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                                http://www.gaappeals.us/rules


                                                                  November 20, 2015




In the Court of Appeals of Georgia
 A15A0802. MOORE et al. v. COTTRELL, INC.                                     DO-056

      DOYLE, Chief Judge.

      Dennis and Lisa Moore filed this action to recover for injuries Dennis received

in a fall from the top level of a car hauler manufactured by Cottrell, Inc. The Moores

appeal the trial court’s orders striking their experts and granting summary judgment

to Cottrell. We affirm for the reasons that follow.

      On April 1, 2008, Dennis, a car hauler driver for Waggoners Trucking

Company, went to the Nissan North American facility in Canton, Mississippi, to pick

up a load of new vehicles. The car hauler 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 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. It was raining, and the car hauler was wet. Dennis backed the first

vehicle onto the head ramp of the car hauler (into the position farthest forward and

over the cab and hood of his tractor-trailer rig), exited the vehicle on the passenger

side of the car hauler, walked past the first vehicle, and walked down the ramps to the

ground in lieu of using the ladder. He then drove a Nissan Armada (a large SUV) into

the second position on the head ramp, exited 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 at the back of the SUV upon which the tires are driven 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, Dennis attempted to maintain a three-point

stance by grasping the roof of the Armada with his fingers as he inched along the rail

of the head ramp towards the back of the SUV. As he approached the rear tire of the

Armada, Dennis lost his footing and fell to the ground, sustaining serious injuries.

      In a subsequent affidavit, Dennis explained that the car hauler did not contain

a ladder built in the frame of the head ramp. Instead, it had a portable, aluminum

ladder, which did not have a mechanism for securing the top of it, and because it did

not have rubber coated bottoms or “flippers,” it “could only be used safely if the

bottom of the ladder was resting on dirt and could be pushed into the ground far

                                          2
enough to hold it in place.”1 Dennis did not attempt to climb down the portable ladder

because at the time of his fall, the car hauler was located on an asphalt parking lot.

As a result, he believed he had no other option than to try to maneuver around the

Armada to reach the ramp.

      Dennis and his wife, Lisa, sued Cottrell, asserting claims for strict liability,

negligence, and breach of warranty. The Moores alleged that the Cottrell car hauler

(specifically, the head ramp) was defective and not equipped with a safe means for

him to descend to the ground, specifically challenging the lack of a reasonably safe

ladder, a guardrail or other similar safety system, or handholds. On August 18, 2011,

the trial court entered a consent case management order, providing that discovery

would end on April 1, 2012, requiring the Moores to disclose their experts no later

than December 1, 2011, and make the experts available for deposition no later than

January 1, 2012, and requiring the parties to file dispositive motions no later than

May 1, 2012.




      1
        After Dennis’s accident, Cottrell began using a system that includes hooks at
the top of the portable ladders that fit into slots in the upper deck of the head ramp,
firmly securing the ladder.

                                          3
      On May 8, 2012, Cottrell filed a motion to exclude the testimony of the

Moores’s expert, Dr. Harvey Cohen, under Daubert.2 On December 20, 2013,

following a hearing, the trial court granted Cottrell’s motion and excluded Dr.

Cohen’s testimony, finding that although he was qualified to testify as in expert in

“safety issues relating to falls,” he failed to apply “reliable principles or methods to

this case.” On January 8, 2014, Cottrell moved for summary judgment, and the trial

court scheduled a hearing on the motion for May 20, 2014. On May 16, 2014, in

opposition to the summary judgment motion, the Moores filed the affidavit of another

expert, John S. Morse, Ph.D., P.E. Following the hearing, which was not transcribed,

the trial court entered an order striking Dr. Morse’s affidavit as untimely and granting

summary judgment to Cottrell.3 This appeal followed.

      1. The Moores argue that the trial court erred by striking Dr. Cohen’s expert

testimony. We disagree.

      OCGA § 24-7-702 (b) provides:




      2
      Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U. S. 579 (113 SCt 2786,
125 LE2d 469) (1993).
      3
        In the order, however, the trial court noted summary judgment would be
proper even if it had not stricken Dr. Morse’s affidavit.

                                           4
      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 which have been or will be admitted into evidence before the
      trier of fact.


