Summary
relying on, among others, Rock v. Arkansas , 483 U.S. 44, 61, 107 S.Ct. 2704, 97 L.Ed.2d 37, and United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cnty., Miss. , 80 F.3d 1074, 1077 (5th Cir. 1996)
Summary of this case from Urda v. Valmont Indus.Opinion
CIVIL ACTION NO. 02-2565 SECTION "R" (5)
October 23, 2003
ORDER AND REASONS
Before the Court are the motions of defendant, Louisville Ladder Group, LLC, to exclude the expert testimony of Greg Garic and for summary judgment. Defendant Louisville Ladder filed two motions for summary judgment. In the first, Louisville Ladder moves for summary judgment on plaintiffs' design defect and inadequate warning claims. In the second, the defendant moves for summary judgment on plaintiffs' manufacturing defect claim. For the following reasons, the Court denies defendant's motion to exclude the expert testimony of Greg Garic, grants defendant's motion for summary judgment on plaintiffs' inadequate warning and design defect claims, and denies defendant's motion for summary judgment on plaintiffs' manufacturing defect claim.
I. Background
John Scordill is a welder. He purchased two stepladders at a Home Depot in 1997 or 1998. Both ladders were Davidson Model 592-61 stepladders, ladders that stand six feet tall and that are made of fiberglass rails and aluminum steps. The ladders were manufactured in 1996 by Louisville Ladder at a manufacturing facility in Monterrey, Mexico. While working on a job in Orleans Parish on February 16, 2002, Scordill placed one of the stepladders — the incident ladder — alongside a wall. He climbed up to the second rung of the ladder and turned around so that his back was to the ladder. He then reached up with his right hand to weld an I-beam to metal plates that had been installed the day before. He leaned his left elbow against the wall to steady himself, his left hand grabbing his right wrist to support the welding gun in his right hand. Scordill avers that the ladder then buckled beneath him. Scordill fell and sustained numerous injuries.
Plaintiffs, John and Cynthia Scordill, sued defendant Louisville Ladder in state court, alleging claims of unreasonably dangerous manufacturing, unreasonably dangerous design, and failure to adequately warn. Plaintiffs assert that the ladder failed along its left front rail, just below the first rung of the ladder. Defendant removed the case to this Court. Defendant moves the Court to exclude the report and testimony of plaintiffs' expert witness, Greg Garic. Defendant also moves the Court for summary judgment on each of plaintiffs' claims.
The "left" rail refers to the rail on the left when one faces the ladder. Because Scordill had his back to the ladder when the incident occurred, the alleged place of failure was to his right.
II. Motion To Exclude Expert Testimony
The Federal Rules of Evidence govern defendant's motion to exclude the report and testimony of plaintiffs' expert, Greg Garic. See Mathis v. Exxon Corporation, 302 F.3d 448, 459 (5th Cir. 2002). Rule 702 provides:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
FED. R. EVID. 702. This rule applies not only to testimony based on scientific knowledge, but also to testimony of engineers and other experts that is based on technical or specialized knowledge. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). The rule requires the trial court to act as a "gatekeeper," ensuring that any scientific or technical expert testimony is not only relevant, but also reliable. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
Defendants assert, first, that Greg Garic is not qualified to be an expert and, second, that his proffered testimony is not reliable. As to his qualifications as an expert, Garic concedes that he has neither designed nor manufactured a ladder. (Motion To Exclude Expert Testimony, Ex. D, Dep. of Greg Garic, at 129-131.) Garic is only vaguely familiar with the standards that American National Standards Institute ("ANSI") has set for ladders, ( Id., Ex. F, ANSI Standards), and he has never tested a ladder for compliance with these standards. (Dep. of Garic, at 211-15.) Indeed, Garic has never tested a ladder, period. ( Id. at 190.) Further, the rails of the ladder — which is where the alleged failure occurred — are made of fiberglass, and Garic testified that he has no expertise in fiberglass manufacturing. ( Id. at 42.)
