United States District Court, N.D. Alabama, Southern Division
K. KALLON UNITED STATES DISTRICT JUDGE.
products liability action arises from injuries Jason Harris
sustained in an accident while operating an electric pallet
jack manufactured by The Raymond Corporation
(“Raymond”). Doc. 1-1. Harris contends that
defects in the pallet jack caused the accident, and he
asserts a claim against Raymond under the Alabama Extended
Manufacturer's Liability Doctrine (“AEMLD”).
Before the court are Raymond's motion for summary
judgment, doc. 30, and motion to exclude the testimony of
Harris's expert, Charles E. Benedict, Ph.D., doc. 32. The
motions are fully briefed and ripe for review. See
docs. 30, 32, 47, 48, 51, and 52. After careful consideration
of the briefs and the relevant law, the court finds that the
motion to exclude is due to be granted in part, and the
motion for summary judgment is due to be denied.
STANDARD OF REVIEW
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the initial burden of proving the absence of a genuine
dispute of material fact. Id. at 323. The burden
then shifts to the non-moving party, who is required to go
“beyond the pleadings” to establish that there is
a “genuine issue for trial.” Id. at 324
(internal citations and quotation marks omitted). A dispute
about a material fact is “genuine” if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-movant. Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that a jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The product at issue
sustained serious injuries in an accident while he was
working as an order picker at a Dollar General distribution
center in Bessemer, Alabama. Docs. 38-3 at 9; 38-5 at 2. The
accident involved a model 8400 electric pallet jack
manufactured by Raymond. Docs. 38-1 at 16; 38-6 at 23; 39 at
20-21. Pallet jacks are used in warehouses to move inventory.
Docs. 38-6 at 22. An operator may stand and ride on the 8400
pallet jack when operating it, or walk beside the pallet jack
when picking up inventory. See doc. 34 at 25.
8400 pallet jack has both mechanical and electrical
components, and its handle is equipped with controls to
operate the pallet jack, including throttle twist grips,
which allow an operator to move the pallet jack forwards or
backwards by twisting the throttle. See docs. 34 at
27, 32, 44; 37 at 2; 38-1 at 10; 38-4 at 10. The farther the
operator twists the throttle, the faster the pallet jack
travels. Doc. 34 at 44. Relevant to this case, the throttle
assembly inside the pallet jack's handle includes a
“roll pin, ” also referred to as a “slotted
spring pin, ” that fits through small holes to hold the
assembly together, and a “torsion spring” that
restores the throttle to a neutral position after the
operator takes her hand off the throttle twist grip. Docs. 37
at 3-9; 37-1 at 10; 38-1 at 13, 19-22, 24; 38-4 at 37, 38-6
at 35; 39 at 17; 47-18 at 2-3. When the throttle returns to
neutral, the pallet jack will “plug, ” or coast,
to a stop. Doc. 38-1 at 13. If the torsion spring fails to
return the throttle to a neutral position, the pallet jack
can continue to move even after the operator takes her hand
off the twist grip. Docs. 38-1 at 14, 18, 53, 63; 38-6 at 34.
To stop the pallet jack, an operator can twist the throttle
grip in the opposite direction the pallet jack is moving,
which is called “plugging” and is the normal way
of braking. Docs. 34 at 46, 48; 38-1 at 9-10, 17.
Alternatively, an operator can stop the pallet jack by
pushing the handle down to a horizontal position, moving it
up to a vertical position, or use the emergency stop and
reverse button. Docs. 34 at 31, 44, 48-49; 38-2 at 9; 37 at
2; 38-4 at 10; 38-6 at 24.
8400 pallet jack is also equipped with a trademark feature
Raymond named CoastPRO that is designed to make it easier for
an operator to use the pallet jack to pick up merchandise.
