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Hernandez v. Crown Equip. Corp.

United States District Court, M.D. Georgia, Valdosta Division

March 11, 2015

JOSE HERNANDEZ and PRISCILLA HERNANDEZ, Plaintiffs,
v.
CROWN EQUIPMENT CORP., Defendant

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For Jose Hernandez, PRISCILLA HERNANDEZ, Plaintiffs: DARL HILTON CHAMPION, MICHAEL J WARSHAUER, LEAD ATTORNEYS, Warshauer Law Group PC, ATLANTA, GA.

For LOWE'S HOME CENTER, INC., c/o Sedgewick CMS, Intervenor Plaintiff: MICHAEL A RYDER, LEAD ATTORNEY, ATLANTA, GA.

For Crown Equipment Corporation, Defendant: KALI A ENYEART, LEAD ATTORNEY, PRO HAC VICE, BALTIMORE, MD; RICHARD K HINES, V, LEAD ATTORNEY, Nelson Mullins Riley & Scarborough LLP, ATLANTA, GA; SANJAY GHOSH, LEAD ATTORNEY, ATLANTA, GA; THOMAS J CULLEN, JR, LEAD ATTORNEY, PRO HAC VICE, BALTIMORE, MD; Edward Fowler Preston, Valdosta, GA.

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ORDER

HUGH LAWSON, SENIOR UNITED STATES DISTRICT JUDGE.

Before the Court is the Motion for Summary Judgment (Doc. 58) by Defendant Crown Equipment Corporation (" Crown" ) as well as a number of Daubert motions by the parties. The Court held a hearing on these motions on October 29, 2014. For the reasons given herein, the motion for summary judgment is granted in part and denied in part, and the Daubert motions are ruled on as stated below.

I. Factual Summary[1]

This is a product liability action. In early 2012, Plaintiff Jose Hernandez (" Mr. Hernandez" ) worked for Lowe's at a distribution warehouse in Valdosta, Georgia. On March 31, 2012, Mr. Hernandez was operating a stand-up rider forklift (" the forklift" ), designed and manufactured by Crown, when he hit an aisle end-cap in the warehouse. During the accident, Mr. Hernandez's left foot became caught between the forklift and the aisle end-cap, causing such severe injuries that his left lower leg had to be amputated. (Crown's Statement of Undisputed Facts (" CSF" ), Doc. 59, ¶ ¶ 1--2, 40; Deposition of Jose Hernandez, Doc. 65-2, pp. 133--34).

The forklift Mr. Hernandez was driving has a model number of RR 5225-45, a version of Crown's RR 5200 series. The forklift is entered from the rear and has a side-stance design. To operate the forklift the driver stands in the operator's compartment and faces to the side of the forklift, allowing the operator to swivel his head to the left or right depending on whether the forklift is traveling in a forks-trailing or leading direction. This means that an operator's left foot is positioned just inches from the rear edge of the operator's compartment. (CSF, ¶ ¶ 1, 28; Deposition of Ronald Grisez, Doc. 38-1, pp. 58--60; Figure 4 in Expert Report of Thomas Berry, Doc. 69-1, pp. 6, 8).

The forklift is not equipped with a door on the operator's compartment, and Crown does not install compartment doors as standard equipment on the stand-up rider forklifts it manufactures. Indeed, no forklift manufacturer in the world provides such doors as standard equipment on stand-up rider forklifts. However, in the past Crown has placed doors on stand-up rider forklifts at the specific request of certain purchasers, and some manufacturers still do. (CSF, ¶ ¶ 7, 26; Berry Report, pp. 15--17).

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There are no government regulations or industry safety standards that require forklift manufacturers to install doors on the operator's compartments of stand-up rider forklifts. The American National Standards Institute (" ANSI" ) is an agency that coordinates safety standards for many industries, and its B56.1 Subcommittee promulgates standards for stand-up rider forklifts. According to ANSI's B56.1 Safety Standard (" B56.1 Standard" ), these forklifts " are designed with open operator compartments to permit easy ingress and egress." If a forklift operator realizes that the forklift is about to tip over or roll off of a dock, then the B56.1 Standard recommends, where possible, stepping off and away from the forklift " to reduce the risk of serious injury or death." On two different occasions, ANSI has rejected proposed revisions to the B56.1 Standard that would require the installation of compartment doors as standard equipment. In 1998, the Occupational Safety and Health Administration (" OSHA" ), which regulates the workplace operation of forklifts and has adopted the B56.1 Standard, determined that tip-overs were the leading cause of fatal accidents on industrial forklifts. The National Institute for Occupational Safety and Health (" NIOSH" ) warns forklift drivers to step backwards off of the forklift in the event of a lateral tip-over, and the United States military requires that its stand-up rider forklifts " permit unobstructed egress from the rear of the truck." (CSF, ¶ ¶ 10--14, 17--18, 21--24).

Because the forklift Mr. Hernandez drove was not equipped with a door for the driver's compartment, Crown took steps to warn users about the risk of injury to a body part that was outside of the driver's compartment. Both a warning label on the forklift and the operator's manual caution operators to keep their limbs inside the operator's compartment. According to the warning in the operator's manual, " A foot or hand caught between the truck and a fixed object will be crushed or even cut off." Mr. Hernandez was trained in how to operate the forklift, and he understood the danger of not keeping his feet inside the driver's compartment. (Id. at ¶ ¶ 28--33, 38, 42--43).

