Sappington v. Skyjack, Inc.

Decision Date04 January 2008
Docket NumberNo. 06-3855.,06-3855.
Citation512 F.3d 440
PartiesSammie SAPPINGTON; Evelyn Sappington; Justin Sappington, Plaintiffs-Appellants, v. SKYJACK, INC., A Division of Linamar Corp., A Canadian Corporation; Rental Services Corporation, Inc., Defendants-Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Thomas R. Larson, argued, Kansas City, MO (David E. Larson and Jimmy E. Allen, Jr., on the brief), for Plaintiffs-Appellants.

Stephen A. D'Aunoy, argued, St. Louis, MO, (David R. Buchanan and Kenneth R. Goleaner, Kansas City, MO, Dennis Cusack, Chicago, IL, on the brief), for Rental Services Corporation.

Angela M. Higgins, argued, Kansas City, MO, (Kara Trouslot Stubbs, Kansas City, MO, J. Randall Davis and James A. Berglund, Libertyville, IL, on the brief), for Skyjack, Inc.

Before BYE, BOWMAN, and SMITH, Circuit Judges.

BYE, Circuit Judge.

Sammie Sappington, Evelyn Sappington, and Justin Sappington (plaintiffs) appeal the district court's order excluding the testimony of their retained experts and granting summary judgment in favor of Skyjack, Inc., and Rental Services Corporation, Inc. (RSC). We reverse.

I

This strict products liability action arises out of the death of Doyle Sappington, a carpenter employed by a general contractor performing work on a parking garage construction project in Kansas City, Missouri. On the day of the accident, Sappington was operating a scissors lift,1 Model SJII 4626 (SJII), manufactured by Skyjack. The lift was owned by RSC and had been leased to a subcontractor on the construction project.

The Skyjack SJII, and the later manufactured Skyjack SJIII 4626 lift (SJIII), are forty-six inches wide and can be elevated to a working height of twenty-six feet. The Skyjack SJIII differs from the SJII primarily because Skyjack incorporated "pothole protection" into its design. Pothole protection is an industry term of art, referring to design features intended to enhance stability in the event a lift is driven into a depression or pothole. Pothole protection, as the phrase is used here, refers specifically to a system of drop-down stabilizing bars located at the bottom sides of the lift platform, which, when deployed, reduce the lift's ground clearance. When activated, the pothole protection design on the SJIII reduces ground clearance from 3 1/4 inches to 3/4 inches, thereby increasing stability by reducing the distance the SJIII drops if it enters a depression.

Both models have controls located on the work platform which allow the operator to raise and lower the work platform, and drive the lift forward and backward without lowering the platform. At the time of the accident, Sappington was operating the lift on a smooth concrete surface with a slope of approximately 0.07 percent, and the work platform was raised to at or near its maximum level of twenty-six feet. The accident occurred when he drove the lift in reverse and the rear wheels dropped off the concrete floor into a hole created earlier in the day when a portion of the concrete floor was removed. When the rear wheels dropped off the edge of the walkway, the lift became unstable, pitched backwards, and tipped over. Sappington fell from the lift and later died from his injuries.

Plaintiffs, (Evelyn (Doyle's mother), Sammie (Doyle's daughter), and Justin (Doyle's son)), brought a strict products liability claim against the manufacturer of the lift, Skyjack, and the lift owner/lessor, RSC.2 Plaintiffs allege the SJII was defective and unreasonably dangerous because it was not sufficiently stable to remain upright when its wheels dropped into the hole. They contend Skyjack should not have manufactured the lift without pothole protection, and all lifts currently manufactured are so equipped, including the SJIII, the successor to the SJII. Plaintiffs argue the pothole protection technology incorporated into the design of the SJIII, manufactured two years after the SJII lift involved in the accident, was available and feasible in 1995 when the subject SJII lift was manufactured. Plaintiffs contend 1) the SJIII design would have prevented the tip-over accident, 2) the design was available at the time the SJII was manufactured, i.e., economically and technologically feasible, and 3) the safer design should have been used by Skyjack instead of the SJII design. Plaintiffs also allege RSC had both SJII and SJIII lifts available for lease and the SJII it leased to the subcontractor was defective and unreasonably dangerous.

