Reed v. Tracker Marine Retail, L.L.C.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

MARK REED, Administrator of the )

Estate and personal representative )

of Madison Reed, deceased, )

)

Plaintiff, )

)

vs. ) 7:19-cv-01596-LSC

)

TRACKER MARINE, LLC, et al., )

)

Defendants. )

MEMORANDUM OF OPINION

Before the Court are Defendants’ Mercury Marine, a division of Brunswick

Corporation, and Brunswick Corporation (jointly referred to as “Mercury Marine”

or “Mercury”) and Tracker Marine, LLC (“Tracker”) (collectively “Defendants”)

motions for summary judgment (docs. 40 and 42). Also before the Court is Tracker’s

motion to exclude Plaintiff’s expert witnesses. (Doc. 54.) The motions have been

briefed and are ripe for review. For the reasons stated below, Defendants’ motions

are granted in part and denied in part: Tracker’s motion to exclude Mr. Keith

Jackson is GRANTED, but its motion to exclude Dr. Brandon Taravella is DENIED;

Mercury’s motion for summary judgment is GRANTED as to claims alleging failure

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to warn and breach of implied warranties and DENIED as to defective design claims

arising under the Alabama Extended Manufacturer’s Liability Doctrine

(“AEMLD”) and negligence and wantonness; Tracker’s motion for summary

judgment is granted as to Plaintiff’s claims alleging attractive nuisance and breach of

implied warranties and DENIED as to claims for failure to warn, negligence and

wantonness, and defective design under the AEMLD.

I. BACKGROUND1

This case arises from a boating accident (the “Accident”) on August 26, 2017,

in which fourteen-year-old Madison Reed fell from the bow of a pontoon boat, a Sun

Tracker Party Barge 20 (the “Vessel”), and subsequently struck the propeller of the

60-horsepower outboard motor (the “Engine”), resulting in her death. (Doc. 1-1 at

7-8.) Plaintiff Mark Reed is Madison Reed’s father, as well as the administrator and

personal representative of her estate. (Doc 1-1 at 6, Doc. 41-1 at 496.) He filed suit

on August 26, 2019, in the Circuit Court of Tuscaloosa, Alabama. (Doc. 1-1 at 2-3.)

1 The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be

undisputed, their respective responses to those submissions, and the Court’s own examination of

the evidentiary record. These are the “facts” for summary judgment purposes only. They may not

be the actual facts. See Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir. 1994). The

Court is not required to identify unreferenced evidence supporting a party’s position. As such,

review is limited to exhibits and specific portions of the exhibits specifically cited by the parties. See

Chavez v. Sec’y Fla. Dept. of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (“[D]istrict court judges

are not required to ferret out delectable facts buried in a massive record . . . .”)

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The complaint included allegations of defective design, failure to warn, negligent

design, and breach of warranty claims against Tracker, the manufacturer of the

Vessel, and Mercury Marine, the manufacturer of the Engine, as well as an attractive

nuisance claim against Tracker. (Doc. 1-1.) On September 27, 2019, Mercury Marine

filed a notice of removal with this Court. (Doc. 1.)

Rhonda McCostlin originally purchased the Vessel with the attached Engine

from Bass Pro Shop in Leeds, Alabama, on June 12, 2010. (Doc. 41-1 at 20, 22.) At

the time of the accident, Dorothy Kornegay (also known as “Marie”) owned the

Vessel, (id. at 32), but her son-in-law, Daniel Jones, was the primary operator (id. at

48). On the day of the accident, Daniel Jones and his wife Michelle (also known as

“Shelly”) took their daughter Kaitlyn, and her teenage friends, Madison Reed, Ricki

Smith, Carson Hunnicutt, and Tanner Dawson (collectively, the “Teenagers”) out

in the Vessel on Ski Lake. (Doc. 41-1 at 135.)

At some point during the afternoon, Madison Reed and several of the other

Teenagers moved to sit on the unenclosed bow deck of the Vessel while it was

underway. (Doc. 41-1 at 78.) Daniel and Shelly Jones were aware that the Teenagers

were on the bow deck and permitted them to remain there, even though it was against

their customary rules. (Id. at 137.) Immediately before the Accident, Madison Reed

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was sitting on the floor of the unenclosed bow platform. (Id. at 86, 136, 214-215.)

There is some dispute as to what exactly caused Ms. Reed to fall into the

water, but Carson Hunnicutt admits that he made a hand motion towards Ms. Reed

and “acted like [he] was going to hit her.” (Id. at 218.) Ms. Reed reacted, lost her

balance, and fell in the water. (Id.) The other Teenagers began yelling for Daniel

Jones to stop the boat, which was in gear at the time of Madison Reed’s fall. (Id. at

83, 152.) Madison Reed was seen briefly floating facedown behind the boat. (Id.)

Even though Daniel Jones and Carson Hunnicutt jumped in after her, her body was

not recovered until divers discovered her later that evening. (Id. at 83, 234) Dr.

Stephen Boudreau with the Alabama Department of Forensic Science concluded

that Madison Reed died of blunt force trauma and drowning. (Id. at 254, 258.)

II. STANDARDS OF REVIEW

A. Tracker’s Motion to Exclude Expert Testimony

While Federal Rules of Evidence 401 and 402 provide for the liberal admission

of relevant evidence, Rules 403, 702, and 703 mitigate against this general policy by

giving trial courts discretion to exclude unreliable or irrelevant expert testimony.

Allison v. McGhan Medical Corp., 184 F.3d 1300, 1310 (11th Cir. 1999). The Eleventh

Circuit summarized the applicable rules in City of Tuscaloosa v. Harcross Chem., Inc.,

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158 F.3d 548, 562 (11th Cir. 1998), when it wrote that scientific expert testimony may

be admissible if “(1) the expert is qualified to testify competently regarding the

matters he intends to address; (2) the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined by the sort of inquiry mandated in

Daubert; and (3) the testimony assists the trier of fact, through the application of

scientific, technical, or specialized expertise, to understand the evidence or to

determine a fact in issue.” See also, e.g., Allison, 184 F.3d at 1309; Toole v. Baxter

Healthcare Corp., 235 F.3d 1307, 1312 (11th Cir. 2000).

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the

Supreme Court imposed a special duty on trial judges pursuant to Federal Rule of

Evidence 702, requiring judges to act as “gate-keepers” to ensure that novel

scientific evidence is both reliable and relevant before it is admitted. Later, in Kumho

Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court expanded its

Daubert ruling. The Supreme Court recognized that judges are not trained scientists

and that the task imposed by Daubert is difficult in light of their comparative lack of

expertise. Allison, 184 F.3d at 1310 (citing General Elec. Co. v. Joiner, 522 U.S. 136,

148 (1997) (Breyer, J. concurring)). Nevertheless, the judge’s relatively inexpert

attention is preferable to “dumping a barrage of questionable scientific evidence on

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a jury.” Id. While this Court is aware of its duty as a gatekeeper, it understands that

its role is “not intended to supplant the adversary system or the role of the jury,” Id.

at 1311, and it recognizes that “[v]igorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.” Daubert, 509

U.S. at 596.

The primary focus of a Daubert inquiry is on the principles and methodology

underlying expert opinion testimony, not the conclusions they generate. Id. at 595.

The trial court must be sure the expert “employs in the courtroom the same level of

intellectual rigor that characterizes the practice of an expert in the relevant field.”

Kumho Tire Co., 526 U.S. at 152. While experience alone may qualify an expert

witness, it is not always enough. See United States v. Frazier, 387 F.3d 1244, 1261 (11th

Cir. 2004). “If the witness is relying solely or primarily on experience, then the

witness must explain how the experience leads to the conclusion reached, why that

experience is a sufficient basis for the opinion, and how that experience is reliably

applied to the facts.” Id. (quoting Fed. R. Evid. 702 advisory committee’s note (2000

amends.)). Accordingly, “the proponent of the testimony does not have the burden

of proving that it is scientifically correct, but that by a preponderance of the evidence,

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it is reliable.” Allison, 184 F.3d at 1312; see also Joiner, 522 U.S. at 146

(“[C]onclusions and methodology are not entirely distinct from one another.

Trained experts commonly extrapolate from existing data. But nothing in either

Daubert or the Federal Rules of Evidence requires a district court to admit opinion

evidence that is connected to existing data only by the ipse dixit of the expert. A court

may conclude that there is simply too great an analytical gap between the data and

the opinion proffered.”); Daubert, 509 U.S. at 589–90 (Rule 702 requires that the

subject of an expert’s testimony must be “knowledge,” which connotes more than

a subjective belief or unsupported speculation).

Daubert also requires a special inquiry into relevance, calling on the trial court

to ensure expert testimony “logically advances a material aspect of the proposing

party’s case.” Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1315 (9th Cir.

1995) (on remand). There must be a valid scientific connection between the

testimony and the disputed facts in the case. Id. Furthermore, when expert opinion is

based on otherwise inadmissible hearsay, Rule 703 requires the trial court to ensure

the underlying facts or data upon which the expert bases his opinion or inference are

of the type reasonably relied upon by experts in the particular field.

