Rockhill-Anderson v. Deere & Co.

• Decision Date: 31 January 2014
• Docket Number: Case No. 1:12–CV–579–WKW.
• Citation: 994 F.Supp.2d 1224
• Court: U.S. District Court — Middle District of Alabama
• Parties: Betty ROCKHILL–ANDERSON, as Administratrix of the Estate of Jesse James Anderson, deceased, Plaintiff, v. DEERE & COMPANY, Defendant.

994 F.Supp.2d 1224

Betty ROCKHILL–ANDERSON, as Administratrix of the Estate of Jesse James Anderson, deceased, Plaintiff,
v.
DEERE & COMPANY, Defendant.

Case No. 1:12–CV–579–WKW.

United States District Court,
M.D. Alabama,
Southern Division.

Jan. 31, 2014.

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Marion Dale Marsh, Marsh Cotter & Stewart LLP, Enterprise, AL, Thomas Parker Willingham, Mary Leah Singletary Miller, Law Offices of Thomas P. Willingham, P.C., Birmingham, AL, for Plaintiff.

MEMORANDUM OPINION AND ORDER
W. KEITH WATKINS, Chief Judge.

Before the court are: Defendant Deere & Company's Motion for Summary Judgment (Docs. # 49); Deere's Motions to Exclude Testimony of Andrew Webb (Doc. # 47) and Thomas Berry (Doc. # 45); Plaintiff Betty Rockhill–Anderson's Motions to Exclude Testimony of Joe Kent (Doc. # 59) and Kirk Ney (Doc. # 60); and Deere's Motion to Strike Affidavits of Thomas Berry and Andrew Webb (Doc. # 93), which were filed in support of Betty's opposition to Deere's summary judgment and Daubert motions. The motions have been fully briefed, and no hearing has been held on the Daubert motions. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1113 (11th Cir.2005) ( “ Daubert hearings are not required, but may be helpful in complicated cases involving multiple expert witnesses.” (internal quotation marks omitted)). Based on the parties' arguments and the relevant law, the court concludes that the parties' motions are due to be granted in part and denied in part.¹

I. JURISDICTION AND VENUE

The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332(a). The parties do not contest personal jurisdiction or venue.

II. BACKGROUND

Betty is the Administratrix of the Estate of Jesse James Anderson who died in a tractor rollover accident in Coffee County on June 3, 2012. The John Deere Model 2040 utility tractor at issue in this case belonged to Betty who purchased it third-hand. Deere manufactured the tractor in 1976 and sold it in 1977. The tractor was not equipped with a rollover protective structure (“ROPS”), which, for purposes of this case, is a steel roll bar and a seat belt. However, Deere made ROPS installation available at the time of purchase and thereafter as an optional feature. Deere represents that consumers were reluctant

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to equip tractors with a ROPS because it limited the tractor's usefulness in low barns and orchards. The operator's manual for the tractor nevertheless recommended installation and use of a ROPS.

Betty maintains that without the installation of a ROPS as a standard safety feature on the tractor, the tractor was defective and unreasonably dangerous as designed, manufactured, and sold. According to Betty, the tractor's defective condition caused Jesse's death. She claims that a safer and practical alternative design was available to Deere in 1976, and that if the tractor had been fitted with a ROPS, Jesse's death would have been prevented. She sues Deere pursuant to Alabama's Wrongful Death Act, Ala.Code § 6–5–410, for relief pursuant to the Alabama Extended Manufacturer's Liability Doctrine (“AEMLD”) and common law negligence and wantonness. ( See Am. Compl. Counts I, II, & IV (Doc. # 18).)

When the accident occurred, Jesse was grading a dirt road on his farm with a blade implement attached to the tractor. There were no witnesses to the accident—only witnesses who later responded to try to assist Jesse who was dead on the scene. For unexplained reasons, the tractor rolled laterally to the right 180 degrees, crushing Jesse's head, neck, and abdomen underneath the fender. Betty represents that Jesse was basically still in the driver's seat position with his feet on or near the pedals. She claims that if the tractor had been equipped with a ROPS, it is unlikely that the tractor would have rolled over more than 90 degrees and crushed Jesse.