Mr. Hernandez and his wife (jointly " Plaintiffs" ) brought suit against Crown on May 24, 2013. Crown removed the case to this Court on July 1, 2013. Asserting both strict product liability and negligent design defect claims,[2] Plaintiffs allege that Crown defectively designed the forklift by failing to provide a driver's compartment door as standard equipment and neglecting to make other design changes. According to Plaintiffs, by selling the forklift with this design in knowing disregard to the threat that an operator's leg could be crushed in the manner that Mr. Hernandez's was, Crown is liable for punitive damages. Mr. Hernandez's wife seeks damages under a loss of consortium claim. (Notice of Removal, Doc. 1; Complaint, Doc. 1-1, ¶ ¶ 1, 14--31).

II. The Parties' Daubert Motions

The Court will address the Daubert motions before turning to Crown's motion for summary judgment because whether the parties' proposed experts will be allowed to testify relates to the summary judgment analysis. A party wishing to

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have a witness testify as an expert bears the burden of laying, by a preponderance of the evidence, a foundation for the admission of its expert's testimony. Corvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002) (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999)). Whether certain opinions may be offered as expert testimony is determined by the standard stated in Federal Rule of Evidence 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

As the Supreme Court clarified in Daubert v. Merrell Dow Pharmaceuticals, a trial court must act as a " gatekeeper" and test the reliability and relevancy of the proposed expert's opinions before determining whether they can be admitted as expert testimony. 509 U.S. 579, 589--93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial judge must undertake a " rigorous three-part inquiry" and decide whether: (1) a proposed expert is qualified to competently testify concerning his opinions; (2) his methodology is sufficiently reliable; and (3) his testimony would assist the jury, through the application of scientific, specialized, or technical expertise, to determine a fact in issue or understand the evidence. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). The Supreme Court has provided a non-exclusive list of factors that may be considered in weighing the reliability of an expert's theory or methodology, including " (1) whether it can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) what its known or potential rate of error is, and whether standards controlling its operation exist; and (4) whether it is generally accepted in the field." [3] United States v. Brown, 415 F.3d 1257, 1267--68 (11th Cir. 2005) (citing Daubert, 509 U.S. at 593--94). The reliability test is flexible, and not all of the factors are applicable in every case. Id.

A. Plaintiffs' Daubert Motion on Ronald Grisez

The Court denies Plaintiffs' motion to exclude two opinions from Crown's proposed expert Ronald Grisez (" Grisez" ). Plaintiffs contend that these opinions are based on a flawed methodology and are therefore unreliable. Plaintiffs object, first, to Grisez opining that " [i]n an off-dock or tip-over event, the door will slow the operator down and decrease his/her opportunity to clear the [forklift], exposing the operator to potentially severe or fatal injuries." They also object to his opinion that a " door does not keep the operator in the [forklift]."

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Grisez's opinions are based on testing Crown's proposed expert witnesses and other researchers conducted using anthropomorphic test devices (" ATDs" ), i.e., dummies, to measure the forces experienced by forklift operators in off-dock and tip-over accidents. The testing results were summarized in a study by the Biodynamic Research Corporation and SEA, Inc. (" the BRC/SEA Study" ) and a paper written by Dr. John Weichel and Dr. Michael Scott (" the Weichel/Scott Paper" ). Both the study and the paper were based on a methodology that involved placing an ATD inside the driver's compartment of a forklift, attaching accelerometers and other devices to the ATD, and then tipping the forklift over or pushing it off of a dock. In the BRC/SEA Study, there was a door on the forklift's driver's compartment. By measuring the forces applied to the ATD and observing its physical motions while being tipped over or falling off of the dock, the researchers developed opinions about the potential injury rate for human drivers in off-dock or tip-over accidents and whether forklifts should be equipped with doors given the risk of injury in such events.

Plaintiffs raise two objections to this methodology. First, they deny that ATDs provide a valid simulation for how humans would respond in off-dock or tip-over accidents. They contend that humans would be able to withstand greater force than ATDs can and that humans have the ability to take protective action--using one's arms to cover one's head, for instance--that an ATD lacks. Second, Plaintiffs insist that the sample size for the studies cited in support of Grisez's opinions was not large enough to provide a reliable methodology.

While Plaintiffs certainly raise interesting points, their arguments do not convince the Court that the methodology behind the BRC/SEA Study and the Weichel/Scott Paper is not scientifically reliable. Significantly, Ruston Hunt, Plaintiff's own proposed expert, agreed with the statement that " ATD dummy testing [is] an accepted mechanism to evaluate the injury potential in different accident scenarios." (Deposition of Ruston Hunt, Doc. 45-7, p. 53). The Weichel/Scott Paper has also been subjected to peer review. Using an ATD to project how a human operator would react in an off-dock or tip-over accident is an imperfect methodology,[4] but these limitations can be, and undoubtedly will be, explored through cross examination of Grisez. The methodology upon which Grisez bases his opinions meets Daubert's reliability standard. Insofar as the sample size for ATD testing in forklift accidents might be small, the Court believes this issue is also one that is more properly offered to the jury for its consideration, for this criticism relates to the credibility of Grisez's opinions, not their admissibility. See Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 401 F.3d 901, 916 (8th Cir. 2005); see also Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833, 844--45 (11th Cir. 1983) (noting that " technical deficiencies" in sampling " affect the ... weight ... and not its admissibility" ).

B. Plaintiffs' Daubert Motion on Charles Watkins

The Court denies Plaintiffs' Daubert motion with regard to Crown's proposed expert Charles Watkins (" Watkins" ). Plaintiffs move to exclude a number of

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Watkins' opinions on the grounds that his methodology is not scientifically reliable and because he is not qualified to offer his first opinion. The first opinion is that the " inertial 'forces' acting on the operator during braking or turning are not sufficient in magnitude or concentrated at a location that would cause an operator's leg to leave the operator's compartment." The Court finds that this opinion is based on reliable, scientific principles. Watkins' training and experience as a mechanical ...


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