The testimony must assist the trier of fact to understand the evidence or to

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determine a fact in issue through the application of scientific, technical, or

specialized expertise. City of Tuscaloosa, 158 F.3d at 562. The expert must contribute

specialized knowledge not within the general understanding of the jury nor anything

the lawyers could argue to the jury themselves. Cook ex. rel Estate of Tressier v. Sheriff

of Monroe Cty., Fla., 402 F.3d 1092, 1111 (11th Cir. 2005). Furthermore, the burden

is on the party offering the expert testimony to affirmatively establish that their

expert has suitable qualifications. See, e.g., McDowell v. Brown, 392 F.3d 1283, 1298

(11th Cir. 2004).

B. Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact2 and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if “the record taken as a

whole could lead a rational trier of fact to find for the nonmoving party.” Hickson

Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine dispute as

to a material fact exists “if the nonmoving party has produced evidence such that a

reasonable factfinder could return a verdict in its favor.” Greenberg v. BellSouth

2 A material fact is one that “might affect the outcome of the case.” Urquilla-Diaz v. Kaplan Univ.,

780 F.3d 1039, 1050 (11th Cir. 2015).

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Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (quoting Waddell

v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge

should not weigh the evidence but should determine whether there are any genuine

issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986).

In considering a motion for summary judgment, trial courts must give

deference to the nonmoving party by “view[ing] the materials presented and all

factual inferences in the light most favorable to the nonmoving party.” Animal Legal

Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015) (citing

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated

assertions alone are not enough to withstand a motion for summary judgment.”

Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory

allegations and a “mere scintilla of evidence in support of the nonmoving party will

not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d

1207, 1219 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, 358 F.3d

859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the moving

party has the burden of either negating an essential element of the nonmoving party’s

case or showing that there is no evidence to prove a fact necessary to the nonmoving

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party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir.

2013) (per curiam). Although the trial courts must use caution when granting

motions for summary judgment, “[s]ummary judgment procedure is properly

regarded not as a disfavored procedural shortcut, but rather as an integral part of the

Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

III. DISCUSSION

As a preliminary matter, the Court must address Defendant Tracker’s Motion

to Exclude the Expert Testimony of Keith Jackson and Brandon Taravella (doc. 54)

as it will possibly be dispositive of Tracker’s motion for summary judgment (doc 42.)

A. TRACKER’S MOTION TO EXCLUDE EXPERT WITNESSES

Tracker argues that the respective testimony of Mr. Keith Jackson and Dr.

Brandon Taravella does not meet the standard set forth by Federal Rule of Evidence

702 and Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579 (1993). Rule 702

provides that a:

witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise

if:

(a) the expert's scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and

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methods; and

(d) the expert has reliably applied the principles and methods

to the facts of the case.

Fed. R. Evid. 702. For expert testimony to be considered reliable, “the reasoning or

methodology underlying the testimony [must be] scientifically valid” and must be

“properly . . . applied to the facts in issue.” Daubert, 509 U.S. at 592-93. Under

Daubert, the Court's inquiry is flexible, but the focus “must be solely on principles

and methodology, not on the conclusions that they generate." 509 U.S. at 594-595.

When assessing the reliability of an expert’s testimony, the Court should consider

four factors: (1) whether the expert’s theory can and has been tested, (2) whether

the theory has been subject to peer review and publication, (3) whether the known

or potential rate of error of the methodology is acceptable, and (4) whether the theory

is generally accepted in the scientific community. McDowell v. Brown, 392 F.3d 1283,

1298 (11th Cir. 2004) (citing Daubert, 509 U.S. at 593–94). Ultimately, however,

“[v]igorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and appropriate means of

attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596 (1993).

1. Mr. Jackson’s Testimony

Tracker argues that Mr. Jackson’s opinions as to Tracker’s design and

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warnings for the subject Vessel should be excluded because he admitted in

deposition that he is not qualified to offer them. (Doc. 55 at 7-8.) This Court has

previously excluded expert testimony when the witness is “by his own admission

unqualified to testify” on the issue. Day, LLC v. Plantation Pipe Line Co., 315 F.

Supp. 3d 1219, 1228 (N.D. Ala. 2018).

Mr. Jackson’s report included opinions regarding the Vessel, such as his

determination that the Vessel “has several hazardous design flaws and was not

manufactured to industry standards at the time of production” and “[o]n board

warning placards are conflicting and do not meet industry standards at the time of

production.” (Doc. 41-1 at 384.) In his deposition testimony, however, Mr. Jackson

admitted that he was not an expert on warning labels or on the opinions he offered in

relation to the Vessel in his report. (Jackson Depo. 177.) He further acknowledged

that he did not intend to offer an opinion against Tracker at trial. (Id. at 178.)

Q. … Would you agree with me then, given the fact that you’re not a

naval architect, you’re not an expert in warning labels, that you’re not

really holding yourself out as an expert to offer the opinions in numbers

one through three on Page … 6 of your report?...

A. That would be correct.

Q. Okay

[Objection omitted.]

Q. So in light of that testimony and what you’ve just told me, I don’t

believe I have any further questions of you because it doesn’t sound like

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you’re going to be offering an opinion against Tracker Marine at the

time of trial?

[Objection omitted.]

A. That would be correct.

(Doc. 41-1 at 376.) Accordingly, this Court agrees that Mr. Jackson’s testimony is

not admissible against Tracker.3

2. Dr. Taravella’s Testimony

Tracker argues that Dr. Taravella’s opinions should be excluded in their

entirety because he is not qualified, he did not review material facts, his

methodology is no more than “a conclusion-driven ipse dixit,” and his opinions will

not assist the trier of fact. (Doc. 55 at 11.)

a. Dr. Taravella’s Qualifications

Dr. Brandon Taravella is a naval architect and marine engineer. (Doc. 41-1 at

387.) He earned his doctorate degree in engineering and applied science with a

concentration in naval architecture and marine engineering at the University of

New Orleans, where he now serves as a professor. (Doc. 41-1 at 289, 297, Doc. 57

3 This Court’s decision to exclude Mr. Jackson’s testimony against Tracker has no bearing on

whether Mr. Jackson is qualified to testify as an expert against Mercury Marine, which only

recently filed a motion in limine to exclude Mr. Jackson as an expert witness (doc. 61). As the

Plaintiff has not yet had an opportunity to respond to that motion, the Court does not consider that

motion here.

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at 13.) He teaches a course in planning hydrodynamics and has authored papers on

the same subject. (Doc. 41-1 at 297.) He and his business partner have a company

that offers consulting services in the areas of naval architecture, marine

engineering, vessel structural analysis, vessel modifications, and other services. (Id.

at 292.) He has served as an expert in at least seven other cases. (See id. at294-95.)

Tracker argues that Dr. Taravella’s experience has primarily been “focused

on the hydrodynamic and performance aspects of commercial boats – not safety

designs of a recreational pontoon.” (Doc. 55 at 11, citing Doc. 41-1 at 297-99.)

Tracker also notes that Dr. Taravella has never testified in a case involving a

recreational pontoon boat and has only operated a recreational pontoon once

before. (Doc. 55, citing Doc. 41-1 at 292-93, 295, 299.) Nor has Dr. Taravella been

certified in the design of recreational boats by a manufacturer. (Doc. 41-1 at 299.)

While he has worked with Sterling Marine on the design of a pontoon boat, that

design was for a commercial pontoon. (Id.) Tracker notes that Dr. Taravella has

never been a member of the American Boat and Yacht Council (“ABYC”) or the

National Marine Manufacturers Association (“NMMA”). (Id. at 292.) Nor has he

received any training on warnings required on recreational vessels. (Id. at 297.)

Despite Tracker’s assertions that Dr. Taravella is unqualified to render an

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expert opinion in this case, the Court finds that Dr. Taravella’s education, training,

and experience provide him with a level of expertise about the design of the Vessel

and possible alternatives to make his opinion useful in this case. Dr. Taravella has

worked on pontoon boats before, and he testified that he has over one hundred

hours of experience in recreational boating. (Id. at 302.) Neither Daubert nor Rule

702 require any specific number of similar investigations for a witness to be

considered an expert. Dr. Taravella has been educated in naval architecture and

marine engineering, and he now instructs others. (Id. at 289, 297, Doc. 57 at 13.)

Because Dr. Taravella has special education and training in areas relevant to this

case, he is qualified to testify as an expert.

b. Reliability of Dr. Taravella’s Methodology

Tracker argues that Dr. Taravella should be excluded because he did not

review some material facts before authoring his report and because his methodology

is pure ipse dixit, which is not admissible. (Doc. 55 at 11-19.)

Tracker cites Haney v. Eaton Elec., Inc., 528 F. Supp. 2d 1262 (N.D. Ala.

2007), as support for its argument that Dr. Taravella’s failure to familiarize himself

with the material facts prevents him from offering a reliable opinion. (Doc. 55 at 11.)

Tracker suggests that the expert in Haney was excluded because he did not perform

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relevant testing or review drawings of the allegedly defective product. (Id.) In fact,

this Court’s decision to exclude the opinion was based on the expert’s “lack of

certainty, examination, and testing; his inability to explain how heat actually

affected the relays in question in terms of their particular engineering and design;

and his concession that he would not design the relays any differently.” Id. at 1268.

