Peter Graff v. Baja Marine Corp. , 310 F. App'x 298 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10413 FEBRUARY 2, 2009
____________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 06-00068-CV-WCO-2
PETER GRAFF, as Administrator of the Estate of Michael K. Maldonado,
JESSICA MALDONADO,
Plaintiffs-Appellants,
versus
BAJA MARINE CORPORATION, MERCURY MARINE, a Division of
Brunswick Corporation, BRUNSWICK CORPORATION,
Defendants-Appellees.
_______________________
Appeal from the United States District Court
for the Northern District of Georgia
_______________________
(February 2, 2009)
Before BIRCH and PRYOR, Circuit Judges, and STROM,* District Judge.
STROM, District Judge:
___________________
* Honorable Lyle E. Strom, Senior United States District Judge for the District of
Nebraska, sitting by designation.
This case arises out of a boating accident that occurred on Lake Lanier on
May 16, 2004, and killed the operator of the boat, Michael Maldonado. Plaintiffs
filed a strict products liability action under Georgia law against Baja Marine
Corporation (“Baja”), the manufacturer of the boat, and Brunswick Corporation
(“Brunswick”), the manufacturer of the boat’s gimbal housing,1 for an alleged
manufacturing defect in the boat’s gimbal housing.2 The district court granted
Baja and Brunswick (collectively, “manufacturers”) summary judgment on the
ground that plaintiffs failed to offer sufficient evidence of a manufacturing defect
to establish a genuine dispute for trial.
Plaintiffs appeal the district court’s grant of summary judgment, the district
court’s exclusion of expert testimony, and the district court’s imposition of
sanctions. We AFFIRM.
I. BACKGROUND
On May 16, 2004, at approximately 2:30 p.m., Maldonado drove his boat, a
25 foot Baja Outlaw, to a location on Lake Lanier called Cocktail Cove. Between
6:00 p.m. and 6:30 p.m., Maldonado and a friend, Brian Ruggerio, left Cocktail
1
Brunswick manufactures the gimbal housing through its Mercury Marine division.
2
Initially, plaintiffs asserted several theories of strict liability, but the only claim on
appeal regards a manufacturing defect in the gimbal housing.
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Cove in their own boats to travel to Ruggerio’s lake front home. For a period of
time, the two men traveled side by side in their boats at an estimated speed of 50-
60 miles per hour. Eventually, Ruggerio pulled away and last observed
Maldonado about 1,000 yards behind him.
After Ruggerio sped away, the accident occurred, but no eye witnesses
observed the accident. Maldonado’s boat was first identified by a passerby at
approximately 7:30 p.m. Maldonado was not in the boat at the time it was
discovered, and his body was never found.
The parties offer two competing theories as to how the accident occurred.
Plaintiffs contend the boat’s gimbal housing fractured under normal operating
conditions due to a manufacturing defect, the boat spun out of control, and
Maldonado was ejected from the boat. In contrast, the manufacturers claim the
gimbal housing was properly manufactured and fractured due to an impact with
the water. The manufacturers contend Maldonado’s boat hit a wake, the boat went
airborne, the gimbal housing fractured when the boat hit the water upon reentry,
and Maldonado was ejected.
The district court granted summary judgment in favor of the manufacturers,
finding no genuine dispute existed as to whether the gimbal housing contained a
manufacturing defect. Plaintiffs appealed the grant of summary judgment.
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Plaintiffs also appeal the district court’s exclusion of expert testimony and
imposition of sanctions for spoliation.
II. STANDARD OF REVIEW
The Court reviews the exclusion of expert testimony and spoliation
sanctions for abuse of discretion. United States v. Brown, 415 F.3d 1257, 1264-65
(11th Cir. 2005); Flury v. Daimler Chrysler Corp., 427 F.3d 939, 943 (11th Cir.
2005). “An abuse of discretion can occur where the district court applies the
wrong law, follows the wrong procedure, bases its decision on clearly erroneous
facts, or commits a clear error in judgment.” Brown, 415 F.3d at 1266.
The Court reviews the district court’s grant of summary judgment de novo.
