May 26, 2015
LESLIE TERRY SINGLEY, BRENDA TAYLOR SINGLEY AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, APPELLANTS
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
OF JUDGMENT: 10/15/2013.
FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE:
HON. WILLIAM A. GOWAN JR. TRIAL COURT DISPOSITION: SUMMARY
JUDGMENT GRANTED IN FAVOR OF APPELLEES.
APPELLANTS: NATHAN RICHARD GLASSMAN, JOHN WILLIAM NISBETT,
TODD BRITTON MURRAH, RONNA DIANE KINSELLA.
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.
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
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
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, the slotted
rail terminal (SRT), manufactured by Trinity Highway Products
(Trinity).  Although both designs incorporated
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
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. 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
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.
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."  Head also submitted
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."
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."
The Trinity Defendants moved to exclude this expert testimony
under Daubert  and filed motions for summary
judgment. 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.
The Singleys now appeal, raising several assignments of error
regarding the trial court's grant of summary
judgment. 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
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,"
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 (¶
Whether the trial court's exclusion of Head and
Stodola's expert testimony was an abuse of
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.
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
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
Q. Do you know anyone at FHWA that has contemplated putting
test 3-11 within the seven test matrix of test level 3
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
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.
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."  We find no abuse of
discretion in the trial court's decision to exclude this
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. 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
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.
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
Q. Other than Paul [Dhaliwal], which you discounted?
. . . .
A. Paul and his 30 degrees I disagree with.
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."
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.
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
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 is a design that would have to a
reasonable probability prevented the harm without impairing
the utility, usefulness, practicality or desirability of the
product to users or consumers.
Mississippi Supreme Court has explained:
If an alternative design could have been practically adopted
at the time of sale, and if the omission of such an
alternative design rendered the product not reasonably safe,
then a design is defective. [Restatement (Third) of Torts:
Prod. Liab. § 2 (1998).] This unique element of proof
for [a] design defect claim, is premised on the notion that
liability for harm caused by product designs should attach
only when the harm is reasonably preventable. Restatement
(Third) of Torts: Prod. Liab. § 2(f) (1998). For this
reason, demonstrating a feasible alternative design as proof
of a design defect is elemental to a claimant's prima
facie case. Accordingly,
once sufficient evidence has been presented to the judge so
the judge can determine that reasonable people could conclude
a reasonable alternative design could have been practically
adopted, the issue can be entrusted to a trier of fact.
Williams v. Bennett, 921 So.2d 1269, 1275 (¶
16) (Miss. 2006).
Head testified that other Test Level 3-accepted slotted rail
end terminals existed that could have been used, such as the
SRT. Yet when asked how the SRT would have performed if
impacted under the same conditions, Head testified: " I
have not done that analysis. I don't know."
Q. Okay. So as you sit here today, your testimony is that you
haven't analyzed the SRT to determine if it is a
reasonable design alternative.
A. I have not analyzed it to see if it would stand the same
impact that the REGENT-C failed.
explained that his opinion that the SRT would have been a
reasonable alternative design was based on the fact it was
" 350 certified." Therefore, according to Head,
" [t]hat on its surface makes it a reasonable device to
use." Head's opinion fails to establish that the SRT
was a safer feasible alternative, as the REGENT-C design was
also evaluated and 350-certified under the FHWA.
Furthermore, Stodola declined to offer any testimony during
her deposition that the SRT was a safer design, stating she
was not qualified to give that opinion.
Q. Are you going to be offering an opinion in this case about
alternative designs of guardrail treatments that you contend
were safer alternative designs to the REGENT-C?
A. Not intentionally.
. . . .
I'm not here to say that the SRT is a better design.
I'm just here -- based on what we could tell, it is
different. . . . So as I said, I would not intentionally say
that -- I'm not here to say the SRT is a better design;
I'm just saying there's a design difference.
Q. Well are you going to say that the SRT was a safer
A. I have not evaluated that and would not attempt to do
. . . .
Q. [Y]ou're not going to offer an opinion that the SRT or
any other guardrail end treatment system on the market was a
safer alternative design that the REGENT-C?