To support their strict products liability claims, plaintiffs hired two experts. The first, Bryan Johnson, was hired to perform testing on an SJIII lift to determine whether, under conditions similar to those at the accident scene, it would remain upright. Johnson placed the SJIII on a wooden platform, sloped at approximately two degrees, which raised the lift seven inches off the road surface. He loaded the lift's work platform with 205 pounds, raised it to its maximum height of twenty-six feet, and drove it at a top speed forward and backward until the wheels dropped off the edge of the platform. On each occasion, the lift remained upright.

The second expert, Dr. James Blundell, is an associate professor of mechanical engineering with the undergraduate mechanical engineering school at the University of Missouri, Kansas City. He holds a PhD in mechanical engineering and teaches courses in machine design and design safety. In connection with his work on the case, Dr. Blundell reviewed depositions (including testimony detailing stability testing of the SJIII conducted by Skyjack), accident scene photographs, photographs from Skyjack's post-accident investigation, reports authored by Johnson and Ken Zimmer (plaintiffs' previous expert witness), the OSHA investigation file, documents produced under seal by Skyjack, the SJII and SJIII operating manuals, American National Standards Institute (ANSI) standards A92.6-1990 and 1999 for "Self Propelled Elevating Work Platforms," and a video created by Mayville Engineering Company (MEC), entitled Pot Hole Protection Can You Live Without It? Dr. Blundell did not conduct independent testing, but instead relied on stability testing of the SJIII lift performed by Johnson and Skyjack.

Dr. Blundell stated the SJII operated by Sappington was defective and unreasonably dangerous because it did not remain upright when its wheels dropped into the depression. He further opined the pothole protection would have prevented the unit from overturning. Dr. Blundell concluded, based on his review of current ANSI standards, that elevated lifts are now required to withstand the instability encountered in Sappington's accident. He further stated the SJIII was technically and economically feasible when the SJII was manufactured in 1995,3 and complies with the current ANSI standard. See ANSI Standard A92.6 (American National Standard for Self-propelled Elevating Work Platforms) (promulgated 1999 and replacing ANSI Standard A92.6 promulgated 1990). In other words, according to Dr. Blundell, the SJIII could and should have replaced the SJII by 1995, and the accident would not have occurred had Sappington been using an SJIII lift.4

As evidence of feasibility, Dr. Blundell's report indicated other lift manufacturers, e.g., MEC, Snorkel, and Upright, recognized the need for and incorporated pothole protection into their designs before the SkyJack II involved in the accident was manufactured; in MEC's case, as early as 1987. Additionally, he identified internal Skyjack memoranda, dated beginning January 1995, discussing the need to implement pothole protection, and reflecting plans to do so as of August 1995.

After discovery, Skyjack and RSC moved to exclude the testimony of both experts, and for summary judgment, arguing that without expert testimony plaintiffs could not prove the SJII lift was defective and unreasonably dangerous. The district court, relying on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), held the experts' testimony was neither relevant or reliable and excluded the evidence. It further held plaintiffs could not prove their claims without expert testimony and granted summary judgment. On appeal, plaintiffs argue the district court abused its discretion when it excluded the expert testimony, and summary judgment was inappropriate.

II

We review a grant of summary judgment de novo, applying the same standard as the district court. Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076, 1085 (8th Cir.1999). Summary judgment is proper if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). When ruling on a summary judgment motion, a court must view the evidence "in the light most favorable to the nonmoving party." Dush v. Appleton Elec. Co., 124 F.3d 957, 962-63 (8th Cir. 1997) (citing F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir.1997)). However, a "nonmovant must present more than a scintilla of evidence and must advance specific facts to create a genuine issue of material fact for trial." F.D.I.C., 106 F.3d at 263 (citing Rolscreen Co. v. Pella Prods. of St. Louis, Inc., 64 F.3d 1202, 1211 (8th Cir.1995)).

This is a diversity action and is governed by state substantive law. Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The parties agree Missouri substantive law controls.

A

Under Missouri law [T]he term "products liability claim" means a claim or portion of a claim in which the plaintiff seeks relief in the form of damages on a theory that the defendant is strictly liable for such damages because:

(1) The defendant, wherever situated in the chain of commerce, transferred a product in the course of his business; and

(2) The product was used in a manner reasonably anticipated; and

(3) Either or both of the following:

(a) The product was then in a defective condition...

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