Reed v. Tracker Marine, LLC

Decision Date07 December 2021
Docket Number7:19-cv-01596-LSC
Parties Mark REED, Administrator of the Estate and personal representative of Madison Reed, deceased, Plaintiff, v. TRACKER MARINE, LLC, et al., Defendants.
CourtU.S. District Court — Northern District of Alabama

Stan Brobston, Brobston & Brobston PC, Bessemer, AL, for Plaintiff.

Christina McGinley Paul, Pro Hac Vice, Joshua Conrad Carpenter, Pro Hac Vice, K&L Gates, LLP, Miami, FL, Jeffrey C. Smith, Watson & Poole, LLC, Tuscaloosa, AL, for Defendant Tracker Marine Retail, L.L.C.

Joshua Louis Hartman, Hartman, Springfield & Walker LLP, Vestavia Hills, AL, Stephen P. Ellenbecker, Johnson and Bell, Chicago, IL, Stephen F. Springfield, Hartman, Springfield & Walker, LLP, Birmingham, AL, for Defendants Mercury Marine, Brunswick Corporation XYZ.


L. Scott Coogler, United States District Judge Before the Court are Defendants’ Mercury Marine, a division of Brunswick Corporation, and Brunswick Corporation (jointly referred to as "Mercury Marine" or "Mercury") and Tracker Marine, LLC ("Tracker") (collectively "Defendants") motions for summary judgment (docs. 40 and 42). Also before the Court is Tracker's motion to exclude Plaintiff's expert witnesses. (Doc. 54.) The motions have been briefed and are ripe for review. For the reasons stated below, Defendants’ motions are granted in part and denied in part: Tracker's motion to exclude Mr. Keith Jackson is GRANTED, but its motion to exclude Dr. Brandon Taravella is DENIED; Mercury's motion for summary judgment is GRANTED as to claims alleging failure to warn and breach of implied warranties and DENIED as to defective design claims arising under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") and negligence and wantonness; Tracker's motion for summary judgment is granted as to Plaintiff's claims alleging attractive nuisance and breach of implied warranties and DENIED as to claims for failure to warn, negligence and wantonness, and defective design under the AEMLD.


This case arises from a boating accident (the "Accident") on August 26, 2017, in which fourteen-year-old Madison Reed fell from the bow of a pontoon boat, a Sun Tracker Party Barge 20 (the "Vessel"), and subsequently struck the propeller of the 60-horsepower outboard motor (the "Engine"), resulting in her death. (Doc. 1-1 at 7-8.) Plaintiff Mark Reed is Madison Reed's father, as well as the administrator and personal representative of her estate. (Doc 1-1 at 6, Doc. 41-1 at 496.) He filed suit on August 26, 2019, in the Circuit Court of Tuscaloosa, Alabama. (Doc. 1-1 at 2-3.) The complaint included allegations of defective design, failure to warn, negligent design, and breach of warranty claims against Tracker, the manufacturer of the Vessel, and Mercury Marine, the manufacturer of the Engine, as well as an attractive nuisance claim against Tracker. (Doc. 1-1.) On September 27, 2019, Mercury Marine filed a notice of removal with this Court. (Doc. 1.)

Rhonda McCostlin originally purchased the Vessel with the attached Engine from Bass Pro Shop in Leeds, Alabama, on June 12, 2010. (Doc. 41-1 at 20, 22.) At the time of the accident, Dorothy Kornegay (also known as "Marie") owned the Vessel, (id. at 32), but her son-in-law, Daniel Jones, was the primary operator (id. at 48). On the day of the accident, Daniel Jones and his wife Michelle (also known as "Shelly") took their daughter Kaitlyn, and her teenage friends, Madison Reed, Ricki Smith, Carson Hunnicutt, and Tanner Dawson (collectively, the "Teenagers") out in the Vessel on Ski Lake. (Doc. 41-1 at 135.)

At some point during the afternoon, Madison Reed and several of the other Teenagers moved to sit on the unenclosed bow deck of the Vessel while it was underway. (Doc. 41-1 at 78.) Daniel and Shelly Jones were aware that the Teenagers were on the bow deck and permitted them to remain there, even though it was against their customary rules. (Id. at 137.) Immediately before the Accident, Madison Reed was sitting on the floor of the unenclosed bow platform. (Id. at 86, 136, 214-215.)