A. Correct. I would leave that to the experts.
Stodola later stated that there was a possibility that the
SRT " may have" performed in a manner that would
have prevented the incident, she noted that she had done no
testing to make that determination.
However, after the Defendants filed their motions to exclude
the Singleys' expert testimony, the Singleys filed an
affidavit by Stodola on June 25, 2013, in which she averred
that the SRT was a " mechanically feasible and available
design alternative design to the REGENT-C system at
issue." She noted that the REGENT-C was modeled after
the SRT design, but in the SRT design, the steel cable does
not run the full length of the termination, "
eliminating the need for a second cable box[.]" As this
Court has noted, a nonmovant may not attempt to defeat a
motion for summary judgment " with an affidavit of a
witness that contradicts facts asserted in that witness's
prior deposition testimony, unless the affidavit explains the
discrepancy." Jamison v. Barnes, 8 So.3d 238,
(¶ 17) (Miss. Ct.App. 2008) (citing Foldes v.
Hancock Bank, 554 So.2d 319, 321 (Miss. 1989)). It is
apparent that Stodola's affidavit was an attempt to
respond to the Defendants' argument that neither expert
had demonstrated a feasible alternative design existed that
was safer than the REGENT-C. Stodola did not explain the
discrepancy in her testimony, and she had earlier stated she
" would not attempt" to testify that the SRT was a
We find that the trial judge properly excluded certain expert
testimony of Head and Stodola. " Summary judgment may
not be defeated through expert opinions that are not based on
facts but instead are based on a guess, speculation, or
conjecture." Rogers v. Barlow Eddy Jenkins
P.A., 22 So.3d 1219, 1225 (¶ 21) (Miss. Ct.App.
2009). The remaining evidence is insufficient to raise a
genuine issue of material fact as to whether the REGENT-C was
defectively designed; further, the Singleys have offered
insufficient evidence that a defective design caused
Whether the trial court abused its discretion in excluding
the Singleys' evidence regarding the existence of a bolt
at Post 2 during Test 3-35.
In an affidavit filed on June 28, 2013, Head claimed that for
Test 3-35, the Defendants had " improperly altered the
original, proposed design of the REGENT-C" submitted to
the FHWA, by attaching the guardrail to Post 2, using a
bolt. Head opined that " [t]o a
reasonable degree of engineering certainty, by attaching the
rail at this location, Defendants were able to transfer at
least some portion of the forces exerted upon the terminal to
Post 2, assisting the terminal system as whole along its
length and re-direct the testing vehicle after impact."
But Head also noted that " [a]n exact analysis of the
specific amount of force transferred to the post is not
possible" because the Defendants never " tested the
unaltered design of the REGENT-C (without the rail attached
at Post 2) for comparison purposes." Thus, he concluded
that the alteration of the design " for purposes of Test
3-35 . . . . [meant] that the design of the REGENT-C
installed by [the Defendants] . . . was never demonstrated to
pass the minimum performance guidelines set forth in NCHRP
350 under Test 3-35."
However, as Head's affidavit was not filed until several
months after the expert-witness depositions had been
conducted and only four months before the trial was
scheduled, the Defendants moved to strike the testimony. The
trial judge granted the motion, concluding the evidence
failed " to abide by the terms of the scheduling
The Singleys argue that the trial court's granting of the
Defendants' motion to strike the evidence concerning the
existence of a bolt at Post 2 was an abuse of discretion.
They contend that this evidence was " not an attempt to
state a liability claim," but merely rebuttal evidence
and, therefore, should have been admitted. Upon review, we
find the evidence was untimely and properly excluded.
In Howell v. Holiday, 155 So.3d 839, 844 (¶ 15)
(Miss. Ct.App. 2013), this Court found that an expert's
supplemental report, which contained a new theory of
liability and which was submitted less than a week prior to
trial, " violate[d] Rule 4.04(A) of the Uniform Rules of
Circuit and County Court because Howell failed to reveal the
new subject matter of [the expert's] testimony at least
sixty days before trial, and no special circumstances existed
to justify Howell's late designation of this
opinion." Thus, Rule 4.04(A) applies not only to late
designation of an expert witness, but also the "
supplementation of the reports of experts who have already
been designated." Id. at 845 (¶ 15).
