Rappuhn v. Primal Vantage Company, Inc. et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AUSTIN J RAPPUHN, 	)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs. 	CIVIL ACTION NO. 20-00528-CG-N
PRIMAL VANTAGE COMPANY,
INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the court on Defendant’s motion for summary judgment
(Doc. 120), Defendant’s motions in limine to exclude expert testimony (Docs. 121,
122, 123, 124), Plaintiff’s response to the motion for summary judgment (Doc. 129),
Plaintiff’s response to the motions in limine (Doc. 128), Defendant’s reply in support
of summary judgment (Doc. 135), and Defendant’s reply in support of its motions in
limine (Docs. 136, 137, 138). For the reasons explained below, the Court finds that
Defendant’s motions in limine are moot as to Plaintiff’s experts Stuart Statler and
Stan V. Smith and should be granted in part as to Plaintiff’s experts Guy Avellon
and Dr. Jahan Rasty. The Court also finds below that Defendants’ motion for
summary judgment should be granted in its entirety.
FACTS
Plaintiff Austin J. Rappuhn filed this case seeking damages related to
injuries he received while using a Primal Vantage PVCS-400 tree stand. (Doc. 1).
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Plaintiff’s complaint asserts three claims against Defendant Primal Vantage: 1) a
claim for violation of Alabama Extended Manufacturer’s Liability Doctrine alleging
that the tree stand’s defective and unreasonably dangerous condition proximately
caused his injury, 2) a negligence claim based on Primal Vantage’s failure to
adequately engineer, design, manufacture, assemble, produce, supply, distribute,
and sell the tree stand and its failure to adequately test, inspect and assure the
quality of the tree stand, and to provide adequate warnings and instructions with
the tree stand, and 3) a wantonness claim seeking punitive damages. In his
response to summary judgment Rappuhn withdraws his claims to the extent they
are based on manufacturing or warning defects. (Doc. 129, PageID.5571).
The tree stand at issue, Model PVCS-400, is a climbing tree stand used for
hunting at an elevated position in a tree. The tree stand has a foot platform and a
seat platform which are moved independently up or down a tree in an inchworm
like motion. The safety manual instructs the user how to secure the tree stand to a
tree and to climb the tree by leaning against the “shooting rest” on the seat
platform, lifting their feet to raise the foot platform - setting it in position, and then
standing on the foot platform and lifting up on the seat platform to set it in a raised
position. This process is repeated until the desired height is reached. (Doc. 120-3,
PageID.1858-1871).
The tree stand safety manual instructs the user to always use a “Fall Arrest
System” harness after leaving the ground. (Doc. 120-3, pageID.1860). The harness
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is included with the purchase of the tree stand along with a manual instructing on
the proper use of the harness. (Doc. 120-4, PageID.1872-1877; Doc. 120-6,
PageID.2037).
The tree stand attaches to a tree using two steel cables with loops at the end
that are inserted into the frame of the tree stand. There are holes on the side of the
platform where Quickclips are inserted to secure the cable. The cable loops for each
side for both platforms are secured to the side of the platform using four Quickclips.
(Doc. 120-3, PageID.18-62-1865).
On November 17, 2018, Plaintiff went hunting with his father. (Doc. 120-6,
PageID.2008). The weather was clear that day and it was during daylight hours.
(Doc. 120-6, PageID.2009, 2020). Plaintiff and his father split up and Plaintiff chose
a tree and adjusted his cables, making sure that the pins were all locked and that
they were through the loops of the cable. (Doc. 120-6, PageID.2009-2010, 2012). The
foot platform and the seat platform were tethered together with two straps. (Doc.
120-6, PageID.2012, 2015). Plaintiff had used the tree stand before and had never
had any operational problems with the Quickclips in the past. (Doc. 120-6,
PageID.2014). Plaintiff had his safety harness in his backpack and planned to put
it on when he got to the height he wanted to hunt from up in the tree. (Doc. 120-6,
PageID.2016). Before he started up the tree Plaintiff checked the Quickclips by
looking down at the clips on the foot platform and taking his hands and feeling the
upper clips. (Doc. 120-6, PageID.2018). Plaintiff started up the tree and had moved
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the tree stand about two sequences and was sitting on the climbing bar when he
heard a pop and the next thing he knew he was on the ground. (Doc. 120-6,
PageID.2020, 2022). Plaintiff was in the process of lifting the foot platform when he
fell but he does not know if he had yet disengaged the foot platform or was moving
it up yet. (Doc. 120-6, PageID.2021-2022). Plaintiff does not really know how he
fell. He assumes he fell straight back, but the next thing he knew he was on the
ground with his face in the mud and the seat platform wrapped around his body.
