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Singley v. Trinity Highway Prods., LLC

Court of Appeals of Mississippi

May 26, 2015

LESLIE TERRY SINGLEY, BRENDA TAYLOR SINGLEY AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, APPELLANTS
v.
TRINITY HIGHWAY PRODUCTS, LLC, KEY LLC, ATWOOD FENCE COMPANY, INC., BRYSON PRODUCTS, INC., E-TECH TESTING SERVICES, INC., CENTRAL FABRICATORS, INC., AND ENERGY ABSORPTION SYSTEMS, INC., APPELLEES

          DATE OF JUDGMENT: 10/15/2013.

Page 709

          COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. WILLIAM A. GOWAN JR. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEES.

         FOR APPELLANTS: NATHAN RICHARD GLASSMAN, JOHN WILLIAM NISBETT, TODD BRITTON MURRAH, RONNA DIANE KINSELLA.

         FOR APPELLEES: W. THOMAS MCCRANEY III, GEORGE ELLIS ABDO III, ROGER C. RIDDICK, MICHAEL A. HEILMAN, ZACHARY MORI BONNER, RUSSELL CLAY BROWN, ANDY LOWRY, BRADLEY SMITH KELLY.

         BARNES, J., FOR THE COURT. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

          OPINION

Page 710

         EN BANC.

         BARNES, J.

         [¶1] This case arises from a car accident involving one vehicle driven by Leslie " Terry" Singley (Singley). On the morning of February 14, 2008, Singley was traveling westbound on Interstate 20 in Clinton, Mississippi, in his Ford F-150 pickup truck. Having set his cruise control at 65 miles per hour (mph), he was approaching a bypass near the Natchez Trace Parkway. While Singley was traveling in the left lane, passing a caravan of Entergy trucks, he inexplicably lost consciousness, veered off the roadway, and collided with a Redirective Gating End Terminal (" REGENT-C" ) and a length of W-beam guardrail used to shield a bridge parapet for the Natchez Trace Parkway. As a result of the impact, a segment of the guardrail entered the vehicle's compartment and amputated Singley's right leg below the knee.

         [¶2] Singley and his wife, Brenda, filed suit on September 30, 2009, against all entities involved in the design, testing, manufacturing, installation, and sale of the REGENT-C terminal. The REGENT-C end terminal was designed by Bryson Products Inc. (BPI) and manufactured by Central Fabricators. Key LLC was hired by the Mississippi Department of Transportation (MDOT) as the primary contractor; Atwood Fence Company was the subcontractor hired to install the product. The design of the REGENT-C end terminal was intended to serve the dual function of " gating" and redirecting a vehicle in the case of a side-impact collision. Its design was based on a similarly designed end terminal,[1] the slotted rail terminal (SRT), manufactured by Trinity Highway Products (Trinity). [2] Although both designs incorporated

Page 711

slotted rail panels, standard anchor assembly, and wooden posts, the REGENT-C also used a 3/4 inch steel cable, which extended the entire length of the system. The cable was woven through the slotted rail at certain points and connected by two cable boxes mounted on the non-traffic side of the system.[3]

         [¶3] E-Tech Testing Inc. and Energy Absorption Systems Inc. (EAS) were contracted to perform the NCHRP Report 350 testing for the REGENT-C end terminal.[4] The REGENT-C was subjected to Tests 3-30, 3-31, and 3-35 before obtaining approval from the Federal Highway Administration (FHWA). In a letter dated September 5, 2002, the FHWA informed EAS that the REGENT-C met the " evaluation criteria for an NCHRP Report 350 w-beam guardrail terminal at test level 3 (TL-3) and . . . may be used on the National Highway System[.]" The approval did contain one condition: noting that the truck used in one test " came to a stop straddling the rail approximately 45 m[eters] downstream from the terminal," forty-five (45) meters was set as " the minimum length of rail that should be installed when the barrier is used along a high-speed roadway to shield a bridge parapet[.]"

         [¶4] The Singleys amended their complaint three times, with the third amended complaint filed on March 4, 2011. The principal charge in the complaint was that the REGENT-C end terminal attached to the guardrail was defectively designed and unreasonably dangerous. The Singleys alleged that instead of deflecting his vehicle, as it should have been " designed, constructed, and installed" to do, the REGENT-C end terminal failed, causing the guardrail to penetrate the truck's passenger compartment, which resulted in Singley's injuries. They also asserted claims of strict liability, negligent and/or intentional misrepresentation, and loss of consortium.