Acevedo v. First Union Nat’l Bank, 357 F.3d 1244, 1246-47 (11th Cir. 2004).
Summary judgment is proper when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). The evidence and all reasonable inferences must be viewed in the
light most favorable to the non-moving party. Acevedo, 357 F.3d at 1247. When
a motion for summary judgment is properly made and supported, the nonmoving
party may not rest on the mere denials or allegations in the pleadings, but must set
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forth specific facts sufficient to raise a genuine issue for trial. Fed. R. Civ. P.
56(e)(2).
III. DISCUSSION
A. Exclusion of the Tensile Test Results for Spoliation
“Spoliation is the destruction or significant alteration of evidence, or the
failure to preserve property for another's use as evidence in pending or reasonably
foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779
(2d Cir. 1999). Under Georgia law, “spoliation of critical evidence may warrant
the imposition of sanctions such as exclusion of certain evidence or outright
dismissal of the case.” Flury, 427 F.3d at 945.
In this case, the district court determined plaintiffs unquestionably spoliated
evidence and sanctions were warranted. Accordingly, the district court excluded
the results of tensile tests3 conducted by an individual acting at the direction of
Brian Rampolla, plaintiffs’ metallurgist.
The district court did not abuse its discretion when it imposed sanctions for
spoliation. There is no dispute plaintiffs destroyed evidence when litigation was
reasonably foreseeable. A team hired by plaintiffs’ attorneys removed the gimbal
3
“The purpose of the tensile test is to measure specific mechanical properties of yield
strength, tensile strength, and elongation.” R-167, p. 7.
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housing from Maldonado’s boat without notifying the manufacturers, and an
individual acting at Rampolla’s direction conducted destructive tensile tests on a
portion of the gimbal housing without notifying the manufacturers.
Notwithstanding, plaintiffs claim the district court abused its discretion in
imposing sanctions.
We disagree. To determine whether spoliation sanctions are warranted, a
court must consider the factors identified in Flury v. Daimler Chrysler Corp., 427
F.3d 939. Griffin v. GMAC Commercial Fin., L.L.C., No.
1:05-CV-199-WBH-GGB, 2007 WL 521907, at *3 (N.D. Ga. Feb. 15, 2007). The
district court properly considered these factors and did not make a clear error in
judgment when it concluded that exclusion of the tensile test results was an
adequate sanction for plaintiffs’ conduct.
The manufacturers suffered significant prejudice due to plaintiffs’ conduct
because the gimbal housing was the critical piece of evidence in this case, and the
specimens tested by plaintiffs were smaller than the size mandated by the
American Society of Testing Materials (“ASTM”) standards for testing. As
appropriately stated by the District Court, “The prejudice [was] really two-fold.
First, defendants were denied the same testing opportunities as plaintiffs. Second,
by wasting what little material there was by testing specimens that did not satisfy
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ASTM’s size requirements, Rampolla effectively prevented everyone -- plaintiffs,
defendants, and the court -- from receiving more reliable test results.” R-215, pp.
5-6. Even if the plaintiffs did not act with malice when they spoliated evidence,
the plaintiffs were the more culpable party and caused the manufacturers
substantial prejudice. See Flury, 427 F.3d at 946.
Plaintiffs contend that any prejudice suffered by the manufacturers was
really self-imposed. While plaintiffs admit to destructively testing a portion of the
gimbal housing, plaintiffs claim the manufacturers had the ability and opportunity
to conduct tests on a different portion of the gimbal housing that remained
untouched. The record indicates that the untested portion of the gimbal housing
was not an optimum specimen for testing, and the district court could have
properly determined that its existence did not cure the prejudice plaintiffs caused.
Accordingly, the district court’s decision to exclude the tensile test results is
affirmed.
B. Exclusion of Rampolla’s Testimony
The admissibility of expert testimony is governed by Rule 702 of the
Federal Rules of Evidence, which provides:
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
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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.
Accordingly, expert testimony is admissible when three requirements are satisfied:
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2) the
methodology by which the expert reaches his
conclusions is sufficiently reliable as determined by the
sort of inquiry mandated in Daubert;4 and (3) the
testimony assists the trier of fact, through the application
of scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004).
