King Bradley, Jr. v. Ameristep, Inc. , 800 F.3d 205 ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0204p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KING BRADLEY, JR. and CHRISTIE BRADLEY, ┐
Plaintiffs-Appellants, │
│
│ No. 14-6087
v. │
>
│
AMERISTEP, INC. and PRIMAL VANTAGE CO., INC., │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 1:12-cv-01196—J. Daniel Breen, Chief District Judge.
Argued: April 22, 2015
Decided and Filed: August 24, 2015
Before: SILER, MOORE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Timothy W. Monsees, MONSEES & MAYER, P.C., Kansas City, Missouri, for
Appellants. Milton S. Karfis, CLARK HILL PLC, Detroit, Michigan, for Appellees. ON
BRIEF: Timothy W. Monsees, Andrew LeRoy, MONSEES & MAYER, P.C., Kansas City,
Missouri, for Appellants. Milton S. Karfis, CLARK HILL PLC, Detroit, Michigan, for
Appellees.
_________________
OPINION
_________________
SILER, Circuit Judge. Plaintiffs King Bradley, Jr. (“Bradley”) and Christine Bradley
(“Christine”) appeal the district court’s grant of summary judgment in favor of defendants
1
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Ameristep, Inc. and Primal Vantage Co., Inc. on this product liability suit in diversity. For the
reasons stated below, we reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this action, taken in the light most favorable to the plaintiffs as the non-
moving party, are as follows. Bradley purchased two replacement treestand ratchet straps
(“ratchet straps”) in 2007 or 2008. The ratchet straps were manufactured by defendant
Ameristep, Inc., and distributed by defendant Primal Vantage Co., Inc. Bradley used the ratchet
straps exclusively in conjunction with a hunting treestand that he already owned. In 2008,
Bradley used the ratchet straps to secure his treestand from early September to mid-October.
During that time the ratchet straps were exposed to the elements. From late 2008 to mid-2011,
Bradley stored the treestand and the ratchet straps in his garage. Bradley set up the treestand
again in late May or early June 2011 after inspecting the ratchet straps. He did not attempt to use
the treestand again until September 29, 2011. On that date, he visually inspected the treestand
and the ratchet straps before climbing into the stand. Within a few minutes of Bradley’s ascent
into the stand, the ratchet straps broke, causing Bradley to fall to the ground and sustain injuries.
Bradley and his wife, Christine, filed suit in 2012 for damages caused by the fall. Their
complaint presents state-law claims against the defendants for strict product liability (a product
defect claim), negligent design and manufacture (a product defect claim), strict liability failure to
warn, negligent failure to warn, loss of consortium, and violations of the Tennessee Consumer
Protection Act.
The district court granted the defendants’ motions to exclude the testimony of two
experts, Charles Powell and Alan Davison, retained by the plaintiffs in connection with the
product defect claims.1 Powell would have testified that the defendants failed to include an
ultraviolet light inhibitor in the ratchet straps that would have reduced the rate of polymer
degradation due to sunlight exposure. Powell would have also testified that the defendants failed
to warn and instruct consumers how to recognize when the ratchet straps were no longer safe for
1
The plaintiffs do not challenge the district court’s decision to exclude Davison’s testimony on the product
defect claims. The district court did not reach the issue of whether to exclude Powell’s and Davison’s opinions as to
the failure-to-warn claims because the district court dismissed those claims on other grounds.
No. 14-6087 Bradley, et al. v. Ameristep, et al. Page 3
use. The district court excluded Powell’s testimony because it determined that his expertise was
in metallurgy and that Powell’s “experience with the webbing material at issue . . . is, according
to the evidence presented, sparse.” The district court’s decision was influenced by a previous
decision in which another district court had excluded Powell’s testimony in a nearly identical
lawsuit involving the same product. See Freeland v. Ameristep, Inc., No. 13-cv-08-JHP, 2014
WL 1646948 (E.D. Okla. Apr. 24, 2014).
Davison would have testified that the ratchet straps were defective at the time of purchase
because they failed to warn of the risks associated with decay of the polypropylene material in
the straps. He also would have testified that the defendants failed to recognize the foreseeable
use of the ratchet straps and accordingly failed to identify hazards and mitigate risks. Finally,
Davison would have testified that the limited warnings provided by the defendants failed to
comply with the relevant industry standards. The district court excluded Davison’s testimony
because it concluded that, “There is no evidence that he possesses any expertise . . . in the use of
polymers or the design of the products at issue.” Having excluded these two experts, the district
court concluded that there was no evidence to support the plaintiffs’ claims for strict product
liability or negligent design and manufacture and granted the defendants’ motion for summary
judgment on those claims.
