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From Products Liability Law Daily, December 16, 2014

Asphalt mixer claims fail for lack of expert testimony, proof of proximate causation, and evidence of an alternative design

By Susan Lasser, J.D.

The products liability claims asserted by the widow of a deceased construction company employee who died in an asphalt mixer accident against the machine’s manufacturers failed as a matter of law, a federal district court in South Carolina held. After finding that the widow’s proposed expert was unqualified to testify on asphalt plants and their associated machinery and that his testimony was unreliable, the court determined that his testimony should be excluded. Without an expert’s testimony establishing the mixer’s dangerous condition, evidence of proximate causation, and evidence of a feasible, or reasonable, alternative design, the court ruled that the widow’s cause of action failed as a matter of law (Estate of Ravenell v. Pugmill Systems, Inc., December 15, 2014, Duffy, P.).

Background. On March 6, 2012, Lamar Ravenell, an employee of Sanders Brothers Construction Company (Sanders), was fatally injured while performing maintenance on an asphalt mixer called a pugmill. A pugmill is a component of a hot-mix asphalt plant—an assembly of mechanical and electronic equipment in which aggregates, recycled materials, or other additives are blended, heated, dried, and mixed with binding material to produce asphalt mixtures meeting specified requirements. Pugmill Systems, Inc., manufactured the pugmill at issue, and WEG Electric Corporation (WEG) manufactured the pugmill’s motor. Pugmill Systems sold the pugmill in the case to CMI Corporation, a predecessor of CMI Terex Corporation (CMI Terex), which in turn sold the pugmill to Sanders in the fall of 1995 as part of an asphalt plant designed by CMI Terex.

At the time of the accident, Ravenell was in the process of cleaning or otherwise maintaining the pugmill’s paddles. The covers to the pugmill had been removed, and Ravenell was positioned inside the mixer. Before entering the machine, he did not properly “lockout” and “tagout” the pugmill’s energy supply—power source shutoff procedures. While Ravenell was inside the pugmill, a fellow employee entered the asphalt plant’s energy center to test a different piece of equipment. The co-worker mistakenly activated and started the pugmill, trapping Ravenell inside. Subsequently, Ravenell died from the injuries he sustained during the accident.

On February 5, 2013, Ravenell’s 56-year-old, disabled widow, Debbie Ravenell, as the personal representative of her husband’s estate, brought a products liability action in state court against Pugmill Systems and WEG, alleging claims for strict products liability, products liability based on negligence, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose based on theories of inadequate warnings and improper design. The widow specifically alleged that the pugmill was defective because it didn’t have either an emergency stop (e-stop) or an interlock device that would prevent the machine from operating when the covers were removed. She also alleged that the pugmill lacked adequate warnings. Pugmill Systems removed the case to the district court, and the widow amended her complaint, asserting identical claims against CMI Terex.

Expert testimony. CMI Terex and Pugmill Systems sought to exclude the opinions of the widow’s expert, Stephen Fournier, P.E., of Robson Forensic, Inc., claiming that Fournier was not qualified to render opinions in the case and that his opinions were unreliable. He was her only putative expert witness with regard to pugmill design and safety. His report intended to determine whether one of the causes of the incident and death was a failure to provide an interlock and/or an e-stop as part of the pugmill equipment. Fournier noted that his report was based on the widow’s complaint, a copy of the OSHA file relating to the incident, and his inspection of the pugmill. The report stated that if the pugmill had been supplied with an emergency stop located near the top of the mixing chamber, one of Ravenell’s coworkers could have stopped the equipment in a matter of seconds. The report asserted that the pugmill did not have an emergency stop system and, therefore, was defective in a manner that caused Ravenell’s injuries. However, Fournier did not provide reasonable, or feasible, alternative designs of the pugmill in his report that included his proposed interlock device or e-stop.

Qualifications. CMI Terex and Pugmill Systems argued that Fournier was not qualified to offer his opinions and testimony because he lacked the requisite expertise in asphalt plants and pugmills. The widow responded that specific expertise was not necessary and that Fournier’s lack of specialization should only affect the weight of the opinion as opposed to its admissibility. She also asserted that he had the knowledge, education, training, experience, and expertise to testify as an expert in the general field of professional engineering.