On the other hand, Garic does have knowledge and experience that bears on why the ladder collapsed. Garic has a master's degree in mechanical engineering. He worked for NASA for 15 years, where he was honored for his contributions to the space shuttle program. (Opp. to Mot. To Exclude Expert Testimony, Ex. K, Greg Garic C.V.) He is currently employed by Stress Engineering Services, Inc. ( Id.), and he has significant experience in stress analysis. (Dep. of Garic, at 131.) Garic's primary areas of practice are stress analysis, fracture mechanics, finite element modeling, and fitness for service assessment. ( Id.) He has published extensively in these areas. (Greg Garic C.V.) Defendants do not dispute Garic's expertise in stress analysis. (Mot. To Exclude Expert Testimony, at 10.) Accordingly, the Court finds that Garic is qualified to testify as an expert in mechanical engineering and stress analysis.
Next, the Court turns to defendant's argument that Garic's expert report and testimony are not reliable. In Daubert, the Supreme Court identified factors that bear on the issue of reliability, including: "(1) whether the expert's theory can be or has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) the degree to which the technique or theory has been generally accepted in the scientific community." Moore v. Ashland Chem. Inc., 151 F.3d 269, 275 (5th Cir. 1998) (citing Daubert, 509 U.S. at 593-95)); see also Mathis, 302 F.3d at 460. A Rule 702 inquiry into the reliability of expert testimony is a flexible and necessarily fact-specific inquiry. See Seatrax, Inc. v. Sonbeck Intl., Inc., 200 F.3d 358, 372 (5th Cir. 2000). The above list of factors "neither necessarily nor exclusively applies to all experts in every case." Kumho Tire, 526 U.S. at 141. Plaintiffs, as the party offering the expert, bear the burden of proving by a preponderance of the evidence that the proffered testimony is reliable. See Mathis, 302 F.3d at 459-60.
The Court notes that its role as a gatekeeper does not replace the traditional adversary system and the place of the jury within the system. See Daubert, 509 U.S. at 596. As the Daubert Court noted, "[v]igorous cross — examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)). The Fifth Circuit has added that, in determining the admissibility of expert testimony, a district court must defer to "`the jury's role as the proper arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration.'" United States v. 14.38 Acres of Land, More or Less Sit. in Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)).
A. Testimony of Greg Garic
To prepare his expert report in this case, Garic examined the ladder involved in the incident — the incident ladder. Garic reviewed Scordill's deposition testimony and also met with Scordill to further clarify his description of the accident and the events leading up to it. Garic also examined the second ladder — the exemplar ladder — that Scordill purchased in 1997 or 1998 along with the incident ladder. Garic measured the amount of force on the ladder created when Scordill leaned against the wall with his left elbow. Specifically, Garic stood on the second rung of the exemplar ladder and leaned his left elbow against a wall. He placed a scale under his elbow to measure the force of the elbow, which would be equal and opposite to the force placed on the ladder. (Dep. of Garic, at 209-10.) Garic concluded that Scordill placed approximately 15-25 pounds of pressure on the incident ladder. He concedes that this figure represents only an estimate of the side force Scordill placed on the incident ladder overall; Garic did not calculate the force specifically borne by the place of failure. ( Id. at 135.) Garic did not otherwise test the incident ladder or the exemplar ladder to determine the amount of force that the ladder can bear. Garic measured the dimensions of both ladders and compared his measurements to the manufacturer's specifications. Garic reviewed the results of tests performed by Strongwell, the fiberglass manufacturer, on a sample, or "coupon," of the fiberglass taken from the incident ladder!s rail. Garic conducted two telephone conferences with Dr. George Ross, a colleague with expertise in fiberglass. (Id. at 43.) Dr. Ross inspected photographs of the incident ladder, and Garic consulted with Dr. Ross when he needed to understand fiberglass material and manufacturing issues. ( Id. at 43-44.) Garic also conferred with another colleague, Dr. Joe Fowler, regarding this case. ( Id. at 114-16.) Dr. Fowler had previously worked on another ladder case, involving a different type of ladder.
