Opinion
Civil Action No. SA-99-CA-0355-PMA.
April 27, 2000.
ORDER
Pursuant to the consent of the parties in the above-styled and numbered cause of action to trial by the undersigned United States Magistrate Judge and consistent with the authority vested in the United States Magistrate Judges under the provisions of 28 U.S.C. § 636(c)(1) and Appendix C, Rule 1(I) of the Local Rules for the Assignment of Duties to United States Magistrates, in the Western District of Texas, the following order is entered.
I. JURISDICTION
The Court has diversity jurisdiction under 28 U.S.C. § 1332.
II. STATEMENT OF FACTS
Plaintiff Andres Almazan originally filed this lawsuit against Chore-Time Texas, Inc. in the 25th Judicial District Court of Gonzales County, Texas on April 24, 1998, Subsequently, plaintiff amended his petition to include CTB, Inc. as a defendant, and Old Republic Insurance Company intervened in the case claiming it was subrogated to plaintiff's claims. On April 15, 1999, the judge in the 25th Judicial District Court entered an agreed order granting Chore-Time's motion for summary judgment praying that plaintiff take nothing against Chore-Time. On that same day, Defendant CTB, Inc., claiming the parties were diverse, removed the cause to the United States District Court for the Western District of Texas. In his first amended petition, plaintiff alleged claims for negligence, gross negligence, and product liability because of amputations that occurred at his job site. Defendant denied plaintiff's allegations and asserted various affirmative defenses. Defendant has also moved for summary judgment or, alternatively, for a partial determination of fact.
Docket no. 1 (the record amassed in the case prior to its removal to the United States District Court).
Docket no. 1.
Id.
Id.
Id.
Docket nos. 23 (first amended answer to intervener's petition) and 24 (first amended answer to plaintiffs petition).
The facts in the case are uncontroverted. Cal-Maine Farms, Inc., plaintiff's employer, is one of the largest egg producers in the United States. The facility at issue is located in Waelder, Texas. The company's birds are housed in a large cage system in which cages are stacked three-high and lined in double rows, each row being approximately the length of two football fields. An automatic water system keeps water in cups for the chickens to drink. A feed trough runs along the length of the cages, and the chickens stick their heads through openings in the cages to peck at the feed.
All facts are taken from defendant's statement of uncontroverted factual assertions. Docket no. 25, index of documents and summary of facts ("index"). Plaintiff has responded to defendant's motion for summary judgment and has not objected to the facts as presented by defendant. Docket no. 26.
Docket no. 25, index at 2.
Id. at 6.
Docket no. 25 at 6.
Id., index at 3.
Id.
The feed is moved along the trough by a screw-like device known as an "auger." At the end of each cage row, the feeder auger disappears into an enclosed "auger tube" which curves around the end of the cage row and emerges on the other side of the cages in a different trough. At the beginning of each auger tube is an assembly known as a "clean-out spout" or "clean out assembly." The clean-out assembly consists of a "clean-out tube," which is slotted to expose the auger, and "spout" or clean-out "half assembly." The spout or half assembly is bolted to cover the auger that is otherwise exposed by the clean-out tube. When the spout is turned upward or closed, the feed continues to move through the auger tube while the auger is operating. If the spout in down or open, feed falls through the opening in the tube, through the spout, and into the manure pit below the cages. Plaintiff's injuries were caused when the auger was exposed by removing two screws and the spout.
Id.
Id.
Id.
Id.
Id.
Id.
Docket no. 25, index at 3.
Id., index at 4.
The feed auger system was supplied by former defendant, Chore-Time, and installed by an independent contractor while defendant's representative was present to oversee the installation. Defendant's representative, Dennis Rhodes, provided the independent contractor, Richard Crow, with manuals, safety training, and operational schooling on the equipment. Rhodes also provided safety and operational training to Cal-Maine's complex manager and to the maintenance person.
Id.
Id.
Id.
The manuals contained a variety of warnings, such as the following:
!DANGER Moving Auger! Disconnect electrical power before working on system, equipment may start automatically. Otherwise severe personal injury will occur.
Id.
This "Moving Auger!" warning was accompanied by a graphic depicting fingers being amputated at the pinch point between the auger and the auger tube. The manuals also contain this warning: "Severe personal injury will result, if the electrical power is not disconnected, prior to servicing the equipment." On the same page is this alert: "Use extreme caution when removing obstruction from auger even when the power is disconnected." On a page titled "ULTRAFLO Feeder and Fill System Maintenance Schedule" another warning provides:
Id.
Docket no. 25, index at 4.
Id., index at 4-5.
Remove feed from trough by opening clean-outs in feeder loop. Use caution while clean-outs are open. Do not place fingers or foreign objects into the clean-outs.
Id. at 5.
The Moving Auger! warning and graphic are repeated after this instruction. The page headed "Trouble Shooting Guide" has the following relevant information:
Id.
