M. Curtiss McKee v. Bowers Window & Door Company, Inc. ( 2009 )


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  •              IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2009-CA-01314-SCT
    M. CURTISS MCKEE AND ANN CRAFT MCKEE
    v.
    BOWERS WINDOW & DOOR COMPANY, INC.
    AND WEATHER SHIELD MANUFACTURING,
    INC.
    DATE OF JUDGMENT:             07/01/2009
    TRIAL JUDGE:                  HON. MARCUS D. GORDON
    COURT FROM WHICH APPEALED:    MADISON COUNTY CIRCUIT COURT
    ATTORNEYS FOR APPELLANTS:     DENNIS L. HORN
    SHIRLEY PAYNE
    ATTORNEYS FOR APPELLEES:      J. WADE SWEAT
    MARISA CAMPBELL ATKINSON
    TIMOTHY DALE CRAWLEY
    MITZI LEASHA GEORGE
    NATURE OF THE CASE:           CIVIL - PROPERTY DAMAGE
    DISPOSITION:                  AFFIRMED - 04/21/2011
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    CONSOLIDATED WITH
    NO. 2009-CA-01315-SCT
    M. CURTISS MCKEE AND ANN CRAFT MCKEE
    v.
    WEATHER SHIELD MANUFACTURING, INC.
    AND BOWERS WINDOW & DOOR COMPANY,
    INC.
    DATE OF JUDGMENT:             08/06/2009
    TRIAL JUDGE:                  HON. MARCUS D. GORDON
    COURT FROM WHICH APPEALED:    MADISON COUNTY CIRCUIT COURT
    ATTORNEYS FOR APPELLANTS:                 DENNIS L. HORN
    SHIRLEY PAYNE
    ATTORNEYS FOR APPELLEES:                  TIMOTHY DALE CRAWLEY
    MITZI LEASHA GEORGE
    J. WADE SWEAT
    MARISA CAMPBELL ATKINSON
    NATURE OF THE CASE:                       CIVIL - PROPERTY DAMAGE
    DISPOSITION:                              AFFIRMED - 04/21/2011
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    EN BANC.
    RANDOLPH, JUSTICE, FOR THE COURT:
    ¶1.   In 1998, the McKees entered into a home-construction contact with Ellington Homes,
    Inc. (“Ellington Homes”). Thereafter, the president of Ellington Homes instructed the
    McKees to look at windows at Bowers Window & Door Co., Inc. (“Bowers Window”). At
    Bowers Window, a salesman showed the McKees various types of windows. Ann McKee
    told him that she preferred wooden windows. The salesman cautioned the McKees that
    wooden windows would need to be maintained because “wood rots . . . .” Ultimately, the
    McKees selected wooden windows designed and manufactured by Weather Shield
    Manufacturing, Inc. (“Weather Shield”).
    ¶2.   The windows were installed by either Ellington Homes or its subcontractors, with no
    involvement by either Bowers Window or Weather Shield. In August 1999, the McKees
    moved into their new, lakefront home. Soon thereafter, the McKees experienced a multitude
    of problems related to construction, including leaking windows. By the spring of 2002, the
    wooden windows were rotting.         Subsequently, the home underwent a significant
    reconstruction to remedy its various problems.
    2
    ¶3.   In September 2002, the McKees filed suit against Ellington Homes,1 Weather Shield,
    and Bowers Window. While acknowledging that the home had multiple problems which did
    not pertain to either Weather Shield or Bowers Window, the McKees alleged that the
    window manufacturer and the window seller were liable because the wooden windows were
    “a defective product in that they have leaked ever since they were placed in the house.”
    After the circuit court entered a pretrial order excluding expert testimony by the McKees’
    designated expert regarding the defectiveness of the windows, both Weather Shield and
    Bowers Window filed “Motions for Summary Judgment.” Following separate hearings, the
    circuit court granted summary judgment in favor of Weather Shield and Bowers Window.
    FACTS
    ¶4.   On August 28, 1998, the McKees entered into a home-construction contract with
    Ellington Homes. Thereafter, according to Ann McKee, the sole proprietor of a realty
    company, the McKees were instructed by James R. Ellington, the president of Ellington
    Homes, “to go and look at windows at Bowers [Window].” The deposition testimony of Ann
    McKee provided that the salesman at Bowers Window, Mark McKee (no relation), did not
    recommend particular windows, but instead “just discussed different windows and . . .
    window surface . . . .” Mark McKee showed the McKees various types of windows,
    including vinyl, metal, and wooden windows. According to Ann McKee, “I probably said
    that we had come from a house that had wood windows, and I liked wood windows.”
    (Emphasis added.) This was corroborated by the deposition testimony of Curtiss McKee,
    1
    The McKees have since entered into a settlement with Ellington Homes.
    3
    which provided that “I think Ann said that she liked wood, that the metal wasn’t as pretty.”
    According to Ann McKee, the salesman responded “that if we wanted wood, we’d have to
    maintain them because wood rots, and . . . I remember saying, ‘Yes, we’ve had wood
    windows, and we maintain them.’” While Ann McKee could not recall how the specific
    windows were selected, Curtiss McKee stated that the McKees were informed by Mark
    McKee that the Weather Shield windows which were selected were “top of the line.”
    ¶5.    The wooden windows were designed and manufactured by Weather Shield and, in
    December 1998 and January 1999, were delivered to Bowers Window.2 Later, the windows
    were transported to the construction site where, according to Ann McKee, they were “safely
    stored out of the weather in the house garage.” The installation of the windows was
    performed by either Ellington Homes or one of its subcontractors, with no involvement by
    either Weather Shield or Bowers Window. The McKees were not present when the windows
    were installed.
    ¶6.    On or about August 20, 1999, the McKees began residing in the lakefront home.