Tracker points to the fact that Plaintiff had not issued any written discovery

requests or subpoenas for records or conducted any depositions before Dr.

Taravella authored his report as evidence that Dr. Taravella did not consider

material evidence in forming his opinions. (Doc. 55 at 12.) Dr. Taravella’s report

indicates that he reviewed the police accident report, the autopsy report,

photographs from the autopsy and the Vessel, and relevant ABYC standards. (Doc.

41-1 at 387.) Dr. Taravella also personally inspected the Vessel at the home of Ms.

Kornegay in February 2021. (Id. at 308, 387.) Tracker also notes Dr. Taravella’s

admission that he wished he had more time to perform testing of the Vessel and his

agreement with the suggestion that an expert needs to fully understand the facts

before offering an opinion. (Doc. 41-1 at 295-96.) Dr. Taravella also stated,

however, “I believe I had enough information to render the opinions that were

given.” (Id. at 295.) He reiterated this point when questioned again, “… I think I

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had enough facts to comment on what some of the issues were with the design. I

believe those facts were present.” (Id. at 326.)

Tracker’s argument that Dr. Taravella’s opinion should be excluded because

he did not consider certain material facts in forming his conclusions fails. The

admissibility of Dr. Taravella’s testimony does not hinge on whether all of the

information is known. The Eleventh Circuit has stated:

It is true that relevant testimony from a qualified expert is

admissible only if the expert knows of facts which enable him to express

a reasonably accurate conclusion as opposed to conjecture or

speculation. However, absolute certainty is not required. Expert

testimony is admissible which connects conditions existing later to those

existing earlier provided the connection is concluded logically. Whether

this logical basis has been established is within the discretion of the trial

judge and the weaknesses in the underpinnings of the expert's opinion

go to its weight rather than its admissibility. On cross-examination, the

opposing counsel is given the opportunity to ferret out the opinion's

weaknesses to ensure the jury properly evaluates the testimony's weight

and credibility.

Jones v. Otis Elevator Co., 861 F.2d 655, 662–63 (11th Cir. 1988) (citations omitted).

Dr. Taravella’s testimony needs to be connected logically to the conditions and

evidence. As discussed above, Dr. Taravella reviewed reports, examined the Vessel

and relevant photographs, and applied his professional judgment to reach a logical

conclusion based on this evidence. (Doc 41-1 at 387.) Dr. Taravella had a logical basis

for forming his opinion and any supposed shortcomings may be addressed by

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opposing counsel on cross-examination.

Furthermore, Dr. Taravella’s testimony concerns the design of the Vessel and

whether that design was defective. In contrast to the expert in Haney, he examined

the Vessel as well as the accident and autopsy reports. He also reviewed photos and

relevant ABYC standards. He expressed a level of confidence in his conclusions and

in his proposals for alternative designs that the expert in Haney lacked. Accordingly,

his opinions are sufficiently reliable.

Tracker also asserts that Dr. Taravella’s methodology was pure ipse dixit and

should be excluded as a result. Tracker asserts that Dr. Taravella’s report is

“critically lacking in any explanation of methodology, analysis, empirical data, or

studies to support the conclusion that the Vessel was defective or somehow to

blame for the Accident.” (Doc. 55 at 19.) In rebuttal, Plaintiff argues that Dr.

Taravella’s knowledge and experience provide the necessary basis for his

conclusion, which does not need to establish the entirety of Plaintiff’s case but

merely provide a piece of the puzzle to be determined by the trier of fact. (Doc. 57

a 16-17.)

This Court must consider “whether the reasoning or methodology underlying

the testimony is scientifically valid and whether that reasoning or methodology

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properly can be applied to the facts in issue.” Kilpatrick v. Breg, Inc., 613 F.3d 1329,

1335 (11th Cir. 2010) (quoting Daubert, 509 U.S. at 593-94). In Adams v. Lab’y Corp.

of Am., the Eleventh Circuit determined that an expert witness’s “methodology”

was reliable, even though the concurring opinion questioned whether the witness’s

methodology was anything more than the mere exercise of professional judgment.

Adams v. Lab'y Corp. of Am., 760 F.3d 1322 (11th Cir. 2014). The court stated, “In

using the terminology of methodology we are referring to the manner in which Dr.

Rosenthal reviewed the slides, applied her medical knowledge and experience …,

and formed her opinion. Whether her approach is called a ‘methodology’ or simply

‘application of professional judgment’ does not matter.” Id. at 1331 n.13. The court

elaborated further, “Whatever the terminology, the approach is subject to a

reliability inquiry. … [E]ven in cases where the reliability determination turns

primarily on an expert's experience, ‘the district court must still determine the

reliability of the opinion, not merely the qualifications of the expert who offers it.’”

Id. (quoting Kilpatrick, 613 F.3d at 1336).

Much like the doctor in Adams, Dr. Taravella reviewed the evidence available

at the time he authored his report, applied his knowledge and experience as a naval

architect and marine engineer, and formed his opinion. Dr. Taravella testified in his

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deposition that his methodology consisted of “past experience of empirical data from

boats of similar size, as well as, … [his] stud[y of] the photographs, what [he] knew

about the engine and its RPM and the gear ratio.” (Doc. 41-1 at 296.) Dr. Taravella

also explained how he arrived at his estimate of the Vessel’s speed at the time of the

accident, noting how he was able to “back into what the speed of the boat is” based

on other available information, such as the blade rate frequency, the measurements

of wounds on Ms. Reed’s body, and the gear ratio. (Doc. 41-1 at 291.)

This Court finds that Dr. Taravella’s methodology was reliable because he

provided a reasonable explanation for his application of his professional knowledge

and judgment to the facts in this case.

c. Assists the Trier of Fact

Tracker’s final argument to exclude Dr. Taravella’s opinions insists that they

are unhelpful to the jury because they are irrelevant and offer nothing more than the

understanding of a lay person. (Doc. 55 at 19-20.)

Tracker refashions its earlier argument concerning Dr. Taravella’s failure to

examine certain evidence as a reason his opinions should be considered irrelevant.

(Doc. 55 at 20-23.) As an example, Tracker argues that Dr. Taravella’s opinion that

the Vessel did not comply with ABYC standards was irrelevant because he did not

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examine the owner’s manual for the Vessel to recognize that the regulation did not

apply to the facts in this case. (Doc. 55 at 24-25.) Dr. Taravella’s report alleged,

among other things, that the Vessel violated ABYC Standard H-41, which requires

handhold devices “in exterior seating locations intended to be occupied with [sic]

the vessel is underway.” (Doc. 41-1 at 392.) Tracker argues that Dr. Taravella’s

opinion is irrelevant because the owner’s manual and other warnings alert users to

the dangers of using the bow deck and fishing chairs when the Vessel is underway

and instructing them not to use them in that fashion. (Doc. 55 at 24-25.) Dr.

Taravella’s report, however, notes that the ABYC definition for “underway”

includes a vessel that is “not at anchor, or held fast to the shore, or aground” (doc.

41-1 at 392), and in his deposition testimony, he explained his concern that the bow

deck and fishing chairs could be used when the boat was not at anchor or while

trolling (doc. 41-1 at 315). Dr. Taravella was raising the concern that, despite

warnings to the contrary, the design of the boat allowed for use of the Vessel in a way

that violated ABYC safety standards.

Tracker cites this Court’s analysis in Davis v. BellSouth Telecommunications,

Inc., “When an expert’s conclusions are based upon regulations, those regulations

must be applicable to that facts at hand. Otherwise, when the violation of the

21

regulation is the sole basis for the expert opinion, it will not assist that trier of fact.”

7:10-CV-02851-LSC, 2012 WL 3637762, at *4 (N.D. Ala. Aug. 16, 2012). Tracker

argues that Dr. Taravella’s opinion about the regulation does not apply to these facts

because the warnings indicate that Tracker did not intend for the bow deck to be

used while the Vessel was underway. (Doc. 55 at 24-25.) Dr. Taravella’s opinion is

relevant because the boat was underway at the time of the Accident, and

furthermore, his opinion about the Vessel is not solely based on the violation of the

regulation.

Dr. Taravella’s testimony considers whether the Vessel was unreasonably

dangerous and alternative designs that he claims were safer, practical, and available

to Tracker at the time the Vessel was manufactured. (Doc. 41-1 at 387-94.) Such

testimony strikes at the very question the trier of fact must determine to resolve

this case. As discussed further below regarding Tracker’s motion for summary

judgment, this Court believes a triable issue of fact remains for the jury on these

issues. As such, Dr. Taravella’s testimony is relevant to the remaining issues.

Tracker further argues that Dr. Taravella’s opinions are so obvious that they

are unhelpful. In order to reach a determination about the issues in this case, the

jury will have to decide whether the Vessel was unreasonably dangerous, including

22

whether a safer, practical, alternative design was available. Dr. Taravella offers an

opinion about such designs and whether they are safer and practical given his

training and experience as a naval architect and marine engineer. This Court does

not presume that laypersons on the jury will possess such knowledge or experience.

In particular, a jury tasked with determining whether a particular alternative was

practical would likely benefit from the testimony of someone who has actually

designed and built boats. The Court rejects Tracker’s argument that Dr.

