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McCorvey v. Alabama River Cellulose, LLC

United States District Court, S.D. Alabama, Southern Division

October 10, 2014

DAVID EARL McCORVEY, JR., Plaintiff,
v.
ALABAMA RIVER CELLULOSE, LLC, et al., Defendants.

ORDER

WILLIAM H. STEELE, Chief District Judge.

This matter is before the Court on the following defense motions: (1) motion to exclude testimony, (Doc. 100); (2) motion for summary judgment, (Doc. 103); and (3) motion to strike. (Doc. 127). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 101-02, 105-07, 115-16, 119-20, 127), and the motions are ripe for resolution. After careful consideration, the Court concludes that all three motions are due to be denied or denied as moot.

BACKGROUND

According to the complaint, (Doc. 1-1 at 2-19), the plaintiff was a truck driver hauling loads of tree logs to a pulpwood facility owned by Alabama River Cellulose, LLC, the sole remaining defendant. On January 19, 2011, as his truck was being unloaded by employees of the defendant, the plaintiff was struck in the back by a piece of wood that had shot out of the defendant's machinery.

Count One alleges that the plaintiff was a business invitee of the defendant and that he was injured by the defendant's negligence. Counts Two through Six attempt to set forth various other claims, which the plaintiff has "withdraw[n]" in response to the defendant's motion for summary judgment. (Doc. 120 at 1). The defendant does not object to the withdrawal. (Doc. 127 at 3).

DISCUSSION

I. Motion to Exclude Testimony.

The defendant seeks to exclude the testimony of Joe Robinson, a fact witness, and of Robert Tolbert, an expert witness. (Doc. 100 at 1). In response to this motion, the plaintiff "removes and withdraws Robert Tolbert as a witness for the Plaintiff." (Doc. 115 at 1).

At the risk of oversimplification, the defendant operates a "Woodline" conveyor system that turns tree-length logs into wood chips. Logs are fed into an open trough known as the "Powerfeed" by either an overhead crane ("the Andritz") or a large forklift with a grapple ("the Taylor"). The logs may be fed into the Powerfeed directly from a truck as it is unloaded or from an adjacent stack of logs in what is known as the "Woodyard." Logs move down the Powerfeed into an enclosed Debarker Drum, which strips the logs of bark, and on to a Chipper, which reduces the logs to wood chips. The entire Woodline system stands about 30-35 feet above the ground. (Doc. 101 at 3-5; Doc. 106 at 4-6 & 5 n.5; Doc. 120 at 3-4).

Parallel to the Woodline system is an open area. Log trucks enter this area to be unloaded. Unloading occurs adjacent to the Powerfeed on a concrete pad. On the day of the incident, the Taylor was used to unload log trucks. (Doc. 105-10 at 1-2; Doc. 106 at 4-5 & 4 n.4).

While their vehicles are unloaded, drivers are required by the defendant to walk, wearing protective gear, to a "safe shed" located under part of the Woodline system. According to the plaintiff, he began walking towards the safe shed, turned back to observe the Taylor in operation, and was struck by a projectile from the Powerfeed, which he did not see because his back was turned. (Doc. 106:4-6; Doc. 120 at 2-6).

Joe Robinson is another truck driver, who has testified that he was in line to have his truck unloaded when he saw the plaintiff struck in the back or head by a piece of wood about three feet long that came out of the Powerfeed. The defendant points out that, prior to his deposition testimony, Robinson signed two unsworn statements, and the defendant complains that they are materially different, especially in terms of "where the Plaintiff was physically located when he purportedly was struck." (Doc. 116 at 1-2). Robinson's first statement placed the plaintiff in the "safe shed" but, a few days after Tolbert testified it was unlikely the plaintiff could have been struck by a log ejected from the Powerfeed if he were in the safe shed, Robinson signed a second statement placing the plaintiff in the open, somewhere near his truck. (Doc. 101 at 6, 8, 23). Robinson's later deposition testimony matches his second statement. The defendant finds the change both convenient and suspicious, and it certainly furnishes fertile ground for exploration at trial.

The defendant, however, wants more. The defendant wants the testimony of Robinson excluded altogether. Since there apparently is no other witness to the incident, the exclusion of Robinson's testimony might well doom the plaintiff's case. The defendant certainly thinks so. (Doc. 127 at 3-4).

But the defendant struggles to identify a legal principle that would allow the exclusion of Robinson's testimony. He is hardly the first witness to offer inconsistent versions of an event, and hardly the first to do so under circumstances that could - at least to an eager opponent - suggest more than a mere misstatement or lapse of memory.[1] And so this case would appear to be governed by the rule that, even when a witness's testimony is "contradictory and inconsistent, it is the job of the jury to evaluate the ...


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