Allen v. Sunbelt Rentals, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

KYLE ALLEN,

Plaintiff,

v. Case No: 6:21-cv-1702-PGB-LHP

SUNBELT RENTALS, INC. and

TEREX USA, LLC,

Defendants.

/

ORDER

This cause is before the Court on the following:

1. Defendant Terex USA, LLC’s (“Defendant Terex”) Motion to Exclude

Plaintiff’s Expert Witness Rob Bullen, P.E. (Doc. 30 (the “Daubert

Motion”)) and Plaintiff Kyle Allen’s response thereto (Doc. 35);

2. Defendant Terex’s Motion for Summary Judgment (Doc. 31), Plaintiff’s

response thereto (Doc. 36), and Defendant Terex’s reply (Doc. 38); and

3. Defendant Sunbelt Rentals, Inc.’s (“Defendant Sunbelt”) Motion for

Summary Judgment (Doc. 32), Plaintiff’s response thereto (Doc. 37), and

Defendant Sunbelt’s reply (Doc. 39).

Upon consideration, the Daubert Motion and both Summary Judgment

Motions are due to be denied.

I. BACKGROUND

This dispute stems from injuries Plaintiff sustained during the operation of

a Terex RL4 Light Tower (the “Light Tower”). (Doc. 1-1).

A. The Record Facts Not Reasonably In Dispute1

At least this much is not reasonably in dispute. On December 2, 2019,

Plaintiff, an exterior construction mason, began to ready for the end of his day at a

jobsite and, as part of this process, attempted to lower a Light Tower mast which

fell in an uncontrolled manner and injured at least his hand. (Doc. 24, 47:7–17,

49:2–12, 66:18–67:12, 75:8–15, 87:17–88:7). The Light Tower was present at the

jobsite on the day in question because a contractor for which Plaintiff had been

performing subcontractor responsibilities had rented it from Defendant Sunbelt.

(Doc. 25, p. 7).

Plaintiff had been on-site for the associated masonry job for about a week

prior to this incident and had used the Light Tower at least a couple of times. (Doc.

24, 49:1–6, 68:14–69:15). Part of Plaintiff’s responsibilities while at the jobsite was

to raise and lower the light tower. (Id. 75:8–15).

1 The following facts are not reasonably in dispute based on citations to the record evidence

unless indicated otherwise. Vexingly, the parties failed to file a jointly signed stipulation of

agreed material facts along with the summary judgment briefing as required by the Court’s

Case Management Scheduling Order. (Doc. 13, p. 8) (“Fourteen (14) days before a party files

a motion for summary judgment, counsel for all parties affected by the motion shall meet and

confer to create a Stipulation of Agreed Material Facts which will be deemed admitted for the

purpose of the motion. The Stipulation shall be filed with the Court.”). The Court normally

uses this filing to focus its analysis on disputed rather than undisputed facts. Even if this

conferral process should have been initiated by Defendants, this omission is the fault of all

parties since all are required to jointly make this filing. The Court nevertheless finds itself

capable of sifting through the admissible record. Accordingly, while under no obligation to do

so, the Court will still consider the summary judgment motions.

The following is a labeled diagram of the Light Tower Operator’s Manual

from Defendant Terex:

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1 Lamps 9 T-handle for mast rotation lock

2 Winch 10 Outrigger

3 Control panel (located under access door) 11 Forklift pockets

4 Manual storage (located inside cabinet) 12 Control panel access door

5 Leveling jack 13 Lifting eye

6 Kickstand 14 Mast

Tie-downs 15 GFCI and T-lock receptacle panel

8 Tongue with trailer hitch

□□

(Doc. 29, p. 20).

The Operator’s Manual instructs users not to operate the Light Tower unless

they read, understand, and obey the manufacturer’s instructions and safety rules.

(Id. at p. 6). The way to lower the mast as described in the Operator’s Manual is by

rotating the winch handle counterclockwise until the mast is in the stowed

position. (Id. at p. 39). The Operator’s Manual does not instruct operators to

disengage the pawl; in fact, the word “pawl,” does not appear in the Operator’s

Manual. (See generally id.). The pawl is a safety feature of the Light Tower when

operating correctly. (Doc. 28, 93:17–19). The Operator’s Manual includes a

“Crushing Hazard” warning that advises users not to lower the mast unless the area

below it is clear of personnel and obstructions and not to place their hands in pinch

points on the machine. (Doc. 29, p. 16). The winch ratchet where the pawl is located

is a pinch point. (Doc. 28, 80:9–11). There were no warnings, however, affixed to

the Light Tower itself.