Taravella’s testimony is unhelpful to the jury. Accordingly, Tracker’s motion to

exclude Dr. Taravella’s testimony is denied.

B. MERCURY MARINE’S MOTION FOR SUMMARY JUDGMENT

Plaintiffs have brought claims against Mercury Marine under the Alabama

Extended Manufacturer’s Liability Doctrine (“AEMLD”) alleging that the Engine

was unreasonably dangerous and that Mercury failed to provide adequate warning

and to equip the Engine with an available safety device. (Doc. 1-1 at 4-12.) The

complaint also sets forth claims against Mercury Marine for negligence and

wantonness for the same conduct, and breach of implied warranties of

merchantability and fitness for a particular purpose. (Id.) Defendant Mercury

Marine has moved for summary judgment on all claims. (Doc. 40.)

23

1. Plaintiff’s Negligence and Wantonness, Failure to Warn, and

Breach of Warranty Claims

As a preliminary matter, the Court addresses Mercury Marine’s assertion that

Plaintiff has conceded the negligence and wantonness, failure to warn, and breach of

warranty claims alleged against Mercury Marine. “Summary 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 and that the moving party is entitled to judgment as a

matter of law.’” United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave.,

Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004) (quoting Fed. R. Civ. P. 56(c)). As

a result, summary judgment may not be granted simply because a motion was

unopposed. The court must consider the merits by “ensur[ing] that the motion itself

is supported by evidentiary materials.” Id.

a. Negligence and Wantonness

Plaintiff disputes the reasoning in Mercury Marine’s brief in support of

summary judgment on the issue of negligence and wantonness but ultimately

“agrees that his claim against Mercury is based on the AEMLD.” (Doc. 48 at 15.)

Some overlap exists in AEMLD and negligence claims, but courts have held that the

development of the judicially created AEMLD did not subsume claims of negligence

24

and wantonness. Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d 101, 106

(Ala. 2003). Under the AEMLD, “the fault or negligence of the defendant is that he

has conducted himself in a negligent manner by placing a product on the market

causing personal injury or property damage, when used to its intended purpose.”

Casrell v. Altec Industries, Inc., 335 So.2d 128, 132 (Ala. 1976).

While Plaintiff’s complaint does not specify which claims are brought under

the AEMLD, Counts Three and Four allege that the Engine was “unreasonably

dangerous when put to its intended use.” (Doc. 1-1 at 10-11.) Count Five, however,

alleges that the defendants “negligently and/or wantonly manufactured, assembled,

designed, sold, and otherwise placed into the stream of commerce a product in a

defective condition.” (Id. at 12.) While the Alabama Supreme Court suggests that

best practice is to state in the complaint that the claim is brought under the AEMLD,

setting forth the elements will suffice. Casrell, 335 So.2d at 132-33 n.1. Because

Plaintiff did not identify the AEMLD as the basis for Counts Three and Four against

Mercury Marine, the Court considers the statement in Plaintiff’s response admitting

that his claim against Mercury Marine was based on the AEMLD to be a clarification

that Counts Three and Four were asserted under the AEMLD, rather than an

abandonment of his claims for negligence and wantonness as asserted in Count Five.

25

For this reason, the Court finds that Plaintiff did not concede his claim for negligence

and wantonness.

Because the Plaintiff’s claim for negligence and wantonness in the complaint

was based on an allegation that Mercury Marine placed a defective product into the

stream of commerce and because virtually the same principles apply under the

AEMLD and negligence, Elliott, 903 F.2d at 1506, the Court denies Mercury

Marine’s motion for summary judgment on these claims for the reasons stated in its

discussion of the AEMLD claim below.

b. Failure to Warn

Regarding the failure to warn claim, Plaintiff suggests that a warning placard

located on the Engine indicated that Mercury Marine knew of the intended

application of the Engine to a pontoon boat. (Doc. 48 at 16.) Plaintiff’s brief

acknowledges, and the evidence available at this stage confirms, a placard on the

Engine alerting the consumer to a requirement for a special propeller and advising

the consumer to consult the operation manual or the dealer. (Docs. 41-1 at 383, 48 at

16.) Specifically, the warning read, “IMPORTANT Special Propellers required!

Consult Operation Manual or Dealer for details.” (Doc. 41-1 at 383.) Plaintiff further

admits that “the duty to further adequately warn of the hazards of its boat, so

26

equipped, rests with Tracker in the instant action.” (Doc. 48 at 16.) Because Plaintiff

concedes that Mercury Marine fulfilled its duty to warn, and the evidence available

at this stage supports that concession, Plaintiff has conceded this claim, and the

Court grants summary judgment on this issue.

c. Breach of Implied Warranties

Concerning the claim for breach of the implied warranties of merchantability

and fitness for a particular purpose, Plaintiff also agreed “that under Alabama law

no such implied warranties apply to a ‘used’ product.” (Id.) The Supreme Court of

Alabama has held that only sellers, not manufacturers, are subject to implied

warranties under its version of the UCC. Ex parte Gen. Motors Corp., 769 So. 2d 903,

910 (Ala. 1999) (finding that summary judgment would be proper as to breach of the

implied warranties of merchantability and fitness for a particular purpose against the

manufacturer of the vehicle where the plaintiff sustained physical injuries and

damage to his automobile). Because there is no dispute that Mercury Marine is the

manufacturer, not the seller, of the Engine in this case, the Court agrees that neither

the implied warranty of merchantability nor the implied warranty of fitness for a

particular purpose applies in this case. Further, Plaintiff conceded this point. (Doc.

48 at 16.) Accordingly, Mercury Marine is entitled to summary judgment on the

27

claims asserting breach of implied warranty.

2. AEMLD

Under the AEMLD, a plaintiff establishes liability by showing:

(1) he suffered injury or damages to himself or his property by one who

sells a product in a defective condition unreasonably dangerous to the

plaintiff as the ultimate user or consumer, if

(a) the seller is engaged in the business of selling such a product,

and

(b) it is expected to and does reach the user or consumer

without substantial change in the condition in which it is sold.

(2) Showing these elements, the plaintiff has proved a prima facie

case although

(a) the seller has exercised all possible care in the preparation and

sale of his product, and

(b) the user or consumer has not bought the product from, or

entered into any contractual relation with, the seller.

Casrell, 335 So. 2d 128, 132–33. Stated differently, “a defendant will be liable … if it

manufactures, designs, or sells an unreasonably dangerous product that reaches the

consumer substantially unaltered and, because of its unreasonably dangerous

condition, injures the consumer when put to its intended use.” Beam v. Tramco, Inc.,

655 So. 2d 979, 981 (Ala. 1995). A product that is unreasonably dangerous is “one

that is not fit for its intended purpose or that does not meet the reasonable

expectations of the ordinary consumer.” Id. An ordinary consumer is an “objective

‘ordinary consumer,’ possessed of the ordinary knowledge common to the

28

community.” Garrison v. Sturm, Ruger & Co., Inc., 322 F. Supp. 3d 1217, 1224 (N.D.

Ala. 2018) (quoting Deere & Co. v. Grose, 586 So.2d 196, 198 (Ala. 1991)) (citing

Tillman v. R.J. Reynolds Tobacco. Co., 871 So.2d 28, 32 (Ala. 2003)). “The

manufacturer of a product is not required to produce the safest possible product, but

only to produce a product that is reasonably safe when put to its intended use.”

Graham v. Sprout-Waldron and Co., 657 So.2d 868, 870 (Ala. 1995).

Furthermore, the plaintiff must also show that a safer alternative design

existed in order to demonstrate the defectiveness of the allegedly dangerous product.

Elliott v. Brunswick, Corp., 903 F.2d 1505, 1507 (11th Cir. 1990). The Alabama

Supreme Court elaborated on this requirement in General Motors Corp. v. Edwards.

482 So.2d 1176 (Ala. 1985). In that case the court explained,

In order to prove defectiveness, the plaintiff must prove that a safer,

practical, alternative design was available to the manufacturer at the

time it manufactured the automobile. The existence of a safer, practical,

alternative design must be proved by showing that:

(a) The plaintiff's injuries would have been eliminated or in some

way reduced by use of the alternative design, and that;

(b) taking into consideration such factors as the intended use of the

vehicle, its styling, cost, and desirability, its safety aspects, the

foreseeability of the particular accident, the likelihood of injury, and

the probable seriousness of the injury if that accident occurred, the

obviousness of the defect, and the manufacturer's ability to eliminate

the defect, the utility of the alternative design outweighed the utility

of the design actually used.

29

Id. at 1191. In a case involving “complex and technical commodit[ies],” such as this,

expert testimony is required to prove the defect. Townsend v. General Motors Corp.,

642 So.2d 411, 415 (Ala. 1994) (quoting Brooks v. Colonial Chevrolet-Buick, Inc., 579

So. 2d 1328, 1333 (Ala. 19914)).

The Plaintiff bears the burden of proving that the product is defective, as

defined above. Tillman, 871 So.2d at 32. “Whether a product is ‘unreasonably

dangerous’ is for the trier of fact, just as negligence, vel non, is in a traditional

negligence case.” Casrell, 335 so.2d at 133. However, products “whose inherent

danger is patent and obvious do not, as a matter of law, involve defects of a sort that

a jury should resolve.” Tillman, 871 So.2d at 32 (quoting Elliott, 903 F.2d at 1507).