Next, the district court addressed the claims alleging a failure to provide an adequate
warning. The court concluded that, notwithstanding any failure of the defendants, Bradley was
aware of the dangers of exposing ratchet straps to the elements and then using them to secure a
tree stand. The court also faulted Bradley for not proffering an adequate alternative warning.
Finally, the court rejected Bradley’s argument that defendants should have warned users to use a
safety harness, because it determined that Bradley would not have heeded such a warning in the
first place. For these reasons, the district court granted the defendants’ motion for summary
judgment on the failure-to-warn claims. Having dismissed all the other claims that might
provide a basis for liability, the district court then dismissed Christine’s claim for loss of
consortium.
On appeal, Bradley challenges the district court’s refusal to qualify Powell as an expert
witness for the product defect claims, the district court’s refusal to apply Tennessee’s consumer
No. 14-6087 Bradley, et al. v. Ameristep, et al. Page 4
expectation test to the product defect claims, and the dismissal of the failure-to-warn claims and
the loss-of-consortium claim.
DISCUSSION
I. The District Court’s Assessment of Powell’s Qualifications
In determining whether a witness is qualified to provide expert testimony, a district court
must apply Fed. R. Evid. 702. United States v. Freeman, 730 F.3d 590, 600 (6th Cir. 2013).
Rule 702 permits a witness to testify as an expert if his
(a) . . . scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue; (b) . . . testimony is
based on sufficient facts or data; (c) . . . testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the principles and
methods to the facts of the case.
Id. at 599–600 (quoting Fed. R. Evid. 702). We interpret this rule as imposing a threshold
requirement of qualification by “knowledge, skill, experience, training or education,” coupled
with a two-part test for relevance (i.e., will the testimony “help the trier of fact to understand the
evidence or to determine a fact in issue”) and reliability. See United States v. Cunningham,
679 F.3d 355, 379–80 (6th Cir. 2012). We apply an abuse-of-discretion standard when
reviewing a district court’s decision to exclude expert testimony. Id. at 377.
This appeal implicates the threshold requirement that an expert be qualified. Although a
witness is not a qualified expert simply because he self-identifies as such, we take a liberal view
of what “knowledge, skill, experience, training, or education” is sufficient to satisfy the
requirement. Pride v. BIC Corp., 218 F.3d 566, 577 (6th Cir. 2000). “Whether a proposed
expert’s experience is sufficient to qualify the expert to offer an opinion on a particular subject
depends on the nature and extent of that experience.” Cunningham, 679 F.3d at 379.
Powell’s qualifications contain numerous general attestations of expertise in materials
analysis. The district court seized on Powell’s more specific references to metallurgical
expertise as the foundation for a negative inference that Powell did not possess the necessary
qualifications as to other types of material analysis, including polypropylene polymers. But
Powell’s credentials clearly mark him as an expert in materials failure analysis—not merely an
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“engineer,” as the district court described him. Powell has over thirty-five years of experience
analyzing the forces and conditions that lead to product failures. He has served as an instructor
in materials analysis and microscopic analysis for university students, professional organizations,
and state agencies. In the course of his career, Powell has conducted materials failure analysis
on “all types of polymer materials,” and on five or six occasions he has specifically analyzed
failures of polymer straps or webbing in “load-bearing applications.” In light of this experience,
it was an abuse of discretion for the district court to conclude that Powell’s expertise was solely
in the area of metallurgy and then rely on that conclusion to rule that Powell was unqualified to
provide expert testimony about the ratchet straps.
II. The District Court’s Dismissal of Bradley’s Product Defect Claims
Having excluded both of the experts from testifying about the alleged product defects in
the ratchet straps, the district court concluded that, “Absent the testimony of [plaintiffs’] experts
. . . there is simply no evidence to support their [product defect] claim.” It cited one of our
previous decisions for the proposition that “without admissible expert testimony on causation
and product defect, no reasonable jury could find for plaintiff because, under Tennessee law,
expert testimony is required to establish liability in cases alleging manufacturing and design
defects.” See Pride, 218 F.3d at 580–81.
