Opinion
Civil Action No. 01-1167, Section "R" (5).
July 23, 2004
ORDER AND REASONS
Before the Court is defendants' motion to strike plaintiff's expert witness and motion for summary judgment. For the following reasons, the Court GRANTS defendants' motion to strike plaintiff's expert witness and GRANTS defendants' motion for summary judgment.
I. BACKGROUND
Industrial Plant Maintenance (IPM) employed plaintiff LaMorrises Gray as a maintenance worker. On March 21, 2000, Gray began daily lawn maintenance for Motiva Enterprises (Motiva), a client of IPM. Gray cut the grass for five hours with a tractor. He alleges that the tractor was a Ford New Holland 3910 with an accompanying Ford New Holland D80 belt mower. When he dismounted the tractor to pick up a fallen trash bag, Gray caught his right pant leg in the PTO shaft. The PTO shaft is a spinning shaft on the end of the tractor. Gray was thrown to the ground and sustained burns and a broken right leg. Gray has been unable to locate the tractor throughout the entire course of this three and half year litigation. Likewise, Gray has been unable to determine the model number or the serial number of the offending tractor.
Gray sued IPM and Motiva on March 21, 2001. Defendants removed to this Court on April 17, 2001. On April 30, 2002, this Court granted Motiva's unopposed motion for summary judgment because Motiva owed Gray no duty of care. On May 6, 2003, Gray amended his complaint to add Ford and New Holland as defendants. Gray alleged, inter alia, that the tractor was unreasonably dangerous in construction, composition, and design, and that the tractor failed to carry an adequate warning. (Pl.'s Compl. at ¶¶ 11, 15, 16.) On June 19, 2003, this Court granted IPM's motion for summary judgment on the grounds that Gray's remedy against IPM was limited to worker's compensation.
Although defendants in their memorandum address the theory of breach of warranty, Gray's complaint does not allege such a claim. Thus, the Court will not address it.
On January 29, 2004, this Court ordered Gray to submit his expert reports by April 30, 2004; to submit his witness and exhibit lists by May 31, 2004; and to schedule a settlement conference with the magistrate judge by June 16, 2004. Gray did not comply with these orders. On April 30, 2004, Gray apparently notified defendants that he intended to use John Sevart as an expert witness and supplied Sevart's curriculum vitae. Gray failed to present an expert report as required by this Court's order. On May 27, 2004, defendants moved to strike Gray's expert witness and moved for summary judgment. On June 22, 2004, Gray filed a motion to continue the hearing on the motion to strike and the motion for summary judgment and to permit him additional time to locate the tractor. This Court denied Gray's motion to continue. ( See R. Doc. 52.) The Court now considers defendants' motion to strike Gray's expert witness and defendants' motion for summary judgment.
II. MOTION TO STRIKE
A. Law
Defendants complain that Gray violated this Court's scheduling order when he failed to file his expert report. Defendants ask the Court to strike Gray's expert witness. Federal Rule of Civil Procedure 16(b) authorizes district courts to control and expedite the discovery process through a scheduling order. See FED. R. CIV. P. 16(b). Consistent with this authority, the Court has "broad discretion" to enforce its scheduling order. See Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) ("[O]ur court gives the trial court `broad discretion to preserve the integrity and purpose of the pretrial order.'" (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979)). Rule 16(f) specifically authorizes the Court to sanction a party for failing to comply with its scheduling order by excluding evidence. Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 509 (5th Cir. 1999) ("We will not disturb `a trial court's decision to exclude evidence as a means of enforcing a pretrial order . . . absent a clear abuse of discretion.'") (quoting Geiserman, 893 F.2d at 790)).
In Geiserman, the Fifth Circuit listed four factors that a court should consider in exercising its discretion to exclude evidence: (1) a party's explanation for its failure to timely identify its witnesses and exhibits; (2) the importance of the proposed evidence; (3) potential prejudice in allowing the admission of the exhibits or testimony; and (4) the availability of a continuance to cure such prejudice. Geiserman, 893 F.2d at 790. See also Rushing, 185 F.3d at 509.
B. Analysis
(1) Gray's Explanation for His Failure to Comply
Here, Gray identified a proposed witness, but he failed to file an expert report by the April 30, 2004 deadline. Indeed, he has failed to file an expert report at all. Gray ultimately requested a continuance on June 22, 2004-more than seven weeks after the deadline for expert witnesses and reports passed. Gray's explanation for his failure to furnish the expert report is inadequate. Gray states that he has been represented by three different attorneys and that his case "ended up" at the Capital Area Legal Services Corporation, a legal aid organization, in February 2003. (Pl.'s Mem. Opp'n Mot. Strike and Mot. Summ. J. at 1.) He further states that his current counsel is not the initial counsel on the case. ( Id. at 2). Gray's assertions are not accurate. James Wayne currently represents Gray. Although there have been other lawyers on the case, Wayne has appeared as counsel of record from the inception of this matter. His name, signature, and bar number appear on the original state court petition, dated March 21, 2001. ( See Def.'s Pet. Removal, Ex. A at 4.) On February 21, 2003, some of Gray's lawyers withdrew as counsel, but Wayne represented to the Court that he would remain as counsel and would enroll additional counsel of record within ten days. (R. Doc. 34.) Wayne failed to enroll additional counsel. Gray's first reason for his failure to comply with the Court's scheduling order is insufficient.
