By Pamela C. Maloney, J.D.
Whether an unattached single-footed relief suspension device provided with a hunter’s safety harness rendered the product unreasonably dangerous and constituted the proximate cause of a hunter’s death when he fell from a tree stand raised a question of fact for the jury, the U.S. District Court for the Northern District of Alabama ruled, denying the manufacturer’s motion for summary judgment. After concluding that the estate’s two experts were qualified to testify with regard to the design defect issues, the court determined that the testimony proffered by estate’s safety engineer was inadmissible as unreliable. However, a second expert who was a physician could offer reliable testimony on whether the harness was defectively designed, the availability of a safer alternative design, and the cause of the hunter’s death (Vigneulle v. Tahsin Industrial Corp. USA, March 27, 2018, Proctor, R.).
A hunter who was wearing a Model #2013C-W harness manufactured by Tahsin Industrial Corp. USA, fell from the tree stand in which he was hunting and died before rescuers could remove him from the tree. A medical examiner determined that the hunter had died from positional asphyxia. His estate filed a under the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD) against Tahsin, alleging that the harness was defectively designed because it lacked an attached dual-footed suspension relief device or a device that would have allowed the hunter to lower himself to the ground. In support of the claim, the estate proffered testimony by two experts—one a registered professional safety engineer and the other a physician who also was a certified tree stand safety instructor and safety harness designer. The estate also alleged that the warnings included with the harness were inadequate. Tahsin moved for summary judgment on the defective design and failure-to-warn claims, and moved to exclude or limit the testimony of both expert’s testimony on behalf of the estate.
Qualifications of experts. Turning first to the issue of whether the estate’s experts were qualified to testify about alleged defects in the design of the manufacturer’s safety harness, the court concluded that the estate’s safety engineer was qualified through knowledge, experience, and training to testify competently as to whether the harness used by the hunter was defective. The expert was a certified safety professional, a registered professional safety engineer, and a fellow and member of the American Society of Safety Engineers. He served as president of a consulting firm that specialized in fall hazards for more than 30 years, and for 26 years he had served as president and chief executive officer of a safety equipment manufacturer that produced fall protection products, including harnesses. In addition, he had been involved in the assessment and development of industrial standards on fall arrest systems and hunting tree stands. Despite the manufacturer’s argument that the expert was not qualified because he was not a mechanical engineer or an accident reconstructionist, the court concluded that the safety engineer’s knowledge, experience, and training qualified him to testify in this matter.
With respect to the physician, the court concluded that although it was a closer call, he had sufficient specialized knowledge and experience to testify about safety harness design. The physician had designed patented safety harnesses, including harnesses with self-rescue descent systems and attached suspension relief devices. In addition, the physician was a certified tree stand instructor and a member of the Treestand Manufacturer’s Association. He was a published writer on the topic of suspension trauma and had lectured on suspension trauma and tree stand safety before a number of industry professional groups. The fact that the physician had no engineering education and no experience in the narrow subfield of safety harnesses packaged with tree stands went to the weight to be given his testimony, not to his qualifications as an expert. The court also concluded that the physician’s 20 years’ experience as a medical doctor made him minimally qualified to testify as to the cause of the hunter’s death.
Reliability of expert testimony. Turning to the question of whether the testimony proffered by the estate’s experts was reliable, the court concluded that safety engineer’s testimony was, for the most part, inadmissible. The testing methodology the safety engineer had employed in support of his opinion that the chest strap on the harness could strangle a hunter under certain circumstances was accepted generally within the relevant engineering community and was similar to that utilized by the manufacturer’s expert. In addition, the safety engineer’s testing took into account the manufacturer’s alternative explanation for the hunter’s neck abrasions and acknowledged the manufacturer’s argument that the hunter’s misuse of the harness by not tightening the leg straps was the cause of his accidental death. Thus, the expert’s opinions regarding the efficacy of the chest straps were reliable and could be submitted to the jury. However, because there was no evidence that the chest strap had been the cause of the hunter’s injury or death, the expert’s opinions regarding any alleged design defect with respect to the chest straps were irrelevant to the claim and, therefore, were excluded.
The court also found that the safety engineer’s opinions regarding defects in the unattached suspension relief device provided with the harness and about the lack of a self-lowering device were unreliable because he failed to offer reliable testing or methodologies to support his conclusions on those issues. In addition, his limited personal knowledge about suspension relief devices and his admitted reliance on the estate’s other expert with regard to this matter rendered inadmissible as unreliable his opinion as to whether this part of the harness was defectively designed.
The opinion of estate’s second expert who offered testimony with regard to the defective design of an unattached single-footed suspension relief device like the one supplied with the harness was reliable and admissible, however. This expert’s opinion was based on more than mere speculation but was backed by his specialized experience and knowledge, his review of the physical evidence, and his own experience with single-footed suspension relief devices. He also possessed specialized medical knowledge regarding suspension trauma that informed his opinion about what features were a necessary part of a suspension relief device.
The physician’s expert opinion regarding causing also was supported by the evidence. The expert had explained that the harness placed a significant amount of pressure on the hunter’s upper body after he had loosened and moved the harness’s leg straps. Although his conclusion as to the cause of the hunter’s death was not the result of a differential diagnosis, it was based on evidence from the scene and observed conditions of the hunter’s body. The physical evidence, along with the expert’s personal testing of the harness, were sufficient to support the expert’s conclusion that the hunter had died from suspension trauma. Challenges based on the expert’s failure to explain how the harness would have worked if the hunter had followed the directions provided with the harness could be addressed during cross-examination, but had no bearing on the issue of reliability of the expert’s causation opinion.