" Allowing [the expert] to testify on this matter would
result in undu[e] and irreversible prejudice to
Admittedly, the expert supplementation in the present case
was submitted more than sixty days before the scheduled trial
date, and therefore, was not a violation of Rule 4.04(A).
" However, compliance with Rule 4.04 does not excuse a
party's failure to adhere to a scheduling order."
Douglas v. Burley, 134 So.3d 692, 698 (¶ 15)
(Miss. 2012). A trial court " has considerable
discretion in matters pertaining to discovery" and
" a duty to maintain control of the docket and ensure
the efficient disposal of court business." Venton v.
Beckham, 845 So.2d 676, 684 (¶ 25) (Miss. 2003)
(citations and internal quotations omitted). In this case, we
agree with the trial court's finding that, due to the
complexity of the issues in this case, allowing a new theory
of liability only four months prior to the scheduled trial
would be prejudicial. New expert depositions would have to be
conducted, and the Defendants allowed time to find an expert
witness to counter Head's new theory.
Consequently, we find no abuse of discretion in the trial
court's grant of the Defendants' motion to strike
this evidence. Moreover, the Singleys acknowledge they "
never claimed that the presence (or lack thereof) of a bolt
attaching the REGENT-C's slotted rail at post 2 had any
impact or effect whatsoever on the performance of the
REGENT-C during the subject accident." Thus, this
evidence would not have been sufficient to create a genuine
issue of material fact necessary to preclude summary
Whether the trial court erred by deciding disputed issues of
fact concerning the FHWA acceptance
The Singleys claim that the trial court erroneously
interpreted the " meaning and intent of the FHWA"
in regard to the condition in the FHWA's acceptance
letter that " the minimum length of rail . . .
installed" should be approximately 45 meters
(approximately 148 feet). We find nothing in the record to
support this claim. The trial court did address the
parties' various arguments regarding this issue in its
order, but made no findings of fact regarding the
letter's intent. The trial judge merely concluded that
plaintiffs failed to " point to a specific breach of
duty that caused injury."
Furthermore, the evidence shows that the guardrail and
terminal were installed according to MDOT specifications --
112.5 feet of guardrail was installed, along with the
REGENT-C end terminal, which was 37.5 feet, for a total
installation of 150 feet. The Singleys' expert, Head,
testified that the REGENT-C end terminal should not have been
used in that particular " barrier situation,"
apparently interpreting the condition in the letter as
requiring 45 meters of guardrail, without including the
additional end-terminal length. As Key and Atwood noted in
their appellees' brief, the enclosures with the FHWA
acceptance letter, which include the test results, show that
the 45 meters was measured from the start of the REGENT-C
end terminal in the test. This issue is without merit.
Whether the trial court erred in failing to address the
Singleys' remaining claims.
Consequently, we further find the evidence is insufficient to
support the Singleys' remaining claims of strict
liability, negligent and/or intentional misrepresentation,
and their request for punitive damages. " With the
adoption of [section] 11-1-63, common law strict liability,
as laid out in State Stove Mfg. Co. v. Hodges, 189
So.2d 113 (Miss.1966), is no longer the authority on the
necessary elements of a products liability action."
Huff v. Shopsmith Inc., 786 So.2d 383, 387 (¶
11) (Miss. 2001). As we have fund that there was no genuine
issue of material fact as to whether the REGENT-C was
defectively designed, this claim fails as a matter of law.
The Singleys also claim that the Trinity Defendants made
" certain representations, explicitly and/or implicitly
to users, consumers, and the general public, concerning the
REGENT-C," which they assert were negligent and/or
intentional misrepresentations. As the Singleys have cited no
relevant authority to support this claim, we decline to
address this issue. See Barrow v. May, 107
So.3d 1029, 1038 (¶ 20) (Miss. Ct.App. 2012). Lastly, as
the Singleys' claims were insufficient to withstand
summary judgment, any issue brought regarding punitive
damages is moot and not properly before this Court.
Accordingly, we affirm the trial court's grant of summary
judgment to the Defendants.
THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
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.
I find that genuine issues of material fact are present in
this case, and that summary judgment should not have been
granted. Therefore, I respectfully dissent.
