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 ...