Taber v. Allied Waste Systems, Inc.

642 F. App'x 801
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 25, 2016
Docket15-6113, 15-6120
StatusUnpublished
Cited by17 cases

This text of 642 F. App'x 801 (Taber v. Allied Waste Systems, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taber v. Allied Waste Systems, Inc., 642 F. App'x 801 (10th Cir. 2016).

Opinion

ORDER AND JUDGMENT *

CAROLYN B. McHUGH, Circuit Judge.

I. INTRODUCTION

Anthony Taber was injured when he fell from a ladder while delivering fuel to an Allied Waste Systems facility. Mr. Taber and his wife filed suit against Allied. Because Mr. Taber has no memory of how he fell, the Tabers retained two experts to opine as to the cause of his fall. Allied successfully moved to exclude the testimony of the Tabers’ experts, resulting in summary judgment for Allied. The Ta-bers now appeal.

We conclude the district court acted within its discretion in excluding the Ta-bers’ experts. Without that expert causation testimony, the Tabers could not establish a necessary element of their claims. We therefore affirm the district court’s decision granting summary judgment in favor of Allied.

II. BACKGROUND

A. Factual Background

Mr. Taber, a fuel-truck driver, sustained serious injuries when he fell from a ladder on a fuel tank at an Allied facility. When Mr. Taber arrived at Allied’s facility on the day of the accident, he learned the gauge for the fuel tank was not working. He therefore had to manually measure the fuel level in the tank — both before and after filling it — by climbing a ladder to the top of the tank and using a fuel stick to take the measurement. Mr. Taber climbed the ladder to the top of the tank, ■took a fuel measurement, descended the ladder, and then loaded fuel from his truck into the tank. Upon filling the tank, he climbed the ladder and again measured the fuel level. Mr. Taber’s accident occurred when he “turned around and proceeded down the ladder.” After “taking a couple or a few steps,” Mr. Taber fell, and the next thing he remembers is “somebody hollering at [him]” as he lay on the ground. Mr. Taber was found unconscious on the pavement below the ladder. He sustained a spinal cord injury resulting in partial paralysis to his extremities.

B. Procedural Background

Mr. Taber and his wife, Markeeta Ta-ber, filed a premises-liability claim against Allied in Oklahoma state court, alleging the fuel-tank ladder was a “dangerous climbing structure that does not meet safety guidelines.” Allied removed the action to federal court. Allied then filed a third-party complaint against Mansfield Oil Company, seeking indemnification pursuant to a master services agreement under which Mr. Taber delivered fuel to Allied on Mansfield’s behalf.

*804 The Tabers retained two expert witnesses to opine that design defects in the fuel-tank ladder caused Mr. Taber’s fall. Dr. Bob Block is a professional engineer and metallurgist, who evaluated the ladder’s compliance with standards promulgated by-the American National Standards Institute (ANSI) and the Occupational Safety and Health Administration (OSHA) relating to rung spacing and step placement. Dr. Block opined that the ladder’s geometry — specifically the twenty-two-inch intra-rung spacing and the placement of the top step below the level of the surface served by the ladder — violated OSHA requirements and that these violations were “a direct or contributing cause” of Mr. Taber’s accident.

Dr. J.P. Purswell is a professional engineer specializing in human factors and ergonomics. Dr. Purswell opined that “[t]he 22 inch spacing between the rungs make it much more difficult and much less safe for a person to ascend or descend this ladder than if the ladder had been constructed in compliance with OSHA and ANSI requirements.” Dr. Purswell observed that the twenty-two-inch intra-rung spacing was “very far outside the range typically considered suitable for a fixed ladder.” Dr. Purswell also noted that the rungs were tilted at various angles away from the fuel tank, and opined that these angled rungs “reduced the available slip resistance ... and increased the- likelihood that a person’s foot would slip off the rung and the person would fall.” Mr. Purswell therefore opined that it is more likely than not that both the intra-rung spacing and the angled rungs caused or contributed to Mr. Taber’s fall.

Allied filed a motion to exclude the opinions of Dr. Block and Dr. Purswell under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Allied also filed a motion for summary judgment, arguing that without the expert opinions of Dr. Block and Dr. Purswell, the Tabers had no evidence to show a defect in the ladder was the cause of Mr. Taber’s injuries.

In its Daubert motion, Allied argued Dr. Block and Dr. Purswell lacked expertise in the relevant field of ladder design and construction, that their opinions were unsupported'by the facts of the case, that the experts failed to perform any testing of their conclusions or rule out alternative causes for Mr. Taber’s fall, and that the experts’ opinions constituted impermissible legal conclusions. The district court granted Allied’s motion, ruling Dr. Block was not qualified to give an opinion due to a lack of relevant expertise in ladder design or accident reconstruction. The district court also ruled Dr. Block’s opinion was unreliable, in that it was based on unsupported speculation and did not “set forth any underlying methodology, any statistical analysis related to ladder injuries, or any other supporting data.” The court specifically noted Dr. Block’s failure to test his theory of causation by reconstructing the accident and his failure to rule out other potential causes identified by the defendant.

With respect to Dr. Purswell, the district court found his expertise in ergonomics and experience with OSHA regulation and ANSI standards qualified him to opine on causation. But the district- court concluded Dr. Purswell’s testimony was unreliable. The district court observed that, like Dr. Block, Dr. Purswell had not attempted to test his theory by reconstructing the accident or “perfom[ing] any type of experimentation.” Nor had Dr. Purs-well accounted for other factors that may have caused or contributed to Mr. Taber’s fall. The district court therefore concluded Dr. Purswell’s opinion was not based on *805 “any reliable methodology” and should be excluded.

Finally, the district court ruled that neither expert’s testimony would be helpful to the jury insofar as it entailed explaining that the ladder’s rung spacing failed to comply with OSHA or ANSI standards, which straightforwardly required a rung spacing of twelve inches. Because the ladder in question undisputedly had a rung spacing greater than twelve inches, the district court found that expert testimony merely opining the ladder violated relevant standards would not assist the jury.

Having excluded the Tabers’ experts, the district court granted Allied’s motion for summary judgment. The district court observed that Mr. Taber did not know how he fell and that the Tabers had not introduced any other evidence to prove causation. Without expert testimony as to causation, the district court concluded the Tabers could not establish the requisite elements of their negligence claim and Allied was therefore entitled to judgment as a matter of law.

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642 F. App'x 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taber-v-allied-waste-systems-inc-ca10-2016.