Because the district court abused its discretion in ruling that Powell was unqualified, its
dismissal of the product defect claims must be reversed. But the district court’s account of the
controlling Tennessee law on the necessity of expert testimony was also erroneous, and this error
provides a separate and independent ground for reversal.
In Pride, a plaintiff argued that a defectively designed cigarette lighter started a fire that
killed her husband. 218 F.3d at 579–80. This court ruled that, “Pride’s experts failed timely to
present admissible evidence either that the lighter was the proximate cause of Mr. Pride’s
injuries, or that the presence of a snuffer cap or other redundant safety device could have
prevented the accident.” Id. at 580. We went on to say that, “Because Pride failed to introduce
admissible evidence that the lighter caused the fire that killed Mr. Pride . . . the district court
properly determined that BIC was entitled to summary judgment on both the manufacturing and
design defect claims raised in Pride’s complaint.” Id.
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This reasoning—that Pride’s claim failed as a matter of law because she had no
admissible evidence of causation—was sufficient to decide that case. However, we also
explained that “under Tennessee law, expert testimony is required to establish liability in cases
alleging manufacturing and design defects.” Id. (citing Fulton v. Pfizer Hosp. Prods. Grp., Inc.,
872 S.W.2d 908, 912 (Tenn. Ct. App. 1993), and Browder v. Pettigrew, 541 S.W.2d 402, 404
(Tenn. 1976)). Setting aside the fact that this statement is arguably dicta and therefore not
binding precedent, it is not clear that this is an accurate statement of Tennessee law. While both
of the Tennessee cases cited by Pride refer to the need to “trace the injury to some specific error
in construction or design of the product,” Fulton, 872 S.W.2d at 912 (alteration marks omitted)
(quoting Browder, 541 S.W.2d at 404), neither case requires that specific error to be identified
by expert testimony.2 Subsequent language in Browder cuts against the notion that a successful
products liability claim requires expert testimony:
A product is defective if it is not fit for the ordinary purposes for which such
articles are sold and used . . . . Establishing this element requires only proof, in a
general sense and as understood by a layman, that “something was wrong” with
the product. As a rule the mere occurrence of an accident is not sufficient to
establish that the product was not fit for ordinary purposes. However, additional
circumstantial evidence, such as proof of proper use, handling or operation of the
product and the nature of the malfunction, may be enough to satisfy the
requirement that something was wrong with it . . . . Further, a defective condition
can also be proven by the testimony of an expert who has examined the product or
who offers an opinion on the products design.
541 S.W.2d at 405–06 (quoting Scanlon v. Gen. Motors Corp., 326 A.2d 673, 677–78 (N.J.
1974)). The implication of the above passage is that, contrary to the dicta in Pride which
purported to rely on Browder, expert testimony is not the only way to prove a claim that a
consumer product was defectively designed or manufactured.
The persuasiveness and authority of Pride is also undermined by the Tennessee Supreme
Court’s subsequent decision in Jackson v. Gen. Motors Corp., 60 S.W.3d 800 (Tenn. 2001). In
that case, this court certified the following question to the Tennessee Supreme Court: “In a
2
Arguably, Fulton also took an improperly broad view of Browder, which “suggests that while proof of a
malfunction alone should be sufficient under the strict liability and warranty theories in a products liability case, a
higher standard of Specificity[sic] of proof of defect is required in order to recover under the negligence theory.”
Browder, 541 S.W.2d at 404. In quoting Browder, Fulton did not recognize any difference between the various
theories of product liability.
No. 14-6087 Bradley, et al. v. Ameristep, et al. Page 7
products liability action under Tennessee law, may the plaintiff use the ‘consumer expectation
test’ to prove that his seatbelt/restraint system was unreasonably dangerous because it failed to
conform to the safety standards expected by an ordinary consumer under the circumstances?” Id.
at 803. Jackson ruled that “the consumer expectation test is applicable to any products liability
case in which a party seeks to establish that a product is unreasonably dangerous under
Tennessee law.” Id. at 806. The opinion went on to “affirm . . . that the consumer expectation
test and the prudent manufacturer test are not exclusive of one another and therefore either or
both of these tests are applicable to cases where the product is alleged to be unreasonably
dangerous.” Id.