Design defect. In support of its motion for summary judgment, the manufacturer argued that the hunter’s estate failed to prove that the harness was unreasonably dangerous. According to the manufacturer, the harness had been certified by an independent testing laboratory, it met applicable industry standards, it prevented the hunter from hitting the ground, and the suspension relief device, had the hunter used it, would have relieved any pressure in the hunter’s legs. In response, the physician testifying for the estate provided substantial evidence that the lack of an attached, double-footed suspension relief device rather than a single-footed device rendered the harness unreasonably dangerous. In addition, an officer for the Treestand Manufacturer’s Association testified that the standards only addressed the ability of the harness to withstand forces placed on it during a fall, not the ability for a wearer to survive extended suspension in the harness, as occurred in this case. Finally, there was no evidence that the manufacturer’s engineering expert tested whether an individual could withstand suspension for any significant period of time by using the one-footed suspension relief device. In light of this evidence, the estate’s expert testimony was sufficient to create a jury question as to whether the harness was unreasonably dangerous as designed.
Safer alternative design. The manufacturer also argued that the estate offered insufficient evidence of an alternative design, as required under AEMLD, and that the estate’s experts failed to test their proposed alternative designs. According to the estate, one of its experts had designed, marketed, and sold full body safety harnesses with attached double-footed suspension release devices, and those harnesses had been tested extensively before sale. In addition, the proposed alternative design would, according to the estate’s experts, be equivalent in cost to an attached single-footed suspension release device. The manufacturer’s experts conceded this point, agreeing that an attached device would probably have been equivalent in cost to the unattached relief strap that had been provided. The court further noted that although one of the manufacturer’s experts had identified design advantages in the single-footed device that had been included with the harness, those potential advantages were not enough to foreclose the factual issue presented by the estate’s expert. Concluding that the estate’s expert had provided sufficient evidence to establish the practicability and safety of an alternative design, the court denied the manufacturer’s motion for summary judgment, stating that the issue must be decided by the jury.
Proximate cause. The manufacturer further claimed that there was no evidence that a defect in the harness wasthe proximate cause of the hunter’s death. Instead, the hunter’s misuse of the harness—specifically, his use of a different tree strap than the one provided with the harness, his failure to use the suspension relief device provided with the harness, and his failure to properly tighten the leg straps of the harness—proximately caused the hunter’s death. However, the physician testifying on behalf of the estate offered substantial evidence that suspension trauma, and not neck strangulation, had caused the hunter’s death, and that an attached suspension relief device could have allowed the hunter to survive for a longer period of time before succumbing to the suspension trauma attributable to the defective design of the harness. In addition, expert testimony supplied by both parties was enough to convince the court that a jury could find that it was reasonably foreseeable to harness and tree stand manufacturers that hunters would use substitute parts. Construing the evidence in favor of the estate, the court concluded that there was enough evidence for a reasonable jury to find that the alleged design defect was the proximate cause of the hunter’s death.
Contributory negligence/misuse of product. The manufacturer also argued that the AEMLD claim was barred by the hunter’s contributory negligence in failing to follow several warnings and instructions, and by failing to bring the suspension relief device included with the harness to the site of the accident. The manufacturer also argued that the hunter’s misuse of the product by substituting a different tree strap for the one provided with the harness was the proximate cause of the accident. To show contributory negligence as a matter of law, the manufacturer had to prove that the hunter had put himself in danger’s way and had a conscious appreciation of the danger at the moment the accident occurred. To prove that the hunter had misused the product, the manufacturer had to show not only that the hunter had used the product in a manner different from that intended by the manufacturer, but that the misuse was not reasonably foreseeable. Although the manufacturer might be able to prove contributory negligence at trial, the evidence in the record did not support a finding that the hunter had consciously appreciated the danger when he failed to bring the suspension device with him. Similarly, the record did not support a finding of misuse as a matter of law. The competing evidence presented by both parties’ experts raised an issue of fact as to whether the hunter had misused the harness by using a different tree strap and whether that misuse was foreseeable to the manufacturer. Those issues could only be resolved by a jury, and, thus, the manufacturer was not entitled to summary judgment based on the affirmative defenses.
Failure to warn. The court granted the manufacturer’s motion for summary judgment on the estate’s failure to warn claim because it was not supported by admissible evidence. The only evidence provided by the estate in support of its claim that the warnings included with the harness were inadequate were proffered by the physician, who opined that both the printed and video instructions failed to provide information on the risks of suspension trauma. The court determined that although the physician had designed and written warnings for his own harnesses, he did not identify any other experiences he had with regard to warnings. Furthermore, the expert had admitted that he was not a warnings expert. Thus, because he was not qualified to testify with regard to the adequacy of the harness’s warnings, the estate could not sustain this claim.
The case is No. 2:15-cv-02268-RDP.
Attorneys: R. Bruce Barze, Jr. (Barze Taylor Noles Lowther LLC) for Michael J. Vigneulle. Bishop A.L.E. Bartoni (Clark Hill PLC) for Tahsin Industrial Corp. USA.
Companies: Tahsin Industrial Corp. USA
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