“This standard is based upon Federal Rule of Evidence 702, and it requires a trial

court to sit as a gatekeeper and assess the reliability of proposed expert testimony,

applying the principles identified in Daubert and its progeny.”4 “The determination

of whether a witness is qualified to render an opinion as an expert is a legal

determination for the trial court and will not be disturbed absent a manifest abuse of

discretion.”5

      “In determining the admissibility of expert testimony, the trial court . .
      . assess[es] both the witness’ qualifications to testify in a particular area
      of expertise and the relevancy and reliability of the proffered testimony.


      4
       (Citations and punctuation omitted.) Dubois v. Brantley, 297 Ga. 575, 580 (2)
(775 SE2d 512) (2015).
      5
        (Punctuation omitted.) HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 642
(1) (697 SE2d 770) (2010).

                                           5
      Reliability is examined through consideration of many factors, including
      whether a theory or technique can be tested, whether it has been
      subjected to peer review and publication, the known or potential rate of
      error for the theory or technique, the general degree of acceptance in the
      relevant scientific or professional community, and the expert’s range of
      experience and training.6


      Applying these principles to this case, we conclude that the trial court did not

abuse its discretion by finding Dr. Cohen’s testimony inadmissible. In his report

attached to his deposition, Dr. Cohen opined that the car hauler from which Dennis

fell was “defective and unreasonably dangerous from a human systems safety

perspective,” explaining that (1) the design of the car hauler did not include a

“continuous and stable [three]-points of contact, . . . guardrails, handholds, or

sufficiently wide catwalks”; (2) the car hauler did not include adequate warning

labels; and (3) Cottrell failed to provide adequate safety instructions in the operator’s

manual.7 Dr. Cohen admitted at his deposition, however, that he never inspected or

even saw the car hauler in this case nor had he been on the upper deck of any vehicle

transport trailer. Dr. Cohen did not offer his opinion regarding the actual cause of

      6
       (Citations omitted.) Id., citing Kumho Tire Co. v. Carmichael, 526 U. S. 137,
141 (119 SCt 1167, 143 LE2d 238) (1999).
      7
          (Emphasis omitted.)

                                           6
Dennis’s fall, and he conceded that he has never inspected any fall protection designs

or systems for similar car haulers, was unaware of their components or composition,

and has never been subject to peer review on these theories nor completed any

scientific testing to support them.

      Because Dr. Cohen’s opinion was not the product of reliable principles or

methods, he did not inspect the car hauler at issue in this case, it is unclear what

analysis he applied, and he does not have an opinion regarding proximate cause, his

testimony does not meet the requirements of OCGA § 24-7-702 (b). Under these

circumstances, the trial court did not abuse its discretion by excluding Dr. Cohen’s

testimony.8

      2. The Moores contend that the trial court abused its discretion by striking Dr.

Morse’s affidavit. Again, we disagree.

              The imposition of scheduling deadlines for the identification of
      experts, and questions regarding the admission or exclusion of expert
      testimony, are left to the broad discretion of the trial court. And we have
      held that a trial court may exercise its discretion and exclude testimony




      8
       See Butler v. Union Carbide Corp., 310 Ga. App. 21, 25-30 (1) (712 SE2d
537) (2015).

                                          7
      from an expert not properly identified by a party, when done in violation
      of an express court order.9


      Here, the scheduling order expressly required the Moores to identify any

experts on or before December 1, 2011. Instead, the Moores did not identify Dr.

Morse as an expert until May 16, 2014, four days before the summary judgment

motion hearing. Under these circumstances, the trial court did not abuse its discretion

by striking Dr. Morse’s affidavit.10

      3. The Moores also argue that the trial court erred by granting summary

judgment to Cottrell.



             Summary judgment is appropriate when no genuine issues of
      material fact remain and the evidence, construed in the light most


      9
       (Citations omitted.) Kohler v. Van Peteghem, 330 Ga. App. 230, 238 (3) (767
SE2d 775) (2014), citing Caswell v. Caswell, 285 Ga. 277, 280 (3) (675 SE2d 19)
(2009); Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175) (2008);
Vaughan v. Wellstar Health Sys., 304 Ga. App. 596, 601-602 (3) (696 SE2d 506)
(2010); Collins v. Dickman, 295 Ga. App. 601, 603-604 (1) (672 SE2d 433) (2008).
      10
        See Kohler, 330 Ga. App. at 239 (3). We are unpersuaded by the Moores’s
argument that OCGA § 9-11-6 (d), which permits parties to file affidavits opposing
summary judgment no later than one day before the date of the hearing, renders
unenforceable the trial court’s express order regarding the deadline for identification
of experts.