2. If the feeder fails to operate, check the auger for foreign objects and or water. The most likely place for an object to jam is in the elbows or at a power unit. USING AN AUGER PULLER OR PLIERS check both elbows (front and back) and all power units.
5. If water is found in the trough, it may be necessary to move auger with an auger puller before it will start with the motors.
ALWAYS KEEP HAND OUT OF JAMMED AUGER. THE AUGER MAY COME LOOSE AT ANY TIME, CAUSING SEVERE PERSONAL INJURY OR DEATH.
Id.
Cal-Maine conducted monthly training seminars, and employees were regularly instructed not to pick feathers out of the auger with their fingers. Although Cal-Maine's complex manager received the Chore-Time manuals, Fred Ward, the Pullet Supervisor of Cal-Maine Foods, was never trained on the safe operation of the food auger. Ward was plaintiff's immediate supervisor and was the person who trained his employees on the safe operation of the chicken feeding machine, including the machine where plaintiff was injured. Ward testified that he had browsed through and read the warnings in a Cal-Maine file labeled "Feeders" which contained documents entitled "Uniflow" and "Chore-Time Ultraflow Cage Feeding Systems for Brood-Grow Layer Installations: Installation Instructions, Repair Parts Listing, Maintenance Schedule, Trouble Shooting Guide." He also testified that defendant did not give Cal-Maine any manuals, that he found them in the trash, that he took one out of an equipment case, and that some were located in the possession of Cal-Maine layer house employees, which had similar equipment. This was done at the direction of Cal-Maine's General Manager, Mr. Hodges.
Id.
Docket no. 25, index at 5-6.
Id. index at 6.
Id.
Id.
Id. Mr. Hodges is not identified by first name.
Tim Knesek, Cal-Maine's Production Manager and Safety Coordinator at the time of the accident, was not working for Cal-Maine's Waelder facility when the feeder auger system was installed. He never conducted meetings about the safe use and operations of the feeder auger, and never gave any training on the matter. He had read the manuals to learn what to do in the event an auger broke.
Id.
Id.
Docket no. 25, index at 6.
Cal-Maine maintained a written lock-out/tag-out procedure that was mandatory for all employees working on the auger system. This procedure consisted of locking the circuit breaker in the `off' position and placing a tag describing the purpose for the lock-out.
Id.
Id. at 6-7.
When the water cups began popping off, water got inside the feed trough, causing a problem with the auger system because of clumped feed. Ward tried without success to clear the auger tube by opening the clean-out spout. He then devised, without consulting Chore-Time, his own procedure for clearing the auger system. This procedure consisted of removing the clean-out spout cover, turning the power on to the auger mechanism, running the exposed auger, and pounding on the auger or auger tube with either a rubber mallet or a claw hammer. This would result in clumps of chicken feed dropping from the system. To utilize this procedure, it was necessary to violate Cal-Maine's mandatory, written lock-out/tag-out rule.
Id. at 7.
Id.
Id.
Id.
Id.
Id.
Ward did not attempt to remove the clumped feed by any other means. Defendant was not aware that any of its customers used this method to clear the auger system.
Docket no. 25, index at 7.
Id.
Ward has a bachelor of science degree from Cal Polytech in poultry industry, and he has eighteen years of experience in the chicken industry, sixteen with Cal-Maine. He knew of coworkers whose fingers were amputated and of the hazards of a chicken feeding system. Plaintiff had a ninth grade education, and his first job at Cal-Maine was clean-up duty. He had worked for Cal-Maine for one year before the accident occurred. Approximately six months after plaintiff started his job, Ward moved him to mechanical maintenance work. At this point, plaintiff had no experience with any type of mechanical work, which he performed only when a regular maintenance person was unavailable. Using the method he devised for Cal-Maine, Fred Ward trained plaintiff to remove clumped feed from the auger. Plaintiff was considered to be Ward's helper and the "designated wet feed clean-out person."
Id. at 8.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
On the day of the accident, plaintiff noticed a water leak in one of the pullet houses. He notified Ward of the problem and began removing the clean-out spout, as Ward had trained him, by removing the half assembly which prevented exposure to the auger. While the auger was in operation, plaintiff then hammered the auger mechanism with a rubber mallet. Ward arrived to assist plaintiff and because he noticed that plaintiff was becoming fatigued, Ward told plaintiff to use a claw hammer. With the auger mechanism operating and Ward and Knesek present, plaintiff began hammering on the auger system with the claw hammer. Ward and Knesek then left plaintiff alone at the location of the accident and, shortly thereafter, plaintiff's left hand was pulled into the auger as a result of using the claw hammer. When plaintiff attempted to free his trapped left hand, his right hand became engaged in the auger and the amputations occurred. At the time of the accident, plaintiff was using the clean-out procedure developed by Ward for Cal-Maine.
Docket no. 25, index at 9.
Id.
Id.
Id.
Id.
Id.
Id.