In his expert report and deposition testimony, Garic identifies three manufacturing defects. (Mot. To Exclude Expert Testimony, Ex. C, Garic's Expert Report.) First, Garic determined that the step-rivets for the bottom two steps of the incident ladder were closer to the edge of the fiberglass flange than allowed by the manufacturer's specification. Garic observed that the exemplar ladder contains the same alleged manufacturing defect. (Garic's Expert Report.) Second, Garic observed a split in the incident ladder rail's flange-to-web junction. It is undisputed that the incident ladder did not exhibit such a split on the morning of the incident. (Def.'s Mot. for Summ. J., Ex. D, Dep. of Charles Untz, at 10.) The exemplar ladder, however, exhibits cracking in the fiberglass in the same area where the fiberglass of the incident ladder split. (Garic's Expert Report.) As a result, Garic concluded that the cracking is the result of poor manufacturing practices and that even if the cracking was not visible in the incident ladder before the incident, its flange-to-web junction did not comply with manufacturing specifications. Third, Garic observed that at several points along the left rail, the height of the flange fell slightly below the lower tolerance limit of 1.109 inches. ( Id.)
Defendant argues that Garic's determination that the flange height was out of specification was based on his review of incorrect design drawings. (Def.'s Suppl. Memo. to their Mot. for Summ. J. and Mot. to Exclude the Testimony of Greg Garic, at p. 15.)
Garic opined that the step-rivets exhibited decreased resistence of pull-out as a result of their placement, and this decreased resistence contributed to the ultimate collapse of the ladder. Garic also asserted that the separation in the flange-to-web junction noted on the incident ladder resulted in increased flexing of the rail below the bottom step. He noted that this flexing increased the stress on the second step-rivet on the left rail, which was already weakened by virtue of its out-of-specification placement. Garic concluded that "[t]he ladder contained multiple manufacturing defects, which are observed in both the incident ladder and the exemplar, and indicate deficient manufacturing quality control and a pattern of defective products produced in April 1996 at the Mexico manufacturing facility."
As noted above, Garic calculated the overall side force Scordill generated as he leaned against the wall. Garic did not, however, calculate the exact forces acting on the various points of the ladder, such on the step-rivets. Garic indicated in his deposition that such forces could be calculated using finite element analysis. (Dep. of Garic, at 31-32.) He also noted that consideration of performing such an analysis had been postponed until the parties had completed further discovery. At oral argument on defendant's motions to exclude Garic's testimony and for summary judgment, the Court granted plaintiffs additional time to consider the feasibility of such an analysis and to submit supplemental memoranda on the issues. As a result, Garic prepared a supplemental expert report. (Pla.'s Note of Evid., Ex. 1, Garic's Suppl. Expert Report.) Garic addresses three issues in his supplemental report. First, he discusses why meaningful finite element analysis is not feasible in this case. ( Id.) He estimates the costs involved to perform such an analysis and concludes that performing such an analysis is prohibitively expensive. Further, he indicates that performing meaningful analysis is not practical because of the difficulties in making reasonable and defensible assumptions regarding the condition of the incident ladder at the time of the accident. The second part of Garic's supplemental report provides further detail regarding the logic and engineering principles he employed to reach his conclusions. ( Id.) He describes his application of generally accepted engineering principles. He also explains how the observed damage is consistent with the plaintiff's description of the sequence of events surrounding the accident. In both his deposition and supplemental expert report, Garic describes how he considered and eliminated other possible explanations for the observed damage. (Garic's Suppl. Expert Report; Dep. of Garic, at 90-93.) Lastly, Garic's supplemental report clarifies how he utilized his knowledge, skill, experience, training and education to connect the facts of this case to his conclusions. (Garic's Suppl. Expert Report.) He identifies several specific engineering principles that he utilized, citing to various engineering textbooks and classes he has either attended or taught. He also describes a number of specific projects in which he was involved that contained issues relevant to his analysis in this case.