(PageID.2022-2023, 2025). Plaintiff does not remember how he came down,
whether he did a flip, a half flip or how he landed. (Doc. 120-6, PageID.2028).
Plaintiff thinks one of the Quickclips must have released but he does not know how
that happened. (Doc. 120-6, PageID.2033). The stirrups on the foot platform were
damaged from the fall but nothing else on the tree stand was damaged, before or
after the fall. (PageID.2024-2025). The foot platform was still up on the tree after
he fell. (PageID.2026). Plaintiff tried to roll over but could not and so he started
hollering for his father. (PageID.2029).
Plaintiff’s father heard him call out and hurried over to him. (Doc. 120-12,
PageID.2497). According to Plaintiff’s father, Plaintiff was lying face down with
half of his face in the dirt on the ground with the upper part of the stand wrapped
around his chest area. (PageID.2497, 2501-2502). The foot platform was still up on
the tree, about seven feet up, and was tilted with the right side down.
(PageID.2497-2499). Plaintiff’s father testified that one of the pins was lying on the
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ground and the cable was pulled out of the frame on the right side of the seat.
(PageID.2504-2505). The cable on the seat climber and the two Quickclip pins are
still fully operational after the fall. (PageID.2507).
Alabama safety regulations require that when hunting on state land one
must always wear a full body safety harness when using a tree stand from an
elevated position. (Doc. 120-13, PageID.2574). Plaintiff testified that he knows how
to use a safety harness and had used them often before this accident. (Doc. 120-6,
PageID.2058). Plaintiff was aware before the accident that manufacturers of these
types of stands recommend and warn people to use the safety harnesses. (Doc. 120-
6, PageID.2058). Plaintiff testified that he had heard stories that it was rather easy
for the harness to get wrapped around your neck as you are climbing, and he
thought it could have hung him or strangled him if he fell with it on while climbing.
(Doc. 120-6, PageID.2034-2035). However, Plaintiff understood that the tree stand
industry and hunting industry warns and instructs that the harness should be
utilized at all times once leaving the ground. (Doc. 120-6, PageID.2036). Plaintiff
admits that he did not need to be warned or instructed on how or when to use the
safety harness because he already knew that. (Doc. 120-6, PageID.2059). Plaintiff
also admits that a tree stand by its nature is intended to be used at elevated heights
and that there is an inherent risk of falling when using the product. (Doc. 120-6,
PageID.2037).
Plaintiff’s expert, Guy Avellon, concluded that the failure of the tree stand
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was caused by “the failure to apply common engineering and safety standards and
processes during the product’s design and production.” (Doc. 129-4, PageID.5650).
Avellon found in his report that there was no physical means to verify that the tree
stand cable is locked in position and no mechanical means or warnings provided to
assure the Quickclip is properly fastened before a user begins to ascend a tree. (Doc.
129-4, PageID.5650). The Quickclip allows the user to unknowingly not fully
engage the clip, which can allow the clip to pop out during use. (Doc. 129-4,
PageID.5649). Avellon conducted no actual tests in this case. (Doc. 129-5,
PageID.5659). Avellon has never tried using a Quickclip himself. (Doc. 135-3,
PageID.6423). In fact, he has never physically touched a climbing tree stand and
has only seen them used in videos he watched on YouTube. (Doc. 135-3,
PageID.6423-6424). In testimony, Avellon admitted that it is very easy to
physically observe when the Quickclip is fully closed. (Doc. 135-3, PageID.6419).
Avellon agreed that “it’s a very open and obvious condition as to whether the
Quickclip is properly closed” and “you can simply easily detect that visually looking
at it,” “if it’s light outside, visually looking at it, it’s really clear if it’s closed or not.”