Gray also argues that he was unable to comply with the Court's scheduling order because his counsel was preoccupied with other professional responsibilities, especially during the six weeks before the motion to strike. (Pl.'s Mot. Continuance at 1.) The Court recognizes that counsel is busy and has many responsibilities. The Court also recognizes that counsel has had more than three years to address his client's case. Surely he could have found adequate time to secure an expert witness and an expert report in the past three years.
Finally, Gray argues that he was unable to comply with the Court's scheduling order because his counsel's father was ill in late 2003 and early 2004. (Pl.'s Opp'n to Def.'s Mot. to Strike and Mot. for Summ. J. at ¶¶ 4-5.) Counsel's father ultimately passed away on March 18, 2004. ( Id. at ¶ 4.) The Court sympathizes with counsel. The Court, however, notes that counsel had sufficient time both before and after his father's illness either to secure an expert witness and a report or to enroll additional counsel to assist him in doing so.
(2) Importance of the Proposed Evidence
The Court is unable to evaluate the importance of the proposed expert because Gray has failed to provide the Court with his expert's report, information about his expert's specialty, or information about the substance of his expert's testimony.
(3) Potential Prejudice in Allowing the Testimony
The Court is unable to fully evaluate the potential prejudice to defendants in allowing the expert to testify because the Court has no information about the substance of the proposed expert's testimony. It is clear, though, that it is too late for defendants to respond to the belated expert's testimony because trial is approximately two weeks away.
(4) Availability of a Continuance to Cure Prejudice
Gray argues that there is ample time for defendants to depose and respond to his expert's testimony before the August 9, 2004 trial date. As it is now about two weeks before trial, and Gray has never furnished a proposed expert report to defendants or the Court, this assertion falls flat. Furthermore, this case has been pending three and a half years and the trial date has been continued twice. The history of this case reveals that Gray has not been diligent about complying with the Court's scheduling order. The day of reckoning is here, and good cause does not exist to continue this case again.Accordingly, the Court grants defendants' motion to strike Gray's expert witness.
III. SUMMARY JUDGMENT
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and 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, 322-23, 106 S.Ct. 2548, 2551 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993). A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Hunt v. Rapides Healthcare System, LLC, 2001 WL 1650961 (5th Cir. 2001) (citations omitted).
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
B. Analysis
The Louisiana Products Liability Act (LPLA) "establishes the exclusive theories of liability for manufacturers for damage caused by their products." LA. REV. STAT. § 9:2800.52, et seq. The LPLA provides that "[t]he manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by claimant or another person or entity." Id. § 9:2800.54(A). A product can be "unreasonably dangerous" in (1) construction or composition; (2) design; or (3) because of a lack of an adequate warning. Id. § 9:2800.54(B). The plaintiff bears the burden of proving that the product was unreasonably dangerous. Id. § 9:2800.54(D). The factfinder may not infer the existence of a vice or defect in a product merely because an accident occurs. Jaeger v. Automotive Casualty Ins. Co., 682 So.2d 292, 298 (La.App.Ct. 1996). See also Ashley v. General Motors Corp., 666 So.2d 1320, 1322 (La.App.Ct. 1996) (same). Further, the characteristic of the product that made it unreasonably dangerous must exist at the time the product left the manufacturer's control. LA. REV. STAT. § 9:2800.54(c).
1. Construction and Composition
The LPLA provides that "[a] product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer." LA. REV. STAT. § 9:2800.55. In order to make this showing, a plaintiff "must demonstrate not only what a manufacturer's specifications or performance standards are for a particular product, but how the product in question materially deviated from those standards so as to render it `unreasonably dangerous.'" Welch v. Technotrim, Inc., 778 So.2d 728, 733 (La.App.Ct. 2001). See also Morris v. United Services Automobile Ass'n, 756 So.2d 549, 558 (La.App.Ct. 2000) (same).
Gray produces no evidence sufficient to meet his summary judgment burden on his construction and composition claim. First, the record contains no evidence regarding the condition the tractor was in when it left the manufacturer's control. ( See, e.g., Def.'s Mem. in Supp. Summ. J. Ex. F at 27 (noting that the first time Gray encountered the tractor, it was old).) Second, the record contains no evidence of the manufacturer's specifications or performance standards for the tractor. Third, the record contains no evidence of how or why the offending tractor deviated materially from either the manufacturer's standards and specifications or from identical products manufactured by the same manufacturer.