Defendant has moved for summary judgment on plaintiff's claims arguing that the negligence and strict products liability claims are barred because plaintiff's employer, Cal-Maine Farms, Inc. was the sole cause of the accident. Additionally, defendant argues that plaintiff's strict products liability claim is barred because plaintiff can produce no evidence that the product reached plaintiff without substantial change in the condition in which it was sold. Finally, defendant argues that plaintiff's gross negligence claim is barred because there is no evidence that defendant acted in conscious disregard for plaintiff's rights or welfare.
Docket no. 25. at 1.
Id.
Id. at 2.
Plaintiff has responded arguing that defendant's evidence that Cal-Maine is the sole cause of the accident merely entitles defendant to argue that defense to the trier of fact, that the evidence is insufficiently conclusive that the auger system was substantially altered, and that there is ample evidence of defendant's gross negligence. In support of his arguments, plaintiff relies on the affidavit of Michael J. Chiles. Defendant has filed a rejoinder as well as objections and a motion to strike Chiles' affidavit. Plaintiff has moved to strike defendant's rejoinder. Defendant's motion for summary judgment, the objections, and the motions to strike are the subject of this Order.
Docket no. 26 at 2.
Id. at attachment.
Docket no. 27.
Docket no. 31.
III. ISSUES
1. Whether defendant is entitled to summary judgment on its argument that Cal-Farm is the sole cause of plaintiff's accident.
2. Whether the auger system was substantially altered after it left defendant's control.
3. Whether there is evidence of defendant's gross negligence.
IV. SUMMARY JUDGMENT
A. STANDARDThe standard to be applied in deciding a motion for summary judgment is set forth in Federal Rule of Civil Procedure 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson, 477 U.S. at 248; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of providing the court with a legal basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. The burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment. All evidence and inferences drawn from that evidence must be viewed in the light favorable to the party resisting the motion for summary judgment. Thus, summary judgment motions permit the Court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law. B. CHOICE OF LAW
Celotex Corp., 477 U.S. at 323.
Anderson, 477 U.S. at 257.
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993).
See Fields v. City of South Houston, Tex., 922 F.2d 1183, 1187 (5th Cir. 1991).
In a diversity action, federal courts apply state substantive law. Although defendant is an Indiana corporation, there is little doubt when applying the "most significant relationship" test, as required by Texas as the forum state, that Texas law controls the torts at issue.
Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236, 241 (5th Cir. 1993).
Docket no. 1 (plaintiff's first amended petition).
This approach is detailed in the Restatement (Second) of Conflict of Laws. The relevant language of § 145 of the Restatement provides:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in S 6.
(2) Contacts to be taken into account in applying the principles of S 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to a particular issue. RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 145 (1971). Section 6 states:
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law,
(2) When there is no such directive, the factors relevant to the choice of the applicable rule include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied. RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 6 (1971).
Thomas, 994 F.2d 236, 241.
With the exception of defendant's place of incorporation, all of the significant contacts are in Texas, including the place of injury, plaintiff's residence, and the center of the relationship between the parties. In applying the principles of the most significant relationship test, Texas has a great need to balance the interests of its residents with those of defendant corporations doing business in Texas. The parties do not suggest that the law of another state should apply and, in fact, they argue their positions under Texas law. Thus, the Court will apply Texas tort law to the facts of the case.
See RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 145.
See RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 6.
Docket no. 25.
C. OBJECTIONS AND MOTIONS TO STRIKE Affidavit of Michael Chiles
Defendant has filed objections to and a motion to strike plaintiff's evidence in opposition to summary judgment, specifically the affidavit of Michael Chiles. The Court finds that defendant's objections and motion to strike Chile's affidavit are not well taken.
Docket no. 27.
Defendant argues that the affidavit should be disregarded because it is conclusory. Cognizant that affidavit evidence presented in support of a summary judgment position must be admissible under the rules of evidence, and apart from defendant's challenge to expert opinions under Federal Rules of Evidence 702 and 703, the Court has considered the affidavit to the extent it was relevant and was not conclusory, speculative, or contained unsubstantiated assertions. Defendant also asks the court to disregard the portions of the affidavit that state Chiles found no evidence that CTB, Inc. tried to identify the hazard, to evaluate the risk, or to eliminate the danger because these opinions are contradicted by portions of his deposition testimony. Mindful of the Fifth Circuit's ruling that in summary judgment proceedings, affidavits contradicting deposition testimony without explanation — as opposed to supplementing — may not be considered in determining the existence of genuine issues of fact, the Court considered only those portions of the affidavit which supplement Chiles' deposition testimony.
Id. at 3.
FED. R. Civ. P. 32(a), 33(c), § 56(e).
Doe v. Beaumont Indep. Sch. Dist., 173 F.3d 274, 300 (5th Cir. 1999) (en banc); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); see Hanchey v. Energas Co., 925 F.2d 96, 97 (5th Cir. 1990) (legal conclusions and general allegations will not support or defeat motion for summary judgment).
Docket no. 27 at 3.
SWS Erectors v. Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996).