(Doc. 135-3, PageID.6422-6433; Doc. 137-2, PageID.7048). Avellon also agreed that
even in the dark you can feel whether it is properly closed. (Doc. 135-3,
PageID.6438-6439).
Avellon also opined that there are better and safer types of fasteners that
could have been used instead of the Quickclip to lock the tree stand cables into
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place. (Doc. 129-4, PageID.5650). A hex bolt with a wing nut or a carriage bolt with
a wing nut could have been used. (Doc. 129-4, PageID.5649). Avellon’s report found
that these alternative combinations would ensure full engagement and would not
back out while climbing a tree. (Doc. 129-4, PageID.5649). Avellon testified that
these alternatives are either fully engaged or the user knows they are not fully
engaged. (Doc. 129-5, PageID.5676-5677). Avellon testified that other
manufacturers use similar connectors with a knob and threaded fastener. (Doc, 129-
5, PageID.5659). When asked whether the Quickclip was as safe as the nut and bolt
design Avellon testified that he could not say that it was as safe because the
Quickclip failed in this case. (Doc. 135-3, PageID.6458). Avellon agreed that with
the nut and bolt design, as with the Quickclip, if the user does not properly utilize it
there is a possibility it could fail. (Doc. 135-3, PageID.6485-6486).
Defendant admits that it would have been possible to have made the PVCS-
400 tree stand used by Plaintiff with the nut/bolt alternatives instead of the
Quickclips. (Doc. 129-13, PageID5986). They are “just a different design option”
and would not be “more expensive or unappealing to the consumer.” (PageID5986-
5987).
Plaintiff’s expert, Dr. Jahan Rasty, concluded that the seat platform fell
because the securement cable disengaged during use. (Doc. 129-7, PageID.5765, ¶
48). Rasty reports that as designed, it is possible for a user to incorrectly engage
the Quickclip while under the misassumption that it is properly engaged (also
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known as a false-latch position). (PageID.5765, ¶ 49). According to Rasty, there was
only one significant area of damage to the tree stand - in the form of overload failure
and subsequent detachment of the foot straps from the frame of the foot platform of
the tree stand. (PageID.5754-5755, ¶¶ 23, 25). Rasty concluded that for the cable to
have become disengaged during use without any signs of damage to any section of
the cable the Quickclip that secures the cable to the frame must have become
disengaged during use and that the incident occurred under a false-latch scenario.
(PageID.5756, 5765, ¶¶ 30, 50). Rasty suggested alternative latching mechanisms,
such as a hex bolt with a wing nut, and a carriage bolt with a wing nut, that he
opines would have prevented the unintended release of the securement cable if they
had been used in place of the Quickclip. (PageID.5764-5766, ¶¶ 51-52). According to
Dr. Rasty’s report, the bolt/nut combinations do not have a false-latch position and
they cannot be removed by simply pulling on them and instead must be
intentionally unscrewed before they can be removed. (Doc. 129-7, PageID.5764). In
testimony Dr. Rasty admitted that the alternative nut/bolt designs could still be
installed wrong in that they may be only partially threaded by a user who could not
tell how far it was threaded. (Doc. 120-7, PageID.2185). However, Dr. Rasty
contends that the Quickclip can fail if 12 to 19 pounds of force is applied even if it is
perfectly implemented. (Doc. 120-7, PageID.2186). Dr. Rasty testified that he does
not know what the source of the force was – there are “a gazillion number of
possibilities ... anything that could have caught that pin ... But what exactly caught
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it? No, I can’t tell you.” (Doc. 120-7, PageID.2188). Dr. Rasty could not tell what
pulled the pin out of the Quickclip. (Doc.120-7, PageID.2156). Dr. Rasty did not test
the Quickclip pin with the product installed on a tree or with any load applied such
as the weight of a person that would be applied in normal use of the product. (Doc.