    According to Ann McKee, following “the first really heavy rain, we had water that went from
    the window near Curtiss’s desk area . . . . We were standing in water.” Over the next several
    months, the McKees claimed that the windows had leaked whenever it rained, and that
    Ellington Homes repeatedly had sent employees to inspect the windows. According to Ann
    McKee, Ellington initially believed the problem was the caulking and the rubber seals, then
    finally informed the McKees that he had no further solutions.
    2
    No evidence was adduced that Bowers Window altered or modified the windows in
    any fashion. Bowers Window also offered evidence that it was not involved in the assembly
    of the windows ordered by the McKees.
    4
    ¶7.    In the spring of 2002, the McKees contacted Bill Birdsong, Jr., to view their home and
    determine if it needed to be painted or pressure-washed. Birdsong observed the trim and
    fascia, and noticed that the windows were rotting “along the bottom, along the stool, the
    window sill on the outside, and about four or five inches up on each side . . . .” Birdsong did
    not “tear the windows open” to see if there was any moisture barrier around them or inspect
    whether the windows were properly installed and sealed and/or caulked. Birdsong did not
    even attempt to open any of the windows.
    ¶8.    Birdsong did not proceed with painting the home and “[l]eft them to decide what to
    do.” Subsequently, the home underwent major reconstruction, which, according to Curtiss
    McKee, cost $528,000. Residential builder Jeb Stewart was involved in the reconstruction,
    and provided deposition testimony that it included “demo[ing] the house, and tak[ing] the
    EIFS[ 3 ] off the outside of the house, and go[ing] back with real stucco and replac[ing] the
    windows,[4 ] and redo[ing] the interior where the damage was.” According to Stewart,
    “almost every” wooden window “was rotten.” 5 Stewart further stated that there was no
    waterproofing around any of the windows, no moisture barrier placed above some windows,
    and that some windows were installed using “[p]oor framing technique.” 6
    3
    Exterior Insulation and Finishing System, a synthetic stucco.
    4
    The wooden windows were replaced with metal-clad windows.
    5
    Stewart could not determine if the windows had been painted within six months of
    initial installation. Had this not occurred, Stewart stated that rot was a natural consequence.
    No evidence was offered that the windows had been painted.
    6
    Similarly, Curtiss McKee stated that carpenters informed him during the
    reconstruction “that the flashing was inadequate or was not there . . . , that the windows were
    not installed correctly.”
    5
    ¶9.    Additionally, the home of the McKees’ next-door neighbors (one of whom was Ann
    McKee’s cousin) was also constructed by Ellington Homes. According to the McKees, that
    home had “similar . . . leaking, intruding water[,]” and “just . . . multiple problems . . . .” The
    McKees further stated that they did not believe the windows used in that home were
    manufactured by Weather Shield.
    ¶10.   In their Complaint, the McKees acknowledged that their home had numerous
    problems which did not implicate either Weather Shield or Bowers Window.7 Count Two
    of the Complaint stated that the windows manufactured by Weather Shield and purchased
    from Bowers Window were “a defective product in that they have leaked ever since they
    were placed in the house.” (Emphasis added.) Count Three of the Complaint provided that
    7
    Count One of the Complaint provided that Ellington Homes had failed to construct
    the home “in a workmanlike manner fit for habitation . . . .” Specifically, the McKees
    alleged that:
    the area surrounding multiple windows placed in the back of the house has
    constantly leaked rainwater into the house, causing damage both to the frame
    around the windows inside and outside of the house and the walls and
    baseboards of the house; the baseboards under the windows have rotted; the
    frames surrounding the windows are beginning to rot; these windows include
    large “picture” type windows and the [McKees] fear that with the frame
    around the windows rotting that the windows may fall, causing bodily injury;
    the floor leading to the upstairs bedroom slopes; the return air chases were not
    properly sealed; the stone veneer on the front of the house was laid without
    any allowance for seepage of moisture in the stone wall cavity; the roof leaks;
    the master vanity marble top has cracked; the security system has failed; the
    EIFS in place, Dryvit Outsulation, was improperly installed, inter alia, with
    improper sealant or no sealing and/or improper flashing or no flashing along,
    and/or over and/or around the windows, fascia boards, stone roof line, planter
    box, rear wall, doors, and brick mold; the automatic electronic shutters are
    broken and the house must have mold remediation because of moisture
    intrusion due to improper construction.
    6
    the defendants were “jointly and severally liable for the leaking into the house and the
    damage caused thereby to the house structure[,]” which included reference to defects
    “proximately caused” by “the defective windows manufactured by [Weather Shield] and sold
    by [Bowers Window].”
    ¶11.   On April 3, 2007, the McKees filed their “Designation of Experts.” Regarding the
    defectiveness of the windows, the McKees designated Birdsong as their expert. Thereafter,
    Weather Shield filed a “Motion In Limine to Conduct Daubert[8 ] Hearing and Exclude
    Expert Opinion Testimony of Bill Birdsong,” which was joined by Bowers Window.
    Following hearing, the circuit judge concluded that, while Birdsong “would be qualified as
    a lay person to give an opinion[,]” it would be “very difficult to find that . . . the decisions
    of [Kumho Tire Co. v. Carmichael, 
    526 U.S. 137
    , 
    119 S. Ct. 1167
    , 
    143 L. Ed. 2d 238
    (1999)], [Miss. Transp. Comm’n v. McLemore, 
    863 So. 2d 31
     (Miss. 2003)], . . . would
    qualify him under the facts of this case and with his testimony to give testimony as an
    expert.” The circuit court then entered an “Order Granting Motion to Exclude Expert
    Witness Testimony of William Birdsong.”