Singley offered the expert testimonies of Doug Head and Anne
Stodola to support his claims. Head testified that the
REGENT-C's performance in Singley's
accident did not comport with the minimum performance
requirements for the two tests, the 3-35 and the 3-11 test.
Test 3-35 was performed on the REGENT-C; however, test 3-11
was not. Head contended that it should have
been performed. Head further testified that the
SRT was a safer alternative. However,
Head based his opinion on the fact that the SRT had already
passed the guidelines of the National Cooperative
Highway Research Program (NCHRP) set out in a special report
known as the NCHRP 350. Head admitted that he did not perform
any testing to examine the SRT's performance.
Singley's other expert, Stodola, opined that the design
of the REGENT-C had a basic mechanical failure that likely
caused the REGENT-C to perform in the way that it did during
the accident. However, Stodola refused to offer an opinion
about the SRT being a safer design because she was not
qualified to testify to that supposition.
On October 15, 2013, the trial court granted the
Defendants' motion for summary judgment. The trial court
found that Head was generally qualified, but excluded his
testimony because he thought it was unreliable. The trial
court also found that Stodola was qualified, but her
testimony was also excluded because the trial court found
that her opinion " bordered design theory," an area
in which she was not qualified to offer an opinion.
Singley argues that the trial court did not correctly apply
the Daubert standard and improperly excluded both
experts' opinions in regard to the subject matter. Singly
contends that the trial court essentially applied the
single-factor general-acceptance test. Singley also argues
that the trial court ruled on a disputed fact between Head
and the Trinity Defendants' expert by stating that
Head's testimony is unreliable because " he is the
only person in the field that holds the opinion 3-11, versus
or in addition to 3-35[,] should apply to end
terminals." Singley also states that the trial court
failed to conduct any evaluation of Stodola's opinion
using Daubert criteria. Finally, Singley asserts
that both Head and Stodola are qualified to testify to their
Mississippi Rule of Evidence 702 and Daubert
" The admission of expert witness testimony is within
the discretion of the trial judge." Wackenhut Corp.
v. Fortune, 87 So.3d 1083, 1091 (¶ 23) (Miss.
Ct.App. 2012) (citing Kidd v. McRae's Stores
P'ship, 951 So.2d 622, 626 (¶ 17) (Miss.
Ct.App. 2007)). " We have also stated that " [e]ven
if this Court finds an erroneous admission or exclusion of
evidence, we will not reverse unless the error adversely
affects a substantial right of a party." Id.
Mississippi Rule of Evidence 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.
In Daubert v. Merrell Dow Pharmaceuticals Inc., 509
U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United
States Supreme Court rejected the general-acceptance test.
The Court stated that " the trial judge must ensure that
any and all scientific testimony or evidence admitted is not
only relevant, but reliable." Id. The Court
further stated that " the trial judge must determine at
the outset, pursuant to Rule 104(a), whether the expert is
proposing to testify to (1) scientific knowledge that (2)
will assist the trier of fact to understand or determine a
fact in issue." Id. at 592-93. Widespread
acceptance in the field of study can also play an important
role in a trial court's
decision to admit expert testimony. Id. at 594.
In Mississippi Transportation Commission v.
McLemore, 863 So.2d 31 (Miss. 2003), the Mississippi
Supreme Court adopted the Daubert standard and
rejected Frye. The Court acknowledged that the
application of Daubert is fact specific and "
appropriately uses relevant factors to determine
reliability." Id. at 38 (¶ 18). The Court
The Court in Daubert adopted a non-exhaustive,
illustrative list of reliability factors for determining the
admissibility of expert witness testimony. The focus of this
analysis " must be solely on principles and methodology,
not on the conclusions they generate." These factors
include whether the theory or technique can be and has been
tested; whether it has been subjected to peer review and
publication; whether, in respect to a particular technique,
there is a high known or potential rate of error; whether
there are standards controlling the technique's
operation; and whether the theory or technique enjoys general
acceptance within a relevant scientific community. The
applicability of these factors depends on the nature of the
issue, the expert's particular expertise, and the subject
of the testimony. The Daubert Court emphasized that
the reliability inquiry contemplated by Rule 702 " is a
Id. at 36-37 (¶ 13) (internal citations
Doug Head was one of Singley's experts who testified in
several depositions over the course of litigation. He
testified that REGENT-C was defective and unreasonably
dangerous because it did not comply with the performance
guidelines for Test Level 3 end terminals. Head endorsed the
3-11 length-of-need test. The trial court found that Head was
generally qualified to testify about the REGENT-C's
design, NCHRP 350, and the subject accident sequence. The
trial court further held that Head's opinion concerning
the applicability of the 3-11 test was flawed and unreliable
because he was the only person in his field who holds the
opinion about the existence of a suitable alternative design.