                                          8
      favorable to the nonmoving party, warrants judgment as a matter of law.
      A defendant may obtain summary judgment by showing that there is no
      evidence sufficient to create a jury issue on at least one essential element
      of plaintiff’s case. We review a grant of summary judgment de novo.11


      (a) Design Defect Claims. To properly determine whether the Moores’s design

defect claims can proceed in the absence of their experts’ testimony, we must

determine whether Georgia or Mississippi law applies.12

             Georgia’s choice-of-law rules provide the key for resolving this
      claim of error. Under lex loci delicti, tort cases are governed by the
      substantive law of the state where the tort or wrong occurred – in this
      case, [Mississippi]. Questions involving procedure or the appropriate
      remedy, however, are decided using the law of the state where the action
      was filed.13


The determination of whether the Moores are required to provide competent expert

testimony to support their claims requires an analysis of proof of causation, which is


      11
        (Citations and punctuation omitted.) Butler, 310 Ga. App. at 30 (2), quoting
Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). See also OCGA § 9-11-
56 (c).
      12
        The trial court analyzed the issue of whether the Moores’s claims failed
without an expert under both Georgia and Mississippi law.
      13
       (Footnotes omitted.) Bagnell v. Ford Motor Co., 297 Ga. App. 835, 836 (1)
(678 SE2d 489) (2009).

                                           9
an element of the claim and therefore governed by the substantive law of

Mississippi.14

      To recover for a products liability case under the Mississippi Products Liability

Act (the “MPLA”), a plaintiff

      must establish by a preponderance of the evidence that: (1) the product
      was manufactured or designed in a defective manner, contained
      inadequate warnings, or breached an express warranty that was
      justifiably relied on when purchased; and (2) this defective condition
      rendered the product unreasonably dangerous to the user or consumer;
      and (3) the defective and unreasonably dangerous condition of the
      product proximately caused the damages for which recovery is sought;
      and (4) the defective condition existed at the time the product left
      control of the manufacturer.15


The MPLA further provides:

      [T]he manufacturer . . . shall not be liable if the [plaintiff] does not
      prove by the preponderance of the evidence that at the time the product
      left the control of the manufacturer . . . (i) [t]he manufacturer . . . knew,
      or in light of reasonably available knowledge or in the exercise of

      14
        See id. at 838 (2) (applying Texas law to determine whether evidence was
admissible when proving causation in a failure-to-warn case because the tort occurred
in Texas).
      15
        Cothren v. Baxter Healthcare Corp., 798 F.Supp. 2d 779, 782 (III) (S.D.
Miss. 2011), citing Miss. Code Ann. § 11-1-63 (a).

                                           10
      reasonable care should have known, about the danger that caused the
      damage for which recovery is sought; and (ii) [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.16




      Thus, under Mississippi law, a plaintiff must demonstrate that the product was

defective and that a feasible alternative would have prevented the alleged harm.

Evidence of a design defect must be supported by expert testimony, and the failure

to designate an expert who is prepared to offer such evidence demonstrates the lack

of a prima facie case.”17

      Here, without expert testimony, the Moores have failed to provide evidence

that any alleged defect in the design of the car hauler rendered the product


      16
           Miss. Code. Ann. § 11-1-63 (f).
      17
         Cothren, 798 F.Supp. 2d at 782 (II). See also Elliot v. Amadas Indus., Inc.,
796 F. Supp. 2d 796, 803 (II) (B) (2) (S.D. Miss. 2011) (granting summary judgment
to the defense after excluding the testimony of the plaintiffs’ expert in design defect
case); Brown v. GMC, 4 So.3d 400, 402-403 (Miss. Ct. App. 2009) (affirming the
grant of summary judgment to the defendant because the plaintiff failed to provide
any expert testimony in support of her design and manufacturing defect claims).