    ¶12.   Subsequently, Bowers Window filed a “Motion for Summary Judgment” which
    maintained that the McKees could not establish “the necessary elements to prove the wooden
    windows purchased from Bowers [Window] were defective[,]” or “meet their burden of
    8
    See Daubert v. Merrell Dow Pharms., Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 125 L.
    Ed. 2d 469 (1993).
    7
    proof with regard to their negligence claims . . . .” 9 Following hearing, the circuit court
    granted Bowers Window’s “Motion for Summary Judgment.”
    ¶13.   Next, Weather Shield filed a “Motion for Summary Judgment” which maintained that
    the McKees had failed to establish that the windows had been “designed in a defective
    manner” when they had left Weather Shield’s control, or that “the ‘failure’ is anything more
    than an inherent characteristic of that product – the fact that wood rots.” Following hearing,
    the circuit court entered an “Order Granting Weather Shield Manufacturing, Inc.’s Motion
    for Summary Judgment.”
    ¶14.   Subsequently, the McKees timely filed “Notice of Appeal” regarding the “Order
    Granting Motion to Exclude Expert Witness Testimony of William Birdsong,” the “Order
    Granting Bowers Window and Door Co., Inc.’s Motion for Summary Judgment,” and the
    “Order Granting Weather Shield Manufacturing, Inc.’s Motion for Summary Judgment.”
    This Court consolidated the appeal of those rulings.
    ISSUES
    ¶15.   This Court will consider:
    (1) Whether the circuit court abused its discretion in excluding Bill Birdsong
    from providing expert testimony.
    (2) Whether the circuit court erred in granting summary judgment in favor of
    Weather Shield and Bowers Window.
    9
    However, this Court notes that an examination of the McKees’ “Second
    Supplemental and Amended Complaint” reveals no claims of negligence against Bowers
    Window.
    8
    ANALYSIS
    I.     Whether the circuit court abused its discretion in excluding Bill
    Birdsong from providing expert testimony.
    ¶16.   “[T]he admission of expert testimony is within the sound discretion of the trial judge.
    . . . Therefore, the decision of a trial judge will stand ‘unless we conclude that the discretion
    was arbitrary and clearly erroneous, amounting to an abuse of discretion.’” Kilhullen v.
    Kansas City S. Ry., 
    8 So. 3d 168
    , 172 (Miss. 2009) (quoting McLemore, 863 So. 2d at 34).
    See also Moss v. Batesville Casket Co., Inc., 
    935 So. 2d 393
    , 404 (Miss. 2006) (citing
    Tunica County v. Matthews, 
    926 So. 2d 209
    , 216 (Miss. 2006)) (“[a]s the trial court operates
    as the gatekeeper as to the admissibility of expert testimony, we examine the trial court’s
    decision under an abuse of discretion standard of review”).
    ¶17.   Mississippi Rule of Evidence 702 states that:
    [i]f 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.
    Miss. R. Evid. 702. “This rule makes it necessary for a trial court to apply a two-pronged
    inquiry when evaluating the admissibility of expert testimony: (1) is the witness qualified,
    and (2) is the testimony relevant and reliable?” Watts v. Radiator Specialty Co., 
    990 So. 2d 143
    , 146 (Miss. 2008) (citing McLemore, 863 So. 2d at 35).
    ¶18.   Regarding qualifications, “a witness need not be a specialist in any particular
    profession to testify as an expert. . . . The scope of the witness’s knowledge and experience,
    9
    and not any artificial classification, governs the question of admissibility.” Univ. of Miss.
    Med. Ctr. v. Pounders, 
    970 So. 2d 141
    , 146 (Miss. 2007) (citations omitted). See also
    Calvetti v. Antcliff, 
    346 F. Supp. 2d 92
    , 110-11 (D.D.C. 2004) (quoting Lohrenz v.
    Donnelly, 
    223 F. Supp. 2d 25
    , 35-36 (D.D.C. 2002)) (“An individual may be deemed an
    expert based on ‘intense practical experience’ in the particular field.”); Cain v. Mid-South
    Pump Co., 
    458 So. 2d 1048
    , 1050 (Miss. 1984) (“[F]ormal education is not the only means
    of becoming an expert in a field. A witness may qualify to give an expert opinion through
    his experience only.”). As to relevance, Mississippi Rule of Evidence 401 “favors admission
    of the evidence if it has any probative value[,]” 10 and “[t]he threshold for admissibility of
    relevant evidence is not great.” Investor Res. Servs., Inc. v. Cato, 
    15 So. 3d 412
    , 417 (Miss.
    2009) (quoting McLemore, 863 So. 2d at 40). Finally, in its gate-keeping role, the trial court
    must also “examine the reliability” of the expert’s opinion. Janssen Pharmaceutica, Inc.
    v. Bailey, 
    878 So. 2d 31
    , 60 (Miss. 2004). “In evaluating reliability, the court’s ‘focus . . .
    must be solely on principles and methodology, not on the conclusions that they generate.’
    Daubert, 509 U.S. at 595 . . . . Expert testimony admitted at trial must be based on scientific
    methods and procedures, not on unsupported speculation or subjective belief.” Hubbard v.
    McDonald’s Corp., 
    41 So. 3d 670
    , 675 (Miss. 2010) (emphasis added). See also Gulf South
    Pipeline, Co. v. Pitre, 
    35 So. 3d 494
    , 499 (Miss. 2010) (“[M]erely speculative expert
    opinions should not be admitted.”); Edmonds v. State, 
    955 So. 2d 787
    , 792 (Miss. 2007)
    10
    “‘Relevant evidence’ means evidence having any tendency to make the existence
    of any fact that is of consequence to the determination of the action more probable or less
    probable than it would be without the evidence.” Miss. R. Evid. 401.