120-7, PageID.2135-2136, 2139-2140). According to his tests, it takes an average of
15.6 pounds and could be as low as 12.4 pounds of axial force to cause a closed
Quickclip to release. (Doc. 120-7, PageID.2157). Dr. Rasty testified that it would be
impossible to determine whether an article of clothing, a shoe, part of hunting
equipment or something else exerted the force that caused the pin to come out of the
Quickclip. (Doc. 120-7, PageID.2159). Dr. Rasty testified that the accident
happened either because Plaintiff did not close the clip properly or because he
closed it properly and some external force pulled the Quickclip out. (Doc. 120-7,
PageID.2154). Dr. Rasty did not consider that it occurred because Plaintiff fell
backwards because he said that was inconsistent with Plaintiff’s testimony about
what happened. (Doc. 120-7, PageID.2154). Similarly, Dr. Rasty did not consider
that Plaintiff could have been attempting to remove the Quickclip to make an
adjustment when he fell – because, although that might have made a popping sound
like Plaintiff described, it is inconsistent with Plaintiff’s testimony about what
happened. (Doc. 120-7, PageID.2134-2135). Dr. Rasty did not test whether the pin
would migrate when the tree stand was in use if the Quickclip was left open because
he believed that it was obvious that any vibration or movement of the cable as you
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go up or down would cause the pin to come out. (Doc. 120-7, PageID.2167-2168).
There are several possible scenarios under which the Quickclip could have released
without any damage to the Quickclip or the tree stand. One is where the Quickclip
did not fully engage the loop of the cable and then, through the motions of climbing,
it slipped out. (Doc. 120-8, PageID.2237-2238). Dr. Rasty testified that he never
demonstrated that happening. (Doc. 120-8, PageID.2238). It is also possible
Plaintiff simply fell backwards out of the tree. (Doc. 120-8, PageID.2238). And then
there is the false-latch possibility where Plaintiff inserts the cable into the frame of
the tree stand but does not properly insert the Quickclip pin through the closed loop
of the steel cable and during the climbing process the cable migrated out of the
frame of the tree stand. (Doc. 120-8, PageID.2239). Additionally, part of Plaintiff’s
clothing could have caught on the pin and pulled it out. (Doc. 120-8, pageID.2240).
All of these possibilities are “equally plausible” and Dr. Rasty cannot say with any
certainty which occurred. (Doc. 120-8, PageID.2240).
Defendant’s expert, Mr. George M. Saunders, Jr., found that it was
impossible to determine if the Quickclip released at the time of Plaintiff’s fall or if
Plaintiff simply lost his balance and fell backwards, dislodging the Quickclip on the
way out of the tree stand. (Doc. 120-5, PageID.1900, ¶ 48). Saunders pointed out
that Dr. Rasty’s conclusion that the clips were in a false-latch position contradicts
Plaintiff’s claim that he had checked the clips to ensure that they were properly
engaged. (PageID.1900, ¶ 48). Saunders tested the possibility of pulling a properly
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installed Quickclip free from the tree stand when the platform was supporting the
weight of a user. (Doc. 120-5, PageID.1890, ¶ 31). When supporting a 205-pound
user, the force required to initiate movement of the Quickclip from the tree stand
was greater than 200 pounds and was more than 10.7 times higher than when the
pin was not loaded. (PageID.1890, ¶ 31). Saunders also tested whether the pin
would migrate out during use if the Quickclip were left open. In his open-Quickclip
test, the pin did not migrate free or move while climbing up or descending. (Doc.
120-5, PageID.1891, ¶ 34). Saunders opined that because there are multiple
possible scenarios which could have resulted in Plaintiff’s fall, including Plaintiff
having simply fallen backwards or his pants having caught the pin and pulled it
out, it is not possible to determine what specifically occurred or to draw a conclusion
with a reasonable engineering certainty that the incident was related in any way to
the design of the product. (Doc. 120-5, PageID.1900-1901, ¶48).
Plaintiff’s expert, Stuart Statler, opined that Primal Vantage did not
demonstrate best practices and has repeatedly demonstrated “a corporate culture
that holds the safety of its treestands in very low esteem.” (Doc. 129-10, PageID.58-
18, 5824). Defendant’s expert, Saunders, reports that the PVCS-400 tree stand was
tested per the ASTM F2120-26 standard for tree stands. The tree stand, including
its cable assembly, Quickclips, and all other mechanical components, were cycle
tested 10,000 times under 300 pounds of load and passed a thorough inspection
after the cycle testing. (Doc. 135-1, PageID.6222, ¶ 43).