In his supplemental report, Garic ultimately concludes that "the likely root cause of the failure is the cracking of the fiberglass in the inside corner of the rail, as was observed in the exemplar ladder." ( Id.) He further opines that "[h]ad the rivet been solidly positioned, additional support would have been provided to the step, which could have prevented or slowed its deflection and ultimate failure." ( Id.)
B. Reliability
To determine whether an expert's testimony is sufficiently reliable, the Court should first consider whether the Daubert factors noted above are appropriate, and then it can consider whether other factors are relevant to the case at hand. See Black v. Food Lion, Inc., 171 F.3d 308, 311-12 (5th Cir.1999); see also Watkins v. Telsmith, 121 F.3d 984, 991 (5th Cir.1997) (regardless of basis of expert's opinion, Daubert's non-exclusive factors are relevant to initial reliability assessment). Defendant argues that Garic failed to apply the scientific method by not properly testing his hypotheses regarding the cause of Scordill's accident. As Garic noted in his deposition, however, he developed and then analyzed various hypotheses regarding the initial point of failure of Scordill's accident. (Dep. of Garic, at 73-75.) He applied generally accepted engineering principles to project the logical sequence of events from each potential initial point of failure and then determined whether the observed damage was consistent with the mechanics of each potential accident scenario. ( Id.) He indicated that through this process, he eliminated certain hypotheses and refined his conclusions as much as possible given the informational constraints. ( Id.) Also, as discussed above, Garic concluded that additional testing, such as finite element analysis, would not be feasible or meaningful in this case. Plaintiffs further contend that they cannot reasonably conduct meaningful testing of the incident ladder because it was destroyed in the accident, and any subject ladder utilized in testing would materially differ from the incident ladder, thus producing irrelevant results. Addressing the second Daubert factor, the defendant contends that nothing Garic has done could withstand peer review. Because Garic's opinion is based on the very specific facts of this case, it does not lend itself to peer review. Garic has not generated a study that is subject to repetition but instead has applied generally accepted engineering principles and concepts utilized in stress analysis to the facts of this accident. As a result, the Court concludes that the second Daubert factor does not apply. The Court also finds that the third and fourth Daubert factors are inapplicable, because they involve the known or potential rate of error of the technique utilized by the expert and whether there exist standards controlling the technique's operations. In this case, Garic did not develop a particular scientific procedure to reach his conclusions. The fifth standard is applicable to the extent that Garic's analysis applied generally accepted engineering principles, in addition to his own training and experience in the field of stress analysis, to the factual situation specific to this case.
The Kumho Court emphasized " Daubert*s description of the Rule 702 inquiry as `a flexible one.'" 526 U.S. at 150 (quoting Daubert, 509 U.S. at 594). The Daubert factors "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Id. (citation and internal quotation marks omitted). Therefore, in addition to analyzing Garic's testimony in light of the Daubert factors, the Court turns to other indicia of reliability of Garic's testimony.