    10
    (“[A] court should not give . . . an expert carte blanche to proffer any opinion he chooses.”);
    McLemore, 863 So. 2d at 37 (quoting Kumho Tire, 526 U.S. at 157) (“[N]either Daubert nor
    the Federal Rules of Evidence requires that a court ‘admit opinion evidence that is connected
    to existing data only by the ipse dixit of the expert,’ as self-proclaimed accuracy by an expert
    [is] an insufficient measure of reliability.”).
    ¶19.   Regarding the defectiveness of the windows, the McKees designated Birdsong, a
    “home building contractor[,]” who was:
    expected to testify that the wooden windows in the McKees’ house, which
    windows are on a lake, were not appropriate for a location with that much
    moisture and humidity. Those wooden windows did not meet the standard in
    the industry for that location and caused rot and damage to the McKees’ house.
    . . . [Birdsong] is also expected to testify that appropriate windows would not
    have rotted within two years.[11 ]
    ¶20.   At his deposition, Birdsong stated that he had twenty-four years of experience as a
    general contractor in the metro Jackson area. Birdsong acknowledged that he had never
    worked for a window manufacturer or window seller; had no special education, training, or
    experience specific to windows; had no professional resume or curriculum vitae; and had
    11
    As to the windows, the McKees also designated John Noble of the Madison County
    Permit Department who, along with Birdsong, was “expected to testify that the lower large
    windows in the den of the house should have been of tempered glass because the Madison
    County . . . building code required that . . . in 1999 . . . .” Birdsong’s deposition testimony
    provided that he was “almost positive” that the windows did not meet those applicable
    building code standards. Yet both Birdsong and Stewart also stated that this safety issue had
    no relevance to water intrusion, and there was no indication that any of the windows had
    shattered. As the McKees’ suit against Weather Shield and Bowers Window is predicated
    upon product liability, this Court concludes that the untempered-glass issue is without merit.
    See Miss. Code Ann. § 11-1-63(a)(iii) (Rev. 2002) ([C]laimant must prove by a
    preponderance of the evidence that “[t]he defective and unreasonably dangerous condition
    of the product proximately caused the damages for which recovery is sought.”).
    11
    never previously testified as an expert witness in any capacity.         Moreover, Birdsong
    conceded that, although he had been retained by the McKees, he had prepared no notes or
    written reports regarding his one-time, exterior observations of the McKees’ windows and
    that, in formulating his opinions, he had reviewed no documents from other experts or
    sources, such as books, magazines, treatises, articles, or other publications.
    ¶21.   According to Birdsong, the “bulk of the problem” with the windows was water
    intrusion, as “water came through the bottom seal of the window, the sash, and probably, I
    assume that it went from there to in behind the stucco . . . .” (Emphasis added.) Yet
    Birdsong admittedly made only a one-time, exterior inspection of the windows in the spring
    of 2002, in which he did not check for underlying moisture barriers or proper sealing and/or
    caulking. Birdsong also did not know if the wooden windows rotted because they “didn’t
    get painted or primed or what happened . . . .” Instead, Birdsong opined that finger-jointed,12
    exterior, wooden windows “ought to be illegal” in central Mississippi, as even if they were
    properly primed and painted, “it’s all going to rot.” 13 With that said, Birdsong acknowledged
    that many Mississippi homes have such wooden windows; that wooden windows
    manufactured by Anderson, Pella, and Marvin are sold in Mississippi; and that he knew of
    no industry standard or building code which prohibited the use of wooden windows. Yet
    according to Birdsong, such windows “[d]on’t meet my standard” for residential construction
    “[a]nywhere in Mississippi” based upon “Birdsong common sense[,]” and that metal or vinyl
    12
    According to Stewart, “finger-joint” means “instead of taking a solid piece of stock,
    they’ll make a board out of scraps, and they’ll finger-joint it together and glue it.”
    13
    According to Birdsong, he would install wooden windows only if the owners “were
    just hell bent on having them.”
    12
    windows would not have rotted within two years. (Emphasis added.) But Birdsong added
    that he had never published his personal standard regarding the use of wooden windows in
    Mississippi and was aware of no other general contractor who had adopted his personal
    standard.
    ¶22.    Thereafter, Weather Shield filed a “Motion In Limine to Conduct Daubert Hearing
    and Exclude Expert Opinion Testimony of Bill Birdsong,” which Bowers Window joined.
    At the motion hearing, Birdsong testified that he had previously installed, repaired, or
    replaced “thousands” of windows, and that he had built or manufactured “under a hundred”
    windows. According to Birdsong, during his 2002 exterior observation of the McKees’
    home, he noticed rot in “more than ten and less than fifty” windows. Regarding the
    underlying problem, Birdsong “couldn’t say whether it was the priming or whether it was not
    flashed or . . . what, other than it just deteriorated and when it leaked from the bottom, it
    leaked right onto the house.” But Birdsong further stated that finger-jointed, exterior,
    wooden windows were “as cheap as you can get”14 and were unsuitable for the McKees’
    home given its proximity to the lake and its general geographic location in central
    Mississippi. Birdsong estimated that “ninety percent of finger-joint exterior windows that
    I’ve looked at over twenty-four years have had problems[,]” and reasserted that “the only
    time I would [install finger-jointed, exterior, wooden windows] is if . . . the homeowner
    themselves said this is what I want.” Yet Birdsong again acknowledged that finger-jointed,
    14
    Birdsong conceded that he did not know the price of the windows in the McKees’
    home.
    13
    exterior, wooden windows have “been accepted” in the industry and that such windows have
    been used in thousands of Mississippi homes.