The second expert, Stodola, was an expert in the fields of
accident reconstruction and mechanical engineering. Stodola
intended to testify to specific mechanical defects or
failures of the REGENT-C that Singley asserts proximately
caused his injury. Stodola is a licensed engineer and trained
accident reconstructionist. Stodola testified that the
weakened beam placed next to a stiffened section with
increased mass created a point on the REGENT-C capable of
" snagging" or " hooking" a vehicle.
Stodola also testifies that if the truck had been redirected,
as it should have been, Singly would not have been injured in
the way he was hurt in this case. Stodola also testifies that
it was the combination of the slotted sections of rail next
to the second cable box and the transition point between the
REGENT-C and the nonslotted steel guardrail that caused
The trial court agreed that Stodola is qualified as an expert
witness. However, the court excluded Stodola's testimony
because it stated that the testimony bordered on design
theory. As a result the trial court held that Stodola was not
qualified to draw the conclusions she made in her
depositions. Singley argues that Stodola was merely using her
education and experience as a mechanical engineer
and accident reconstructionist to render an opinion in her
When a party offers expert testimony, he " must show
that the expert has based his testimony on the methods and
procedures of science, not merely his subjective beliefs or
unsupported speculation." Delta Reg'l Med. Ctr.
v. Taylor, 112 So.3d 11, 25 (¶ 42) (Miss. Ct.App.
2012) (citing Bailey Lumber & Supply Co. v.
Robinson, 98 So.3d 986, 994-95 (¶ 23) (Miss.
2012)). Further, the supreme court has stated that " an
expert's testimony is presumptively admissible when
relevant and reliable." Hubbard ex rel. Hubbard v.
McDonald's Corp., 41 So.3d 670, 675 (¶ 17)
(Miss. 2010) (citing McLemore, 863 So.2d at 36). The
supreme court has held that when an expert's opinion is
attacked with credible evidence that his opinion is not
accepted in the scientific community, the proponent of the
expert testimony must provide a minimal defense of the
opinion's reliability. Hill v. Mills, 26 So.3d
322, 332-33 (¶ 41) (Miss. 2010).
In response to the majority opinion, Head and Stodola were
properly qualified as expert witnesses by the trial court,
and their testimonies were improperly excluded. The majority
opinion adopts the language of the trial court in using the
words " safer" or " better" alternative
design. The claimant must prove by a preponderance of the
evidence that the product was designed in a defective manner.
Miss. Code Ann. § 11-1-63(a). The statute requires
Singley to show:
The 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
is a design that would have to a reasonable probability
prevented the harm without impairing the utility, usefulness,
practicality or desirability of the product to users or
Miss. Code Ann. § 11-1-63(f)(ii). Head and Stodola's
testimonies satisfy the statutory requirements. The testimony
of Head's and Stodola showed that the automobile should
have been redirected, and that the leg should not have been
Head and Stodola's testimonies raise genuine issues of
material fact. The testimonies directly contradict the
Trinity Defendants' arguments. Singley has presented
sufficient evidence to survive summary judgment. The issues
of whether the SRT design was better than the REGENT-C and
whether the REGENT-C was defective are questions of fact to
be decided by the jury based on the testimony. The trial
court erroneously excluded evidence that adversely affected
the substantial rights of the parties.
