White v. Ring Power Corp.

• Citation: 261 So.3d 689
• Decision Date: 10 December 2018
• Docket Number: No. 3D16-2869,3D16-2869
• Parties: James WHITE and Theresa White, Appellants, v. RING POWER CORP., Appellee.
• Court: Court of Appeal of Florida (US)

261 So.3d 689

James WHITE and Theresa White, Appellants,

v.RING POWER CORP., Appellee.

No. 3D16-2869

District Court of Appeal of Florida, Third District.

Opinion filed December 10, 2018

William C. Robinson, Bradenton, for appellants.

Akerman, LLP, Katherine E. Giddings (Tallahassee), Michael J. Larson (Tallahassee) and Gerald B. Cope, Jr., Miami, for appellee.

Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.

PER CURIAM.

INTRODUCTION

James White, an employee of Miami-Dade County Transit Authority, was injured while using a crane that Miami-Dade Transit rented from Ring Power Corporation. White was attempting to use the crane to lift a derailed Metro Mover train car and place it back on the tracks. When the wire rope on the crane snapped, the 400-pound "headache ball"¹ (which was attached to the wire rope) fell on White's leg. White sued Ring Power and others for negligence, and the case proceeded to trial against Ring Power only.

The jury returned a verdict in favor of Ring Power, and White appeals, contending: (1) the trial court abused its discretion in excluding certain expert witness testimony offered to support his claim that data from the crane's load moment indicator (LMI)² showed prior overloads to the crane, which weakened the integrity of the wire rope, causing it to snap on the day of the accident; (2) the trial court erred in determining (and instructing the jury) that Ring Power did not have a duty to download the crane's LMI data before renting it to Miami-Dade Transit; and (3) the trial court erred in admitting certain defense expert testimony, which White contends constituted new opinions that both surprised and prejudiced White. Each of these errors, White argues, requires a new trial. For the reasons that follow, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

a. The Accident

At the time of the accident, James White was chief shop supervisor at the Lehman train yard, where Metro Mover trains are brought for servicing and maintenance. Miami-Dade Transit rented the subject crane from Ring Power on June 24, 2011. On July 14 (three days before the accident), Miami-Dade Transit employees were using the crane and noticed the wire rope spooled on the drum was cross-braided instead of being "neatly wrapped around the drum" as it should have been. The employees filed reports and notified supervisors of the defective equipment, but the crane was not taken out of service.

On the day of the accident (and three weeks after Miami Dade Transit rented the crane), one of the train cars derailed while in the Lehman train yard. White was called to help re-rail the train. Instead of using a pneumatic jack, workers used the crane to try and lift the train and set it back onto the track. The train car weighed 75,000 pounds. The back portion of the train—the portion the workers were trying to lift—weighed about 36,000 pounds. The lifting capacity of the crane depends on whether it is configured to use "single-part line," or "multiple parts line." Each added line increases the crane's lifting ability.³

Although the crane was capable of being configured to a "four-part line," which would enable it to lift 42,000 pounds, White configured the crane to a single-part line, capable of lifting up to 11,640 pounds.

Workers attempted on five occasions to use the crane to lift and re-rail the train. But on each attempt, the crane shut down. On the fifth and final attempt, the wire rope snapped, and the 400-pound headache ball landed on White's leg, causing serious injury and ultimately requiring amputation of White's leg above the knee.

b. The Lawsuit

In September 2011, White filed suit against the crane manufacturer, the manufacturer's subsidiary, the wire rope manufacturer, and the crane lessor (Ring Power). By the time of trial, White had settled with all defendants except Ring Power, on a remaining claim for negligence.⁴ White alleged that Ring was negligent in failing to properly inspect and replace the wire rope on the crane before renting it to Miami-Dade Transit, and that previous overloads to the crane diminished the wire rope's integrity, causing it to snap. Ring Power contended that the wire rope snapped due to the workers' failure to properly inspect the wire rope, take the crane out of service when they discovered cross-braiding of the wire rope, and heed the system's warnings and shutdowns during the attempted lift.

c. Pretrial Motions

White retained three experts to opine on the cause of the wire rope snapping: Tom Barth (certified marine crane inspector for the federal government); Lew Barbe (engineer with crane experience)⁵ ; and William Mankins (metallurgist). After the witnesses were deposed, Ring Power filed a motion to strike the experts' testimony pursuant to section 90.702, Florida Statutes (2015) (the Daubert ⁶ standard). Following a hearing, the trial court excluded a portion of the three expert witnesses' proposed testimony, precluding these three experts from interpreting and offering opinions about the data collected and recorded by the crane's load moment indicator.