The Elliott court considered a case strikingly similar to the one before this

Court. In that case, a fourteen-year-old girl, Ashley Elliott, was injured when she

jumped from a pier and was struck by the propeller of a nearby boat. Id. at 1505. The

court reversed a jury verdict in favor of Ms. Elliott after concluding that the motor,

which was also manufactured by Mercury Marine, was not defective because the

inherent dangers were apparent and that a propeller guard was not an available

alternative design because no feasible guard had been developed. Id. at 1505-10. In

reaching that decision, the court noted that its holding did not suggest such a feasible

30

design would never be available. Id. at 1509.

Subsequently, the Alabama Supreme Court adopted the Eleventh Circuit’s

reasoning in Elliot and concluded that “according to present industry standards, the

evidence does not conclusively show that such propeller guards are ‘practical.’”

Beech Through Beech v. Outboard Marine Corp., 584 So. 2d 447, 450 (Ala. 1991). The

court went on to hold that “there is no cause of action, under either the AEMLD or

negligence or wantonness theories, for failure to provide propeller guards on

pleasure boat outboard motors.” Id.

Plaintiff contends, as did the appellee in Elliott, that a propeller guard was an

alternative design available at the time, which Mercury Marine failed to implement

on its products. As evidence of this available alternative design, Plaintiff offered a

report authored by Keith Jackson, who is the owner of a company that manufactures

and sells propeller guards. (Doc. 41-1 at 342.) Mercury Marine questions Mr.

Jackson’s qualifications to testify as an expert witness and the conclusions he reaches

in his report. (Doc. 41 at 14-15.)

Prior to preparing his report, Mr. Jackson inspected the Vessel and the

attached Engine at the home of Ms. Kornegay. (Doc. 41-1 at 379.) The conclusions

Mr. Jackson reached are summarized at the end of his report. (Id. at 384-85.) Among

31

the conclusions relevant to the Mercury Marine Engine, Mr. Jackson opined that the

Engine was “the one element that makes the boat lethal” due to the propeller blades;

that Mercury Marine had the capacity to mitigate or eliminate the dangers inherent

in propeller strikes for 25 years by restricting top-end speeds; that his propeller guard

is practical “for non-performance vessels” and does provide protection from

unguarded propeller blades; that the rounded, blunt edges of the propeller guard

presented less danger than the sharp propeller blades; and that “if [his] (the

Jackson/Swimguard) ‘cage type’ propeller guard had been offered and installed

prior, it would have provided a lifesaving barrier for Madison….” (Id.)

In his deposition testimony, Mr. Jackson testified that, in terms of

performance, his guard was appropriate for boats traveling at a “maximum of 25

miles an hour and less.” (Doc. 41-1 at 338.) He agreed that his guard was not practical

for boats traveling at speeds “greater than 15 miles per hour.” (Id.) Mr. Jackson did

not take issue with other expert testing that concluded that the top-end speed for the

Vessel in this case was between 15.8 miles per hour when fully loaded and up to 21

miles per hour with only two people on board. (Id. at 380.)

Experts for the defense, unsurprisingly, disagree with Mr. Jackson. Dr. Alex

Slocum determined that Madison Reed would have been severely injured or killed if

32

her head had collided with the propeller guard, and the addition of a propeller guard

would act as an extension of the boat, increasing the size of the obstacle in a collision.

(Id. at 414.) Another expert, William Daley, P.E., conducted on-the-water testing of

the Vessel and attached Engine and concluded that the Vessel’s top-end speed when

loaded was 15.8 miles per hour; propeller guards are not appropriate mitigation

devices for boats traveling at 10 miles per hour or faster; and a propeller guard would

not have been appropriate for the Vessel in this case. (Id. at 456-57.)

Considering these materials, as it must, in the light most favorable to the

Plaintiff, the Court finds that a question of fact remains as to whether propeller

guards are practical in this case. Both Beech and Elliott were decided in 1991, and both

decisions acknowledged the possibility for evolving standards to change what is

practical. Beech, 584 So.2d at 550 (“We also note that, according to present industry

standards, the evidence does not conclusively establish that such propeller guards are

‘practical.’” (emphasis added)); Elliott, 903 F.2d at 1509 (“We do not mean to

suggest, by our holding today, that the propeller industry may never design a feasible

propeller guard….”). Given that possibility, this Court cannot affirmatively say that

no propeller guard existed that would be a safer, practical, alternative design.

Because a question of fact remains for the jury to decide, Mercury Marine’s motion

33

for summary judgment on Plaintiff’s AEMLD claim is due to be denied.

3. Contributory Negligence

Mercury Marine also argues that Plaintiff’s AEMLD and negligence claims

cannot survive its motion for summary judgment because Madison Reed’s

contributory negligence bars any recovery in this case. (Doc. 41 at 27-30.) The Court

disagrees.

Under the AEMLD, unlike pure no-fault products liability claims, the

affirmative defenses of contributory negligence, assumption of risk, and, in some

situations, lack of causal connection, persist. McClain v. Metabolife Intern., Inc., 193

F.Supp.2d 1252, 1256 (N.D. Ala. 2002). If the plaintiff’s own actions contributed

to his injury, contributory negligence acts as a complete bar to recovery, even if the

plaintiff shows that the defendant was at fault. Alabama Power Co. v. Scholz, 283 Ala.

232, 238 (Ala. 1968). To establish contributory negligence, the defendant must

show that the plaintiff “(1) had knowledge of the dangerous condition, (2)

appreciated the danger under the surrounding circumstances, and (3) acted

unreasonably given his knowledge and appreciation.” Goree v. Winnebago

Industries, Inc. 958 F.2d 1537, 1543 (11th Cir. 1992) (citing Caterpillar Tractor Co. v.

Ford, 406 So.2d 854, 857 (Ala. 1981).

34

While children between the ages of 7 and 14 years are prima facie incapable of

contributory negligence, a showing that the child possesses the “discretion

intelligence, and sensitivity to danger which an ordinary 14-year-old child possesses”

may overcome the presumption. Smith v. Bradford, 475 So.2d 526, 529 (Ala. 1985).

In making this determination, courts must consider seven elements: (1) intelligence;

(2) capacity to understand the potential danger; (3) actual knowledge of the danger;

(4) ability to exercise discretion; (5) educational level; (6) maturity; and (7) age.

Jones ex rel. Jones v. Power Cleaning Contractors, 551 So. 2d 996, 999 (Ala. 1989).

At the time of the Accident, Madison Reed was fourteen years old. (Doc. 1-1

at 7.) She was in the ninth grade and a member of the Junior Honor Society and the

ROTC. (Doc. 41-1 at 210.) By all accounts, she was a smart, disciplined, and

respectful girl who followed instructions. (See e.g., id. at 115, 135, 210, 509.) Even so,

some question remains as to whether Ms. Reed actually received a warning about the

dangers of sitting on the bow deck when it was underway or appreciated the danger,

especially because Mr. and Mrs. Jones permitted her and her friends to sit there

immediately before the accident. (See id. at 72-73, 100-01, 103, 106, 137.) Because a

question of fact remains as to Madison Reed’s actual knowledge and appreciation of

the danger, this Court will not grant Mercury Marine’s motion for summary

35

judgment on this ground.

C. Tracker’s Motion for Summary Judgement

Plaintiffs have also brought claims against Tracker under the Alabama

Extended Manufacturer’s Liability Doctrine (“AEMLD”) alleging that the Vessel

was unreasonably dangerous, that Tracker failed to provide adequate warning and to

equip the Vessel with an available safety device. (Doc 1-1 at 4-15.) The complaint

also sets forth claims against Tracker for negligence and wantonness for the same

conduct, attractive nuisance, and breach of implied warranties of merchantability

and fitness for a particular purpose. (Id.) Defendant Tracker has moved for summary

judgment on all claims. (Doc. 42.)

1. AEMLD: Unreasonably Dangerous Product and Failure to

Attach an Available Safety Device

As discussed above, to establish a claim under the AEMLD, Plaintiff bears the

burden of showing that the Vessel was defective, or unreasonably dangerous, such

that it did not conform to the expectations of the ordinary consumer when put to its

intended purpose, and that a safer, alternative design was available. Beam, 655 So. 2d

at 981; Elliott, 903 F.2d at 1507.

Tracker argues that Madison Reed violated Alabama’s careless boating

statute, and thus her claim is barred because of her contributory negligence per se

36

and misuse of the product. (Doc. 43 at 17-20.) They also assert that Plaintiff cannot

make out a claim because the dangers were open and obvious and because there is no

evidence of a safer alternative design without changing the nature of the Vessel to be

a different product altogether. (Id. at 23-28.) Nor does Tracker believe that Plaintiff

can establish liability based on a lack of proximate cause, arguing that the actions of

Carson Hunnicutt and Daniel Jones were intervening and superseding actions that

broke the chain of causation. (Id. at 28-30.)

a. Contributory Negligence Per Se

Tracker asserts in its motion for summary judgment that, as a matter of law,

Madison Reed is barred from recovery based on her failure to comply with an

Alabama boating regulation, which makes it “unlawful to operate a vessel in a

careless manner” and cites as examples “[r]iding on the bow of a vessel not equipped

with handrails” and “[r]iding on a vessel with lower extremities hanging over the

gunwale or cap of the vessel.” Boating Rules and Regulations, ALA. L. ENF’T AGENCY,

[hereinafter “Boating Rules”] https://www.alea.gov/dps/marine-patrol/boating-

rules-and-regulations (last visited Nov. 30, 2021).

