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Thomas v. CMI Terex Corp.

September 21, 2009

JOHN THOMAS AND KAREN THOMAS, HON. JEROME B. SIMANDLE PLAINTIFFS,
v.
CMI TEREX CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION

Plaintiffs, John Thomas and his wife, Karen Thomas, have brought suit following an accident involving a PR-800-7 Cold Planer ("PR-800-7"), an asphalt milling machine, that allegedly left Mr. Thomas severely injured. Plaintiffs allege that the milling machine, designed and manufactured by Defendant CMI Terex Corporation, had a design defect that required Mr. Thomas to remain close to the machine's batteries while he attempted to recharge them.*fn1 Plaintiffs also allege that Mrs. Thomas is entitled to damages for loss of consortium due to Mr. Thomas' accident.

Presently before this Court are five motions. Plaintiffs have moved in limine to preclude the testimony of Defendant's proposed technical expert Randall Bills [Docket Item 27] and for partial summary judgment against Defendant on the issue of a reasonable safer design [Docket Item 28]. Defendant has submitted two motions in limine to preclude Plaintiffs' proposed technical expert George "Ted" Page [Docket Item 33] and medical expert Dr. James Hewitt [Docket Item 49]. Defendant further moves for summary judgment against Plaintiffs [Docket Item 34].

For the reasons set forth below, the Court will deny Defendant's motion to preclude the expert testimony of Mr. Page, but grant in part its motion to preclude the expert testimony of Dr. Hewitt. The Court will likewise deny Plaintiffs' motion to preclude Mr. Bills' testimony. Finally, the Court will deny both motions for summary judgment, except to the extent that Plaintiffs have voluntarily withdrawn their failure-to-warn claim.

II. BACKGROUND

A. Facts

On the morning of August 2, 2005, Plaintiff John Thomas, at that time a mechanic for Statewide Hi-Way Safety Company, was called to Hammonton, New Jersey, because the PR 800-7 milling machine at Hammonton High School would not start. (John Thomas Dep. May 14, 2008 at 26, 50). Mr. Thomas was familiar with the PR 800-7. The previous week Statewide had similarly sent Mr. Thomas to work on the same milling machine and he had started it, fueled it, greased it, and replaced its cutting teeth. (Id. at 52-53.) Mr. Thomas had also read the operation and maintenance manual for the machine. (Id. at 28-29.)

The PR 800-7 has an operation and maintenance manual that outlines the method for "boosting" the milling machine's batteries. (Operation Manual at 6-7.) The instructions begin with a list of warnings:

Batteries give off flammable fumes that can explode.

Prevent sparks near the batteries. They could cause vapors to explode. Do not allow jumper cable ends to contact each other or the machine.

Do not smoke when checking battery electrolyte levels.

Electrolyte is an acid and can cause personal injury if it contacts skin or eyes.

Always wear eye protection when starting a machine with jumper cables.

Improper jump procedures can cause an explosion resulting in personal injury.

Always connect battery positive () to battery positive () and battery negative (-) to machine frame.

Jump only with a battery source and with the same voltage as the stalled machine.

Turn off all lights and accessories on the stalled machine. Otherwise, they will operate when the jump source is connected. (Id. at 6.)

After turning off the stalled machine and the boosting machine, a mechanic is instructed to connect the positive jumper cable to the positive cable terminal of the discharged battery set of the stalled machine, while the other end is connected to the positive terminal of the boost battery set. (Id. at 7.) The negative jumper cable must be connected to the negative boost battery terminal and then to the frame of the stalled machine away from the battery. (Id.) In the PR 800-7, the positive cable terminal is attached to battery. (Id.) The instructions then provide for a period to charge the batteries and then direct the mechanic to attempt to start the milling machine. (Id.) If, after several failed attempts, the machine does not start, the instructions tell the mechanics to "[t]roubleshoot to find the reason the engine would not crank." (Id.) The instructions do not warn of any danger to remaining in the milling machine or next to the batteries while charging nor do they instruct the mechanic to leave the battery compartment while charging. (Id. at 6-7.)

On arriving at the high school, Mr. Thomas worked to recharge the batteries on the milling machine. The PR 800-7 was powered by two 12-volt lead-acid batteries located in two compartments under the floor of the machine's engine compartment, covered by two removable plates. (John Thomas Dep. May 14, 2008 at 75-76.) Mr. Thomas began his work by visually inspecting the batteries and measuring their voltage. (Page Report at 10-11.) He then charged each battery in turn, by attaching charging cables from his truck and letting it charge for ten to fifteen minutes. (Id. at 11.) The milling machine still would not start, so Mr. Thomas used a recharging machine, called the Start-All. (Id.) Mr. Thomas continued to be unable to start the milling machine. (Id.)

Having unsuccessfully attempted to start the milling machine, Mr. Thomas eventually became concerned that he did not have a good connection. (John Thomas Dep. May 14, 2008 at 131-32.) He wiggled the positive cable clamp attached to the charging terminal (and not the battery) and then wiggled the negative cable clamp with his right hand, all while the Start-All was running. (Id. at 132-33.) At this point he saw a "pretty good-sized spark," followed by a flash, and as he tried to get off his hands and knees, a piece of something came flying at him.