There is some dispute as to what exactly caused Ms. Reed to fall into the water, but Carson Hunnicutt admits that he made a hand motion towards Ms. Reed and "acted like [he] was going to hit her." (Id. at 218.) Ms. Reed reacted, lost her balance, and fell in the water. (Id. ) The other Teenagers began yelling for Daniel Jones to stop the boat, which was in gear at the time of Madison Reed's fall. (Id. at 83, 152.) Madison Reed was seen briefly floating facedown behind the boat. (Id. ) Even though Daniel Jones and Carson Hunnicutt jumped in after her, her body was not recovered until divers discovered her later that evening. (Id. at 83, 234) Dr. Stephen Boudreau with the Alabama Department of Forensic Science concluded that Madison Reed died of blunt force trauma and drowning. (Id. at 254, 258.)

A. Tracker's Motion to Exclude Expert Testimony

While Federal Rules of Evidence 401 and 402 provide for the liberal admission of relevant evidence, Rules 403, 702, and 703 mitigate against this general policy by giving trial courts discretion to exclude unreliable or irrelevant expert testimony. Allison v. McGhan Medical Corp. , 184 F.3d 1300, 1310 (11th Cir. 1999). The Eleventh Circuit summarized the applicable rules in City of Tuscaloosa v. Harcros Chem., Inc. , 158 F.3d 548, 562 (11th Cir. 1998), when it wrote that scientific expert testimony may be admissible if "(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert ; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue." See also, e.g. , Allison , 184 F.3d at 1309 ; Toole v. Baxter Healthcare Corp. , 235 F.3d 1307, 1312 (11th Cir. 2000).

In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court imposed a special duty on trial judges pursuant to Federal Rule of Evidence 702, requiring judges to act as "gate-keepers" to ensure that novel scientific evidence is both reliable and relevant before it is admitted. Later, in Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court expanded its Daubert ruling. The Supreme Court recognized that judges are not trained scientists and that the task imposed by Daubert is difficult in light of their comparative lack of expertise. Allison , 184 F.3d at 1310 (citing General Elec. Co. v. Joiner , 522 U.S. 136, 148, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (Breyer, J. concurring)). Nevertheless, the judge's relatively inexpert attention is preferable to "dumping a barrage of questionable scientific evidence on a jury." Id. While this Court is aware of its duty as a gatekeeper, it understands that its role is "not intended to supplant the adversary system or the role of the jury," Id. at 1311, and it recognizes that "[v]igorous 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." Daubert , 509 U.S. at 596, 113 S.Ct. 2786.

The primary focus of a Daubert inquiry is on the principles and methodology underlying expert opinion testimony, not the conclusions they generate. Id. at 595, 113 S.Ct. 2786. The trial court must be sure the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. , 526 U.S. at 152, 119 S.Ct. 1167. While experience alone may qualify an expert witness, it is not always enough. See United States v. Frazier , 387 F.3d 1244, 1261 (11th Cir. 2004). "If the witness is relying solely or primarily on experience, then the witness must explain how the experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Id. (quoting Fed. R. Evid. 702 advisory committee's note (2000 amends.)). Accordingly, "the proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable." Allison , 184 F.3d at 1312 ; see also Joiner , 522 U.S. at 146, 118 S.Ct. 512 ("[C]onclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."); Daubert , 509 U.S. at 589–90, 113 S.Ct. 2786 ( Rule 702 requires that the subject of an expert's testimony must be "knowledge," which connotes more than a subjective belief or unsupported speculation).

Daubert also requires a special inquiry into relevance, calling on the trial court to ensure expert testimony "logically advances a material aspect of the proposing party's case." Daubert v. Merrell Dow Pharmaceuticals , 43 F.3d 1311, 1315 (9th Cir. 1995) (on remand). There must be a valid scientific connection between the testimony and the disputed facts in the case. Id. Furthermore, when expert opinion is based on otherwise inadmissible hearsay, Rule 703 requires the trial court to ensure the underlying facts or data upon which the expert bases his opinion or inference are of the type reasonably relied upon by experts in the particular field.

The testimony must assist the trier of fact to understand the evidence or to determine a fact in issue through the application...

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