Defendant argues that the Chiles affidavit should be stricken because it was not made on personal knowledge. However, the affidavit states that it is based on personal knowledge and incorporates by reference Chiles' report dated May 3, 1999. In his report, Chiles states that he personally inspected the Waelder plant and reviewed relevant deposition testimony, Chore-Time's manual, and the Safety Standards for Conveyors and Related Equipment as promulgated by the American Society of Mechanical Engineers ("ASME"). Based on his inspection and reviews, Chiles opines that defendant should comply with an ASME standard, which is set forth in the report, and that defendant could incorporate a cleaning device into the feeder system.
Docket no. 27 at 3.
Docket no. 26, attachments.
Id.
Id.
Defendant also objects to the opinions in Chiles' affidavit that: (1) the Cage feeding system was "defectively dangerous"; (2) the Cage feeding system is governed by ASME B20.1; (3) the Cage feeding system required an emergency stop device; and (4) CTB, Inc. caused plaintiff's injuries. Defendant argues, in sum, that Chiles is not qualified as an expert such that the opinions are without foundation and that the affidavit does not set forth facts in support of the opinions or discuss the methodologies used in arriving at the opinions. Specifically, defendant argues that because Chiles did not measure the clean-out spout and because Chiles is not able to form a firm opinion as to whether the half assembly meets the definition of "guard" under the appropriate engineering standards, his opinions are not reliable. Fed.R.Evi. 702 and 703 and Daubert
Docket no. 27 at 1-2.
Id. at 2.
Id.
Rule 702 of the Federal Rules of Evidence permits the use of expert testimony when such testimony will assist the trier of fact to understand the evidence or to determine a fact issue. A witness may be an expert by virtue of his or her knowledge, skill, experience, training or education. In giving testimony, an expert may rely on three types of facts or data: those perceived directly by the expert, those made known to the expert during the trial, and those made known to the expert before trial and based on something other that the expert's own perceptions.
FED. R. EVID. 702.
See FED. R. EVID. 703.
Although defendant has not interposed an objection citingDaubert, the Court has considered defendant's challenges to Chiles' qualifications, methodology, and opinions to be properly addressed under the Daubert standards. The Fifth Circuit has applied the Daubert standards to summary judgment evidence.
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 320 (1993).
Rushing v. Kansas City Ry. Co., 185 F.3d 496, 506 (5th Cir. 1999).
In Daubert, the Supreme Court held that expert scientific testimony must be "ground[ed] in the methods and procedures of science" and based on "more than a subjective belief or unsupported speculation." The Supreme Court explained that proposed testimony must be supported by appropriate validation, that is, "good grounds," based upon what is known. To be admissible under the Daubert standard, an expert's opinion must have a "reliable basis in the knowledge and experience of his discipline."
Daubert, 509 U.S. at 590.
See Allen v. Pennsylvania Eng'g Corp., 102 F.3d 194, 196 (5th Cir. 1996).
Allen, 102 F.3d at 196; see Daubert, 509 U.S. at 590, 113 S.Ct. 2786.
Accordingly, the Supreme Court and the Fifth Circuit direct that a court determine that the reasoning and methodology underlying a proffered expert opinion are scientifically valid and that the reasoning and methodology can be applied properly to the facts in issue. In Allen, the Fifth Circuit held that for every conclusion contained in the expert's proposed testimony, the Court must determine if the methodology leading to that conclusion is sound. When determining reliability, courts consider factors such as whether the technique is testable, whether it has been subjected to peer review and publication, whether there is a known or potential rate of error, and whether the relevant scientific community generally accepts the technique. These factors, however, may or may not be relevant to the particular inquiry.
Daubert, 509 U.S. at 590-92, 113 S.Ct. 2786.
Kumbo Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1175 (1999); Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786.
Id.
Although Daubert addressed traditional "scientific" evidence, courts should consider the reliability of all experts, including expert testimony based on engineering principles or practical experience-based knowledge. In the case of non-scientific expert testimony, the Fifth Circuit has noted that Daubert applies even though each of the factors outlined in Daubert for determining the reliability of expert testimony may not be applicable to every such case. Nevertheless, the court must exercise its gatekeeping function to ensure that expert testimony based on experience and training is reliable. Application of Daubert Factors to Chiles' Testimony
Kumho Tire, 526 U.S. at 151-52, 119 S.Ct. at 1176; Black v. Food Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999); Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (Daubert applied when expert testimony is based on experience and training).
Food Lion, Inc., 171 F.3d at 311.
See Daubert, 509 U.S. at 590-93; 113 S.Ct. 2786.
Chiles' affidavit attests that he is an engineer licensed in Texas and qualified to offer testimony regarding the design, operation, and safety of the feeding system at issue. Although Chiles' curriculum vitae was not initially offered as evidence to support the affidavit, plaintiff has now presented that document, along with relevant portions of Chiles' deposition testimony, to establish that Chiles is qualified to offer expert testimony. The curriculum vitae shows that Chiles has twenty years of mechanical engineering experience; has expertise in machine design and analysis as well as general engineering; belongs to various engineering organizations, such as the American Society of Mechanical Engineers; and that he has been a member of safety assessment teams. The Court finds that Chiles is qualified to offer opinion testimony regarding the design, operation, and safety of the chicken feeder system at issue.