Gray has not shown a material deviation, and it appears that he does not have the information necessary to show such a deviation. Gray does not have custody or control of the tractor or its component parts. (Def.'s Mem. In Supp. Summ. J. Ex. I, J.) He does not know the current location of the tractor or any of its component parts. Id. He has no measurements, graphic descriptions, or other representations depicting the post-accident condition of the tractor. Id. In sum, Gray has not and cannot demonstrate how the tractor materially deviated from the manufacturer's standards and specifications or from identical products. Therefore, defendants are entitled to summary judgment on Gray's first LPLA claim.
2. Design
The LPLA provides:
A product is unreasonably dangerous in design if, at the time the product left its manufacturer's control:
(1) There existed an alternative design for the product that was capable of preventing claimant's damage; and (2) The likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.
LA. REV. STAT. § 9:2800.56. In order to demonstrate that a product is unreasonably dangerous in design, the plaintiff must (1) identify a specific alternative design that existed and was capable of preventing his injury; and (2) perform the requisite risk-utility analysis. See Krummel v. Bombardier Corp., 206 F.3d 548, 551 (5th Cir. 2000); Lavespere, 910 F.2d at 183. An alternative design must be reasonably specific and not based on mere speculation. See Seither v. Winnebago Industries, Inc., 853 So.2d 37, 41 (La.App.Ct. 2003).
As a threshold matter, Gray must show that a design deficiency existed at the time the tractor left the manufacturer's control. There is no evidence in the record regarding the original design of the offending tractor or its component parts. With no evidence of the original design specifications, or that the tractor's components remained as originally designed, Gray faces a gap in proof.
Gray suggests as an alternative design that
the subject tractor could have been designed with a cut-off switch that would engage when one gets off the seat. Also, the subject tractor could have been designed with a cover of some sort over the PTO shaft which would have prevented injury even if someone would have fallen onto the PTO shaft. Finally, when I turned off the PTO shaft by turning off the switch connected to the PTO shaft, it did not stop turning.
(Def.'s Mem. Supp. Summ. J. Ex. M No. 8.) Gray's suggested alternative design is not specific enough to be a valid alternative design. He submits no drawing, specification, model, sample, calculation, photograph, or expert opinion on his proposed alternative design. He merely describes it generically as having a cutoff switch and "a cover of some sort over the PTO shaft." See Winnebago, 853 So.2d at 41 (finding an alternative design invalid because the record was "devoid of any technical drawings, calculations, scientific study, photographs, or the publication of any engineering principles" and the design was based largely on speculation); Tassin v. Sears Roebuck and Co., 946 F. Supp. 1241, 1250-52 (M.D. La. 1996) (excluding alternative designs that did not include calculations, testing or recorded results of testing, photographs, or drawings).
Furthermore, Gray fails to provide any evidence regarding the risk-utility analysis. Such an analysis requires evidence concerning the frequency and costs of accidents like Gray's, the extent to which the alternative design would prevent or reduce accidents like Gray's, and the effect Gray's alternative design would have on the tractor's utility. There is no evidence on any of these issues. Gray's design claim fails for this reason. See Lavespere, 910 F.2d at 183 (affirming summary judgment on design defect claim because plaintiff failed to include evidence concerning risk-utility analysis); Tassin, 946 F. Supp. 1241, 1250-52 (excluding testimony on alternative designs that either did not consider the impact of the alternative design on the product's utility or that did not provide sufficient evidence to permit the jury to make the risk-utility analysis).
The Lavespere court noted that there are narrow circumstances involving an uncomplicated product in which a judge or jury would be able to fill in the risk-utility analysis with background knowledge or common sense. In these circumstances, the plaintiff does not necessarily have to introduce detailed measurements and quantities in his risk-utility analysis. Lavespere, 910 F.2d at 184. That is not the case here because a tractor is relatively complicated.
In sum, Gray has not proposed a valid alternative design, nor has he included evidence regarding the risk-utility analysis. Gray has not carried his burden on his defective design claim. 3. Warnings
The LPLA provides that manufacturers must use "reasonable care to provide an adequate warning" of "a characteristic [of the product] that may cause damage." LA. REV. STAT. § 9:2800.57. Gray presents no evidence as to his inadequate warning claim. In deposition, Gray admitted that he did not know that an operating manual for the tractor existed. (Def.'s Mem. Supp. Summ. J. Ex. F at 24-25.) Defendants' expert report identifies a manual with at least two warnings concerning the operation of the tractor and the PTO shaft. ( Id. at Ex. E at 4.) Gray does not address these warnings, nor does he propose any alternatives. These are sufficient circumstances under which to award defendants' summary judgment on Gray's inadequate warnings claim. See Winnebago, 853 So.2d at 42 (finding that directed verdict would have been appropriate where plaintiff "failed to present any evidence on a warning claim").
III. CONCLUSION
Defendants have carried their burden of demonstrating that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law on Gray's products liability claim. Accordingly, the Court GRANTS defendants' motion for summary judgment.