                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________           U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 11-10094                 SEPTEMBER 12, 2011
                           Non-Argument Calendar                 JOHN LEY
                                                                  CLERK
                         ________________________

                    D. C. Docket No. 4:09–cv-00570-VEH

ROEL VAUGHN,
JEAN VAUGHN,

                                                            Plaintiffs-Appellants,

                                    versus

NACCO MATERIALS HANDLING GROUP, INC.,
successor by merger to HYSTER COMPANY, INC.,

                                                            Defendant-Appellee.


                         ________________________

                 Appeal from the United States District Court
                   for the Northern District of Alabama
                        ________________________

                             (September 12, 2011)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     This is a products liability case. Roel Vaughn was injured on the job while
operating a forklift manufactured by Hyster Company, Inc. Vaughn thereafter

brought this action against Hyster.1 He alleged that Hyster was liable for his

injuries under the Alabama Extended Manuracturers’ Liability Doctrine and for

breaching its purported implied warranties of merchantability and fitness for a

particular purpose. The district court granted Hyster summary judgment after

excluding, on Hyster’s motion, the opinions of Vaughn’s two expert witnesses.

Memorandum Opinion dated December 3, 2010.

       Vaughn appeals the summary judgment, arguing that the district court

abused its discretion in excluding the opinions of his experts and erred in granting

summary judgment because material issues of fact remained to be litigated with

respect to his breach of implied warranty claims. We affirm.

        The district court, in its order granting Hyster summary judgment,

described how Vaughn’s injury occurred, according to Vaughn:

       Mr. Vaughn was employed by Federal Mogul Corporation as a
       materials handler and was performing his job duties at its
       Jacksonville, Alabama plant when the subject accident occurred on
       March 2, 2007. The accident occurred while [Mr.] Vaughn was
       operating a Hyster “standup” fork lift truck, which he had regularly
       operated since December of 2004. According to [Mr.] Vaughn, he
       maneuvered the lift truck into an aisle, and stopped the vehicle to the
       left of some shelves containing automotive parts. [Mr.] Vaughn then


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         Vaughn’s wife joined him as a plaintiff, asserting a derivative claim for loss of
consortium.

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      looked down and to his right toward two pallets on the floor, to locate
      parts he needed to lift with the truck and move onto another pallet.
      While holding in his right hand a label identifying the parts he needed
      to move, [Mr.] Vaughn leaned to his right to get a closer look at the
      pallets on the floor. [Mr.] Vaughn does not remember how far he
      leaned, testifying that “I Just remember leaning over.” [Mr.] Vaughn
      testified that “[o]ne second I was looking at this label, and the next
      second I knew something bad had happened, and I was turned like
      sideways, and my arm was dangling.” [Mr.] Vaughn’s right arm
      apparently struck a portion of the shelving and was severely injured.
      [Mr.] Vaughn does not know how the accident occurred. [Mr.]
      Vaughn does not believe that the vehicle moved on its own.
      Mr. Vaughn is “fairly sure” that an operating manual was located on the lift
      truck, but he does not recall reading it. In a section warning operators
      to “use common sense,” the operating manual warned that operators
      should “[k]eep arms, legs, and head inside operator’s compartment.”
      Mr. Vaughn also acknowledged that there were various warning
      labels on the vehicle. [Mr.] Vaughn testified that “I saw them on
      there, and I’m sure I read part of it, but I don’t know if I read letter for
      letter.” Like the operating manual, the warning labels instructed
      operators to “[k]eep arms, legs and head inside operator’s
      compartment.” In February 2004, approximately three years prior to
      the accident, Mr. Vaughn completed a Federal Mogul “Lift Truck
      Operators Training Course Written Exam.” In the “true or false”
      portion of the exam, [Mr.] Vaughn indicated that the following
      statement was false: “[I]t is OK to have your feet or hands outside the
      running lines of the equipment.” [Mr.] Vaughn testified that he knew
      he could be injured if he did not keep his arms inside the operator’s
      compartment.

      The district court excluded the opinions of Vaughn’s expert witnesses,

Emmett Gamel and Thomas Talbot, under Federal Rule of Evidence 702, after it

engaged in the gatekeeping function prescribed by Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993),

                                        3
and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed.2d

238 (1999). The court found Gamel lacking in “sufficient knowledge, skill,

experience, training, or education to render an opinion concerning the design or

safety feature design of forklift trucks,” Mem. Op. at 16, and that Vaughn failed to

show that the “methodology used by Gamel in formulating his opinions [was]

reliable.” Id. at 20. The court found Talbot’s opinions unreliable because, “like

Gamel’s, [they were] not based upon sufficient facts or data, and because Talbot

did not use any methodology in reaching his opinions.” Id. Moreover, as with

Gamel’s opinions, Vaughn “did not address the reliability of Talbot’s testimony in

[his] response” to Hyster’s motion to exclude the opinions. Id. at 22. “They

offered no explanation, no factual support, no case law, and no argument to

support a conclusion that the methodology used by Talbot in formulating his

opinions [was] reliable.” Id.

      The record fully supports the district court’s Daubert findings and thus its

decision to exclude the experts’ opinions. Hence, the district court’s ruling did not

constitute an abuse of discretion.

      The district court rejected Vaughn’s claim that Hyster breached an implied

warranty of fitness for a particular purpose on the ground that Vaughn

“abandoned” the claim by not addressing the claim in his response to Hyster’s

                                          4
motion for summary judgment. Id. at 27. We find no error in the court’s action.

The district court rejected Vaughn’s claim that Hyster breached an implied

warranty of merchantability because, assuming that the experts’ opinions were not

needed to make out a claim, Vaughan failed to satisfy the court’s requirement that,

in opposing a motion for summary judgment, a party

      must . . . produce significant, probative evidence demonstrating a
      genuine issue [of material fact] for trial. In [his] response, [Vaughn]
      merely noted that “Plaintiffs testimony regarding the unmerchantable
      quality of the subject forklift is . . . sufficient to defeat Defendant’s
      summary judgment motion.” Although Plaintiffs’ counsel filed Mr.
      Vaughan’s deposition, Plaintiffs never cited to any portion of that
      testimony as evidence which would support this claim. . . . . As
      required by Appendix II of the Uniform Initial Order, the Plaintiffs
      must support each statement of fact with specific reference to those
      portions of the evidentiary record that support it. . . . And, as the
      Plaintiffs admitted . . . Vaughn does not know how the accident
      occurred.

Id. at 28 n.8. We discern no error in the district court’s rejection of the implied-

warranty-of-merchantability claim. The court’s judgment is accordingly

      AFFIRMED.




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