Deere does not dispute that Jesse was crushed or that he died from crushing injuries, but it contests that a ROPS would have prevented Jesse's death. Deere represents that there is no way to know whether Jesse would have been fatally injured had the tractor been equipped with a ROPS, “due to the numerous unknown factors that exist, e.g., whether [Jesse] would have been wearing his seatbelt or whether his head would have struck the ground or some other portion of the tractor.” (Doc. # 90, at 4.)

Furthermore, according to Deere, the Andersons' road slopes at approximately 15 degrees, and there are embankments of approximately 45 degrees on either side of the road. Deere says Jesse traveled backwards down the road, drove the tractor up onto one of the embankments, and negligently caused the tractor to overturn. Betty counters that Jesse was not attempting to grade the embankment, and that he did not intentionally drive the tractor onto the embankment. She “does not dispute the tractor encountered the embankment immediately prior to it turning over, [but] she disputes that [Jesse] ‘drove’ the tractor up and onto” it. (Doc. # 75, at 6.) While she admits that the tractor was moving backwards, she disagrees that Jesse was purposefully driving in reverse because no one recorded the gear position of the tractor at the time of the accident.

The parties also dispute whether Deere has admitted, through Kirk Ney as a corporate representative, that a ROPS would have prevented Jesse's death. ( See Pretrial Order (Doc. # 125, at 6 (“Contrary to [Betty]'s assertion, Deere has not admitted that [Jesse]'s fatal injuries would have been prevented in this incident if the subject tractor has been equipped with a ROPS.”).) Betty raises the “admission” issue in nearly every brief submitted on the pending motions.² Likewise, she repeatedly

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argues that Deere's documents and testing data relating to its design of the ROPS confirm her experts' opinions.

In support of their theories of the case, the parties have both employed a design expert and an accident reconstruction expert. Betty's experts are Andrew Webb (accident reconstruction) and Thomas Berry (design expert). Deere's are Joe Kent (accident reconstruction) and Kirk Ney (design expert). Each party opposes the other's experts' opinion testimonies for various reasons. Deere's motion for summary judgment is partially intertwined with its Daubert motions.

III. STANDARDS OF REVIEW A. Daubert Motions

Federal Rule of Evidence 702 provides that

[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.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court explained that it is the district court's function to serve as “gatekeeper” and to ensure that an expert's testimony rests on a reliable foundation and is relevant. When assessing the reliability of scientific testimony, the court should consider the four factors laid out in Daubert. Id. at 593–94, 113 S.Ct. 2786. ³ But the Daubert factors are not an exhaustive list of considerations, and the Daubert factors are to be applied “flexibl[y].” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

“The Daubert-type analysis should not be used to disfavor expert testimony grounded in experience or engineering practice rather than in pure scientific theory.” Morris v. Fla. Transformer, Inc., 455 F.Supp.2d 1328, 1331 (M.D.Ala.2006) (Thompson, J.) (citing Kumho, 526 U.S. at 150, 119 S.Ct. 1167). “However, if the witness is relying solely or primarily on experience, then the witness must explain how that 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. The trial court's gatekeeping function requires more than simply taking the expert's word for it.” Id. (quoting Fed.R.Evid. 702, advisory committee notes, 2000 amendment) (internal citations and quotations omitted); see also Kumho 526 U.S. at 157, 119 S.Ct. 1167 (“[N]othing in

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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.”).

B. Motion to Strike Affidavits

Federal Rule of Civil Procedure 37(c) “provides the consequences for a party's failure to disclose, pursuant to the requirements of Rule 26.” Nance v. Ricoh Elecs., Inc., 381 Fed.Appx. 919, 922 (11th Cir.2010). “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Id. (citing Fed.R.Civ.P. 37(c)(1)). Factors that should inform the court's ruling include “the explanation for the failure to disclose the witness, the importance of the testimony, and the prejudice to the opposing party.” Id. (quoting Fabrica Italiana Lavorazione Materie Organiche, S.A.S. v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776, 780 (11th Cir.1982)).

C. Motion for Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that

[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

The court must view the evidence and the...