Evidence Concerning Factual Existence of Bolt at
Post 2 During Test 3-35
Singley contends that the trial court's order was an
abuse of discretion. Singley also argues that the rebuttal or
impeachment evidence offered was mistakenly referred to as
bolt-two theory. Singley further argues that the delay was
caused by the Defendants' failure to timely disclose the
fact that BPI, EAS, and E Tech altered the originally
proposed design of the REGENT-C. Singley asserts that,
because of the existence of a bolt attaching the
REGENT-C's rail to Post 2 during the 3-35 test is
impeachment evidence that is supported, he does not need to
prove that the bolt caused his injuries.
" The admissibility of evidence is left to the sound
discretion of the trial court within the boundaries of the
Mississippi Rules of evidence, and it will not be found in
error unless the trial court has abused its discretion."
Moss v. State, 977 So.2d 1201, 1207
(¶ 4) (Miss. Ct.App. 2007) (citing Harris v.
State, 861 So.2d 1003, 1018 (¶ 41) (Miss. 2003)).
The appellate court will not reverse the admission or
exclusion of evidence unless it " adversely affects a
substantial right." Robinson Prop. Mgmt. Grp. v.
Mitchell, 7 So.3d 240, 243 (¶ 9) (Miss. 2009).
The trial court referred to Singley's " impeachment
evidence" as a theory, and held that it would be
unfairly prejudicial to allow Singley to allow a new theory
shortly before trial. Singley submitted an affidavit from
Head discussing the bolt-two issue after the Daubert
and other dispositive motions were filed. The Court found
that the information in Head's affidavit was available by
his deposition date.
In the amended complaint, Singley alleged that " the
REGENT-C guardrail deviated in a material way from the
manufacturing specifications from otherwise identical units
manufactured to the same manufacturing specifications."
Singley argues that there was a flaw in the REGENT-C's
design that prevented it from preforming correctly.
Head's affidavit opined that the altered REGENT-C was not
submitted to the 3-35 test, and has not been demonstrated to
pass the minimum performance guidelines set forth in the
NCHRP 350. Head's affidavit also stated how the REGENT-C
being attached at Post 2 may have affected its performance
during the collision.
Singley has previously alleged that a design flaw in the
REGENT-C existed. The affidavit Head submitted to the court
appears to support that theory. The Mississippi Supreme Court
has held that parties have a right to their theory of the
case. Burnwatt v. Ear, Nose & Throat Consultants of N.
Miss., 47 So.3d 109, 118 (¶ 36) (Miss. 2010).
The majority opinion states that the trial court did not
abuse its discretion in excluding Singley's impeachment
evidence regarding the existence of a bolt at Post 2 during
the 3-35 test. This factual dispute was supported and did not
depend on the witnesses. The existence of a bolt attached to
the REGENT-C's rail at Post 2 during Test 3-35 was
supported by the tangible evidence of photographs and video
recordings. These facts were also known by Trinity, and there
was no new theory and no new discovery needed.
Whether there was a design flaw in the REGENT-C that impaired
its ability to function as it should is a disputed fact.
Therefore, summary judgment is not appropriate.
" [W]here disputed facts exist or where different
interpretations or inferences can be drawn from undisputed
facts, summary judgment is inappropriate." Morgan v.
Citizens Bank, 912 So.2d 1133, 1135 (¶ 9) (Miss.
Ct.App. 2005) (citing Johnson v. City of Cleaveland,
846 So.2d 1031, 1036 (¶ 14) (Miss. 2003)).
Singley argues that the trial court erred in viewing the
evidence in the light most favorable to the Defendants on
several different issues, including the intent and meaning of
the facts and opinions of the Federal Highway Administration
(FHWA) expressed in the REGENT-C's acceptance letter, and
Singley's claims in regard to the MPLA, causation, a
feasible alternative design to the REGENT-C, strict
liability, negligence, intentional misrepresentation, and
As previously mentioned, when reviewing the grant or denial
of a summary-judgment motion, " the evidentiary matters
are viewed in the light most favorable to the nonmoving
party." Matthews v. Horsehoe Casino, 919 So.2d
278, 280 (¶ 5) (Miss. Ct.App. 2005). " [I]f after
the evidentiary matters there is a genuine issue of material
fact, the grant of summary judgment is reversed."