The trial court found that none of the three experts was qualified to interpret the LMI data and to offer opinions whether the crane was actually overloaded at some time prior to the crane being rented to Miami-Dade Transit. The trial court's exclusion of this testimony was based in part on the deposition testimony of White's own experts that they each lacked knowledge of and familiarity with LMI data and LMI systems.

Prior to trial, Ring Power filed a motion for partial summary judgment on "any and all claims asserted by [White] regarding Ring Power's alleged duty to download LMI data from the PAT System on the crane it rented to Miami Dade ... prior to renting the crane to MDT." Following a hearing, the trial court granted Ring Power's motion for partial summary judgment, finding that Ring Power had no legal duty to download and review the LMI data before it rented the crane to Miami-Dade Transit.

THE TRIAL

a. White's Case-in-Chief

Trial began in September 2016. White's witnesses testified in pertinent part:

Harvey Ford, the track equipment operator, was operating the crane when the wire snapped. He tried several times to lift the train, moving the crane closer and at different angles, but each time alarms sounded and the crane shut down. The "scale" across the top of the crane's interior showed the crane was "maxing out." When Ford informed White, White attempted to assist him in setting up the crane. Ford tried lifting the train two more times, but each time the crane "maxed out." On the last attempt, the wire cable snapped, causing the headache ball to fall, injuring White.

On cross-examination, Ford conceded that, at the time he was operating the crane, he did not know the weight of the train and he did not use the load chart to decide the best way to lift the train. Most significantly, Ford used a single-part line to lift the train. He did not know how much a single-part line could lift, and White did not suggest that Ford reconfigure the crane from a single-part line.

White also testified that he did not know how much weight they were attempting to lift on the day of the accident nor did he know "the maximum load capacity" of the crane configured with a single-part line.

Two expert witnesses testified for White: Tom Barth (a certified marine crane inspector) and Dr. Kenneth Blundell (an engineer). Barth inspected the crane and wire rope following the accident, and testified generally to the OSHA inspection requirements for cranes such as maintenance of the crane's wire cables. He also testified regarding his review of the pre-accident inspections performed on the crane in question. Barth opined that the inspectors who conducted the annual inspection of the subject crane in 2011 "did not do a very thorough job." He further opined that the wire rope broke because "[i]t wasn't well lubricated and it was abused." When Barth inspected the rope, he found it dry. Barth testified that a wire rope should be lubricated once to twice a year depending on environmental conditions (e.g., weather) but that there are no specific standards requiring a rope be lubricated with a specific frequency.

Blundell testified generally about lubrication and reporting requirements for the wire rope. He opined that (1) Ring Power failed to properly inspect, maintain and lubricate the wire rope on the crane; (2) the failure to do so reduced its breaking strength; and (3) because the accident occurred only twenty-three days after Miami-Dade Transit took possession of the crane from Ring Power, Miami-Dade Transit was entitled to rely on Ring Power to properly inspect, maintain, and lubricate the wire rope prior to delivery. Blundell relied, for his opinion that the wire rope lacked lubrication, on the documentation provided to him (i.e. reports), not on a visual examination of the wire rope in question.

Eric Fidler was the product safety director for the crane manufacturer. White read excerpts of Fidler's deposition to the jury in lieu of live testimony. Fidler interpreted the crane's LMI event data recorder and testified about overloads to the crane on the day of the accident. He explained that overloads happen but they are the result of misuse of the crane. Fidler also testified about overloads occurring between August and October 2010, before Miami-Dade Transit rented the crane from Ring Power. Fidler explained that the LMI records overloads based on how the operator programmed the crane. For instance, an operator might have input that he was using a one-part line to lift a load of over 11,600 pounds but then properly reeved⁷ the crane with multiple-parts line in accordance with the weight of the load. Under this scenario, Fidler explained, the LMI would record an overload even though the crane was not physically overloaded. He described these "as overloads based on the configuration" and testified that, without knowing whether "this programming was accurately input," he could...