In his supplemental expert report, Garic describes how he reached his conclusions by applying his education, skill and experience to Scordill's description of the sequence of events and his observations of the incident ladder. The Court notes that the expert in Babcock v. General Motors Corp. employed a similar procedure to formulate his opinion regarding how fast plaintiff's vehicle was traveling at the time of the accident. See 2.99 F.3d 60, 68-69 (1st Cir. 2002). The First Circuit found no error in the district court's admission of the expert's testimony, noting that the expert applied technology generally accepted by accident reconstruction specialists to photos and other material given to him, using a methodology accepted by the National Highway Traffic Safety Administration. Id.; see also McCullock v. H. B. Fuller Co., 61 F.3d 1038, 1043 (2nd Cir. 1995) (finding that expert's testimony "easily qualifies for admission under Daubert" when opinion was based on expert's application of his academic and practical experience to the specific facts of plaintiff's case). In a similar manner, Garic applied generally accepted engineering concepts to the evidence in this case. Garic's supplemental report provides a meaningful and reasonable explanation of how he employed his expert judgment utilizing reliable engineering principles and how his judgment related to the available physical evidence. (Garic's Suppl. Expert Report.) See Thorndike v. Daimlerchrysler Corp., 266 F. Supp.2d 172, 180 (D.Me. 2003). After reviewing the reasoning behind Garic's conclusions, the Court concludes that the opinion evidence that plaintiffs seek to admit is connected to existing data by sufficiently reliable engineering analysis. Cf. General Electric Company v. Joiner, 522 U.S. 136, 146 (1997) (noting that district court need not admit opinion evidence that is connected to existing data by only the ipse dixit of the expert). The Court finds that Garic's testimony can assist the jury in understanding the evidence and in making its finding of facts in this case. Louisville Ladder quarrels with the bases and sources of Garic's opinions and offers conflicting expert testimony. As noted above, however, the questions raised by the defendant should affect the weight that the jury gives to the testimony rather than its admissibility. See 14.38 Acres of Land, 80 F.3d at 1077; see also Hynes v. Energy West, 211 F.3d 1193, 1205 (10th Cir. 2000) (upholding district court's admission of expert testimony when primary dispute regarded the application of reliable scientific principles to the facts of the case, which the court considered "largely a matter of cross-examination and impeachment"). The Court finds that Garic's testimony is sufficiently relevant and reliable to reach the jury. As a result, the Court denies defendant's motion to exclude Garic's testimony.
III. Motions For 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-3 (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); also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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).
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. See Celotex, 477 U.S. at 325; 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. See Celotex, 477 U.S. at 324.
B. The Louisiana Products Liability Act
Defendant moves for summary judgment on each of plaintiffs' claims. In its first motion, Louisville Ladder moves for summary judgment on plaintiffs' claims that the ladder was unreasonably dangerous due to (1) an inadequate warning and (2) a defective design. In its second motion, Louisville Ladder moves for summary judgment on plaintiffs' claim that the ladder suffered from a manufacturing defect.
Each of plaintiffs' claims arise under the Louisiana Products Liability Act ("LPLA"). LA. REV. STAT. §§ 9:2800.51-.59 (2003). The LPLA provides "the exclusive theories of liability for manufacturers for damage caused by their products." LA. REV. STAT. § 9:2800.52. A product manufacturer is 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. . . ." LA. REV. STAT. § 9:2800.54. Plaintiffs assert that the ladder was unreasonably dangerous in that it did not carry an adequate warning, § 2800.54(B)(3); was defectively designed, § 2800.54(B)(2), and was defectively manufactured, § 2800.54(B)(1). Before examining each of these allegations, the Court will first consider Louisville Ladder's argument that Scordill's use of the incident ladder was not a "reasonably anticipated use." 1. Reasonably Anticipated Use
If Scordill's injuries did not arise from a reasonably anticipated use of the incident ladder, the Court need not reach whether the product is "unreasonably dangerous." See Kampen v. American Isuzu Motors, Inc., 157 F.3d 306, 309 (5th Cir. 1998) (en bane). A reasonably anticipated use is "a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances." LA. REV. STAT. § 9:2800.53(7). Determination of whether a particular use was "reasonably anticipated" is a question of fact. Ellis v. Weasler Eng'g Inc., 258 F.3d 326, 331-32 (5th Cir. 2001); Calvit v. Procter Gamble Mfg. Co., 207 F. Supp.2d 527, 530 (M.D.La. 2002); Dunne v. Mal-Mart Stores, Inc., 679 So.2d 1034, 1036-37 (La.App. 1 Cir. 9/10/96) (applying manifestly erroneous standard to trial court's finding that plaintiff's use of product was not reasonably anticipated). The "reasonable use" determination requires an objective inquiry into those uses that a product manufacturer should have reasonably expected at the time of manufacture. See Kampen, 157 F.3d at 309. A reasonably foreseeable misuse is not necessarily a reasonably anticipated use, and a product manufacturer will not be held responsible for every conceivable foreseeable use of a product. Id. A manufacturer's warning against product misuse is relevant to an assessment of what uses the manufacturer reasonably anticipates. Id. at 314; see also Chambers v. AJC Tools Equipment, Inc., 2002 WL 31015600, *2 (E.D.La. 2002) (noting that "reasonably anticipated use is intertwined with the character and adequacy of warnings although an adequate warning will not always be dispositive of reasonably anticipated use" (emphasis in original)); Butz v. Lynch, 762 So.2d 1214 (La.App. 1 Cir. 6/23/00).