The proponent of the expert testimony bears the burden of proving its
admissibility. Id.To support an essential element of their products liability action, plaintiffs
offered testimony of their expert metallurgist, Brian Rampolla. Rampolla’s
testimony sought to establish that the gimbal housing on Maldonado’s boat
contained a manufacturing defect because it was less ductile5 than a properly
4
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
5
Ductility “is the ability of material to deform without fracturing.” R-234, p. 123.
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manufactured gimbal housing. Specifically, Rampolla opined the subject gimbal
housing failed to comport with the ductility requirements contained in the
manufacturer’s specification, Mercury Marine material specification M-360-M.6
Rampolla conducted visual and microscopic analyses of the gimbal housing and
discovered an absence of ductile dimples at the fracture surface and a high
concentration of beta phase. According to Rampolla, the lack of ductile dimples
indicated the gimbal housing deviated from specifications contained in M-360-M
because he would expect a properly manufactured gimbal housing to deform
before fracturing and leave evidence of ductile dimples at the fracture surface. In
addition, Rampolla concluded the amount of beta phase in the gimbal housing
proved the product was defective because high concentrations of beta phase
adversely affect ductility.
The manufacturers moved in limine to exclude Rampolla’s testimony, and
the district court held a Daubert hearing to determine the admissibility of the
testimony. The district court determined Rampolla was not qualified to
6
M-360-M does not specifically reference ductility. Rather, the specification prescribes
the yield and tensile strengths for the gimbal housing. According to Rampolla, a gimbal housing
that is manufactured in accordance with M-360-M “should be expected to behave in a ductile
manner if subject to an overload condition.” R-167, p. 9.
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competently testify about the effects of beta phase, and the testimony lacked a
sufficiently reliable foundation. Rampolla’s testimony was excluded accordingly.
The district court acted within its discretion when it determined Rampolla
was incompetent to testify about the effects of beta phase. “There is no bright-line
rule for determining whether a given witness is qualified to offer expert testimony.
Rather, the decision is inherently case-specific.” Allmond v. Akal Sec., Inc., No.
4:05-cv-96, 2007 WL 988757, at *2 (M.D. Ga. March 29, 2007).
In this case, Rampolla determined that the “root cause” of the gimbal
housing’s defect was the presence of large numbers of beta phase platelets. Yet,
Rampolla did not reach this conclusion until after an aluminum expert correctly
identified the beta phase platelets and directed Rampolla to relevant literature.
Initially, Rampolla identified the beta phase platelets as “cold flakes” and opined
in his initial draft report that the presence of cold flakes caused the gimbal
housing’s defect. However, Rampolla had very limited experience working with
aluminum parts such as the gimbal housing, and as a result, he forwarded pictures
of the gimbal housing to an aluminum expert, JC Lind, to confirm the accuracy of
Rampolla’s cold flake theory. Lind informed Rampolla that the structures
Rampolla identified as cold flakes were actually “typical beta phase.” R-234, p.
198. Rampolla questioned whether he had “gone down the wrong path” and asked
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Lind whether beta phase would have an adverse effect on ductility and requested
Lind point Rampolla to literature on the topic. Id. at 199.
A little over one month later, Rampolla disclosed his final amended report.
The amended report contained Rampolla’s current opinion that the presence of
beta phase caused the defect. Rampolla testified that he essentially deleted the
words “cold flakes” in the initial draft report and replaced the words with “beta
phase platelets.”
