply no longer exist as they did the day before the storms, having been laid completely to waste. The City of Tuscaloosa, Alabama, in the western part of the state was especially damaged.
A state of emergency was declared, and the Governor mobilized the Alabama National Guard to provide relief to areas damaged by the storm. Sergeant Clinton P. Pickett and Specialist Xavier Clayton,4 who are members of the 131st Forward Support company of the Alabama National Guard based in Enterprise, Alabama, were among the Guard members called to duty. Pickett, who was an enlisted soldier and not an officer, outranked Clayton. They were among those soldiers who were to travel to Tuscaloosa. Sometime after the subject HEMTT arrived in Montgomery, it was transferred to the 131st Forward Supply Company in Enterprise. (Doc. 108-5 at p. 2). The distance from Montgomery to Enterprise is approximately eighty-five (85) miles.
On April 29, 2011, the day of the collision, Pickett was assigned the responsibility of driving the HEMTT from Enterprise to Tuscaloosa, Alabama. (Doc.108-6 at p. 2). Clayton was assigned to be Pickett's assistant driver. (Id. at p. 3). Pickett had experience driving large commercial vehicles, including a different HEMTT frame, but he had not driven this specific HEMTT model and was not licensed to do so. (Id. at pp. 2, 8). At the time the Guard assigned the HEMTT to Pickett, he raised his lack of training and his license issue with the assigning Guard member. The Guard member's response was to "fix" Pickett's driver's license to show HEMTT certification. (Id. at p. 2). While having previous experience with other large commercial vehicles, Clayton had no experience with a HEMTT. (Doc. 108-7 at p. 2).
After the HEMTT was assigned to Pickett and Clayton, Pickett found the HEMTT in the motor pool and performed an inspection that included checking fluid levels and walking around the vehicle. (Doc. 108-6 at p. 3). Pickett started the HEMTT's engine and was ground guided from the vehicle's parked position to the gate leading from the motor pool area of the National Guard facility. (Id.). After Pickett stopped the vehicle on a concrete surface at the top of a hill near the gate, he initiated the HEMTT's parking brake. (Id. at pp. 3-4; Doc. 108-7 at p. 3). Clayton confirmed that the parking brake was set when Pickett stopped the HEMTT at the gate, as he observed Pickett applying the brake and heard the audible sound associated with the parking brake's application. (Doc. 108-7 at p. 3).
While parked at the gate, Pickett directed Clayton to go into the Armory and retrieve a fuel card so they could obtain fuel for the HEMTT. (Doc. 108-6 at p. 3). Pickett stayed inside the HEMTT and waited for Clayton to return. (Id.). After waiting roughly twenty minutes, Pickett put the HEMTT's transmission in neutral, took the actions he thought were necessary to set the parking brake, and left the HEMTT to look for wheel chocks "from a string of trailers on the fence and other vehicles close by," but he found none. (Id.). He returned to the HEMTT, assured himself that the vehicle was in neutral and the parking brake was engaged insofar as he could discern, and he left the HEMTT with the engine running to go find Clayton. (Id. at pp. 3, 10).
Pickett succeeded in locating his assistant driver, but the Armory was not yet distributing fuel cards. (Id. at p. 3). Pickett was imminently expected at a sergeant's meeting, and he instructed Clayton to return to the HEMTT to turn off the engine. (Id. at p. 4). After returning to the vehicle and while turning off its engine, Clayton did not touch the setting for the parking brake, and he only pressed the engine control mechanism. (Doc. 108-7 at p. 5).
Fifteen minutes into the sergeant's meeting, a loud booming noise was heard and the power failed. (Doc. 108-7 at p. 7). A soldier ran into the meeting room and informed the group that a vehicle had rolled down a hill and struck another vehicle.(Id.).5 Pickett went outside of the Armory with his fellow soldiers where he learned that his unmanned HEMTT was the vehicle that rolled down the hill. (Doc. 108-6 at p. 5). Pickett observed two individuals, later identified as Plaintiffs, being removed from their vehicle and carried to the armory side of the road. (Id.). The HEMTT odometer reading was 158.6 miles immediately after the collision. (Doc. 108-4 at p. 2). When the HEMTT was retrieved after the collision, a soldier provided testimony that the parking brake was still set and that he had to start the HEMTT's engine so that the brake could be disengaged to allow the vehicle to be towed. (Doc. 111-4 at p. 5).
Pickett testified that the accident more than likely would not have happened had the wheel chocks been available and used. (Doc. 83-1 at pp. 5-6). However, the corporate representative for Oshkosh, Jack Lackore, testified at his deposition that the parking brake system should have held the HEMTT in place where it was parked if it functioned properly. (See Doc. 108-8 at p. 8). The corporate representative specifically testified that the grade on which the vehicle was parked was "slight" and that it was less than a 20 percent grade. (Id.). The witness also testified as follows:
(Doc. 108-8 at p. 8; see also Doc. 108-8 at p. 9 (). Lastly, Oshkosh's corporate representative agreed with Plaintiffs' counsel at the deposition that one of two things occurred to cause the HEMTT to roll down the hill and into the path of Plaintiffs' vehicle: either the brakes were not applied or the parking brake was applied and did not "function properly." (Id. at p. 6).
Plaintiffs have asserted three claims against Oshkosh in their First Amended Complaint. (Doc. 67). In Count II, Plaintiffs claim that Oshkosh "negligently, recklessly or wantonly researched, formulated, designed, manufactured, packaged, labeled, sold, distributed, inspected and/or repaired the HEMTT LHS vehicle, including the brake system and other component parts thereof, which is believed to have caused or contributed to cause the injuries and damages to" Plaintiffs. (Doc. 67 at p. 6). In Count III, Plaintiffs claims that Oshkosh,...
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