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DISCUSSION
I. Motions in Limine
Defendant, Primal Vantage, moves to exclude or limit the testimony of
Plaintiff’s experts Dr. Jahan Rasty, Guy Avellon, Stuart Statler, and Stan V. Smith.
(Docs. 121, 122, 123, 124). Plaintiff has voluntarily withdrawn the testimony of
Stan Smith that was objected to by Primal Vantage. (Doc. 128, PageID.5012).
Plaintiff states that he will not offer Dr. Smith’s opinions and testimony relating to
calculations of economic loss for the reduction in value to Plaintiff’s life.
(PageID.5012). Accordingly, Primal Vantage’s motion in limine regarding Dr.
Smith (Doc. 124), is MOOT.
Defendant objects to the testimony of Stuart Statler who was offered as a
rebuttal expert and intends to opine that Primal Vantage failed to comply with
safety regulations and industry standards in its development and production of the
tree stand at issue. Mr. Statler’s opinion has only been offered to support Plaintiff’s
claim that Primal Vantage was wanton by recklessly disregarding the safety of its
tree stand products. (Doc. 129, PageID.5570-5571). Since the Court finds below that
Plaintiff has failed to support his claim that a defect caused Plaintiff’s injury, the
Court finds the motion to exclude Mr. Statler’s opinions will not change the outcome
of this case and are MOOT.
As to the opinions of Avellon and Dr. Rasty, the Court finds it necessary to
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exclude or limit portions of their opinions or conclusions. The Court will discuss the
reliability of their testimony and opinions below as they pertain to the claims in this
case.
II. Motion for Summary Judgment
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall
be granted: “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The trial court’s
function is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the
non-moving party is not sufficient for denial of summary judgment; there must be
‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.’ ” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting
Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, at 249-250.
(internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving
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that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d
1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the
court must view all evidence in the light most favorable to the non-moving party,
and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on
the inferences arising from undisputed facts, then a court should deny summary
judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th
Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838,
841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party "must make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the non-
movant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rely merely on allegations or
denials in its own pleading; rather, its response .... must be by affidavits or as
otherwise provided in this rule be set out specific facts showing a genuine issue for
trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere
‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice;
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there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“[T]he nonmoving party may avail itself of all facts and justifiable inferences in the
record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th
Cir. 1992). “Where the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal
quotation and citation omitted).
B. Plaintiff’s Claims
As previously explained, Plaintiff’s complaint asserts three claims against
Defendant Primal Vantage: 1) a claim for violation of Alabama Extended
Manufacturer’s Liability Doctrine (AEMLD), 2) a negligence claim, and 3) a
wantonness claim. Plaintiff has withdrawn his claims to the extent they are based
on manufacturing or warning defects and maintains that the tree stand is defective
in its design. (Doc. 129, PageID.5571).
1. Alabama Extended Manufacturer’s Liability Doctrine
(AEMLD)
“Under the AEMLD, a manufacturer has the duty to design and manufacture
a product that is reasonably safe for its intended purpose and use.” White Consol.
Indus., Inc. v. Wilkerson, 737 So. 2d 447, 449 (Ala. 1999) (quoting Townsend v.
General Motors Corp., 642 So. 2d 411, 415 (Ala. 1994)). “However, the
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manufacturer of a product is not an insurer against all harm that might be caused
by the use of the product, and the manufacturer or designer is not obligated to
produce an accident-proof or injury-proof product.” Verchot v. Gen. Motors Corp.,
812 So. 2d 296, 301 (Ala. 2001) (citations omitted). “Likewise, the failure of a
product does not presuppose the existence of a defect.” Browder v. Gen. Motors
Corp., 5 F. Supp. 2d 1267, 1281 (M.D. Ala. 1998) (citation omitted). “Proof of an
accident and injury is not in itself sufficient to establish liability under the AEMLD;
a defect in the product must be affirmatively shown.” Id. (citation omitted).