Based on the foregoing, Rampolla was not an expert, let alone cognizant of
the effects of beta phase, until an aluminum expert pointed Rampolla in the right
direction. Further, the fact that Rampolla learned about beta phase a little over
one month before he disclosed his report indicates he lacked competence on the
subject. Plaintiffs contend Rampolla’s failure to properly identify the beta phase
platelets is not significant because beta phase, like cold flakes, are a type of
intermetallic inclusion that can have an adverse effect on ductility. Plaintiffs
claim Rampolla properly identified the structures as intermetallic inclusions, albeit
by a different name, and correctly determined the impact of the structures on the
gimbal housing’s ductility. Despite plaintiffs’ attempts to establish Rampolla’s
competence on the subject, Rampolla admitted that he did not have any experience
working with beta phase prior to this case, he did not know the impact of beta
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phase on ductility until one month before disclosing his report, and that cold flakes
and beta phase are different structures that are easily distinguishable. We cannot
say the district court abused its discretion in finding Rampolla incompetent to
testify about the effects of beta phase.7
Further, the district court did not abuse its discretion when it excluded
Rampolla’s testimony on the ground that it was unreliable. Expert testimony
“must be supported by appropriate validation,” and the district court must
ensure the testimony rests on a reliable foundation. Frazier, 387 F.3d at 1261(quoting Daubert, 509 U.S. at 590, 597). “[T]he trial judge must have
considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” Frazier, 387 F.3d at 1262(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
In this case, there were two bases for Rampolla’s opinion that the gimbal
housing lacked sufficient ductility: (1) the gimbal housing contained a large
concentration of beta phase, and (2) the fracture surface did not exhibit evidence
7
Plaintiffs claim that even if Rampolla was incompetent to testify about the effects of
beta phase, the district court should have only excluded testimony related to beta phase. We need
not reach this issue because the district court did not abuse its discretion when it excluded
Rampolla’s testimony on the independent ground that it was unreliable.
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of ductile dimples.8 Rampolla did not identify a reliable basis for either theory.
All aluminum parts like the subject gimbal housing contain some level of beta
phase, and therefore, a metallurgist would expect to find beta phase in the product.
Rampolla’s beta phase theory relies on his claim that the subject gimbal housing
contained too much beta phase; however, Rampolla could not reliably identify
how much beta phase is “too much.” Nor did Rampolla compare the subject
gimbal housing with a properly manufactured gimbal housing to demonstrate how
the levels of beta phase differed. Similarly, Rampolla did not compare the subject
gimbal housing with a properly manufactured gimbal housing to demonstrate how
the presence of ductile dimples differed.9 The district court’s decision to exclude
Rampolla’s testimony is affirmed.
C. District Court’s Grant of Summary Judgment in Favor of the
Manufacturers
Under Georgia law, a plaintiff must prove two elements to prevail on a
products liability claim: (1) the manufacturer’s product was “not merchantable
and reasonably suited to the use intended” when sold, and (2) the product’s
8
Rampolla’s opinions were also based on the results of tensile bar tests; however, as
previously discussed, these tests were properly excluded.
9
Rampolla did compare the gimbal housing on Maldonado’s boat to the gimbal ring on
Maldonado’s boat. The district court properly found that this comparison was not relevant
because the gimbal ring contained different mechanical properties than the gimbal housing.
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condition when sold was the proximate cause of the injury sustained. See Ga.
Code Ann. § 51-1-11(b); Owens v. Gen. Motors Corp., 272 Ga. App. 842, 845-
846, 613 S.E.2d 651, 654 (Ga. Ct. App. 2005). A plaintiff can establish the first
element by proving the product contained a manufacturing defect. Jones v.
Amazing Prods., Inc., 231 F. Supp. 2d 1228, 1236 (N.D. Ga. 2002). A
manufacturing defect is “a deviation from some objective standard or a departure
from the manufacturer's specifications established for the creation of the product.”
Id.In this case, the district court granted summary judgment against plaintiffs
because plaintiffs failed to offer sufficient evidence of a manufacturing defect to
establish a genuine issue for trial. Plaintiffs assert two main arguments on appeal:
(1) testimony of plaintiffs’ accident reconstructionists is sufficient to establish a
genuine dispute as to whether the gimbal housing contained a manufacturing
defect, and (2) plaintiffs can rely on circumstantial evidence to overcome summary
judgment.10 Both claims are without merit.
10
Plaintiffs also appear to argue that the manufacturers’ evidence establishes a genuine
dispute regarding the existence of a manufacturing defect. Plaintiffs argue the manufacturers’
expert invented the wake theory, and this fact is evidence of a manufacturing defect. We
understand this argument as relevant to the probative value of any circumstantial evidence, and
the argument is considered accordingly. Also, plaintiffs claim the fact that the manufacturers’
metallurgical experts agree with Rampolla on several issues is probative. This fact does not help
plaintiffs overcome summary judgment because the experts disagree on the critical point of
whether the gimbal housing was defective.