Docket no. 26. attachment.
Defendant offered portions of Chiles' deposition in support of its argument that Chiles' affidavit contradicts the deposition testimony. Defendant did not include the testimony regarding Chiles' qualifications or the curriculum vitae which was an exhibit to the deposition. Docket no. 27.
Docket no. 31, exhibits A B.
Id., exhibit A.
With respect to the Daubert relevancy and reliability assessments, Chiles' report states that he personally inspected the Waelder plant auger system and reviewed deposition testimony, manuals, and engineering standards before forming his opinions. The opinions that defendant should comply with an ASME standard and that defendant could incorporate a cleaning device into the feeder system are relevant to the disputed issues of law and fact as discussed further herein. Chiles' testimony that he did not measure the clean-out spout and that he was unable to give a firm opinion about whether the half assembly is a "guard" and other, similar lines of attack argued by defendant may be considered when determining the weight to be given to Chiles' testimony.
Considering all of the evidence and argument submitted to the Court, the Court will not strike the objected portions of Chiles' testimony. Plaintiff bears the burden of showing that Chiles's testimony constitutes scientific, technical or specialized knowledge that will assist the trier of fact in understanding the evidence or resolving disputed issues and that the witness is qualified to provide such testimony. Given Chiles' training and experience, his observations and consideration of the evidence provided by others, the evidence meets the reliability standard. The Court has considered both the relevance of the evidence, including its fit in this case, and the reliability of such evidence, pursuant to the applicable Daubert factors. The Court finds by a preponderance of the evidence that the proffered expert opinions constitute scientific, technical or specialized knowledge; it will assist the finder of fact; it is sufficiently reliable; and Chiles is qualified to provide such testimony. Defendant's arguments and lines of attack on the proposed testimony go to the weight but not the admissibility of the expert opinions. Accordingly, defendant's objections to Chiles' affidavit are overruled and the motion to strike the same isdenied.
Defendant's Rejoinder
Plaintiff's motion to strike defendant's rejoinder to plaintiff's response in opposition to the motion for summary judgment is denied. Although the better practice might be for defendant to move for leave to file a reply, nothing in Local Rule CV-7 absolutely prohibits replies to responses to motions. Instead, the rule merely provides that court action on a motion is generally proscribed for a period of eleven days after the date of receipt in order that a response might be filed. The rule does not address additional time for the filing of a reply or sur-reply. In this case, defendant filed a rejoinder (reply) and plaintiff has filed a sur-reply. Therefore, plaintiff has had the opportunity to address the merits of defendant's reply arguments and cannot demonstrate prejudice by the filing of the reply. Both documents will be considered.
Id. at 2.
See Local Rule CV-1.
VI. ARGUMENTS AND CONCLUSIONS OF LAW
A. WHETHER PLAINTIFF'S EMPLOYER WAS THE SOLE CAUSE OF THE ACCIDENT IS A GENUINE ISSUE OF MATERIAL FACT.
B. WHETHER THE AUGER SYSTEM WAS SUBSTANTIALLY ALTERED IS A GENUINE ISSUE OF MATERIAL FACT.
Overview
In this products liability case, plaintiff alleges that defendant acted negligently in designing, manufacturing, marketing, and selling the chicken feed auger. In addition, plaintiff alleges defendant is strictly liable because the auger was defective and unsafe for its intended use at the time it left defendant's control. Specifically, plaintiff contends the system was defectively designed, manufactured, marketed, and sold as well as unreasonably dangerous. In order to prove liability, plaintiff must establish that defendant's conduct (for negligence) and/or the defective product (for strict liability) in fact caused plaintiff's injuries. Defendant has moved for summary judgment on both the negligence claim and the strict liability claims arguing that plaintiffs employer, Cal-Maine, is the sole cause of the accident. As an alternative ground for summary judgment on plaintiff's strict liability claim, defendant argues plaintiff has no evidence the auger system was not substantially altered after it left defendant's control. Negligence
Docket no. 1 (plaintiff's first amended petition).
Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995) ("cause in fact" is common to proximate cause for negligence and producing cause for strict liability is cause in fact).
Docket no. 25 at 2.
Id. at 3.
Defendant argues that the undisputed facts in this case establish that defendant did not instruct Cal-Maine, any of its employees, or any other customer to clear wet feed from the auger system in the manner plaintiff used. According to defendant's argument, the evidence shows that Cal-Maine personnel devised the cleaning technique, without advice from defendant, and that plaintiff was following Cal-Maine's instructions. Defendant argues that the technique required plaintiff to: (1) alter the auger system by removing the clean-out spout; (2) ignore defendant's warnings against working on the auger while the power was on; (3) ignore Cal-Maine's lock-out/tag-out procedure; and (4) strike the moving auger with a hand-held tool. In addition, defendant contends Cal-Maine devised this system knowing that other employees had lost fingers in the chicken feeder system. Finally, defendant contends Cal-Maine did not provide manuals to plaintiff or his supervisors despite the fact that the material had been provided to Cal-Maine's manager and to the individual who initially installed the auger system. Although the foregoing facts may be undisputed, they do not conclusively establish that Cal-Maine was the sole proximate cause of plaintiff's injuries.