(Id. at 133.) Mr. Thomas believes he was hit by a piece of the battery, injuring his wrist, and then he felt a force that propelled him backward, causing him to hit some portion of the milling machine. (Id. at 133-34, 146-47.) Mr. Thomas also remembers hitting his head on something. (Id. at 135-38.) Mr. Thomas did not wear protective goggles while working on the PR 800-7 batteries, despite having seen warnings on batteries about wearing eye protection while working with batteries. (Id. at 81-83.)

B. Proposed Expert Reports

1. Plaintiffs' Engineering Expert: George "Ted" Page

Plaintiffs propose to offer the testimony of George "Ted" Page, an electrical engineer. Mr. Page has prepared a report that opines that the PR 800-7 is defectively designed because it requires a mechanic who is boosting the batteries to come dangerously close to those batteries, in a confined space. (Page Report at 16-33.) Mr. Page proposes a safer alternative design that would place the battery recharging terminals "outside the machine's engine compartment, with heavy steel panels between the mechanic and the battery compartment." (Id. at 20, 33-39.) This alternative design, according to Mr. Page, is used by the Case 465 Skid Steer Series 3 mini front-loader and is affordable. (Id. at 33-39.) Mr. Page finally concludes that the defect in design caused Mr. Thomas' injuries and could have been prevented by Mr. Page's safer alternative design. (Id. at 39-40.)

Mr. Page bases his opinions on what he describes as recognized standards for risk and hazard assessment, his experience, and review of various depositions prepared for this case.

2. Plaintiffs' Medical Expert: Dr. James Hewitt

Dr. James Hewitt, Mr. Thomas' treating psychiatrist since September 19, 2005, is Plaintiffs' proposed medical expert. Dr. Hewitt has diagnosed Mr. Thomas with cognitive disorder and mood disorder secondary to a head injury, as well as anxiety disorder (not otherwise specified) and post traumatic stress disorder (in remission). (Hewitt Report at 16.) Dr. Hewitt opines that Mr. Thomas received his head injury as a result of the August 2, 2005 accident. (Id. at 1.) Dr. Hewitt bases his opinions on his 37 clinical evaluations of Mr. Thomas, the Diagnostic and Statistical Manual of Mental Disorders ("DSM") IV, his treatment of other individuals with traumatic brain injuries, his review of literature on the subject as well as medical records relating to Mr. Thomas, and his training, education and experience. (Id. at 6, 18.)

In addition, during his deposition, Dr. Hewitt testified that Mr. Thomas suffers from specific brain injuries to several parts of his brain. (Hewitt Dep. at 66.) Dr. Hewitt further opined that this organic brain injury was caused by the force of the explosion leading to a "jostling of the brain" called a "contracoup." (Id. at 74-76.)

3. Defendant's Engineering Expert: Randall Bills

Defendant offers the expert engineering testimony of Randall E. Bills for the sole purpose of establishing the cause of the battery explosion and not to establish the cause of Mr. Thomas' injuries. Mr. Bills, as Senior Technical Consultant to SEA, Ltd., prepared a report in which he opines that, based on deposition testimony and his examination of the machine at issue, there was no malfunction in the milling machine that caused or contributed to the battery explosion, that no defect in the battery system caused the explosion, that had Mr. Thomas followed the procedures in the Operations Manual, or heeded its warnings, the accident would have been prevented, and that Mr. Thomas' actions caused the battery explosion to occur. (Bills Report at 1.) Mr. Page opines in his report that Mr. Thomas caused the batteries to explode by moving the negative clamp and that his failure to follow the procedure and warnings in Operations Manual (to keep sparks from the batteries) caused the explosion. (Id. at 7, 17.) Mr. Bills concludes his report: "The design of the battery compartment and battery cables was not defective and did not cause this explosion to occur." (Id. at 17.)

At a Daubert hearing held on September 9, 2009, Mr. Bills further elucidated both his methodology, the bases for his opinions, and his extensive experience in the field of electrical engineering in general and battery explosions in particular. Mr. Bills explained that he came to his ultimate conclusion that Mr. Thomas's conduct was the sole cause of the battery explosion by applying the scientific method outlined in National Fire Protection Association ("NFPA") 921: Guide for Fire & Explosion Investigations (a recognized guide prepared by a committee of which Mr. Bills is a member) and systematically eliminating other possible causes. To do so, Mr. Bills examined the PR 800-7 in question and reviewed various documents including depositions for the present action, engineering drawings, operation and service manuals for various machines, expert reports and medical records. (Bills Report at 2-3.)

B. Procedural History

On August 1, 2007, Plaintiffs filed their complaint alleging strict liability for a design defect, failure to warn, and loss of consortium on behalf of Plaintiff Karen Thomas. Following completion of discovery, Plaintiffs filed their motion in limine to preclude the testimony of Defendant's proposed technical expert Randall Bills and moved for partial summary judgment against Defendant on the issue of a reasonable safer design. Defendant then submitted two motions in limine to preclude Plaintiffs' proposed technical expert George "Ted" Page and medical expert Dr. James Hewitt. Defendant further moved for summary judgment against Plaintiffs.

On September 9, 2009, the Court held a Daubert hearing solely on the motion to preclude the testimony of Mr. Bills, after observing that unlike the other proposed experts, the Court did not have the benefit of Mr. Bills' deposition. Following Mr. Bills' testimony, the ...


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