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First, the testimony of plaintiffs’ accident reconstructionists is insufficient
to overcome summary judgment. Plaintiffs rely mainly on the testimony of Kevin
Breen who determined that the “out-drive, mount, and gimbal ring experienced a
sudden materials failure” during normal operation. R-173, Exh. 9, pp. 4-5.
Plaintiffs rely heavily on the fact that Breen conducted a failure mode and effect
analysis in which he eliminated what he determined to be all possible causes of the
accident except for a sudden failure of the out-drive. Breen did not determine the
cause of the sudden failure or allege that the gimbal housing was defectively
manufactured. Indeed, Breen testified that he did not conduct a failure analysis to
determine why a particular part broke; instead, he conducted a failure analysis
only so far as it related to the sequence of accident events. While Georgia law
does not require a plaintiff to identify the specific defect,11 Breen’s testimony does
not sufficiently establish that the gimbal housing on Maldonado’s boat deviated
from a properly manufactured gimbal housing.
In actuality, plaintiffs’ case relies solely on circumstantial evidence.
Essentially, plaintiffs claim the gimbal housing would not have “suddenly failed”
unless it contained a manufacturing defect. Georgia law permits the use of
circumstantial evidence to infer a manufacturing defect in some circumstances.
11
Owens, 272 Ga. App. at 845-846, 613 S.E.2d at 654.
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Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840, 842, 244 S.E.2d 905, 909
(Ga. Ct. App. 1978). Reliance on circumstantial evidence is particularly
appropriate where the product is destroyed or otherwise unavailable for testing.
Rose v. Figgie Int’l, Inc., 229 Ga. App. 848, 851, 495 S.E.2d 77, 81 (Ga. Ct. App.
1997).
While Georgia courts have not clearly identified when a plaintiff may rely
on circumstantial evidence to establish a manufacturing defect, we recognize that
this case differs in important respects from the typical case in which circumstantial
evidence is used to prove a defect. Foremost, the plaintiffs in this case had ample
opportunity to examine and test the gimbal housing from Maldonado’s boat to
establish direct evidence of a defect. Second, the existence of a manufacturing
defect is not the only plausible explanation for how the gimbal housing broke. At
the very least, the manufacturers’ theory that the gimbal housing broke when it
impacted the water is a plausible explanation for the broken product.
Plaintiffs zealously argue that the expert testimony establishes the gimbal
housing could not have broken under any circumstances except for a
manufacturing defect, and therefore, plaintiffs claim their reliance on
circumstantial evidence is appropriate. On the facts of this case, we fail to see
how plaintiffs’ expert, let alone any accident reconstructionist, could competently
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conclude that there is only one plausible explanation for this unwitnessed accident.
No one witnessed the manner in which the boat was being operated immediately
prior to the accident. No one witnessed the conditions that existed immediately
before the accident, and no one witnessed the accident itself. It would simply be
speculation to conclude that plaintiffs’ theory is the only plausible explanation for
the accident.
Even if we were to assume that the plaintiffs could rely on circumstantial
evidence in this case, the inference of a manufacturing defect is not probative in
light of the conflicting expert testimony. See Stevenson v. Winn-Dixie Atlanta,
Inc., 211 Ga. App. 572, 574, 440 S.E.2d 465, 467 (Ga. Ct. App. 1993)(stating
“Circumstantial evidence is not probative against positive and uncontradicted
evidence to the contrary.”) Specifically, the manufacturers’ expert metallurgist
concluded the gimbal housing was not defective and complied with the
manufacturer’s specifications for ductility.
Accordingly, plaintiffs failed to offer sufficient evidence of a manufacturing
defect to permit the district court to submit this case to a jury. The district court’s
grant of summary judgment in favor of the manufacturers is affirmed.
IV. CONCLUSION
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Based on the foregoing, the district court is affirmed as to all assignments of
error.
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