Docs. 34 at 55; 38-2 at 3-4. CoastPRO limits the pallet jack
to walking speed, and it allows the operator to walk beside
the pallet jack to pick up merchandise while moving the jack
by pushing “jog trigger” buttons on the ends of
the handle or by twisting the throttle. Docs. 34 at 33,
55-56; 38-1 at 9; 38-4 at 16; 37 at 2; 38-6 at 28. Although
the mechanical brakes are disengaged when the pallet jack is
in CoastPRO mode, the operator can still stop the pallet jack
by pushing the handle up or down, hitting the emergency stop,
or “plugging” the throttle. Docs. 38-1 at 9; 38-2
at 9-10; 38-6 at 24; 34 at 55, 57.
engage CoastPRO, the operator must bring the pallet jack
handle down to a forty-five degree angle, and then either
press one of the two CoastPRO buttons, or push one of the jog
trigger buttons. Docs. 34 at 27, 56; 38-1 at 11; 38-6 at
27. The pallet jack beeps twice when CoastPRO mode is engaged
initially. Doc. 34 at 56. Although the product's manual
and Dollar General's rules warn operators to bring the
pallet jack to a complete stop before engaging CoastPRO,
operators are able to engage CoastPRO while the pallet jack
is moving. Docs. 38-1 at 10-11; 34 at 56; 38-6 at 25-27.
Bessemer warehouse performs regular preventative maintenance
on its 100 pallet jacks according to Raymond's
specifications. See doc. 47-12 at 25-26. This
includes taking the pallet jacks' handles apart to
inspect the components, including the throttle assembly.
Docs. 38-6 at 5, 11; 47-12 at 4-5, 25-26. Dollar General also
repairs the pallet jacks as needed, and obtains replacement
parts from an authorized Raymond dealer. See docs.
38-6 at 31, 38-39, 46; 47-12 at 26. Pertinent here,
maintenance records reveal that Dollar General's
employees replaced a broken handle and seat spring on the
subject pallet jack three months before the accident, then
reattached a roll pin in the handle two days later. Docs. 35
at 1; 38-6 at 31.
Harris began his shift on the day of the accident, he
performed the required daily check to ensure the pallet jack
was operating correctly. Doc. 38-3 at 6, 15-16. See
also doc. 38-4 at 17. Harris did not encounter any
issues with the pallet jack during his daily check or before
the accident. Doc. 38-3 at 18. While working that day, just
before the accident, Harris stopped the pallet jack, stepped
off it, brought the handle to a forty-five degree angle, and
engaged CoastPRO. Docs. 38-2 at 6, 14; 38-3 at 27. The unit
beeped twice to confirm the CoastPRO mode. Doc. 38-3 at 27.
Harris stood to the side of the pallet jack, and then walked
to the front of it to pick up merchandise. Doc. 38-2 at 7.
However, when Harris turned back towards the pallet jack, he
saw it coming towards him. Doc. 38-3 at 27. The accident
pinned his left ankle against a rack, resulting in
lacerations and a severely broken ankle, which required six
surgeries to reconstruct. Id. at 9-10.
Bowden, who witnessed the accident, testified that he saw
Harris get off the pallet jack and activate CoastPRO. Doc.
38-2 at 6. While Harris was picking up merchandise, Bowden
saw the pallet jack move forward, “[a]nd instead of it
going straight, it turned and pinned [Harris] against the
pallet and the rail.” Doc. 38-2 at 5. Bowden stated
that the pallet jack turned on its own without any triggering
action by Harris. Doc. 38-2 at 5-6, 16.
after the accident, Ron Musser, a maintenance mechanic at the
warehouse, conducted a full inspection and tests on the
pallet jack. Doc. 38-6 at 18-19, 24-29. Musser first tested
how far the pallet jack could travel before coasting to a
stop in CoastPRO mode by “running [the pallet jack]
full speed, hitting the CoastPRO, and jumping off it.”