Id. at 2.
Id.
Docket no. 25 at 2-3.
Id. at 3.
Id. at 3.
Negligence requires a showing of proximate cause which consists of cause in fact and foreseeability. "Cause in fact" means that the defendant's omission or act played a substantial part in causing an accident that would not have otherwise occurred. "Substantial" means the defendant's "conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility." There may be more than one proximate cause of a accident. Generally, causation presents an issue of fact for the trier of fact to determine.
Union Pump, 898 S.W.2d at 775; see Urbach v. United States, 869 F.2d 829, 831 (5th Cir. 1989).
Union Pump, 898 S.W.2d at 775.
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991) (quoting RESTATEMENT (SECOND) OF TORTS § 431).
Id. at 471.
Risenhoover v. England, 936 F. Supp. 392, 408 (W.D. Tex. 1996); First Interstate Bank v. S.B.F.I., Inc., 830 S.W.2d 239, 246 (Tex.App.-Dallas 1992, no writ).
Defendant's conduct may at some point in the causal chain be too remote from plaintiff's injuries to constitute legal causation. Legal causation is not established if defendant's conduct merely furnishes the condition that makes the plaintiff's injury possible. "An intervening act by a third party may destroy the `causal connection between the defendant and the plaintiff's injury,' if the act of the independent agency `was the immediate cause of plaintiff's injury and was not reasonably foreseeable.'" In this context, foreseeability "requires that the actor, as a person of ordinary intelligence, would have anticipated the danger that his negligent act created for others[.]" A person does not have to foresee the exact manner in which the injury will occur once he has created a negligent situation.
Union Pump, 898 S.W.2d at 775; Lear Siegler, 819 S.W.2d at 472.
Risenhoover, 936 F. Supp. at 410 (quoting Urbach, 896 F.2d at 833).
Urbach, 896 F.2d at 831 (quoting City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex. 1987)); Risenhoover, 936 F. Supp. at 410.
Urbach, 896 F.2d at 831.
To determine whether an intervening force is also a superceding cause, the following factors should be considered: (1) whether the harm caused by the intervening force is different from that which would otherwise have resulted from the negligent act; (2) whether there was an extraordinary chain of events; (3) whether the intervening force is independent of the situation created by the negligent actor; (4) whether the intervening force is caused by a third party; (5) whether the third party's act was wrongful; and (6) the third party's degree of culpability for the wrongful act creating the intervening force.
Id. at 833-34 (citing RESTATEMENT (SECOND) OF TORTS § 442); Humble Oil Ref v. Whitten, 427 S.W.2d 313, 315 (Tex. 1968).
A defendant in a products liability case may offer evidence that the negligence of plaintiff's employer was the sole proximate cause of the injuries. This is so even though the employer may be immune from liability because of the Worker's Compensation laws. If sole proximate cause is found, then there can be no finding that any other act or omission caused a plaintiff's injuries and damages.
Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 753 (Tex. 1993).
Id.
Borrego v. City of El Paso, 964 S.W.2d 954, 959 (Tex.App.-El Paso 1998, pet. denied).
At best, the facts of this case establish that Cal-Maine's cleaning technique may have been a concurrent or intervening force in causing plaintiff's injuries. However, a genuine issue of fact remains as to whether Cal-Maine's actions, in some form, were reasonably foreseeable to defendant. Although defendant has offered evidence that it did not instruct or know of Cal-Maine's use of the cleaning technique in question, there is other evidence in the form of warnings in defendant's manual suggesting defendant had some knowledge that fingers or objects could be inserted in to an open clean-out spout, whether removed or not. Thus, questions about foreseeability are unresolved.
Urbach, 896 P.2d at 833 (third party conduct may have been immediate cause of injury); Risenhoover, 936 F. Supp. at 410 (same).
Urbach, 896 F.2d at 831; Risenhoover, 936 F. Supp. at 410;Pike, 727 S.W.2d at 517.
Docket no. 12, index, attachment 5 (affidavit of Mike Krehl, defendant's Product Manager).
Id. index, attachment 4 at 42, 44.
Moreover, through Mr. Chiles' affidavit and report, plaintiff has provided evidence suggesting defendant's negligence in not designing the chicken feeder system according to ASME standards recommending "emergency stop button[s], pull cords, limit switches, or similar emergency stop devices" and in not providing a clean-out device such as an air compressor. Thus, when considering Cal-Maine's conduct as a supervening event, the question is whether the result of that conduct is different from what could have occurred because of defendant's alleged negligence; whether the actual chain of events is extraordinary; whether Cal-Maine's intervention was independent of the situation caused by defendant's alleged negligence; and the degree of Cal-Maine's culpability. Because these questions remain in the case, genuine issues of material fact remain about whether Cal-Maine's conduct was a supervening cause such that it was the sole proximate cause of plaintiff's injuries..