Louisville Ladder argues that Scordill's use of the ladder at the time of the accident was contrary to the express instructions on the ladder. The instructions provided:
PROPER CLIMBING AND USE
. . .
3. Face ladder when climbing up or down; keep body centered between side rails.
. . .
6. Do not over reach; move ladder when needed.
(Pls.' Supp. Memo of Apr. 16, 2003, Ex. J.) Scordill says he complied in all respects with these instructions. It is undisputed that when he climbed up to the second rung of the ladder, he was facing the ladder. Scordill states that he turned around to perform welding after he finished climbing up the ladder. The instructions do not specifically warn against doing this. Further, the record does not indicate that Scordill overreached. The parties dispute whether Scordill kept his body centered between the side rails while welding. Based on the evidence before it, the Court cannot conclude that Scordill clearly failed to comply with the ladder's instructions. The Court therefore rejects defendant's assertion that Scordill's use was not reasonably anticipated because he failed to comply with the instructions.
Defendant also argues that it did not reasonably anticipate that anyone would use the ladder backwards. In support of this argument, defendant cites to the affidavit of Michael Van Bree, a Product Safety Officer/Engineer with Louisville Ladder, who attests that the manufacturer anticipated that the product would be used only while facing forward. Plaintiff contends, however, that turning around on the ladder is a reasonably anticipated use. Turning one's back to the ladder to perform work is not obviously dangerous, Kampen, 157 F.3d at 310, and absent an express warning not to use the ladder backwards, the Court cannot state as a matter of law that it is unreasonable to do so. Defendant's reliance on Kampen is off the mark, for in that case the plaintiff used a car jack in direct contravention of the manufacturer's clear and explicit instructions and warnings. See id. at 313. Defendant's reliance on Butz is similarly off the mark, for in that case the plaintiff not only ignored the explicit warnings on the side of a canister of air brush propellant, but intentionally abused the product by inhaling its contents for an intoxicating effect. See Butz, 762 So.2d at 1218. The Court finds that there exists a issue of fact regarding whether Scordill's use of the ladder is a reasonably anticipated use, and summary judgment on this issue is inappropriate.
2. Inadequate Warnings
Plaintiffs claim that the incident ladder is unreasonably dangerous because its instructions do not warn against using the ladder backwards. LA. REV. STAT. §§ 9:2800.54(B)(3) and 2800.57. Assuming without deciding that the warning provided was inadequate, the manufacturer is liable only if such a defect proximately caused Scordill's injuries. LA. REV. STAT. § 9:2800.54(A); see also Wheat v. Pfizer, 31 F.3d 340, 342 (5th Cir. 1994). Scordill bears the burden of establishing that "but for" the inadequate warning the accident would not have occurred. See Brown v. Parker-Hannifin Corp., 919 F.2d 308, 311 (5th Cir. 1990). Scordill, however, testified that he did not read the instructions and warnings on the ladder before the incident occurred. (Def.'s Mot. for Summ. J., Ex. B, Dep. of John Scordill, at 110.) Thus, even if the instructions and warnings had been adequate, the accident would have still occurred because Scordill, not having read them, would have proceeded to use the ladder in the same manner in which he did. Scordill has therefore failed to create an issue of fact as to whether an inadequate warning is the proximate, but-for cause of his injury. As a result, the Court grants defendant's motion for summary judgment on plaintiffs' inadequate warning claim.