Id. " The opponent to summary judgment carries
a burden of rebuttal, one which arises after the moving party
has satisfied the burden of proof that no genuine issue of
material fact exists." Miller v. Myers, 38
So.3d 648, 652 (¶ 13) (Miss. Ct.App. 2010). The Supreme
Court of Mississippi has stated that " [i]f there is
doubt as to whether a fact issue exists, it should be
resolved in favor of the non-moving party. That is, it is
better to err on the side of denying a motion for summary
judgment if a doubt exists as to whether a genuine issue of
material fact exists." McClinton v. Delta Pride
Catfish Inc., 792 So.2d 968, 972-73 (¶ 7) (Miss.
It should also be noted that in the trial court's order
several disputed facts are discussed. The trial court stated
that " [t]he physical factors such as angle, speed and
exact point of impact are in dispute although all experts
agree he impacted the REGENT-C causing part of the guardrail,
not the REGENT-C[,] to enter the passenger/driver compartment
of his vehicle." The order also stated:
FHWA acceptance letter states:
Since the pickup truck came to a stop straddling the rail
approximately 45 m (approximately 150 feet) from the
terminal, this is the minimum length of rail that should be
installed when the barrier is used along a high speed roadway
to shield a bridge parapet or vertical rigid object located
directly behind the guardrail.
judge further states in his order: " The parties dispute
whether or not this caveat was complied with and whether or
not the length of the REGENT-C should be counted or included
in the 150 feet." The trial court noted that Head
contended that " 150 feet of guardrail should have been
installed in addition to the REGENT-C and state[d] that if it
had been, all other things remaining constant, plaintiff
would have hit standard 3-11 tested guardrail and not the end
terminal, thus avoiding the particular injury." The
court further noted that the Defendants argued that Head was
not " qualified to give his opinion and then argue that
the Court should look at the documents the FHWA would have
relied upon in issuing the acceptance letter[,] which clearly
show the REGENT-C was included within the approximate 150
feet requirement and was required based on the 3-11 test
results, not 3-35."
Also, the trial court made a determination on the merits
about issues that should have been left within the discretion
of a jury. The jury is the ultimate factfinder and should
have been able to determine the facts and credibility of the
witnesses. Langston v. State, 791 So.2d 273, 280
(¶ 14) (Miss. Ct.App. 2001). However, in this case, the
trial court judge decided the case on the merits when genuine
issues of material fact existed.
The majority opinion states that summary judgment was proper
in favor of Trinity. The Singleys have established a prima
facie case, and there is no reason to exclude the expert
testimony of Head and Stodola after they have been qualified
as experts. In addition, the Singleys have promoted their
claims by: (1) the feasible design alternative is not merely
conceptual or theoretical in nature; (2) the feasible design
alternative has been reduced to a scale drawing; (3) the
feasible design alternative illustrates certain dimensions
and safety characteristics; and (4) the scale drawing shows
to a reasonable probability that it would have prevented the
harm without impairing the utility, usefulness,
practicability, or desirability of the product to users or
consumers, as is required
by Mississippi Code Annotated section 11-1-63(f)(ii). Singley
has also provided photos of the REGENT-C that the product
failed to function as expected.
Singley raises several issues, all of which are in direct
conflict with the Trinity Defendants' position. Singley
has provided sufficient evidence through expert testimony and
other discovery to show that genuine issues of material fact
do exist in this case. However, in the final judgment, the
trial court did not strike the expert testimony, but it found
that the experts' depositions and affidavits were
insufficient to withstand summary judgment. Also, the court
granted the motion to strike the bolt-two theory and also
granted summary judgment.
The majority opinion addresses Singley's remaining claims
that were not addressed by the trial court, and I decline to
address these issues on appeal. These issues should be
addressed by the trial court on remand.
I find that the trial court abused its discretion and
erroneously excluded evidence that has adversely affected the
substantial rights of the parties. Summary judgment is not
proper because genuine issues of material fact exist, and the
case should be reversed and remanded.
The 350 Report, promulgated by the National
Cooperative Highway Research Program (NCHRP) in 1992,
provides the recommended procedures for evaluating the
performance of safety features, including guardrail end
terminals. It defines a terminal as " [a] device
designed to treat the end of a longitudinal barrier,"
such as a W-beam guardrail, and it functions by " (a)
decelerating a vehicle to a safe stop within a relatively
short distance, (b) permitting controlled penetration of the
vehicle behind the device, (c) containing and redirecting the
vehicle, or (d) a combination of a, b, and c."