Docket no. 26, attachments.
Urbach, 896 F.2d at 833-34; Humble Oil, 427 S.W.2d at 315.
As defendant has not conclusively established that as a matter of law Cal-Maine's conduct was unforeseeable or was a supervening cause such that it was the sole proximate of plaintiff's injuries, defendant has not established its defense of sole proximate cause. Therefore, the Court denies defendant's motion for summary judgment on plaintiff's negligence claim.
Strict Liability
In moving for summary judgment on plaintiff's strict liability claims, defendant relies on its sole cause arguments as set forth above. To prove strict liability, plaintiff must establish that defendant's defective product was the producing cause of the injuries. "A producing cause is an efficient, exciting, or contributing cause, which in a natural sequence, produced the injuries or damages complained of[.]" Thus, common to both proximate cause for negligence and producing cause is the element of cause in fact. Although foreseeability is not an element of producing cause, it is an element required to prove an allegation that an intervening act is the sole cause of the injury.
Docket no. 25 at 2.
Union Pump, 898 S.W.2d at 775; Ford Motor Co. v. Cammack, 999 S.W.2d 1, 7 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).
Id.
Id.
Id.
Khan v. Velsicol Chem. Corp., 711 S.W.2d 310, 317 (Tex.App.-Dallas 1986, writ ref'd n.r.e.); Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519, 533 (Tex.App.-Corpus Christi 1979, writ ref'd n.r.e.).
Viewed in a light most favorably to plaintiff, the facts in this case suggest concurrent producing causes of the accident. To counter defendant's claim that the undisputed evidence establishes Cal-Maine's clean-out technique was the sole cause of his injuries, plaintiff has offered evidence through Chiles' affidavit and report raising a material issue of fact as to whether defendant's chicken feeder auger was defectively designed and whether such defect caused plaintiff's injuries. As discussed previously, Chiles was of the opinion that defendant's design should have included an emergency stop, as recommended by ASME, and a clean-out device, such as an air compressor. In addition, just as with the negligence claim, questions remain as to whether defendant could have reasonably foreseen Cal-Maine's intervention and whether Cal-Maine's actions were supervening events such that they were the sole cause of plaintiff's injuries.
Docket no. 26, attachments.
Id.
Defendant also argues its entitlement to summary judgment on the strict liability claim by asserting that plaintiff has no evidence to prove that the product was not substantially altered after it left defendant's control. In regard to the latter contention, defendant notes evidence showing that the half assembly had been unbolted and removed from the auger system, causing plaintiff's injuries.
Docket no. 25 at 3.
Id. 3-4.
In Texas, a person
who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if: (a) the seller is engaged in the business of selling such a product; and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
Rehler v. Beech Aircraft Corp., 777 F.2d 1072, 1076 n. 3 (5th Cir. 1985) (quoting RESTATEMENT (SECOND) OF TORTS § 402A and citing Lubbock Mfr. Co. v. Sames 598 S.W.2d 234, 236 (Tex. 1980) (§ 402A has been adopted in Texas) and Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 375 (Tex. 1978) (same)).
Alterations in a product must be substantial in order to excuse the manufacturer of liability, but not every change made to a product after it leaves the manufacturer's control will be sufficient to bar liability. Only those substantial changes which were not foreseeable to the manufacturer will preclude liability. "Substantial change" means that "the configuration or operational characteristics of the product are changed or altered by affirmative conduct of some person in a manner that the defendant could not have reasonably foreseen would occur in the intended or foreseeable use of the product." Whether a product has been substantially altered is generally a question of fact for the trier of fact.
USX Corp. v. Salinas, 818 S.W.2d 473, 488 n. 16 (Tex.App.-San Antonio 1991, writ denied) (citing 3 AM. LAW PROD. LIAB. 3D § 43.5 (1987)).
Webb v. Rodgers Mach. Mfg. Co., 750 F.2d 368, 372 (5th Cir. 1985); General Motors Corp. v. Hopkins, 548 S.W.2d 344, 349 (Tex. 1977), overruled on other grounds by Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984) and Turner v. General Motors Corp., 584 S.W.2d 844 (Tex, 1979); USX Corp., 818 S.W.2d at 488 n. 16; see TEXAS PATTERN JURY CHARGES-MALPRACTICE, PREMISES, PRODUCTS PJC § 70.5 (1997).
See TEXAS PATTERN JURY CHARGES-MALPRACTICE, PREMISES, PRODUCTS PJC § 70.5.
USX Corp., 818 S.W.2d at 488 n. 16 (citing 63 AM. JUR. 2D Products Liability § 551 (1984)).