         [¶5] To support their claims, the Singleys provided expert testimony from Doug Head and Anne Stodola. Head, an engineer and accident reconstructionist, stated that the REGENT-C was defective and unreasonably dangerous because it did not comply with the performance guidelines. Head contended that had the REGENT-C also been subjected to Test 3-11, which tests longitudinal barriers, its defective condition " would have been readily apparent." [5] Head also submitted an affidavit

Page 712

after discovery had been concluded that additionally asserted the Trinity Defendants had " improperly altered the original, proposed design of the REGENT-C submitted for FHWA approval during Test 3-35 by attaching the slotted rail to the wooden post at Post 2."

         [¶6] Stodola, a mechanical engineer and accident reconstructionist, opined that the REGENT-C design had a defect that caused the guardrail to shear and pierce the vehicle's compartment. Specifically, she stated that because the " downstream" cable box was positioned next to an area where slots were located in the guardrail, this created a " flexion point" and made the REGENT-C end terminal subject to " pocketing," causing the terminal to " snag" Singley's truck instead of redirecting it. She declined, however, to offer any opinion in her deposition regarding a feasible alternative design. Stodola did submit a subsequent affidavit on June 25, 2013, after discovery had been completed, in which she claimed that the SRT end-terminal design was a " mechanically feasible and available alternative design to the REGENT-C system at issue."

         [¶7] The Trinity Defendants[6] moved to exclude this expert testimony under Daubert [7] and filed motions for summary judgment.[8] On October 15, 2013, the trial court granted the Defendants' motions for summary judgment, concluding that the expert opinions of Head and Stodola did not prove causation and were " insufficient to withstand summary judgment." Although noting that both Head and Stodola were generally qualified as experts, the trial judge found that Head's testimony was " unreliable" and that Stodola admitted she " would have to defer to other experts when it comes to guardrail design[.]" The trial judge also approved the Defendants' motion to strike an affidavit by Head submitted after discovery had concluded, which referenced a secondary theory of liability.

         [¶8] The Singleys now appeal, raising several assignments of error regarding the trial court's grant of summary judgment.[9] Upon review, we find the trial judge properly excluded certain expert testimony in this case. We further conclude that the remaining expert testimony is insufficient to establish a product-liability claim under Mississippi law. We further find no genuine issue of material fact exists as to the Singleys' remaining claims on appeal. Therefore, we affirm the trial court's grant of summary judgment.

         STANDARD OF REVIEW

         [¶9] A trial court's grant or denial of a motion for summary judgment is reviewed de novo. Karpinsky v. Am. Nat'l Ins. Co., 109 So.3d 84, 88 (¶ 9) (Miss. 2013). " [I]f the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law,"

Page 713

then summary judgment " shall be rendered." M.R.C.P. 56(c). The evidence must be viewed " in the light most favorable to the party against whom the motion has been made." Karpinsky, 109 So.3d at 88 (¶ 9).

         ANALYSIS

         I. Whether the trial court's exclusion of Head and Stodola's expert testimony was an abuse of discretion.

         [¶10] The crux of the Singleys' argument is that Singley hit the REGENT-C end terminal at an angle and speed within the parameters of the NCHRP 350 testing; therefore, since the REGENT-C end terminal failed to redirect Singley's vehicle and caused him severe injury, the design of the end terminal was defective and was not NCHRP 350 compliant. The Singleys provided testimony by the two experts, Head and Stodola, to support their claim that the severity of the impact was within the testing parameters and that the REGENT-C's design was defective. The Defendants, on the other hand, contend that the severity of the impact to the end terminal and guardrail was of a magnitude far exceeding " the performance tolerances established by Report 350 for crash-testing end terminal devices," and the Singleys failed to provide sufficient evidence that the REGENT-C failed due to a design defect.

         [¶11] We agree with the trial judge's conclusion that Head's expert testimony -- that the REGENT-C end terminal should have been subjected to Test 3-11 before being deemed compliant under NCHRP 350 -- should be excluded, as it is not based on any industry methodology or peer review. As this Court has opined:

" [T]he party offering the testimony must show that the expert has based his testimony on the methods and procedures of science, not merely his subjective beliefs or unsupported speculation." Then the trial judge must determine whether the expert testimony " rests on a reliable foundation and is relevant in a particular case." The focus of the trial judge's analysis " must be solely on principles and methodology, not on the conclusions they generate."