Trinity Highway Products merged with
Central Fabricators in 2007, acquiring the assets of BPI.
These assets include the rights pertaining to the REGENT-C
patent. Although BPI maintains a corporate existence, Central
Fabricators ceased to exist following the merger. For
ease of discussion, we will refer to all the Defendants
as a whole, unless otherwise indicated.
Another difference between the SRT and the
REGENT-C is the location of the slots. The REGENT-C has three
identical rail panels with slots continuing to the terminal
end, where it is attached to the non-slotted steel w-beam
guardrail. The SRT's slots end before the transition to
the guardrail, just after Post 3.
The Federal Highway Administration (FHWA)
adopted Report 350 as the standard for all federal-aid
construction projects involving public roadways. Test Level 3
of Report 350 sets the parameters for crash testing both the
gating capacity and redirective capacity of an end-terminal
device. According to NCHRP Report 350, up to seven tests are
recommended to evaluate redirective/gating devices in Test
Level 3 (3-30 through 3-36).
According to the NCHRP 350 Report, Test
3-11 is a recommended test to evaluate the length of need for
longitudinal barriers. The 350 report defines a longitudinal
barrier as " [a] device whose primary functions are to
prevent vehicular penetration and to safely redirect an
errant vehicle away from a roadside or median hazard."
Length of need is defined as " [t]hat part of a
longitudinal barrier or terminal designed to contain and
redirect a vehicle."
These include Trinity, BPI, E-Tech Testing
Services Inc., Central Fabricators, and EAS.
 Daubert v. Merrell Dow Pharms.,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Key and Atwood each filed separate motions
for summary judgment, asserting that the guardrail and end
terminal were installed in accordance with the
manufacturer's instructions and that they did not breach
any duty owed to the plaintiffs. Key and Atwood also joined
the Trinity Defendants' motion to exclude the
plaintiffs' experts and for summary judgment.
Although the Singleys raise nine issues in
their brief, in the interest of clarity and efficiency, these
multiple claims have been combined into three issues.
 See n. 2.
We note that Head also admitted he knew
of no other guardrail end terminal that had ever been
accepted using Test 3-11.
The paramedic who assisted Singley after
the accident stated that he thought Singley told him "
that he had his cruise set at 77 [mph]," but the
paramedic also acknowledged that he could not " say with
certainty [Singley] said that."
The term " drifting" was
suggested by counsel for the Singleys during Ford's and
Walker's depositions before the witnesses actually used
that term. The following is an example of this from a portion
of Walker's testimony:
[Counsel for Singleys]: Was it as if he was drifting
into your lane or what was he doing?
Russ Walker: Oh, yeah. Oh, yeah, it was, uh, it was
definitely, he was coming straight over.
During Ford's testimony, counsel for the Singleys
also questioned: " Now, did the vehicle drift over those
lanes from left to right . . . or had it already gotten onto
a straight trajectory?" While Ford had previously used
the term " veered" to describe the vehicle's
trajectory, Ford replied to the question: " It was
drift. It wasn't a direct line of travel. Just gradually
to the right."
Head stated that Test 3-30 used the
original REGENT-C design (with the slotted rail not bolted at
Post 2) submitted to the FHWA and that BPI, Central
Fabricators, EAS, and E-Tech Testing " notified the FHWA
that they altered the design to attach the slotted rail to
Post 2" for Test 3-31. He renders no claims or opinions
concerning the attachment of the bolt to Post 2 in Test
The REGENT-C guardrail end terminal, as
installed at the accident site, incorporated two steel cables
intended to provide strength and redirective capabilities to
the end terminal in the event of a side impact.
The trial court found that the case
involves three main issues: (1) Test 3-11 versus 3-35; (2)
the " bolt two" theory; and (3) the length caveat
in the FHWA acceptance letter, which I address in this
SRT is an abbreviation for slotted rail
terminal, which was designed and manufactured by
 Frye v. United States, 293 F.
1013 (D.C. Cir. 1923).