Although defendant has presented uncontroverted evidence that the half assembly was removed, the question remains whether there was a substantial change in the auger system after it left defendant's control. The facts show that the assembly — as designed — was bolted in place, thus, raising questions of whether the chicken feeder auger's configuration or operation characteristics were altered by the removal and whether Cal-Maine's removal was foreseeable to defendant. Those questions remain for the trier of fact to determine.
Accordingly, because plaintiff has raised material issues of fact about the producing cause of plaintiff's injuries and about whether the auger system was substantially changed after it left defendant's control, the Court denies defendant's motion for summary judgment on plaintiff's strict liability claims. C. WHETHER PLAINTIFF HAS RAISED A GENUINE ISSUE OF FACT ABOUT DEFENDANT'S GROSS NEGLIGENCE.
The Court notes that plaintiff has alleged claims for breach of express and implied warranties. Docket no. I (plaintiff's first amended petition). Although these claims are generally separate causes of action, plaintiff has included them as alternative grounds for recovery under strict liability. In any event, defendant has not moved for summary judgment on the breach claims and they remain in the case as issues for the trier of fact.
Defendant has moved for summary judgment on plaintiff's gross negligence claim arguing that plaintiff has no evidence of defendant's conscious indifference. Specifically, defendant contends plaintiff has failed to discover any evidence regarding the design of the chicken feeder system or any thought process that went into the design. Plaintiff argues that he has presented evidence showing that the chicken feeder system was defectively designed, that defendant did nothing to correct the problem, and that a trier of fact could find gross negligence from this evidence.
Docket no. 25 at 4.
Id.
Docket no. 26 at 8-9.
Gross negligence consists of two components: (1) defendant's act or omission; and (2) defendant's mental state. The first component, act or omission, involves "behavior that endangers the rights, safety, or welfare of the person affected." The defendant's actions must objectively create an extreme risk. "Extreme risk is a function of both the magnitude and the probability of the anticipated injury to the plaintiff." The act or omission must be unjustified and likely to cause harm. Whether an omission or act creates extreme risk must be considered from defendant's perspective without the benefit of hindsight.
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994).
Id.
Id. at 21-22.
Moriel, 879 S.W.2d at 22.
Id.
Id. at 23.
The second component, mental state, requires evidence showing the defendant had actual, subjective awareness of the risk created by its conduct but yet proceeded in conscious disregard to the rights, safety, or welfare of others. The evidence must show actual conscious indifference "rather than raise the mere belief that conscious indifference might be attributable to a hypothetical reasonable defendant." Subjective mental state may be shown by either direct or circumstantial evidence. Evidence of some care will not necessarily preclude a finding of gross negligence. Gross negligence is typically a question of fact and not well-suited for summary judgment.
Id. at 22.
Id. at 20.
Id. at 23.
Id. at 20.
See Shore Exploration Prod. Co. v. Exxon Corp., No. CA 3-95-CV-1228-R, 1998 W.L. 641811, at * 1 (N.D. Tex. Sept. 15, 1998).
Plaintiff has offered no direct evidence of defendant's mental state, such as evidence that defendant, aware of other similar injuries, did nothing to correct the problem or of defendant's design decisions and reasoning. Nor did plaintiff's expert offer an opinion as to whether defendant was grossly negligent by its conduct. Citing Davis v. FMC Corp., plaintiff does suggest that defendant failed to incorporate engineering practices recognized since 1944 requiring the use of a permanently affixed guard or an interlocking guard that would render the chicken feeder system inoperable if removed. However, plaintiff has offered no evidence to support his suggestion that such devices exist in the chicken feeder industry. Nevertheless, the Court cannot conclude that plaintiff has not raised a genuine issue of fact through circumstantial evidence concerning whether defendant deliberately ignored the ASME standard for frequently placed power-off devices along the feeder system and why the feeder system was not equipped with some sort of clean-out device. Therefore, the Court denies defendant's motion for summary judgment on plaintiffs gross negligence claim.
771 F.2d 224, 228 (7th Cir. 1985). The Seventh Circuit affirmed the trial court's grant of a new trial after the defendant's attorney improperly argued sole proximate cause when that issue had been eliminated from the case. Id. 233-34. The Seventh Circuit based its holding on evidence of defendant's negligence, including that defendant was aware of engineering practices requiring a permanent guard or one that would cause the machinery to stop if removed. Id. No discussion was had of the evidence necessary to support a claim of gross negligence. Id. at 234-35.
Docket no. 26 at 9.
V. CONCLUSION
Because there are genuine issues of material fact as to plaintiff's claims for negligence, gross negligence, and strict products liability defendant's motion for summary judgment is DENIED. Defendant's objections to Michael Chiles' affidavit are OVERRULED, and its motion to strike the same is DENIED. Plaintiff's motion to strike defendant's rejoinder to plaintiffs response to the motion for summary judgment is DENIED.
Docket no. 25.
Docket no. 27.
Docket no. 31.
IT IS SO ORDERED.