Evaluating the expert’s qualifications in light of the purpose of his report and his conclusions, the court found that Fournier was not qualified to render expert opinions in the case. The court said that Fournier’s status as a licensed professional engineer was not, in and of itself, sufficient to qualify him as an expert. Also, his degree in civil engineering is broad-based, involves the design and construction of infrastructure, and is distinguishable from other engineering fields. The court determined, though, that the expert’s investigation involved topics more appropriately addressed by an electrical, mechanical, or industrial engineer. Further, Fournier had not taken classes on the design, manufacture, or operation of an asphalt plant or the design, manufacture, or operation of an interlock or e-stop. His deposition revealed that he had little if any education or training related to the type of equipment involved in the case. Moreover, he had never designed an asphalt plant, pugmill or other similar mixer, interlock system, or e-stop for any product; nor had he operated an asphalt plant or pugmill or observed such machines in operation. The first time he saw a pugmill was at the site inspection for the current litigation. Thus, the court concluded that Fournier did not have the requisite skill, knowledge, training, education, or experience to qualify as an expert on e-stops, interlocks, pugmills, or asphalt plants and, therefore, was unqualified to render the opinions and conclusions contained in his report.

Reliability. According to the court, to the extent Fournier arguably could be qualified to render one or more of the opinions reflected in his report, neither his opinions nor the methodology he employed was sufficiently reliable. The court found that Fournier’s purported expert opinions lacked sufficient indicia of reliability to be admitted into evidence under Federal Rule of Evidence 702. In particular, in spite of his contention that an interlock system or e-stop would have prevented the accident or minimized Ravenell’s injuries, Fournier did not prepare a reasonable alternative design for his proposed interlock system or e-stop or otherwise subject his theory to testing of any kind—the absence of testing being a consistent factor in the exclusion of expert testimony by the courts. The court said this was especially true in cases dealing with product design. Further, Fournier did not produce a prototype of his proposals. The court also stated that it was difficult to categorize his theory as capable of testing and noted that Fournier did not rule out alternate causes of the accident. Rather, he proffered that the absence of an interlock system or e-stop was a cause, but not the primary cause, of Ravenell’s death. The court found Fournier’s opinions were merely untested and imprecise proposals and that the error rate of his proposals was unquantifiable. Finally, Fournier did not point to any industry standards or literature that referenced his theoretical design modifications. Thus, the court concluded that neither Fournier’s opinions nor the methodology he employed were sufficiently reliable and the widow failed to demonstrate that his opinions were reliable or that they would in any way aid the trier of fact.

Because the deadline for the widow to identify expert witnesses had expired, and affording her the opportunity would prejudice the defendants, the court would not allow her to locate and identify another putative expert witness. As such, the widow would have to withstand summary judgment scrutiny without an expert.

Summary judgment. Although CMI Terex and Pugmill Systems separately moved for summary judgment on all of the widow’s products liability claims, the court addressed all of the claims together, finding them “critically deficient in at least three shared respects.” First, the court concluded that without expert testimony on the ultimate issue of liability, the widow’s claims fell short as a matter of law. Without expert testimony, she could not establish that the accident, and Ravenell’s resulting injuries and death, occurred because the pugmill was “in a defective condition unreasonably dangerous to the user.” Questions related to the design and operation of a pugmill necessarily required scientific, specialized, or technical testimony. Thus, the court determined that the lack of reliable expert testimony on the issue of liability, or more specifically, the alleged defectiveness of the pugmill, doomed the widow’s claims—she failed to demonstrate that the pugmill was “in a defective condition unreasonably dangerous to the user.”

Even though the lack of supporting expert testimony alone warranted judgment as a matter of law for the defendants, the court noted two other deficiencies: (1) the widow failed to present the requisite evidence of a feasible, or reasonable, alternative design, and (2) she failed to prove that the product defect was the proximate cause of her husband’s injuries and death. Both a reasonable alternative design and proximate causation were required in South Carolina.

With design-defect claims, proof of a reasonable alternative design was essential to establishing whether or not the product at issue was unreasonably dangerous. In addition, the widow failed to carry her burden of demonstrating that either the pugmill’s defective design or its inadequate warnings proximately caused her husband’s death. Thus, the failure to establish proximate causation was fatal to both design- and warnings-based claims. With the court’s exclusion of the widow’s only proposed expert witness and her failure to otherwise provide sufficient evidence to support her claims, those claims fell short for lack of evidence regarding proximate causation.

The case number is 2:13-cv-00815-PMD.

Attorneys: Kaitlyn Rebecca Swicegood (Max Sparwasser Law Firm) for Lamar Ravenell. Edward D. Buckley, Jr. (Young Clement Rivers) for Pugmill Systems Inc. Patrick Coleman Wooten (Nelson Mullins Riley and Scarborough) for CMI Terex Corp.

Companies: Pugmill Systems Inc.; CMI Terex Corp.

MainStory: TopStory DesignManufacturingNews ExpertEvidenceNews WarningsNews IndustrialCommercialEquipNews SouthCarolinaNews

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