    ¶23.   The circuit judge summarized Birdsong’s testimony as follows, “he was involved with
    construction, evaluation of homes of all values, . . . and he finally . . . gave an opinion that
    the . . . finger-joint window should be outlawed and not allowed although . . . it is still in
    use.” Based thereon, the circuit judge concluded that, while Birdsong “would be qualified
    as a lay person to give an opinion[,]” it would be “very difficult to find that . . . the decisions
    of [Kumho Tire, 526 U.S. at 137], [McLemore, 863 So. 2d at 31], . . . would qualify him
    under the facts of this case and with his testimony to give testimony as an expert.” 15 The
    circuit court then entered an “Order Granting Motion to Exclude Expert Witness Testimony
    of William Birdsong.”
    ¶24.   In evaluating the admissibility of Birdsong’s proposed expert testimony, this Court
    finds a myriad of problems at each level of the analysis. Without question, “[a] witness may
    qualify to give an expert opinion through his experience only.” Cain, 458 So. 2d at 1050.
    See also Miss. R. Evid. 702 (a witness may be “qualified as an expert by . . . experience . .
    . .”); Cain, 458 So. 2d at 1050 (“[A] water well driller with 23 years of experience would
    qualify as an expert in the field and should be able to estimate how much it costs to replace
    15
    In so ruling, the circuit judge added that:
    [a] judge has a difficult time separating his own personal beliefs and
    knowledge from the evidence of a case oftentimes. . . . I, as a . . . property
    owner, have an opinion myself about the . . . effectiveness of wooden
    window[s] and . . . I’m familiar with finger-joints. . . . [M]any homes today are
    still standing with wooden windows – with finger-joints, perhaps my home
    may be one of those, it was built several years ago.
    14
    a water well pump or motor.”); Ford Motor Co. v. Dees, 
    223 So. 2d 638
    , 641 (Miss. 1969)
    (“part owner and manager of a large automotive repair shop” with thirty years of experience
    qualified “to testify as an expert on the construction and working of the steering mechanism
    of a pickup truck and also the manner in which the cab was bolted to the chassis”); Ford
    Motor Co. v. Cockrell, 
    211 So. 2d 833
    , 838 (Miss. 1968) (truck mechanic with thirty-five
    years of experience and “eight mechanics in his employ” deemed “qualified as an expert
    witness” in a truck accident case). Here, Birdsong’s twenty-four years of experience as a
    general contractor likely would have qualified him as an expert in the broad field of general
    contracting. But Birdsong was not offered as an expert in that general field, but rather in the
    specific field of window manufacture and design, assessing the purported defectiveness of
    the subject windows. With respect to windows, while Birdsong’s experience as a general
    contractor included installation, repair, and replacement, along with the manufacture of
    “under a hundred” windows, even he acknowledged that he had no special education,
    training, or experience specific to windows, and he had never worked for a window
    manufacturer or seller.       Based thereon, this Court finds this case fundamentally
    distinguishable from those cases in which a witness was qualified as an expert by experience.
    See Cain, 458 So. 2d at 1050; Dees, 223 So. 2d at 641; Cockrell, 211 So. 2d at 838.
    Furthermore, the limited nature of Birdsong’s one-time, exterior observation of the windows
    in the spring of 2002, see supra ¶ 21, calls into question his specific qualifications to testify
    as either a layperson or expert regarding the defectiveness of those windows. The circuit
    court determined that Birdsong’s lack of experience and/or credentials in the field of window
    manufacture and design did not sufficiently qualify Birdsong to provide expert testimony.
    15
    Based on the record before us, we cannot conclude that the learned circuit judge abused his
    discretion in excluding Birdsong’s opinion. See Kilhullen, 8 So. 3d at 172. But even
    assuming arguendo that Birdsong was qualified, his testimony lacked both sufficient
    relevance and reliability.
    ¶25.   Regarding relevance, Birdsong’s testimony was predicated upon his one-time, exterior
    observation of the windows in the spring of 2002. In that observation, Birdsong did not
    check for underlying moisture barriers or proper sealing and/or caulking. See supra ¶ 21.
    Therefore, Birdsong can offer evidence only that the windows rotted. But the “fact that is
    of consequence to the determination of the action” is not that the windows rotted (that fact
    is not in dispute), but the source of the rot. Miss. R. Evid. 401. This Court fails to see what
    evidence Birdsong can present that aids that inquiry.
    ¶26.   As to reliability, Birdsong opined that the windows were defective, as finger-jointed,
    exterior, wooden windows should be “illegal” in central Mississippi. In formulating this
    opinion, Birdsong admittedly reviewed no outside sources and could cite no industry
    standards or building codes in support thereof.         In fact, Birdsong acknowledged that
    thousands of homes in Mississippi have wooden windows.16 Yet, in Birdsong’s own words,
    his opinion was based upon “my standard” and “Birdsong common sense.” As such, this
    Court summarily concludes that this is nothing more than “unsupported speculation or
    subjective belief,” lacking any semblance of an underlying “reliable principl[e] and
    16
    Additionally, Stewart, a residential builder involved in the removal of the subject
    windows, provided deposition testimony that the use of wooden windows is common and
    that they generally are not defective.
    16
    metho[d].” Hubbard, 41 So. 3d at 675; Miss. R. Evid. 702. As Weather Shield argues,
    Birdsong effectively utilized “no methodology, much less a scientifically recognized one[.]”
    Therefore, even assuming arguendo that the circuit court abused its discretion on the
    qualification issue, which it did not, the application of relevance and reliability principles
    also would call for the exclusion of Birdsong’s expert testimony.
    II.    Whether the circuit court erred in granting summary judgment in
    favor of Weather Shield and Bowers Window.
    ¶27.   “This Court’s well-established standard of review for a trial court’s grant or denial of
    summary judgment is de novo.” Covington County Sch. Dist. v. Magee, 
    29 So. 3d 1
    , 3-4
    (Miss. 2010) (citations omitted). According to this Court:
    [s]ummary judgment is appropriate where “the pleadings, depositions, answers
    to interrogatories and admissions on file, together with the affidavits, if any,
    show that there is no genuine issue as to any material fact[17 ] and that the
    moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P.