Coleman v. Ford Motor Co., 70 So.3d 223, 231-32 (¶ 26) (Miss. Ct.App. 2011) (citing Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 36-7 (¶ ¶ 11, 13) (Miss. 2003) (internal citations omitted)). When asked what 350-level guardrail end terminal had been accepted using Test 3-11, Head acknowledged: " I don't know of another one." Deposition testimony revealed that Head's averment that the REGENT-C end terminal be evaluated using Test 3-11 was based only on his subjective opinion.

Q. Do you know anyone at FHWA that has contemplated putting test 3-11 within the seven test matrix[10] of test level 3 devices?
A. Within the matrix, I don't know of anybody that's thought of that. I think[,] when they look at that it's labeled as length of need redirective, that they will agree with me that the strength requirements of 3-11 need to be met by that section.
. . . .
Q. All right. So . . . my point is the people that come up with the test level [seven] matrix -- the seven text matrix -- were an array of people from DOT to academicians to Ph.D. engineers to people who design products who came up with that standard, right?

Page 714

A. Right.
Q. And those folks, in their collective wisdom, did not see fit to put test 3-11 within that seven test matrix. You would agree with that, wouldn't you?
A. I agree.

         The Singleys admit in their brief that it " may very well be true" that no designer or manufacturer of end terminals test for " 'length of need' according to the parameters of Test 3-11." [11] We find no abuse of discretion in the trial court's decision to exclude this testimony.

         [¶12] Regarding the issue of the speed and angle of the impact of Singley's truck against the guardrail, we agree there are disputed issues of fact. Eyewitnesses claimed that Singley was traveling at a speed of " over 70" mph, and Singley's own statement was that his cruise control had been set on 65 mph prior to the incident.[12] One eyewitness, Paul Dhaliwal, who was driving one of the Entergy trucks, stated that Singley's truck impacted the guardrail at approximately a thirty-degree angle. Dhaliwal was traveling directly behind Singley. Another witness, Carlos Ford, said that Singley's truck " veered" over in front of the Entergy truck in which he was a passenger. The driver of that Entergy truck, Russ Walker, said in a recorded statement that when Singley " started coming over it was a bee line for that guardrail."

         [¶13] Head, however, disregarded this testimony concerning the angle, testifying it was " not reasonable" and that Dhaliwal was " just flat wrong." Instead, Head focused on the testimony of Walker and Ford that Singley " drifted" into the other lane.[13] Head's opinion was that Singley struck the guardrail at an approximate angle of nine degrees. He said that if the impact was steeper than five to ten degrees, it would require " the vehicle to make a turning maneuver instead of a drifting maneuver." He stated in his deposition:

A. There's no evidence [Mr. Singley] turned. The witnesses all say he just drifted. . . . [I]f he had been further up, they're going to describe him as he turned into the barrier. . . . They didn't. They consistently say he drifted -- they -- into the barrier. That keeps him on a relatively straight line. If they'd said he turned into it or he had a heavy veer, then he could be up here and turn into it. But nobody has described that. They all say he just drifted.

Page 715

Q. Other than Paul [Dhaliwal], which you discounted?
. . . .
A. Paul and his 30 degrees I disagree with.

         [¶14] Stodola opined that the cruise control on Singley's car was likely not engaged, although Singley himself claimed that it was set at 65 mph before the accident. But she admitted that there was no physical evidence whether Singley's cruise control was off or on. Like Head, she also stated in her report that the angle of impact was between eight to ten degrees. However, the Defendants argue that Stodola " did not perform any physical testing or computerized modeling to verify whether the impact severity of the Singley accident was within or far exceeded the performance tolerances established by Report 350."

         [¶15] We cannot say that the presence of these disputed facts is fatal to the Defendants' award of summary judgment. Even if a jury gave greater weight to the experts' opinions that the impact was within the parameters of the NCHRP 350 testing, the Singleys still had to demonstrate that a genuine issue of material fact existed that the REGENT-C end terminal was defectively designed and the defective design was the cause of Mr. Singley's injury. They also had to provide evidence that a reasonable alternative design existed that would have prevented the accident in question.

         [¶16] The trial court barred the Singleys' claim under the Mississippi Products Liability Act (MPLA) because their experts failed to provide any testimony that a reasonable alternative design existed for the end terminal. Upon review of the evidence, we agree with the trial court's finding that the expert opinions in this case failed to meet Daubert standards.

         [¶17] Mississippi Code Annotated section 11-1-63(f)(i)-(ii) (Rev. 2014) of the MPLA states:

In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer, designer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, designer or seller[,]. . . [t]he manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and . . . . [t]he product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative ...

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