3. Design Defect
Plaintiffs also claim that the ladder was defectively designed. LA. REV. STAT. § 9:2800.54(B)(2). 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 the 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. To succeed on their design defect claim, the plaintiffs must establish that the alleged design defect proximately caused their injuries. LA. REV. STAT. § 9 :2800.54(A). The Scordills "must prove not only causation in fact, but also that the product defect was `the most probable cause' of the injury." Wheat, 31 F.3d at 342 (quoting Parker-Hannifin, 919 F.2d at 311 and n. 9, 312).
Plaintiffs present as an existing, alternative design heavy-duty ladders manufactured by defendant in 1992, four years before it manufactured the incident ladder. Plaintiffs posit that the heavy-duty ladders are safer than the incident ladder by virtue of a stiffener, a boot, and a protective collar. (Pls.' Supp. Memo, in Opp. to Def.'s First Mot. for Summ. J., Ex. G.)
To begin with, the Court notes that plaintiffs fail to clearly identify a specific alternative design. Plaintiffs point only to pictures of the heavy-duty ladder manufactured by Louisville Ladder, but do not clarify how a stiffener, boot, or collar would apply to the incident ladder model. Nowhere do plaintiffs identify how tall or strong such a boot would be or where on the ladder a stiffener or protective collar would be placed to prevent an accident like Scordill's.
Further, plaintiffs' expert failed to identify a specific alternative design for the product that would have prevented the plaintiffs' alleged damages. See LA. REV. STAT. § 9:2800.56(1). In his initial report, Garic states only that "[a] more robust design could easily have been achieved in order to prevent this failure. . . . This collapse could have been prevented by any one of numerous minor design changes, including, but not limited to: (a) addition of a stiffened plate to the side rail, (b) strengthening the diagonal stiffeners, or (c) adding an additional stiffener to connect the left and right rails, below the bottom step." (Opp. to Def.'s Mot. for Partial Summ. J., Ex. D, Garic's Expert Report.) Garic's conclusory statement fails to allege a design defect or identify a specific alternative design. Significantly, Garic conceded in his deposition, "I'm not alleging that there is a design defect." (Dep. of Garic, at 14.) Moreover, Garic concludes in his supplemental expert report that the cracking and failure of the fiberglass in the inside corner of the ladder's rail and the misplacement of the rivet caused the ladder's collapse. Garic concluded that these problems resulted from a manufacturing defect. The plaintiffs do not contend that these problems occurred because the ladder lacked a stiffener, boot, or protective collar and merely conclusorily assert that the addition of a stiffener, boot, or protective collar would have prevented Scordill's accident. The Court concludes that the plaintiffs failed to present any reliable evidence that a design defect was a proximate cause of the Scordills' injuries.
Even if the Court had concluded the incident ladder's lack of a stiffener, boot, and protective collar did constitute a design defect, defendants would still be entitled to summary judgment on plaintiffs' design defect claim. The plaintiffs failed to present evidence "concerning the extent of the risk that the alternative design would have avoided, the economic costs entailed by those accidents, or the extent of the reduction in frequency of those accidents that would have followed on the use of [the] proposed alternative design." Kampen v. American Isuzu Motors, Inc., 119 F.3d 1193, 1202-03 (5th Cir. 1997), rev'd on other grounds 157 F.3d at 306. In Lavespere v. Niagara Machine Tool Works, Inc., 910 F.2d 167, 183 (5th Cir. 1990), the Fifth Circuit affirmed a grant of summary judgment in favor of a product manufacturer when the claimant offered no evidence concerning the extent of the risk that the alternative design would have avoided, little evidence concerning the burden of switching to the alternative design, and no evidence on the loss of product utility that use of the alternative design would have occasioned. Like the claimants in Lavespere, the Scordills bring no evidence as to the increased cost of manufacturing the proposed alternative design, no evidence as to the extent of the risk that the alternative design would have avoided, and no evidence of the alternative design's potential effect on product utility. Instead, plaintiffs assert that no risk-utility is required for the ladder because it is an "uncomplicated product." In Lavespere, the Fifth Circuit suggested that "there may be cases in which the judge or the jury, by relying on background knowledge and `common sense,' can `fill the gaps' in the plaintiff's case, estimating the extent of the risk avoided, the costs of implementing the proposed design change, or the adverse effects of the design modification on the utility of the machine." Lavespere, 910 F.2d at 184. Despite plaintiffs' contention that a ladder is an "uncomplicated product," the Court finds that a jury would be unable to merely "fill the gaps" in the plaintiffs' argument. The general knowledge and common sense of the average juror would not enable him to estimate the extent of risk avoided by adding a stiffener, boot, and protective collar to a ladder. A layperson would not know how frequent this type of ladder accident is, nor the extent to which the suggested modifications would prevent such accidents. Plaintiffs have also failed to present any evidence of the additional costs associated with the alternative design, a subject outside the realm of knowledge of the average person. Plaintiff merely makes the conclusory allegation that such costs would be "negligible." (Pla.'s Supp. Opp. to Def.'s Mot. for Partial Summ. J. at 2) Further, plaintiffs provide no support for their assertion that the alternative design would have little if any impact on the utility of the ladder. The alternative design identified by the plaintiffs is currently found on Louisville Ladder's heavy-duty ladder. Plaintiffs present no evidence as to what effect the addition of a stiffener, boot, and protective collar would have on the weight, utility and mobility of a ladder designed to be lightweight. Because plaintiffs failed to identify a specific design defect as the proximate cause of plaintiffs' injury and failed to conduct any risk/utility analysis of their suggested alternate design, defendant is entitled to summary judgment on plaintiffs' design defect claim.
4. Manufacturing Defect
Plaintiffs allege that the ladder was defectively manufactured. LA. REV. STAT. § 9:2800.54(B)(1). A manufacturing defect exists when, "at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturers specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer." LA. REV. STAT. § 9:2800.55. To survive a motion for summary judgment, plaintiffs must create an issue of fact as to whether the alleged manufacturing defect was a proximate cause of the failure. LA. REV. STAT. § 9:2800.54.
Scordill contends that he was using the ladder to support himself while welding, and the ladder suddenly collapsed beneath him. In his supplemental expert report, Garic concludes that the collapse of the ladder occurred as a result of the cracking and failure of the fiberglass in the inside corner of the ladder's rail, compounded by the misplaced rivet. Garic observed cracking in the fiberglass in the same area on the exemplar ladder. The two ladders were manufactured around the same time in the same manufacturing facility. Plaintiffs contend that the cracking in the exemplar ladder in the same location at which the incident ladder split apart supports Garic's opinion that the cracking resulted from a manufacturing defect. As noted, Garic also found that the step rivet is positioned outside of the manufacturer's specifications, and proper placement of the rivet could have prevented or slowed the ladder's deflection and ultimate failure. Garic observed similar out-of-specification rivet placement on the exemplar ladder. Garic's analysis and deposition testimony describe how he utilized his expertise to rule out competing hypotheses regarding the cause of Scordill's accident. The logic underlying Garic's conclusion that a manufacturing defect caused Scordill's accident is not facially unreasonable. Although the defendant disputes Garic's reasoning and conclusions, the Court finds that Garic's reports and testimony, supported by other evidence submitted by the plaintiffs, create a material issue of fact regarding whether a manufacturing defect proximately caused the plaintiffs' alleged injuries. Accordingly, the Court denies Louisville Ladder's motion for summary judgment on plaintiffs' manufacturing defect claim.
IV. Conclusion
For the foregoing reasons, the Court denies defendants' motion to exclude the expert testimony of Greg Garic. Further, the Court grants defendants' motion for partial summary judgment and dismisses with prejudice plaintiffs' inadequate warning and design defect claims, and the Court denies defendant's motion for summary judgment on plaintiffs' manufacturing defect claim.