As discussed above, the defense of contributory negligence is available when

the defendant makes a showing that the plaintiff “(1) had knowledge of the

37

dangerous condition, (2) appreciated the danger under the surrounding

circumstances, and (3) acted unreasonably given his knowledge and appreciation.”

Goree v. Winnebago Industries, Inc. 958 F.2d 1537, 1543 (11th Cir. 1992) (citing

Caterpillar Tractor Co. v. Ford, 406 So.2d 854, 857 (Ala. 1981). Negligence per se,

however, requires the following elements:

(1) The statute must have been enacted to protect a class of persons, of

which the plaintiff is a member; (2) the injury must be of the type

contemplated by the statute; (3) the [the party charged with negligence

per se] must have violated the statute; and (4) the … statutory violation

must have proximately caused the injury.

Parker Bldg. Servs. Co. v. Lightsey ex rel. Lightsey, 925 So. 2d 927, 931 (Ala. 2005)

(quoting Fox v. Bartholf, 374 So.2d 294, 295 (Ala.1979)).

As to the first element, as noted above, the Alabama Boating Rules and

Regulations (the “Rules and Regulations”) include among them a prohibition on

careless operation, including riding on a deck unenclosed by handrails and riding

with lower extremities hanging over the gunwale or cap. Boating Rules. The Rules

and Regulations also define “careless operation” as “the endangerment of life, limb,

or property through negligence, carelessness, or inattention of the operator.” By

38

prohibiting such behavior, the purpose is clearly to prevent such endangerment of

life, limb, or property. The threat to Madison Reed’s life was precisely the type of

injury contemplated by the Rules and Regulations. Furthermore, Plaintiff admits

that Madison Reed was riding on the unenclosed bow deck at the time of the

accident. (Doc. 1-1 at 8.)

Still, the question of proximate cause remains. “The question of proximate

cause is almost always a question of fact to be determined by the jury. The question

must go to the jury if reasonable inferences from the evidence support the theory of

the complaint.” Marshall County v. Uptain, 409 So.2d 423, 425 (Ala. 1981) (internal

citations omitted). Tracker argues that Madison Reed’s violation of the statute by

riding on the unenclosed bow deck was the proximate cause of her fatal injuries (doc.

43 at 17-20), while Plaintiff asserts that the defective design of the boat was the

proximate cause (doc. 46 at 4-7). Plaintiff’s argument rests on the theory that had

the deck been enclosed, Madison Reed would not have fallen overboard. (See id.)

Plaintiff has presented the expert report of Dr. Brandon Taravella as well as

his deposition testimony. (Doc. 41-1 at 284-330, 387-94.) In both his report and his

deposition testimony, Dr. Taravella criticized the Vessel’s design and offered

alternative design configurations to minimize the safety hazards he identified. (See,

39

e.g., Doc. 41-1 at 387-394.) Defense experts counter that use of the bow while the

boat was underway was the cause of the Accident and that no alternative design

would have been safer. (See id. at 414, 457, 483.) Interpreting the evidence available

in the light most favorable to the Plaintiff, the Court concludes that a question of fact

as to the proximate cause of the accident remains for the jury to resolve.

b. Product Misuse

Tracker also asserts that Plaintiff’s AEMLD claim fails because Daniel Jones

and Madison Reed used the Vessel in a manner not intended by the manufacturer.

“The important factor,” when determining whether a product is defective or

unreasonably dangerous, “is whether it is safe or dangerous when the product is used

as it was intended to be used.” Casrell, 335 So.2d 128, 133 (Ala. 1976).

To rebut this argument, Plaintiff relies on a decision by the Alabama Supreme

Court discussing the defense of product misuse. Dennis By & Through Dennis v. Am.

Honda Motor Co., 585 So. 2d 1336, 1339 (Ala. 1991). The court held that

“contributory negligence relating to accident causation will not bar a recovery in an

AEMLD action. Lack of causal relation, product misuse, and assumption of risk are

still valid defenses to an AEMLD action.” Id. at 1342. The court referred to specific

cases to help distinguish the form that some of these different theories can take. It

40

noted that in Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala. 1981), an

assumption-of-risk defense required a showing that the Plaintiff “appreciated the

danger under the surrounding circumstances and … acted unreasonably with that

knowledge and appreciation.” By contrast, in Harley-Davidson, Inc. v. Toomey, 521

So.2d 971 (Ala. 1988), the court found that a motorcyclist did not misuse his helmet

because he wore it properly with all of the snaps fastened and because there was no

other evidence to indicate that he did not exercise reasonable care in wearing the

helmet.

In Campbell v. Robert Bosch Power Tool Corp., the court interpreted the decision

in Dennis to mean that “a plaintiff’s contributory negligence in causing an accident

was not a defense to an AEMLD action, but that his contributory negligence in the

use of the product was.” 795 F.Supp. 1093, 1097. The court lamented the fact that

the Alabama Supreme Court did not further define product misuse, noting that

different courts have interpreted “misuse” to refer to (1) “use of a product in a

manner not reasonably foreseen by the defendant” rather than “one’s carelessness

or inadvertence in the use of the product”; (2) “a use neither intended by the

defendant nor reasonably foreseeable”; or (3) “any unintended or abnormal use of a

product,” but finding that only unforeseeable misuse barred recovery. Id. at 1097-

41

98.

Under any of these definitions, Madison Reed’s alleged misuse of the Vessel

would not be a viable defense. The first and second definitions account for misuse

that was not reasonably foreseeable. The third definition deals with “unintended or

abnormal uses” but only bars recovery when the unintended use is unforeseeable.

Tracker, however, certainly anticipated such misuse because it warned against it.

(Doc. 41-1 at 393.)

The defendant in Campbell tried a similar tactic, which the court rejected. “In

effect, … [Defendant’s] misuse defense is premised on the warning label itself, the

very warning that [Plaintiffs] argue was inadequate. When viewed within the

parameters of an AEMLD failure-to-warn claim, [Defendant’s] misuse defense is no

more than an argument, in another guise, that the warning … was adequate.”

Campbell, 795 F.Supp. at 1098. The court further explained,

An inadequate warning does not put a consumer on notice of its

message and failure to obey an “unreasonable” warning cannot be

evidence of an improper use. In either case, therefore, to allow

[Defendant] to rely on the label, whose sufficiency as a warning is

disputed, as evidence that [Plaintiff] “misused” the [product] would be

redundant.

Id. at 1099.

As was the case in Campbell, the warnings provided by Tracker are challenged

42

by Plaintiff as inadequate. Tracker cannot claim to have provided adequate warning

of the danger to Madison Reed and simultaneously assert that it did not foresee the

danger of using the Vessel in the manner that it warned against.

Additionally, Daniel Jones, a licensed and experienced boater and fisherman,

was operating under a different definition of the term “underway” at the time of the

Accident. (Doc. 41-1 at 133.) He understood the term to mean that “the throttle

[was] engaged and a wake possible behind the boat.” (Id.) The ABYC definition for

“underway,” however, referred to “a vessel not at anchor, or held fast to the shore,

or aground.” (Doc. 41-1 at 392.) As raised by Dr. Taravella in his report and his

deposition testimony, it is clear that even an experienced user may have some

confusion about the exact meaning of the term “underway” as used in the warnings

and might not understand their behavior to be a misuse or unintended use of the

product. (Id. 41-1 at 390, 311, 316, 394.) Furthermore, as Dr. Taravella notes in his

report, the warning on the bow gate advises against “sit[ting] in the fishing chairs or

stand[ing] forward of the chairs while the boat is underway,” but Ms. Reed engaged

in neither of those activities. (Id. at 394.) She was sitting, not standing, and she was

seated on the deck itself, not in one of the fishing chairs. (Id. at 86, 136.) Given these

potential points of confusion, a reasonable jury might find that Madison Reed did not

43

misuse the product.

For the reasons outlined above, Tracker’s argument that Madison Reed’s

alleged misuse bars her recovery fails.

c. Open and Obvious Danger

Tracker argues that any danger presented by the Vessel was not unreasonable,

and thus the Vessel was not defective, because it was open and obvious. (Doc. 43 at

23-25.) Much like Mercury Marine in its argument that the Engine was not

unreasonably dangerous, Tracker relies on the court’s reasoning in Elliott to assert

that, as a matter of law, the danger of falling from the Vessel and suffering injury

from the Engine was open and obvious. (Id.)

“A condition is ‘open and obvious’ when it is ‘known to the [plaintiff] or

should have been observed by the [plaintiff] in the exercise of reasonable care.’”

Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1194 (Ala. 2002) (quoting Quillen

v. Quillen, 388 So.2d 985, 989 (Ala.1980)). Tracker asserts that each of the

occupants on the Vessel the day of the accident testified that they were aware of the

danger of falling off and being struck by the propeller. (Doc. 43 at 24 citing Doc. 41-

1 at 80-81, 169-70, 190, 226.) However, at the time of the accident, Mr. and Mrs.

