Severe v. Middle Tenn. Truss Co., CIVIL ACTION NO. 1:16-CV-00040-GNS-HBB

• Decision Date: 28 August 2019
• Docket Number: CIVIL ACTION NO. 1:16-CV-00040-GNS-HBB
• Parties: BOBBY SEVERE PLAINTIFF v. MIDDLE TENNESSEE TRUSS COMPANY, LLC DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

BOBBY SEVERE PLAINTIFF v. MIDDLE TENNESSEE TRUSS COMPANY, LLC DEFENDANT

CIVIL ACTION NO. 1:16-CV-00040-GNS-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION

August 28, 2019

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiff's Motion in Limine (DN 59), Defendant's Motion in Limine (DN 60), and Defendant's Motion for Partial Summary Judgment (DN 61). The motions are ripe for adjudication. For the reasons outlined below, the Plaintiff's Motion for Partial Summary Judgment is GRANTED, Plaintiff's Motion in Limine is GRANTED, and Defendant's Motion in Limine is DENIED.

I. STATEMENT OF FACTS AND CLAIMS

This action involves non-fatal injuries suffered by Plaintiff Bobby Severe ("Severe") when a truss he was installing in a barn on his property collapsed. (Compl. ¶¶ 5, DN 1-1). Severe had built several houses and other structures including barns and had installed several trusses in his lifetime. (B. Severe Dep. 10:13-14, 13:18-23, 24:7-10, July 19, 2017, DN 60-4).

On the day of his accident, Severe was attempting to set a truss purchased from Defendant Middle Tennessee Truss Company, LLC ("MTTC"). (M. Severe Dep. 12:22-24, Aug. 30, 2017, DN 64-2). When Severe stepped out on the truss to nail a "jig" to it, the truss collapsed "just like when you unzipped your britches." (Willis Dep. 12:19-13:4, 16:1-5, 17:1-4, May 30, 2018, DN 64-5). Severe has no recollection of the events immediately preceding or following the accident. (B. Severe Dep. 40:7-41:21).

Severe filed this action in state court asserting claims of negligence and strict liability against MTTC. (Compl. ¶¶ 7-13, DN 1-1). Subsequently, MTTC removed the case to this Court. (Notice Removal, DN 1).

II. JURISDICTION

The Court has subject matter jurisdiction over this action under 28 U.S.C. § 1332 as there is complete diversity between the parties and the amount in controversy exceeds the sum of $75,000.00.

III. DISCUSSION

A. Motions in Limine

The parties have filed competing motions in limine relating to the respective opposing expert witnesses. Under Fed. R. Evid. 403, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. The admissibility of scientific evidence is governed by Fed. R. Evid. 702, which provides:

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.

Fed. R. Evid. 702.

1. Plaintiff's Motion to Exclude Expert Testimony (DN 59)

Severe moves to exclude the expert testimony of Terence A. Weigel ("Weigel"), a forensic engineer with Donan Engineering Co., Inc. (Pl.'s Mem. Supp. Mot. Lim. 1, DN 59-1; Weigel Report 4, DN 59-3). MTTC retained Weigel to perform an investigation related to the failure of a metal-plate-connected wood truss. (Weigel Report 5). In preparing his report, Weigel reviewed documents, inspected the failed truss, conducted a structural analysis of the truss, tested an exemplar truss, and reviewed the BCSI Guide.¹ (Weigel Report 12).

Severe seeks to exclude any evidence relating to Weigel's experimental recreation of Severe's accident, claiming the conditions of the experiment were not "substantially similar" to the actual occurrence. (Pl.'s Mem. Supp. Mot. Lim. 4-9). Severe has provided the Court with a video of the experiment. (Pl.'s Mot. Lim. Ex. 5, DN 59-6).