“Under the consumer expectation test, a plaintiff is required to produce evidence of the
objective conditions of the product as to which the jury is to employ its own sense of whether the
product meets ordinary expectations as to its safety under the circumstances presented by the
evidence.” Id. at 805–06 (internal quotation marks omitted). In this action, the district court did
not directly address the applicable consumer expectation test. Instead, the district court
proceeded on the assumption that Bradley could prevail on his product defect claims only if he
proved that his injury was caused by a failure to include certain chemical additives in the
composition of the ratchet straps. But under the consumer expectation test, Bradley could
prevail if he persuaded a jury that the ordinary consumer would not expect ratchet straps to
catastrophically fail after only a few months of exposure to the elements. That theory of liability
would not require either evidence about chemical additives or any other form of expert
testimony. Indeed, if the dicta in Pride about the necessity of expert testimony were to be taken
at face value, the end result would be to strip the jury of the ability to use its own judgment about
ordinary expectations and thereby effectively nullify the consumer expectation test in its entirety.
The defendants argue that, “The consumer expectation test cannot be relied upon because
polypropylene chemical composition and breakdown is beyond the common knowledge of the
ordinary consumer.” While it is true that the ordinary consumer may not understand the precise
properties of the chemicals involved or the precise rate of deterioration that might occur over
time, it is quite reasonable to believe that the ordinary consumer has enough experience with
polypropylene straps, tie-downs, or webbing to have some expectation as to the lifespan of those
No. 14-6087 Bradley, et al. v. Ameristep, et al. Page 8
products when exposed to the elements. A ratchet strap is a simple device, and in this action
there is no question that the catastrophic failure of the ratchet straps was the proximate cause of
Bradley’s injuries. Thus, notwithstanding the defendants’ attempt to confuse the issue by
emphasizing the “complexity” of a treestand’s “comprehensive climbing system,” the obvious
failure of a simple component is a suitable candidate for assessment under the consumer
expectation test. Therefore, the district court committed an additional error by not allowing
Bradley to proceed under the consumer expectation test and rely on lay testimony about the
objective facts and circumstances surrounding the ratchet straps’ failure.
III. The District Court’s Dismissal of Bradley’s Failure-to-Warn Claims
The district court also dismissed the claims that the defendants failed to provide adequate
warnings about the ratchet straps and failed to convey the extent of the danger involved with use
of the ratchet straps to secure a treestand. “Under Tennessee law, a manufacturer must warn
users about non-obvious dangers caused by its product.” Rodriguez v. Stryker Corp., 680 F.3d
568, 570 (6th Cir. 2012). “A reasonable warning not only conveys a fair indication of the
dangers involved, but also warns with the degree of intensity required by the nature of the risk.”
Pittman v. Upjohn Co., 890 S.W.2d 425, 429 (Tenn. 1994). The Tennessee Supreme Court has
identified an inclusive list of criteria for identifying an adequate warning: 1) the warning must
adequately indicate the scope of the danger; 2) the warning must reasonably communicate the
extent or seriousness of the harm that could result from misuse of the product; 3) the physical
aspects of the warning must be adequate to alert a reasonably prudent person to the danger; 4) a
simple directive warning may be inadequate when it fails to indicate the consequences that might
result from a failure to follow it; and 5) the means to convey the warning must be adequate.
Barnes v. Kerr Corp., 418 F.3d 583, 590 (6th Cir. 2005) (citing Pittman, 890 S.W.2d at 429).
“An action based on an inadequate warning requires not only that the warning itself be
defective, but that the plaintiff establish that the product is unreasonably dangerous by reason of
defective warning and that the inadequate labelling proximately caused the claimed injury.” Id.
(internal quotation marks and alteration marks omitted). “Generally, a manufacturer will be
absolved of liability for failure to warn for lack of causation where the consumer was already
aware of the danger, because the failure to warn cannot be the proximate cause of the user’s
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injury if the user had actual knowledge of the hazards in question.” Harden v. Danek Med., Inc.,