    56(c). “The moving party has the burden of demonstrating that no genuine
    issue of material fact(s) exists, and the non-moving party must be given the
    benefit of the doubt concerning the existence of a material fact.” [Waggoner
    v. Williamson, 
    8 So. 3d 147
    , 152-53 (Miss. 2009)].
    Magee, 29 So. 3d at 4. However, “[t]he party opposing the motion must be diligent and may
    not rest upon allegations or denials in the pleadings but must set forth specific facts showing
    there are indeed genuine issues for trial.” Williams v. Bennett, 
    921 So. 2d 1269
    , 1272 (Miss.
    2006) (citations omitted).
    17
    “A fact is material if it ‘tends to resolve any of the issues properly raised by the
    parties.’” Moss, 935 So. 2d at 398 (quoting Palmer v. Anderson Infirmary Benevolent
    Ass’n, 
    656 So. 2d 790
    , 794 (Miss. 1995)).
    17
    (A) Weather Shield
    ¶28.   When Weather Shield filed a “Motion for Summary Judgment,” it maintained that the
    “only claim” against it was “one of ‘defective design’.” (Emphasis added.) According to
    Weather Shield:
    even if there exists evidence of the “failure” of the product, there is no
    evidence that the product left the control of the manufacturer in a defectively-
    designed manner, or that the “failure” is anything more than an inherent
    characteristic of that product – the fact that wood rots. This is true,
    particularly where, as here, according to all evidence adduced in discovery .
    . . , these wooden windows were not properly primed, caulked or flashed at the
    time they were installed by [Ellington Homes] and/or [its] retained sub-
    contractors.
    Weather Shield further noted that Birdsong, whose expert testimony had been excluded, “was
    the only witness offered by the [McKees] who would have submitted any evidence that the
    subject windows were defective and that such defect was the cause of any of the [McKees’]
    damages.”
    ¶29.   At the motion hearing, the circuit judge asked counsel for the McKees, “how would
    you ever prove your products liability case without an expert?” Counsel for the McKees
    responded that “[t]here’s an issue about the composition of that wood and the fact that it
    rotted in two years as Weather Shield alleged it would if it’s completely untreated.” 18
    18
    Counsel for the McKees was alluding to a statement of undisputed fact from
    Weather Shield Manufacturing, Inc. v. PPG Industries, Inc., 
    1998 WL 469913
     (W.D. Wis.
    1998), that “[u]ntreated wood products can fail due to decay within two to ten years
    depending upon geography, wood species, and other factors.” Id. at *1. But a review of the
    underlying facts in PPG Industries reveals it is altogether inapplicable to this case. There,
    Weather Shield filed suit against PPG Industries for breach of warranty, negligence, and
    misrepresentation, alleging that PPG Industries had, beginning in 1984, sold them a
    “defective wood preservative [PILT] which caused its windows to rot prematurely.” Id. The
    critical, undisputed fact for purposes of the present case is that, in 1994, Weather Shield
    18
    According to counsel for the McKees, Weather Shield had not “come forward and indicated
    with any proof whatsoever that these windows were adequately treated.” The circuit court
    rejected the McKees’ argument and entered an “Order Granting Weather Shield
    Manufacturing, Inc.’s Motion for Summary Judgment.”
    (1) Product liability 19
    ¶30.   “In 1993, the Mississippi legislature promulgated the Products Liability Act and
    codified what had formerly been common law strict liability. . . . Since that time products
    liability claims have been specifically governed by statute . . . .” Williams, 921 So. 2d at
    1273 (citation omitted). As stated in Williams:
    the legislature has codified the requirements unique to a design defect claim
    and laid out an explicit blueprint for claimants to prove when advancing such
    a claim. When claimants do not fulfill their statutory obligation, they leave the
    courts no choice but to dismiss their claims because they fail to offer a key
    element of proof requisite to the court’s determination of whether the claimant
    has advanced a valid claim under the statute.
    “discontinued its use of PILT.” Id. at *2. The subject windows in this case were not ordered
    until December 1998 and January 1999, and the McKees fail to present any evidence that
    their windows had been treated with PILT. Accordingly, this Court finds the purported
    significance of PPG Industries to be a “red herring.”
    19
    On appeal, the McKees additionally contend that Weather Shield breached the
    implied warranties of merchantability, fitness for a particular purpose, and habitability. But
    in their initial and amended Complaints, the McKees’ lone allegation against Weather Shield
    was that the windows used in their home were “a defective product in that they have leaked
    ever since they were placed in the house.” As the McKees’ implied-warranty claims against
    Weather Shield are presented for the first time on appeal, this Court concludes that they are
    procedurally barred. See West v. West, 
    891 So. 2d 203
    , 214 (Miss. 2004) (quoting Crowe
    v. Smith, 
    603 So. 2d 301
    , 305 (Miss. 1992)) (“In Mississippi, ‘an appellant is not entitled to
    raise a new issue on appeal, since to do so prevents the trial court from having an opportunity
    to address the alleged error.’”); Shaw v. Shaw, 
    603 So. 2d 287
    , 292 (Miss. 1992) (“One of
    the most fundamental and long-established rules of law in Mississippi is that the [appellate
    court] will not review matters on appeal that were not raised at the trial court level.”).
    19
    Id. at 1277.