Jones allowed the Teenagers to sit on the unenclosed bow deck. (Doc. 41-1 at 137.)

44

Reasonable minds could differ as to whether such approval by the responsible adults

might lead a teenager to conclude that her behavior presented no danger under the

circumstances. Furthermore, as Plaintiff notes in his brief, Madison Reed was seated

at the bow deck at the opposite end of the boat from the Engine. (Doc. 46 at 20; see

also Doc. 41-1 at 389.) Nothing in the record indicates she had inspected the

configuration of the pontoons in relation to the Engine on the underside of the boat

or considered the way that configuration could present a risk to someone who fell

from the bow deck. Moreover, as discussed in the preceding section, the confusion

over the term “underway” and what behaviors posed the dangers warned against

further underscores how the danger was not “open and obvious.”

The Court finds that a question of fact remains as to whether Madison Reed

should have known of the danger that falling from the Vessel entailed. Therefore,

Tracker’s argument that the danger was “open and obvious” fails.

d. Safer Alternative Design

Tracker asserts that Plaintiff cannot make out an AEMLD claim because he

cannot show evidence of a safer alternative design that is, in fact, an alternative rather

than a different product altogether. (Doc. 43 at 25-28.) As the court held in Beech,

the safer alternative design must eliminate or reduce the plaintiff’s injuries, and after

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accounting for factors including “the intend use…, its styling, cost, and desirability,

its safety aspects, the foreseeability of the particular accident, the likelihood of

injury, and the probable seriousness of the injury if that accident occurred, the

obviousness of the defect, and the manufacturer’s ability to eliminate the defect,”

the utility of the alternative design must outweigh the utility of the design used.

Beech, 584 So.2d at 450. Furthermore, Plaintiff must establish a practical, safer,

alternative design, “not a design for a different, albeit similar, product, even if it

serves the same purpose.” Hosford v. BRK Brands, Inc., 223 So. 3d 199, 208 (Ala.

2016).

Plaintiff has presented a report by Dr. Brandon Taravella setting forth several

alternative designs: (1) “enclose[ing] the entire weather deck by the deck rail system

that is at least 24” high above the deck;” (2) “adding a third pontoon on centerline

so the fallen passenger would be forced to the side and not directly into the lower

unit of the engine;” (3) “providing twin engines, [sic] behind each ponto[o]n so that

the fallen passenger would not be directed directly into the lower unit of the engine;

and/or” (4) “add[ing] a propeller guard to the lower unit to prevent the fallen

passenger from coming in contact with the rotating propeller.” (Doc. 41-1 at 389-

90.) Tracker, relying on the Alabama Supreme Court’s decision in Hosford, asserts

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that each of these designs would change the functionality of the product so that, even

if they may serve the same purpose, they are ultimately designs for different

products. (Doc. 43 at 25-28.)

In Hosford, the Alabama Supreme Court determined that ionization smoke

alarms and dual-sensor smoke alarms were similar, but ultimately different products,

and therefore, the defendant, BRK Brands, Inc., was entitled to judgment as a matter

of law on the plaintiff’s AEMLD claim. Hosford, 223 So.3d 199, 208 (Ala. 2016). The

court quoted extensively from a Texas Court of Appeals opinion dealing with a case

in which the plaintiff argued that Prempro, a drug combination of estrogen and

progestin used to treat menopausal symptoms, was defective and that a safer

alternative design was a drug that contained only estrogen. Id. at 205-06. The

defendant pharmaceutical company argued that estrogen was not a safer alternative,

but a different product, which it already marketed and sold as Permarin. Id. The

Texas Court of Appeals, quoting a decision by its Supreme Court, explained,

A motorcycle could be made safer by adding two additional wheels and

a cab, but then it is no longer a motorcycle. A convertible can be made

safer by fully enclosing the cab, but then it is just an ordinary car. The

law of products liability demands that manufacturers and distributors

take feasible steps to make their products reasonably safe. It is not

rational, however, to impose liability in such a way as to eliminate whole

categories of useful products from the market.

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Brockert v. Wyeth Pharmaceuticals, Ind., 287 S.W.3d 760, 770 (Tex. App. 2009)

(quoting Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 385 (Tex. 1995)).

In both Hosford and Brockert, the defendant manufacturer already sold a

version of the design proposed by Plaintiff as a different product. Hosford, 223 So.3d

at 204-05. Tracker asserts that it similarly sold “a pontoon boat nearly identical to

the Vessel in this case but without an unenclosed Bow Deck at the time this Vessel

was manufactured.” (Doc. 43 at 27, emphasis omitted.) Even if the Court rejected

Dr. Taravella’s proposal of enclosing the bow deck as a different product rather than

alternative design, Dr. Taravella has proposed other options, and Tracker has

presented no evidence that those other proposals would change the functionality or

the nature of the product.

Countering Dr. Taravella’s suggestion to enclose the bow deck of the Vessel

(doc. 41-1 at 321), Tracker argues that the purpose of the bow deck remaining open

is to facilitate fishing and that enclosing the bow deck would frustrate that purpose

and fundamentally change the nature of the Vessel (doc. 43 at 25-28). Dr. Taravella,

when confronted with this assertion, explained why he disagreed:

Q. … Would you agree that fully enclosing the bow of the boat would

change the functionality of the boat?

A. No.

Q. You don’t think that it would make it more difficult to fish from the

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bow chairs?

A. No, ma’am. The bow chairs --

…

A. The height of the bow chairs is approximately at the level of the rail.

I mean, the current design, I think, since 2012, includes fishing chairs

that are behind the bow rail.

(Doc. 41-1 at 321.)

Dr. Taravella’s final suggestion was to add a propeller guard. (Doc. 41-1 at

390.) As discussed in the context of Mercury Marine’s motion for summary

judgment, the Elliott and Beech opinions on the viability of propeller guards as safer

alternative designs were authored in the 1990s and considered the possibility of

advancements in technology. Beech, 584 So.2d at 550; Elliott, 903 F.2d at 1509. Both

of Plaintiff’s experts now assert that a propeller guard would be a practical, safer

alternative design. (Doc. 41-1 at 385, 389.)

Plaintiff has presented evidence of alternative designs. Whether those designs

are practical and safe or change the fundamental nature of the Vessel are questions

for the jury. This Court finds that Plaintiff has provided sufficient evidence of

alternative designs to survive Tracker’s motion for summary judgment.

e. Proximate Cause

Tracker’s final argument in favor of summary judgment on Plaintiff’s

AEMLD claim is that Plaintiff cannot establish proximate cause because the actions

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of Daniel Jones and Carson Hunnicutt were intervening and superseding actions

that disrupted the chain of causation. Tracker asserts that Carson Hunnicutt’s

“hand motion” caused Madison reed to “los[e] her balance and [go] into the

water.” (Doc. 41-1 at 218.) Tracker also cites an admission by Daniel Jones that he

had been drinking and that he allowed the Teenagers to ride on the bow deck on the

day of the accident despite knowing that it was against Alabama law. (Doc. 43 at 29

n.12; see also Doc. 41-1 at 137.) The actions of Hunnicutt and Daniel Jones, Tracker

argues, were intervening acts absolving Tracker of any liability. (Doc. 43 at 28-29.)

The Court disagrees.

As previously discussed, a lack of proximate cause may be a defense to an

AEMLD claim. Dennis, 585 So. 2d at 1342 (Ala. 1991) (“Lack of causal relation,

product misuse, and assumption of risk are still valid defenses to an AEMLD

action.”). In order to establish liability, “there must be not only some causal

connection between the negligent act complained of and the injury suffered, but also

the connection must be by a natural and unbroken sequence, without intervening,

efficient causes, so that, but for the negligence of the defendant, the injury would not

have occurred.” City of Mobile v. Havard, 268 So. 2d 805, 810 (Ala. 1972).

Where it is determined that some prior negligent act merely created the

condition or gave rise to the occasion and after the creation of said

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condition an intervening, independent agency produces an injury, the

party guilty of the first negligent act is not liable because his negligence

was but a remote cause of the injury.

Id. (citing Louisville & N.R. Co. v. Maddox, 13 So. 849 (Ala. 1938)). Thus,

in order for conduct to be an intervening cause insulating the defendant

from liability, the conduct must (1) occur after the defendant's actions

giving rise to the negligence claim, (2) be unforeseeable to the

defendant at the time the defendant acts, and (3) be sufficient to be the

sole proximate cause of the plaintiff's injury.

Miller v. Cleckler, 51 So. 3d 379, 384 (Ala. Civ. App. 2010). Absent an intervening

cause, “one is held legally responsible for all consequences which a prudent and

experienced person, fully acquainted with all the circumstances, at the time of his

negligent act, would have thought reasonably possible to follow that act, including

the negligence of others.” General Motors Corp. v. Edwards, 482 So.2d 1176, 1194

(Ala. 198).