To establish a prima facie case under the AEMLD, a plaintiff must show:
[1] that an injury was caused by one who sold a product in a defective
condition that made the product unreasonably dangerous to the
ultimate user or consumer; [2] that the seller was engaged in the
business of selling such a product; and [3] that the product was
expected to, and did, reach the user without substantial change in the
condition in which it was sold.
Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28, 31 (Ala. 2003) (citations
omitted). There is no dispute that Primal Vantage was engaged in the business of
selling the tree stand at issue or that the product was intended to and did reach
Plaintiff without substantial change in the condition in which it was sold. However,
the parties dispute whether Plaintiff’s injury was caused by a defective condition
that made the tree stand unreasonably dangerous to the user. “Caselaw in
Alabama has interpreted ‘defective’ to mean that the product does not meet the
reasonable expectations of an ordinary consumer as to its safety. Shaver v. AVCO
Corp., 2022 WL 4391677, at *5 (M.D. Ala. Sept. 22, 2022) (citing Elliott v.
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Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir. 1990)). To prove that it is
defective, a plaintiff must prove:
(1) the product did not meet reasonable safety expectations and (2)
that a safer, practical, alternative design was available to the
manufacturer at the time it manufactured the product.
Id. (citing Elliott supra). Under the AEMLD, the plaintiff carries the burden of
showing that there is a defect in the product. Gen. Motors Corp. v. Jernigan, 883 So.
2d 646, 662 (Ala. 2003) (internal citations omitted). Plaintiff claims the design of
the tree stand was defective because the tree stand uses Quickclips to secure cables
which are used to attach the product to a tree. Plaintiff asserts that the Quickclip
fasteners are dangerous. Specifically, Plaintiff asserts that the Quickclips are
capable of disengaging during use, even when fully and properly closed and that
they may be “false-latched” such that a user may believe they are fully latched
when they are not.
To prove a safer, practical, and alternative design, a plaintiff must show:
(a) The plaintiff's injuries would have been eliminated or in some way
reduced by use of the alternative design; and that
(b) taking into consideration such factors as the intended use of the
[product], its styling, cost, and desirability, its safety aspects, the
foreseeability of the particular accident, the likelihood of injury, and
the probable seriousness of the injury if that accident occurred, the
obviousness of the defect, and the manufacturer's ability to eliminate
the defect, the utility of the alternative design outweighed the utility of
the design actually used.
Gen. Motors Corp., 883 So. 2d at 662 (citations and internal quotations omitted). In
the instant case, the evidence indicates that the Quickclip somehow disengaged or
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released at the time of the accident. As previously mentioned, “[t]he fact that
someone was injured while using a product does not establish that the product was
unreasonably dangerous when put to its intended use.” Verchot, 812 So. 2d at 301
(citations omitted). A jury cannot infer “that a product is defective solely from the
fact that it failed in some manner.” Taylor v. Gen. Motors Corp., 707 So. 2d 198, 202
(Ala. 1997). Here, there have been several possible scenarios suggested that could
have caused the Quickclips to disengage, some of which may not have been caused
by any defect in the tree stand. For instance, Plaintiff could have improperly
inserted the Quickclip, his pants or other loose clothing could have caught the
Quickclip, or he could have simply fallen backwards. Where experts agree that
other events could have caused the accident, the assertion that the accident was
attributable to a defect “is necessarily speculative and nonselective and does not
constitute substantial evidence indicating that [the alleged defect] caused the
accident.” Verchot 812 So.2d at 301 (citation omitted)1. An expert’s opinion cannot
1 In Verchot, the Plaintiff alleged that the brakes on a car failed due to
a defect in the master cylinder.
“Both of the mechanics who inspected the automobile for the plaintiffs
stated in deposition that they could not say that an internal defect in
the master cylinder was the only factor that could have caused the
brakes in Verchot's automobile to fail as they did. They acknowledged
other factors, such as excessive heat, leakage of brake fluid, and
contamination of brake fluid, as possible causes. The affidavit of David
Buist, the staff project engineer for General Motors, provided
additional reasons that could have caused the brakes to fail, reasons
that would not have depended upon an internal defect in the master
cylinder.”
Verchot, 812 So.2d at 303.