    ¶31.   In a product liability suit, “proof of injury alone is insufficient, and . . . more is needed
    to satisfy the [claimant’s] burden.” Forbes v. Gen. Motors Corp., 
    935 So. 2d 869
    , 880
    (Miss. 2006) (citing Creel v. Gen. Motors Corp., 
    233 So. 2d 105
    , 109 (Miss. 1970)). See
    also Coleman v. Danek Med., Inc., 
    43 F. Supp. 2d 637
    , 646 (S.D. Miss. 1999) (quoting
    Cather v. Catheter Tech. Corp., 
    753 F. Supp. 634
    , 638-39 (S.D. Miss. 1991)) (“Mere proof
    of damage following the use of a product is not sufficient to establish liability.”). In order
    for the McKees’ design-defect claim to survive Weather Shield’s “Motion for Summary
    Judgment,” they must establish that, when the windows left Weather Shield’s control, there
    are genuine issues of material fact regarding whether the windows were (1) “designed in a
    defective manner;” (2) which rendered them “unreasonably dangerous” to the McKees; (3)
    that the “defective and unreasonably dangerous condition . . . proximately caused” the
    McKees’ damages; (4) that the damages were not caused by an “inherent characteristic” of
    the wooden windows which “cannot be eliminated without substantially compromising the
    product’s usefulness or desirability” and which an “ordinary person” would recognize; (5)
    that Weather Shield knew or should have known of the “danger that caused the damage;” and
    (6) that “there existed a feasible design alternative that would have to a reasonable
    probability prevented the harm” without also “impairing the utility, usefulness, practicality
    or desirability of” the windows. Miss. Code Ann. § 11-1-63(a), (b), & (f) (Rev. 2002).
    ¶32.   Relying upon PPG Industries, the McKees contend that “[s]ince the . . . windows
    rotted within two (2) years, Weather Shield is admitting that it sold what amounted to
    untreated, unprotected wood that was destined to rot within two years.” At a minimum, the
    20
    McKees assert that there exists a “material issue of fact as to whether the window companies
    had chosen to palm off on the homeowners the company’s old, defective windows that had
    remained in their inventory from the time [of] the PILT seasoned windows that had failed in
    innumerable homes . . . .”
    ¶33.   Weather Shield responds that PPG Industries is a “red herring” and that the “sole
    support” for the McKees’ “defective design theory was Bill Birdsong’s personal opinion that
    no one in Mississippi ought to have wooden residential windows.” Weather Shield asserts
    that this was insufficient to satisfy the McKees’ design-defect burden of proof, because
    Birdsong was “unable to testify as to whether the windows were defective when they left
    Weather Shield, whether they were defective when they left Bowers [Window], or whether
    they were defective at all.” Furthermore, Weather Shield maintains that the McKees failed
    to present evidence “that any alleged defect proximately caused the damage” to their home.
    Finally, Weather Shield contends that an “inherent characteristic” of wood is that it rots, and
    such “cannot be eliminated without substantially compromising the product’s usefulness or
    desirability.”
    ¶34.   This Court finds that the McKees offer only “[m]ere proof of damage following the
    use of” the Weather Shield windows. Coleman, 43 F. Supp. 2d at 646 (quoting Cather, 753
    F. Supp. at 638-39). The fact that their windows leaked and rotted is insufficient for this
    design-defect claim to survive Weather Shield’s “Motion for Summary Judgment.” This is
    particularly true since Birdsong performed only a single, exterior observation of the windows
    in the spring of 2002, in which he failed to check for underlying moisture barriers or proper
    sealing and/or caulking; Stewart provided deposition testimony that there was no
    21
    waterproofing around any of the windows, no moisture barrier above some windows, and
    “[p]oor framing technique” in the window installation; it is unclear whether the windows
    were painted within six months of installation, as required to prevent rotting; and the home
    of the McKees’ next-door neighbors, constructed by Ellington Homes, also experienced
    leaking windows, but did not have Weather Shield windows.20
    ¶35.   Regarding the McKees’ argument on the alleged use of improperly treated “PILT
    seasoned windows,” this Court finds an absence of “specific facts showing there are indeed
    genuine issues for trial.” Williams, 921 So. 2d at 1272. A nonmoving party “must do more
    than simply show that there is some metaphysical doubt as to the material facts[,]” which the
    McKees have failed to do. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 
    475 U.S. 574
    , 586, 
    106 S. Ct. 1348
    , 1356, 
    89 L. Ed. 2d 538
     (1986).
    ¶36.   In sum, even giving the McKees “the benefit of the doubt concerning the existence
    of a material fact[,]” this Court concludes that summary judgment was properly entered in
    favor of Weather Shield. Magee, 29 So. 3d at 4.
    (B) Bowers Window
    ¶37.   In its “Motion for Summary Judgment,” Bowers Window maintained that the McKees
    could not “prove the necessary elements to prove the wooden windows purchased from
    Bowers [Window] were defective[,]” or “meet their burden of proof with regard to their
    negligence claims . . . .” At the motion hearing, counsel for Bowers Window argued that
    20
    This Court further adds that we have previously affirmed a trial court’s finding that
    “one of the inherent characteric[s] of wood is that it rots[,]” and that the McKees offered no
    evidence of a “feasible design alternative.” Moss, 935 So. 2d at 405 (emphasis in original);
    Miss. Code Ann. § 11-1-63(f)(ii) (Rev. 2002).
    22
    “[w]hen it boils down to it, we sold them some wood windows. [Ann] McKee talked about
    that she had had wood windows before, and she liked them . . . and . . . that’s what it comes
    down to.” In granting Bowers Window’s “Motion for Summary Judgment,” the circuit judge
    focused upon Mississippi Code Sections 11-1-63(a)(i)(3) and (f)(i) & (ii), then stated:
    [a]ll of us who are adult owners of . . . frame homes with windows would
    recognize that the great majority of the homes in this state have wooden
    windows. The [McKees] should have known that in the location of their home
    near a lake near the water would be more susceptible to rot and deterioration
    than a home located somewhere else; yet they chose the site of their home.