985 S.W.2d 449, 451 (Tenn. Ct. App. 1998) (internal quotation marks omitted).
Bradley argues that there are genuine issues of material fact surrounding the adequacy of
the warnings included with the ratchet strap. The district court ruled that there were no issues of
material fact after a two-step analysis. At the first step, it found that, regardless of whether the
product warnings adequately apprised the user of the dangers of leaving the product exposed to
the elements and the risk of injury associated with failure to properly store the straps, Bradley
had actual knowledge of those dangers and risks. At the second step, the district court rejected
Bradley’s arguments that the warnings were inadequate for failure to provide an expiration date
for the straps or describe how the straps should be inspected. The district court faulted Bradley
for not proffering an alternative warning with an appropriate expiration date and descriptions of
various types of damage that could occur to the ratchet straps. Bradley challenges both steps in
the district court’s analysis.3
At the first step, it appears that the district court’s findings are well-grounded. Bradley
repeatedly acknowledged that it was better to avoid exposing the ratchet straps to the elements
for “long periods of time” in order to avoid their deterioration. And Bradley’s established
routine of physically examining various aspects of the straps at regular intervals clearly indicates
his awareness and understanding of the risks associated with a potential failure of the straps and
the need to avoid such failures.
Bradley’s awareness and understanding of the risks, however, did not extend to
knowledge of how to effectively avoid or minimize those risks. As the plaintiffs point out, the
simple directives admonishing the user, “DO NOT leave Ratchet Strap out in sunlight or other
weather when not in use,” and “DO NOT leave the ratchet outside all year round. It must be
stored inside when not in use,” rely on an ambiguous term. In those directives, “use” could be
reasonably interpreted to mean “use of the ratchet straps to secure the treestand to a tree,” or “use
of the ratchet straps in conjunction with the treestand to actively engage in hunting.” By setting
up the treestand weeks before he climbed into it, Bradley was “using” the ratchet straps under the
3
The district court also rejected Bradley’s separate argument that the defendants failed to provide a proper
warning about the need to wear a safety harness while in the stand. Bradley has not appealed that ruling.
No. 14-6087 Bradley, et al. v. Ameristep, et al. Page 10
former interpretation (and therefore not violating the directives in the product warnings) but not
“using” the straps under the latter interpretation.
Furthermore, while Bradley was able to intuit that prolonged exposure of the ratchet
straps to the elements could degrade the integrity of the straps, he received no guidance on how
quickly those straps could deteriorate or how signs of deterioration might manifest themselves.
The lack of information regarding how long the straps can be exposed, the inspection criteria for
determining if the straps have been exposed for too long, or any other method to allow the user
to determine, prior to each use, whether the straps are safe presents a material issue of fact as to
whether the warnings were adequate. This is particularly true when, as noted above, even the
simple directive to avoid exposure to the elements contains a latent ambiguity.
The district court attempted to sidestep this problem by focusing on the failure of
Bradley’s experts “to indicate what the expiration date should have been or how the warnings
could have described every type of damage, whether from sunlight, water, freezing, temperature
fluctuations or animal contact, and exactly how the straps would look after each type of damage
at the point at which they were no longer safe to use.” In Brown v. Raymond Corp., 432 F.3d
640, 648 (6th Cir. 2005), this court ruled that it was not an abuse of discretion for a district court
to hold that a “failure to propose alternative warnings subject to empirical testing rendered [an
expert’s] testimony [on a failure-to-warn claim] unreliable and irrelevant to the trier of fact.”
The shortcomings in the expert testimony, however, are not fatal to Bradley’s claim. In
Brown, we agreed with the district court that the product at issue was “a complex machine
beyond the purview of the ordinary consumer . . . whose safety is best evaluated using the
prudent-manufacturer test—a test under which expert testimony is required in order to reach the
jury.” Id. at 646–47. But since we have determined that the consumer expectation test can be
applied to the treestand ratchet straps in this case, Bradley was entitled to have a jury employ its
own sense of whether the relevant warnings provided the ordinary consumer with knowledge of
how to effectively avoid or minimize the risks associated with the treestand ratchet straps. See
Jackson, 60 S.W.3d at 805–06. Therefore, the district court erred by assuming that the absence
of relevant expert testimony triggered dismissal of the failure-to-warn claims.
No. 14-6087 Bradley, et al. v. Ameristep, et al. Page 11
IV. The District Court’s Dismissal of Christine’s Loss-of-Consortium Claim
The district court’s dismissal of Christine’s loss-of-consortium claim was predicated on
the dismissal of both the product defect and the failure-to-warn claims. There being no other
grounds in the record to support the dismissal of this claim, cf. United States v. Phillips, 752 F.3d
1047, 1049 (6th Cir. 2014), we reverse this decision by the district court.
CONCLUSION
For the reasons stated above, we REVERSE the court’s grant of summary judgment to
the defendants and REMAND for further proceedings consistent with this opinion.