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be “based on sheer speculation over the circumstances surrounding the issue upon
which he or she purports to provide expert testimony.” Browder v. Gen. Motors
Corp., 5 F. Supp. 2d 1267, 1283 (M.D. Ala. 1998). Plaintiff’s experts disregarded
these other causes because, although they were all plausible, they did not match
Plaintiff’s account of the accident. Plaintiff testified that he had made sure that the
pins were locked and through the loops of the cable and that he checked the
Quickclips by looking down at the clips on the foot platform and taking his hands
and feeling the upper clips. Plaintiff also testified that he heard a pop sound before
he fell. Plaintiff’s account is evidence that he properly inserted the Quickclips and
that something happened to make the pop sound before he fell. If we assume
Plaintiff’s testimony is accurate, then it is likely the Quickclip somehow disengaged
on its own or was pulled out by some unknown force before he fell.
Plaintiff’s expert, Avellon, opined that the tree stand was defectively
designed because there was no way to verify if the Quickclip was properly fastened
before a user begins to ascend a tree. However, Plaintiff testified that he properly
installed the Quickclips and that he checked them by looking at them and feeling
them to make sure they were properly installed. Plaintiff’s expert, Avellon,
admitted that it is very easy to physically observe when the Quickclip is fully closed
and agreed that “it’s a very open and obvious condition as to whether the Quickclip
is properly closed.” According to Avellon, a user can simply and easily detect
whether a Quickclip is properly installed by visually looking at it if it is light
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outside (as it was at the time of Plaintiff’s accident) or by feeling whether it is
properly closed. Avellon admitted that it is really clear if it is closed or not.
Avellon’s testimony is contrary to his opinion that the tree stand was defective
because there was no way to assure that the Quickclips were properly fastened.
Accordingly, the Court finds Avellon’s opinion that the tree stand was defective for
this reason should not be allowed.
Plaintiff’s expert, Dr. Rasty, opined that Plaintiff fell because either the
Quickclip was in a false-latch position unbeknownst to Plaintiff, or a sufficient force
was exerted to the Quickclip to release it. Again, Plaintiff’s testimony is that he
checked the Quickclips to ensure that they were properly installed and the
testimony of Plaintiff’s expert, Avellon, indicates that Plaintiff would have been
able to tell if the Quickclip was not properly installed because it is a very open and
obvious condition. As to Dr. Rasty’s conclusion that the Quickclip could be released
by a relatively small force, as little as 12.4 pounds, the Court finds his opinion does
not have a reliable basis. Dr. Rasty did not test the tree stand with any load on it.
When Plaintiff or any user was climbing with the tree stand the weight of the user
would be on the tree stand. “An expert's testimony must be based on “facts which
enable him to express a reasonably accurate conclusion as opposed to conjecture or
speculation.’ ” Browder v. Gen. Motors Corp., 5 F. Supp. 2d 1267, 1283 (M.D. Ala.
1998) (citation omitted). “While an expert may base an opinion on facts or data
reasonably relied upon by experts in the field, and this data need not be admissible
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in evidence, Fed.R.Evid. 703, ‘[t]heoretical speculations, unsupported assumptions,
and conclusory allegations advanced by an expert ... are [not] entitled to any weight
when raised in opposition to a motion for summary judgment.’ ” Cooper v. Toshiba
Home Tech. Corp., 76 F. Supp. 2d 1269, 1277 (M.D. Ala. 1999) (citation omitted).
Primal Vantage’s expert, Saunders, testified that when supporting a 205-pound
person the force required to initiate movement of the Quickclip from the tree stand
was greater than 200 pounds and was more than 10.7 times higher than when it
was not loaded. Saunders’ opinion is not contradicted by any of Plaintiff’s experts
because they did not provide any information on the amount of force needed to
release the Quickclip when it is loaded with the weight of a user. There is no
reliable evidence to support a contention that the tree stand was defective because
the Quickclip could be pulled out by such a small force that it made it unreasonably
dangerous.
As such, the Court finds there is no reliable expert testimony that indicates
what caused Plaintiff’s accident. “Conclusory allegations without specific supporting
facts have no probative value.” Cooper, 76 F. Supp.2d at 1278 (citation omitted).