    The [McKees] . . . failed to show a material matter to be developed. . . . I fail
    to see how I can be advised of a defective product, and with advice of that
    defect, turn around and say that I want it anyway, and then later on say I’m
    entitled to damages because of that defect.
    (Emphasis added.)
    (1) Product liability
    ¶38.   Applying the analysis in supra ¶¶ 34-36, as to Bowers Window, and adding that no
    proof was adduced that Bowers Window “exercised substantial control over . . . the design,
    testing, manufacture, packaging or labeling of the product that caused the harm[,] . . . altered
    or modified the product,” or “had actual or constructive knowledge of the defective condition
    of the product at the time [it] supplied the product[,]” this Court concludes that summary
    judgment was properly entered in favor of Bowers Window on the McKees’ product-liability
    claims. Miss. Code Ann. § 11-1-63(h) (Rev. 2002).
    23
    (2) Negligence21
    ¶39.   The McKees’ negligence claim required that they prove, by a preponderance of the
    evidence, “(1) duty, (2) breach of that duty, (3) nexus, causation or proximate cause, and (4)
    damages.” Moss, 935 So. 2d at 406 (citing May v. V.F.W. Post 2539, 
    577 So. 2d 372
    , 375
    (Miss. 1991)).
    ¶40.   According to the McKees, “[f]or these windows to have rotted within a two year time
    frame, there was negligence involved.” Bowers Window responds that it “did not have
    anything to do with the actual construction of [the McKees’] house[,]” and “[t]he mere act
    of selling windows chosen by the [McKees] is not an act of negligence.[22 ] As admitted by
    [Birdsong], . . . wooden windows were sold throughout Mississippi.” In sum, Bowers
    Window contends that the McKees “raise lots of questions about the windows but never have
    presented credible evidence to support their claims or create an issue for a jury.”
    ¶41.   This Court finds that the McKees’ negligence claim “fail[s] to present any new
    discussion or claim that does not relate back to the . . . products liability claim which ha[s]
    previously been determined to be legally insufficient to survive summary judgment.” Moss,
    935 So. 2d at 406. Thus, this Court concludes that summary judgment was properly entered
    in favor of Bowers Window on the McKees’ negligence claim.
    21
    This Court addresses this claim because it was addressed by Bowers Window. But
    see supra note 9.
    22
    According to Bowers Window, the McKees can “cite no support for th[e] general
    statement” that the seller of windows must have been negligent if the windows rotted within
    two years.
    24
    (3) Warranties
    ¶42.   The Mississippi Products Liability Act “does not abrogate a statutory cause of action
    for breach of implied warranty as grounds for recovery[,]” or, for that matter, any warranty
    claims. Bennett v. Madakasira, 
    821 So. 2d 794
    , 808 (Miss. 2002) (citing Miss. Code Ann.
    §§ 11-1-63 [(Rev. 2002)], 75-2-715 [(Rev. 2002)]), abrogated on other grounds by Hutzel
    v. City of Jackson, 
    33 So. 3d 1116
     (Miss. 2010). Moreover, the implied warranties of
    merchantability for an ordinary purpose or fitness for a particular purpose may not be
    contractually waived “in a sale to a consumer . . . of consumer goods . . . .” Miss. Code Ann.
    § 11-7-18 (Rev. 2002). See also Miss. Code Ann. § 75-2-719(4) (Rev. 2002) (“[A]ny
    limitation of remedies which would deprive the buyer of a remedy to which he may be
    entitled for breach of an implied warranty of merchantability or fitness for a particular
    purpose shall be prohibited.”). However, “[i]n Mississippi, ‘an appellant is not entitled to
    raise a new issue on appeal, since to do so prevents the trial court from having an opportunity
    to address the alleged error.’” West, 891 So. 2d at 214 (quoting Crowe, 603 So. 2d at 305).
    See also Shaw, 603 So. 2d at 292 (“One of the most fundamental and long-established rules
    of law in Mississippi is that the [appellate court] will not review matters on appeal that were
    not raised at the trial court level.”).
    ¶43.   In this case, the McKees never, over the course of filing three complaints, pleaded
    claims for breach of implied or express warranty against Bowers Window. This critical fact
    fundamentally distinguishes this case from the warranty decisions relied upon by the
    McKees. See Duett Landforming, Inc. v. Belzoni Tractor Co., Inc., 
    34 So. 3d 603
    , 605
    (Miss. Ct. App. 2009) (suit against manufacturer and seller of tractors for breach of implied
    25
    warranties of merchantability and fitness for a particular purpose); Parker v. Thornton, 
    596 So. 2d 854
    , 855-56 (Miss. 1992) (homeowners’ suit against building contractor alleging
    “breach of express and implied warranties of merchantability[,] . . . fitness[,]” and
    habitability); North River Homes, Inc. v. Bosarge, 
    594 So. 2d 1153
    , 1158-59 (Miss. 1992)
    (complaint “alleged that the defendants breached various warranties – express, implied, and
    fitness[,]” and the trial judge instructed the jury “on the theories of breach of implied
    warranty of merchantability and fitness . . . .”). On this basis, this Court concludes that the
    McKees’ warranty claims against Bowers Window are procedurally barred. See West, 891
    So. 2d at 214; Shaw, 603 So. 2d at 292.
    CONCLUSION
    ¶44.   Based upon this analysis, this Court affirms the Circuit Court of Madison County’s
    “Order Granting Motion to Exclude Expert Witness Testimony of William Birdsong;” “Order
    Granting Bowers Window and Door Co., Inc.’s Motion for Summary Judgment;” and “Order
    Granting Weather Shield Manufacturing, Inc.’s Motion for Summary Judgment.”
    ¶45.   AFFIRMED.
    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS,
    CHANDLER, PIERCE AND KING, JJ., CONCUR.
    26