As the Supreme Court has noted, "[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses." Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 595 (1993) (internal quotation marks omitted) (citation omitted). "[T]he party seeking to introduce evidence reconstructing an accident must show a substantial similarity in circumstances between the reconstruction and the original accident." Jackson v. E-Z-Go Div. of Textron, Inc. 326 F. Supp. 3d 375, 405 (W.D. Ky. 2018) (internal quotation marks omitted) (quoting Bado-Santana v. Ford Motor Co., 482 F. Supp. 2d 197, 201 (D.P.R. 2007)). "Thecloser the experimental evidence simulates actual events rather than demonstrates a scientific principle, the higher the foundational standard: the experiment and event must be sufficiently similar to provide a fair comparison." Id. (internal quotation marks omitted) (quoting Dortch v. Fowler, No. 305-CV-216-JMD, 2007 WL 1794940, at *1 (W.D. Ky. June 15, 2007)). The proponent of expert testimony must demonstrate its admissibility by a preponderance of the evidence. Sigler v. Am. Honda Motor Co., 532 F.3d 469, 478 (6th Cir. 2008). "A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules." Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (internal quotation marks omitted) (quoting U.S. v. Abel, 469 U.S. 45, 54 (1984)). "Assessing the probative value of the [proffered evidence] . . . , and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment . . . ." Abel, 469 U.S. at 54

Courts in the Sixth Circuit have looked to the First Circuit case of Fusco v. General Motors Corp., 11 F.3d 259 (1st Cir. 1993), for guidance in applying the "substantial similarity" standard to factual circumstances like this case. See Dortch, 2007 WL 1794940, at *3. In Fusco, the defendant, General Motors, conducted an experiment attempting to demonstrate a Chevette's reaction upon the occurrence of a certain malfunction the plaintiff alleged caused their car to swerve off the road. Fusco, 11 F.3d at 262. The court held that General Motors did not meet its burden of showing substantial similarity between the experiment and the actual occurrence, because the test occurred in controlled conditions, on a test track with a driver expecting the malfunction, and with a doctored piece of equipment rather than one that actually broke. Id. at 264. The First Circuit reasoned that "[w]here [a] recreation could easily seem to resemble the actual occurrence . . . jurors may be misled because they do not fully appreciate how variationsin the surrounding conditions, as between the original occurrence and the staged event, can alter the outcome." Id. at 263-64.

Like General Motors in Fusco, MTTC has failed to meet its burden of showing substantial similarities between Weigel's experimental conditions and the conditions surrounding Severe's accident. Instead, MTTC merely states that Weigel used the same materials for the experiment as were used during the installation of the allegedly defective truss. (Def.'s Resp. Pl.'s Mot Lim. 4). MTTC does not rebut Severe's contentions concerning the alleged physical differences between the reconstruction and actual occurrence, including: five additional braces connected the two trusses upon reconstruction; a different brace connected the upright center post of one truss to the other; the experiment was conducted at ground level instead of 20 feet above ground; weight was applied incrementally rather than abruptly as in the actual incident; and a cut was made by a saw blade as opposed to a break. (Pl.'s Mem. Supp. Mot. Lim. 5-6). Moreover, Weigel's experiment, like the experiment conducted by General Motors in Fusco, was conducted in controlled conditions with the expectation of the occurrence and a "doctored" experimental truss rather than the one that actually broke. Such variation in the conditions surrounding Severe's accident and the staged breaking of the experimental truss could mislead jurors who may not fully appreciate how certain variations may have altered the outcome.

MTTC's naked assertion that Weigel used the same materials as the failed truss is simply contrary to the facts outlined above. See Buck v. Ford Motor Co., 810 F. Supp. 2d 815, 847 (N.D. Ohio 2011) ("The Sixth Circuit has concluded that 'substantial similarity' exists in incidents involving the same model, the same design, the same defect, and occurring under similar circumstances." (citation omitted)). As a result, MTTC has failed to demonstrate, by a preponderance of the evidence, substantial similarities between the experimental and actualconditions. The Court will grant Severe's motion to the extent it seeks to prohibit admission of evidence related to Weigel's experiment. Weigel will not be prohibited, however, from expressing opinions regarding his theory that the failed trusses moved laterally. To the extent lateral movement was prevented by other supports, such other evidence affects the weight—not the sufficiency—of Weigel's opinions. See Aetna, Inc. v. Express Scripts, Inc., 261 F.R.D. 72, 82 (E.D. Pa. 2009) ("[T]o the extent that there are facts in dispute which [the expert] should or should not have relied upon . . . , a jury will be given the opportunity to sort through these facts . . . ."); see also E.E.O.C. v. Tepro, Inc., 133 F. Supp. 3d 1034, 1050 (E.D. Tenn. 2015) ("That the opposing party believes that different data should have been used, additional factors considered, or alternate conclusions reached does not render contrary expert opinions irrelevant and unreliable. Instead, it reinforces the importance of allowing both parties to present expert testimony, of allowing each party an opportunity to vigorously...