Plaintiff’s memory of the incident points away from some of the potential causes but
he admits that he does not really know or remember how he fell or how the
Quickclip released. Since there have been several possible scenarios suggested that
could have caused the Quickclips to disengage, some of which would not have been
caused by any defect in the tree stand, the contention that the accident was
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attributable to a defect is speculative.
Even if there was substantial evidence as to the cause of the accident,
Plaintiff has not shown that his injuries would have been eliminated or reduced by
use of an alternative design. There is evidence that a hex bolt with a wing nut or a
carriage bolt with a wing nut could have been used instead of the Quickclips and
that these alternatives were feasible, were of similar price, and were not
unappealing to the consumer. However, although Plaintiff’s expert, Avellon, opined
that these alternatives were safer because the user knows when they are fully
engaged, he also testified that, as with Quickclips, if the user does not properly
utilize them there is a possibility it could fail. Dr. Rasty also admitted that the
alternative nut/bolt designs could still be installed wrong in that they may be only
partially threaded by a user, and they could not tell how far it was. And, as
discussed above, Avellon admitted that it is very open and obvious and easy to
detect whether the Quickclip is properly closed. Avellon’s testimony indicates that
he thought the Quickclip might not be as safe simply because the Quickclip failed in
the instant case. But as discussed above, it cannot be concluded that a product is
defective solely because the plaintiff was injured while using it. An expert’s
conclusion that a product is unsafe cannot be based simply on the fact that there
was an accident when there are various potential causes.
Considering all of the above, the Court finds that Plaintiff has not met his
burden of showing that Primal Advantage sold the tree stand in a defective
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condition that made the product unreasonably dangerous to the ultimate user or
consumer. Accordingly, Primal Advantage is entitled to summary judgment as to
Plaintiff’s AEMLD claim.
2. Negligence & Wantonness
Plaintiff’s negligence claim is based on Primal Vantage’s failure to adequately
engineer or design the tree stand. “Under Alabama law, negligence and wantonness
claims are not subsumed by the AEMLD.” Shaver v. AVCO Corp., 2022 WL
4391677, at *7 (M.D. Ala. Sept. 22, 2022) (citing Spain v. Brown & Williamson
Tobacco Corp., 872 So. 2d 101, 106 (Ala. 2003)). To support a negligence claim, “the
plaintiff must establish not only that the product at issue is defective, but also that
the manufacturer failed to exercise due care in the product's manufacture, design,
or sale.” Id. (citing McMahon v. Yamaha Motor Corp., U.S.A., 95 So. 3d 769, 772
(Ala. 2012)). Thus, “a plaintiff can only succeed on a products-liability claim on a
negligence theory if the product at issue is sufficiently unsafe so as to render it
defective.” Id. (citing McMahon supra). Since the Court found above that Plaintiff
has not presented substantial evidence to show that the tree stand is sufficiently
unsafe to render it defective, Plaintiff’s negligence claim also fails. Similarly,
Plaintiff’s wantonness claim fails “[b]ecause defective design or manufacture and
proximate cause are essential elements of all theories being pursued.” McCreless v.
Glob. Upholstery Co., 500 F. Supp. 2d 1350, 1358–59 (N.D. Ala. 2007); see also
Hughes v. Stryker Sales Corp., 2010 WL 1961051, at *7 (S.D. Ala. May 13, 2010),
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aff'd sub nom. Hughes v. Stryker Corp., 423 F. App'x 878 (11th Cir. 2011) (finding
where “there is nothing other than idle speculation as to why” plaintiff’s hips
prosthesis failed the defendants are entitled to entry of summary judgment as to
plaintiff's negligence and wantonness causes of action, as well).
CONCLUSION
For the reasons stated above, Defendant’s motions in limine are MOOT as to
Plaintiff’s experts Stuart Statler and Stan V. Smith (Docs. 123 & 124) and are
GRANTED IN PART as to Plaintiff’s experts Guy Avellon and Dr. Jahan Rasty
(Docs. 121 & 122) consistent with the Court’s findings that portions of their
testimony and conclusions are unreliable. Defendant’s motion for summary
judgment (Doc. 120), is GRANTED.
DONE and ORDERED this 7th day of December, 2022.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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