This Court does not consider the actions of Carson Hunnicutt or Daniel Jones

to be intervening and superseding causes of Madison Reed’s death. If the jury finds

that the design of the Vessel was defective and some safer alternative design would

have prevented Madison Reed from either falling overboard or suffering fatal injuries

as a result, then the actions of Carson Hunnicutt and Daniel Jones would not be

sufficient on their own to cause the injury. Moreover, as already discussed, Tracker

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cannot claim that Teenagers riding on the bow deck was unforeseeable because it

warned against such behavior. The alleged negligence on the part of Carson

Hunnicutt and Daniel Jones should also have been foreseeable by Tracker. For these

reasons, Tracker’s motion for summary judgment is denied.

2. AEMLD: Failure to Warn

To establish a claim for failure to adequately warn, the plaintiff bears the

burden of showing “(1) the defendant had a duty to warn the plaintiff regarding the

danger when the product is used in its intended or customary manner, (2)

the warning the defendants provided breached that duty because it was inadequate,

and (3) the breach proximately caused the plaintiff's injuries.” Jackson v. E&R Mfg.

Co., No. CIV.A2:06CV412WHA, 2007 WL 2806831, at *6 (M.D. Ala. Sept. 25,

2007).

Tracker included warnings in its owner’s manual: “DO NOT sit on pedestal

style fishing seats or any other seat intended for fishing while the boat is underway.”

and

All passengers should be carefully seated to prevent them from being

thrown overboard or injured from falling in the boat. Passengers must

never ride on elevated fishing seats, seat backs or outside the perimeter

of the fence while the boat is underway. Passengers riding on the bow

rider seats (if equipped) should use extreme caution. During rough

water operation, passengers should be seated on the floor of the boat

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near the center.

(Doc. 44 at 80, 34.) Another warning was also located on the bow gate next to the

latch: “WARNING: To avoid falling overboard and propeller injury resulting in

serious injury or death do not sit in fishing chairs or stand forward of chairs while

boat is underway.” (Doc. 45 at 31.) Again, as noted in Dr. Taravella’s report,

Madison Reed was not engaged in either of these specific behaviors at the time of the

Accident. (Doc. 41-1 at 394, 86, 136.)

Tracker argues that Plaintiff cannot establish that it had a duty to warn or that

any inadequacy of warning was the proximate cause of Madison Reed’s death

because she, along with the other occupants of the Vessel, was subjectively aware of

the danger. (Doc. 43 at 30.) Tracker further argues that Plaintiff has not presented

any evidence that Madison Reed actually read the warnings provided by Tracker,

and therefore, any inadequacy in the warnings could not have caused her death.

(Doc. 43 at 31-32.)

Plaintiff argues that even if other occupants of the Vessel were aware of the

dangers, a question as to what dangers Madison Reed recognized remains

unanswered. (Doc. 46 at 34-38.) Plaintiff points to Hicks v. Commercial Union Ins. Co.

to rebut Tracker’s argument that Madison Reed’s subjective knowledge of the

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danger obviated any need for an adequate warning. (Id. at 34-35.) In Hicks, the

plaintiff’s decedent was killed when a pipe stopper became dislodged and struck him

in the head during a hydrostatic test, and defendants had warned of the danger of

standing in front of the pipe stopper during the test. Hicks v. Com. Union Ins. Co.,

652 So. 2d 211, 214 (Ala. 1994). The court offered the following explanation as part

of its rationale for finding that a reasonable jury could determine that the pipe

stopper was defective:

Although the testimony of the … employees raises an inference that the

danger posed by a pipe stopper's slipping loose was commonly known,

that evidence does not create an undisputed inference that users of the

pipe stopper knew that mismatching the jaws of the pipe stopper would

greatly increase the propensity of the pipe stopper to dislodge during a

hydrostatic test.”

Id. at 217. The Alabama Supreme Court did not consider common knowledge about

a general danger to be evidence of subjective knowledge by the user of the increased

danger he encountered due to the alleged defect. Id. Even if Madison Reed was aware

that falling overboard was dangerous, it is not at all clear that she was subjectively

aware of the nature of the actual threat she faced by falling off the Vessel as designed.

Madison Reed’s subjective awareness of the dangers presented cannot be established

by the evidence of what the other occupants of the boat knew.

Tracker also argues that even if its warning was not adequate, Plaintiff cannot

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establish proximate causation because there is no evidence that Madison Reed read

any of the warnings Tracker provided. (Doc. 43 at 31-32.) Plaintiff rebuts this

argument with E.R. Squibb & Sons, Inc. v. Cox, in which the Alabama Supreme Court

acknowledged that such an argument does not apply “where plaintiff alleges that the

warning is inadequate with respect to prominence.” E.R. Squibb & Sons, Inc. v. Cox,

477 So. 2d 963, 970 (Ala. 1985) (citing Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 87

(4th Cir. 1962) (where the warning provided had not been “calculated to attract the

user's attention, due to its position, size, and the coloring of its lettering, and…

words used therein … to convey a conception of the true nature of the danger”)).

The court went on to explain that in such a situation, “the very nature of the alleged

breach is such that it causes a potential plaintiff to fail to read the warning which

causes his injury,” even if worded in such a way as to apprise the user of the

product’s “particular danger.” Id.

Plaintiff argues that the bow deck was accessible without opening the latch by

either stepping over the gate or by entering from the loading dock. (Doc. 46 at 3.) Dr.

Taravella also took issue with the placement of the label on the gate, noting that it

was only 13 inches above the deck on the lower portion of the gate and not visible to

someone actually sitting or standing on the bow deck. (Doc. 41-1 at 317-18, 394.) Dr.

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Taravella’s report also complained that the label did not warn against the specific

activity that Madison Reed was engaged in because she was not sitting in one of the

fishing chairs or standing in front of them. (Id. at 394.) Acknowledging these

questions about the adequacy of the warning’s prominence, in addition to its

content, the Court finds that a genuine issue of fact remains for the jury to determine

whether Tracker provided adequate warning, and therefore, its motion for summary

judgment on this claim is denied.

3. Negligence and wantonness

To prevail on the negligence claim, Plaintiffs must prove: “(1) a duty to a

foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4)

damage or injury.” Hilyer v. Fortier, 227 So.3d 13, 22 (Ala. 2017) (quoting Lemley v.

Wilson, 178 So.3d 834, 841-42 (Ala. 2015)). Plaintiff’s allegation of negligence and

wantonness is based on the same conduct as alleged in its claims under the AEMLD.

For the same reasons that the Court determined that there were genuine questions

of material fact as to proximate causation under those claims, the Court denies

Tracker’s motion for summary judgment on the claims for negligence and

wantonness.

4. Attractive Nuisance

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Plaintiff’s complaint alleges that the bow deck of the Vessel “created an

attractive nuisance, inviting plaintiff’s decedent onto the bow.” (Doc. 1-1 at 8.) The

doctrine of attractive nuisance “offers an exception to the limited duty owed by a

landowner to a trespasser. It applies only where trespassing children are involved.”

Tolbert v. Gulsby, 333 So. 2d 129, 132 (Ala. 1976) (citing Alabama Great Southern

Railroad Co. v. Green, 159 So.2d 823 (Ala. 1964)). As Tracker notes in its brief, the

doctrine does not apply to the facts of this case. (Doc. 43 at 32.) Madison Reed was

a guest of the Jones family on the Vessel; she was not a trespasser. (See Doc. 41-1 at

177.) Nor is Tracker a landowner in any way that is relevant to this case. Because the

doctrine does not apply on these facts, Tracker’s motion for summary judgment is

due to be granted as to Count One.

5. Breach of Implied Warranties of Merchantability and Fitness

for a Particular Purpose

Plaintiff’s final allegation against Tracker is that it breached implied

warranties of merchantability and fitness for a particular purpose. (Doc. 1-1 at 12.)

Tracker makes little effort to rebut the allegation, except to argue that Plaintiff’s

warranty claims are subsumed under its AEMLD claims in this case and will

accordingly, “succeed or fail on the same bases.” (Doc. 43 at 20 n.10.) Plaintiff does

not even mention the warranty claims in his response. However, as the Court stated

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in regard to Mercury Marine’s motion for summary judgment on this count, the

Supreme Court of Alabama has held that only sellers, not manufacturers, are subject

to implied warranties under its version of the UCC. Ex parte Gen. Motors Corp., 769

So. 2d 903, 910 (Ala. 1999). As there is no dispute that Tracker manufactured but

did not sell the Vessel in this case, the Court grants Tracker’s motion for summary

judgment on Count Six.

IV. CONCLUSION

For the reasons stated above, Tracker’s motion (doc. 54) to exclude expert

testimony and reports of Plaintiff’s expert Keith Jackson is due to be GRANTED

and as to Dr. Brandon Taravella is due to be DENIED, Defendant Mercury Marine’s

motion for summary judgment (doc. 40) is due to be GRANTED as to the claims

alleging failure to warn and breach of implied warranties and DENIED as to the

AEMLD and negligence and wantonness claims, and Defendant Tracker’s motion

for summary judgment (doc. 42) is to be GRANTED as to the attractive nuisance

and breach of implied warranty claims and DENIED as to the AEMLD, failure to

warn, and negligence and wantonness claims. An Order consistent with this Opinion

will be entered contemporaneously herewith.

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DONE AND ORDERED ON DECEMBER 7, 2021.

L. SCOTT Ce

UNITED STATES DIS¥RICT JUDGE

206728

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