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Georgia Court of Appeals: Injured car hauler driver’s objections rejected on appeal

In an action for injuries sustained by a car hauler driver stemming from a fall from the car hauler he was loading, the exclusion of his experts and judgment as a matter of law for the manufacturer of the car hauler on the driver’s design defect and failure-to-warn claims was affirmed by the Georgia Court of Appeals (Moore v. Cottrell, Inc., November 20, 2015, Doyle, S.).

Background. A car hauler driver (and his wife) asserted strict liability, negligence, and breach of warranty claims against the manufacturer of the car hauler from which the driver fell while he was picking up vehicles from a Nissan North American facility in Mississippi. The car hauler, manufactured by Cottrell, Inc., was equipped with a “head ramp,” which held three vehicles over the truck cab, and was attached to a two-level trailer. The car hauler also included a portable, non-affixed ladder, which could be moved from the driver’s side to the passenger’s side of the car hauler and was located at the rear of the head ramp. On the day of the accident, it was raining and the car hauler was wet. The driver had put a vehicle in the first position, and then an SUV in the second position on the head ramp. He exited the SUV from the driver’s door on the driver’s side of the car hauler, and turned to face the SUV, intending to step onto the wider ramp behind the SUV and walk down the ramp to the ground. While balanced on the frame of the head ramp, which was not equipped with guard rails or handholds, the driver tried to maintain a three-point stance by grasping the roof of the SUV with his fingers as he moved along the rail of the head ramp toward the back of the SUV. Approaching the rear tire of the SUV, the driver lost his footing and fell to the ground, sustaining serious injuries.

In an affidavit, the driver said that the car hauler did not contain a ladder built in the frame of the head ramp, but rather had a portable, aluminum ladder, which did not have a mechanism for securing the top of it. Also, because it did not have rubber coated bottoms, it “could only be used safely if the bottom of the ladder was resting on dirt and could be pushed into the ground … to hold it in place.” Because the car hauler was on asphalt at the time of the incident, he did not try to climb down the portable ladder. He thought he had no other option than to try to maneuver around the SUV to reach the ramp.

Lawsuit and trial court rulings. The driver and his wife (driver) sued Cottrell, alleging that the Cottrell car hauler (specifically, the head ramp) was defective and not equipped with a safe means to descend to the ground—challenging the lack of a reasonably safe ladder, a guardrail or other similar safety system, or handholds. The trial court granted Cottrell’s motion to exclude the testimony of the driver’s expert, finding he was qualified to testify as an expert in “safety issues relating to falls,” but that he failed to apply “reliable principles or methods” to the case. The driver later provided an affidavit of another expert, but the trial court struck it as untimely and granted summary judgment to the manufacturer. The driver appealed.

Expert testimony. The court rejected the driver’s arguments on the trial court’s rulings concerning his experts—that the trial court erred by striking his original expert’s testimony and that it erred by striking his second expert’s affidavit. Applying state law principles governing expert testimony and its admissibility, the appellate court concluded that the trial court did not abuse its discretion when it ruled the first expert’s testimony inadmissible. In that expert’s report, he opined that the car hauler was “defective and unreasonably dangerous from a human systems safety perspective” and provided an explanation. However, he admitted in his deposition that he never inspected or saw the car hauler at issue, nor had he been on the upper deck of any vehicle transport trailer. He did not offer his opinion as to the actual cause of the driver’s fall; and conceded that he never inspected any fall protection designs or systems for similar car haulers, was unaware of their components or composition, and had never been subject to peer review on these theories nor completed any scientific testing to support them. Thus, because his opinion was not the product of reliable principles or methods, he did not inspect the car hauler at issue, it was unclear what analysis he applied, and he did not have an opinion as to proximate cause, his testimony failed to meet the requirements for expert testimony under Georgia law. As such, the trial court did not abuse its discretion by excluding the expert’s testimony.

As for the second expert’s testimony, the appellate court ruled that the trial court’s scheduling order expressly required the driver to identify any experts on or before December 1, 2011. The second expert was not identified as an expert until May 16, 2014, four days before the summary judgment motion hearing. Again, the trial court did not abuse its discretion by striking the affidavit.

Design defect claims. A choice of law analysis led the appellate court to apply Mississippi substantive law to the question of whether the driver’s design defect claims could proceed without expert testimony (which had been properly excluded). Under Mississippi law, a plaintiff must demonstrate that the product was defective and that a feasible alternative would have prevented the alleged harm. In addition, expert testimony must be provided in support of a design defect claim, and the failure to designate an expert who can offer this evidence indicates the lack of a prima facie case. Therefore, without expert testimony, the driver failed to provide evidence that any alleged defect in the design of the car hauler rendered the product unreasonably dangerous or that a feasible design alternative existed at the time of the driver’s fall that “would have prevented the harm without impairing the utility, usefulness, practicality, or desirability of the car hauler.” Summary judgment to the manufacturer on the driver’s design defect claims was, therefore, proper.

Failure-to-warn. Finally, the trial court’s grant of summary judgment on the driver’s failure-to-warn claim also was proper. The driver contended that the trial court erred because none of the warning stickers on the car hauler or in the operator’s manual provided information on proper placement, securing mechanisms, and usage of the ladder. However, the driver could not remember whether or not the car hauler had warning labels regarding the ladders, and he admitted that he read only “some” of the operator’s manual. Under Mississippi law, “[t]he presence or absence of anything in an unread [product] manual … cannot proximately cause a plaintiff’s damages.” Further, the driver’s failure-to-warn claims basically alleged that the manufacturer did not warn the driver about the use of mechanisms, including ladder hooks, with which the car hauler at issue was not equipped at the time of the accident.

Dissent. Judge McFadden, in dissent, would not have excluded the driver’s first expert’s testimony. He found that the expert, who held a Ph.D. in Human Factors and Ergonomics and had studied car haulers, should not have been excluded because he did not personally inspect the car hauler. He also would have held that expert testimony was not necessary to avoid summary judgment under Mississippi law. His dissent was joined by Judge Barnes.

The case is No. A15A0802.  

Attorneys: David Edward Tuszynski (Garland, Samuel & Loeb) for Dennis Moore. Abbott Swift Hayes Jr. (Hulsey, Oliver & Mahar, LLP) for Cottrell, Inc.

Companies: Cottrell, Inc.