Id. at 24-26. Musser determined that the subject pallet
jack could travel approximately thirty-six feet before
coasting to a stop in CoastPRO mode. Id. at 25. In
addition, “[a]fter extensive testing [with the pallet
jack], . . . the throttle stuck just enough for it to creep,
” meaning that it continued to move after it should
have coasted to a stop. Id. at 27. Musser could only
get the throttle to stick and cause the unit to creep forward
if the pallet jack was moving when he engaged CoastPRO. Doc.
38-6 at 43.
conducting his tests, Musser disassembled the pallet
jack's handle to fix the sticking throttle, and he found
that the “roll pin had moved out [from its holes] just
a little bit, catching the plastic housing” of the
throttle. Doc. 38-6 at 28. Musser replaced the roll pin as a
result. Id. at 35. In addition, Musser has conducted
other testing to determine why the pallet jacks' throttle
may stick, and he found that “[s]ometimes the [torsion]
spring gets weak” after a lot of use and would not
return the throttle to the neutral position. See
doc. 38-6 at 30, 33-34. Consequently, Musser asked another
employee to “order a bunch of springs.”
Id. at 33.
asserts a claim against Raymond based on his contention that
the alleged defects in the design of the pallet jack caused
the accident. Docs. 1; 47 at 30. “‘Under the
AEMLD, a manufacturer has the duty to design and manufacture
a product that is reasonably safe for its intended purposes
and uses. However, the manufacturer of a product is not an
insurer against all harm that might be caused by the use of
the product, and [. . .] [p]roof of an accident and injury
alone is insufficient to establish fault under the
AEMLD.'” Verchot v. Gen. Motors Corp., 812
So.2d 296, 301-03 (Ala. 2001) (quoting Brooks v. Colonial
Chevrolet-Buick, Inc., 579 So.2d 1328, 1331-32 (Ala.
1991)). To succeed on an AEMLD claim, a plaintiff must prove
that “the product at issue is sufficiently unsafe so as
to render it defective.” McMahon v. Yamaha Motor
Corp., U.S.A., 95 So.3d 769, 772 (Ala. 2012).
“[T]his is done by proving that a safer, practical,
alternative design was available to the manufacturer at the
time it manufactured the allegedly defective product.”
Id. (citation omitted).
the “‘complex and technical nature'” of
many products, expert testimony is ordinarily required to
prove that a product is defective. Verchot, 812
So.2d at 303 (quoting Brooks, 579 So.2d at 1332).
The product in this case is an electric pallet jack composed
of mechanical and electrical components, which are unfamiliar
to most lay people. Therefore, a lay juror would need the
assistance of expert testimony to determine if the pallet
jack is defective, and Harris must rely on such testimony to
prove his claim. See Brooks, 579 So.2d at 1333-34
(finding that proving a defect in an automobile brake system
requires expert testimony). Raymond maintains that Harris
cannot prove his case because his expert's testimony is
purportedly inadmissible. Doc. 30 at 14-15. Consequently,
Raymond's motion for summary judgment is inextricably
intertwined with its motion to exclude the testimony of Dr.
Benedict. As a result, the court will begin by addressing the
motion to exclude before turning to the summary judgment
Motion to Exclude Dr. Benedict's
challenges Dr. Benedict's testimony under Rule 702 of the
Federal Rules of Evidence. Docs. 32; 51. District courts must
perform a “gatekeeping” function when determining
the admissibility of expert evidence to ensure that
speculative, unreliable opinions do not reach the jury.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 592-93 (1993); McClain v. Metabolife Int'l,
Inc., 401 F.3d 1233, 1237 (11th Cir. 2005); McCorvey
v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th
Cir. 2002). However, “it is not the role of the
district court to make ultimate conclusions as to the
persuasiveness of the proffered evidence. . . . Quite the
contrary, ‘vigorous 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.'” Quiet Tech.
DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341
(11th Cir. 2003) (quoting Daubert, 509 U.S. at 596)
(alteration in original omitted). But, “nothing in
either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of
the expert.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 157 (1999).
determine whether expert evidence is admissible under Rule
702, courts in this circuit must conduct a