                                             11
unreasonably dangerous or that a feasible design alternative existed at the time of

Dennis’s accident that would have prevented the harm without impairing the utility,

usefulness, practicality, or desirability of the car hauler. Under these circumstances,

the trial court properly granted summary judgment to Cottrell as to the Moores’s

design defect claims.18

      (b) Failure-to-warn. The Moores argue that the trial court erred by granting

summary judgment on this claim 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. But Dennis cannot recall whether or

not the car hauler from which he fell had warning labels regarding the ladders, and

he admitted only that he read “some” of the operator’s manual. Under Mississippi

law, “[t]he presence or absence of anything in an unread [product] manual simply

cannot proximately cause a plaintiff’s damages.”19 More importantly, the Moores’s

failure-to-warn claims essentially allege that Cottrell failed to warn Dennis about the

      18
          See Cothren, 798 F.Supp. 2d at 782; Grant v. Ford Motor Co., 89 So. 3d
655, 675 (III) (B) (Miss. Ct. App. 2012) (“In order to prove causation, a potential
plaintiff must offer expert testimony that the product was defective. . . . Without
expert testimony, the plaintiff cannot prove causation or defect . . . and cannot
maintain her claim as a matter of law.”). See also Butler, 310 Ga. App. at 30 (2).
      19
           Palmer v. Volkswagen of America, Inc., 904 So. 2d 1077, 1084 (Miss. 2005).

                                          12
use of mechanisms, including ladder hooks, with which the car hauler at issue was not

equipped at the time of his accident. Under these circumstances, the trial court

properly granted summary judgment on the Moores’s failure-to-warn claim.

      Judgment affirmed. Phipps, P. J., Ray and McMillian, JJ., concur. Ellington,

P. J., concurs in judgment only. Barnes, P. J. and McFadden, J., dissent.




                                         13
 A15A0802. MOORE et al. v. COTTRELL, INC.



      MCFADDEN, Judge, dissenting.

      It is no basis for objection that plaintiffs’ first expert did not personally inspect

the car hauler. Dr. Cohen holds a Ph.D. in Human Factors and Ergonomics and has

made a particular study of car haulers. As the trial court held, “he is qualified to

testify as an expert in, essentially, safety issues related to falls.” A qualified expert

“is free to opine about a complicated matter without any firsthand knowledge of the

facts in the case, and based upon otherwise inadmissible hearsay if the facts or data

are ‘of a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject.’” HNTB Georgia v. Hamilton-King, 287 Ga.

641, 645-46 (697 SE2d 770) (2010) quoting United States v. Frazier, 387 F3d 1244,

1260 (11th Cir. 2004).

       If Dr. Cohen can be faulted, it is for belaboring the obvious. Moore fell because

he had neither a handhold nor a functional ladder. He was clinging by his fingertips

to the roof of a very large SUV, maneuvering sideways with his feet only partially on

a narrow beam. In the rain. When his foot slipped, he had nothing to hang onto. So

he fell.

       Dr. Cohen’s testimony might shed additional light, but it was not necessary to

avoid summary judgment. Georgia law imposes no across-the-board requirement of

expert testimony in products liability cases. This court has repeatedly found in such

cases that expert testimony was not necessary. See Owens v. General Motors Corp.,

272 Ga. App. 842, 847-848 (2) (b) (613 SE2d 651) (2005) (expert testimony not

needed to prove alleged defect caused injury); Williams v. American Med. Systems,

248 Ga. App. 682, 683 (1) (548 SE2d 371) (2001) (claim survived summary judgment

without expert testimony). See also Williams v. Mast Biosurgery USA, 644 F3d 1312,

1319 (II) (B) (11th Cir. 2011) (applying Georgia law).




                                           2
      As for Mississippi, it is true that the federal opinions cited by the majority

contain some language suggesting that its does impose such an across-the-board

requirement. But the Supreme Court of that state has held otherwise: it has ruled that

the issue must be approached “on a case-by-case basis.” Forbes v. Gen. Motors Corp.,

935 So. 2d 869, 878 (Miss. 2006). And the Mississippi Court of Appeals opinion

cited by the majority simply notes without comment that the trial court had “ruled that

Brown was not required to have an expert in biomechanics testify in order to establish

proximate causation [of an air-bag failure]; therefore, GM’s motion for summary

judgment on that issue was denied.” Brown v. Gen. Motors Corp., 4 So. 3d 400, 401

(Miss. Ct. App. 2009).

      For those reasons I would hold that the trial court erred in excluding Dr.

Cohen’s testimony and moreover that expert testimony was not necessary to avoid

summary judgment. I therefore respectfully dissent.

      I am authorized to state that Presiding Judge Barnes joins in this dissent.




                                          3