While Plaintiff does not recall if the Operator’s Manual was with the Light

Tower on the day in question, some testimony indicates it was present. (Doc. 24,

83:1–3; Doc. 28, 132:11–13). Moreover, Plaintiff does not recall ever looking for

the Operator’s Manual for the Light Tower or reading it and admits he ordinarily

does not look for operator’s manuals for equipment he uses at jobsites. (Doc. 24,

83:4–9, 87:12–15).

B. The Record Facts Reasonably In Dispute

Despite both Defendants’ contentions to the contrary, the rest of the record

is not so clear.2 Under Defendants’ telling, Plaintiff admitted to releasing the pawl

in his attempt to lower the Light Tower at the end of the day in question. (Docs.

30, 31, 32). Defendants point to Plaintiff’s own testimony in support. (See Doc. 24,

45:20–50:5). Defendants argue that Plaintiff has thus admitted to triggering the

freefall of the mast on the day in question by his own actions. (Docs. 30, 31, 32).

Plaintiff is correct to point out this is not quite accurate. (Docs. 35, 36, 37). Instead,

Plaintiff has admitted he intended to release the pawl on the day in question, that

he placed his hand on it, that he felt tension when he did so, and that he then was

hit by the falling tower. (Doc. 24, 45:20–50:5, 109:22–111:11). Plaintiff has not

admitted, however, to actually releasing the pawl. Instead, in response to the

question, “Did you depress or push or pull the pawl back?” Plaintiff stated:

I don’t know. You would have to put tension on the gear first

to let the pawl release because it locks, it’s locking the gear. So

you’d have to tension like you’re going up for a second to

release—for the pawl to release. So when I went to release it, I

put tension on it and realized there was not tension on the

cable. It didn’t feel right to me.

(Id. 44:10–17) (emphasis added). As such, the cause of the Light Tower’s

uncontrolled fall is still reasonably in dispute.

2 This is particularly the case with respect to the summary judgment motions as the Court must

“view the evidence and all factual inferences therefrom in the light most favorable to the non-

moving party and resolve all reasonable doubts about the facts in favor of the non-movant.”

Davila v. Gladden, 777 F.3d 1198, 1203 (11th Cir. 2015) (quoting Carter v. City of Melbourne,

731 F.3d 1161, 1166 (11th Cir. 2013) (per curiam)).

C. Procedural History

On August 13, 2021, Plaintiff initiated this action in state court, claiming that

Defendant Terex and Defendant Sunbelt were liable for his injuries sustained

during the operation of the Light Tower under various strict liability and

negligence theories. (Doc. 1-1). Specifically, Plaintiff alleges in Count I that

Defendant Terex is strictly liable for the Light Tower’s defective design,

manufacture, and inadequate warnings; in Count II that Defendant Terex was

negligent for the same; in Count III that Defendant Sunbelt is strictly liable for

either renting out a defective product, improperly maintaining it, or failing to

properly warn users of its defective or inherently dangerous nature; and in Count

IV that Defendant Sunbelt was negligent for the same. (Id. ¶¶ 38–71). Defendants

then removed the case to this Court on October 13, 2021. (Doc. 1).

At some point, Plaintiff retained Rob Bullen, P.E., a mechanical engineer by

trade (“Engineer Bullen”). (Doc. 26). Engineer Bullen eventually concluded: (1)

“at the time of the accident, the failure of the [Light Tower] to have a properly

functioning safety device which prevented the mast from collapsing

uncontrollably, rendered the subject machine defective and unreasonably

dangerous and led to the circumstances that caused this accident;” (2) “the failure

of [Defendant Terex] to provide proper warnings on the machine and proper

warnings and operating instructions in the operator’s and service manuals,

regarding the light tower crush hazard and inspecting the mast brake, further

rendered the [Light Tower] defective and unreasonably dangerous and contributed

to the circumstances that caused this accident;” and (3) “[Defendant] Terex’s

failure to provide inspection procedures and requirements for the mast brake

components of the vertical mast [L]ight [T]ower rendered the subject machine

defective and unreasonably dangerous and led to the circumstances that caused

this accident.” (Doc. 27, p. 29 (the “Report”)).

Defendant Terex now moves to strike the Report and exclude Engineer

Bullen’s expert witness testimony (Doc. 30) and further requests summary

judgment (Doc. 31). Defendant Sunbelt also requests summary judgment (Doc.

32). After responsive briefing with respect to each motion (Docs. 35, 36, 37, 38,

39), this matter is ripe for review.

II. STANDARD OF REVIEW

A. Daubert Motion Standard

Federal Rule of Evidence 702 permits “[a] witness who is qualified as an

expert by knowledge, skill, experience, training, or education” to testify in the form

of an opinion. Rule 702 imposes an obligation on district courts to act as

gatekeepers “to ensure that speculative, unreliable expert testimony does not reach

the jury” under the mantle of reliability that accompanies “expert testimony.”

McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002); see

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). This gatekeeping

role applies “not only to testimony based on ‘scientific’ knowledge, but also to

testimony based on ‘technical’ and ‘otherwise specialized’ knowledge.” Kumho Tire

Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 147–48 (1999).

The party offering an expert opinion has the burden of establishing three

criteria by a preponderance of the evidence: qualification, reliability, and

helpfulness. See McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1238 (11th Cir.

2005); Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). First, the

witness must be “qualified to testify competently regarding the matters [s]he

intends to address.” Rink, 400 F.3d at 1291. Indicia of an expert’s qualifications

may be evidenced by education, training, work experience, publication in the

pertinent field, and membership in professional societies. See Am. Tech. Res. v.

United States, 893 F.2d 651, 656 (3d Cir. 1990).

Second, the expert witness must employ “sufficiently reliable” scientific

methods or principles to form her opinions. Rink, 400 F.3d at 1291. The reliability

of an expert’s methodology can be evaluated by considering a wide range of factors,

including: (1) whether the expert bases her opinion on sufficient facts or data; (2)

whether the expert unjustifiably extrapolates her research to reach an unfounded

conclusion; (3) whether the expert considers or accounts for contradictory studies

or data; (4) the extent to which the methods used rely on the expert’s subjective

interpretations; and (5) whether the expert is being as careful as an expert in the

same field would be in conducting professional work outside the context of paid

litigation. See Daubert, 509 U.S. at 593–94; FED. R. EVID. 702 advisory committee

notes to 2000 amendments.

Third, the expert’s testimony must “assist the trier of fact to understand the

evidence or to determine a fact in issue.” Daubert, 509 U.S. at 591. Expert

testimony helps where it concerns matters beyond the ken of the average juror and

will allow the jury to understand the evidence or to resolve a factual dispute. See

Kumho Tire, 526 U.S. at 148–49. Conversely, there will be no need for an expert’s

opinion where the jury can decide a disputed issue through the application of

common sense or simple logic considering the evidence and testimony presented

at trial. See Dhillon v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001).

Further, like all evidence and testimony, an expert’s opinion must be relevant to

an issue in the case and must hold probative value that outweighs the concerns

listed in Rule 403. Daubert, 509 U.S. at 591.

B. Summary Judgment Standard

To prevail on a summary judgment motion, the movant must show “that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). “An issue of fact is ‘material’ if, under the

applicable substantive law, it might affect the outcome of the case. An issue of fact

is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find

for the nonmoving party.” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir.

2014).

Importantly, the Court must “view the evidence and all factual inferences

therefrom in the light most favorable to the non-moving party and resolve all

reasonable doubts about the facts in favor of the non-movant.” Davila, 777 F.3d at

1203 (quoting Carter, 731 F.3d at 1166). At the same time, “[a] mere ‘scintilla’ of

evidence supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.” Brooks v.

Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006) (quoting

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)). Ultimately, summary

judgment should only be granted “[w]here the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party.” Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III. DISCUSSION

The Court first addresses the Daubert Motion as its denial partially resolves

Defendant Terex’s Motion for Summary Judgment. The Court then delineates why

the record evidence is accordingly insufficient to grant either of the Defendants’

summary judgment requests.

A. The Daubert Motion

Defendant Terex argues that Engineer Bullen’s expert testimony should be

excluded because “it is not based on sufficient facts or data, is not the product of

reliable methods, and is not the result of reliable application of [Engineer] Bullen’s

methods to the facts of this case.” (Doc. 30, p. 3).3 The Court will address these

arguments in turn.

3 Defendant Terex does not challenge Engineer Bullen’s qualifications or helpfulness. (See Doc.

30). Thus, the Court does not address these elements.

1. Reliability and Sufficiency of the Facts and Data

In the end, Engineer Bullen’s reliance on a version of events that is still

reasonably in dispute rather than conforming his opinions to the Defendants’

preferred version of events does not render his opinion unreliable. While

Defendant Terex accurately notes that Engineer Bullen admitted to not speaking

with Plaintiff prior to authoring the Report, the Report demonstrates his

familiarity with Plaintiff’s story. (See Doc. 26; Doc. 28, 91:3–9). Contrary to

Defendant’s characterization, the Report does not appear to be composed as a post

hoc rationalization, the product of motivated reasoning—at least when judged

under the preponderance of the evidence standard. Instead, Engineer Bullen relies

on a version of events that is reasonably consistent with Plaintiff’s retelling of the

day in question. To that end, Engineer Bullen disagreed that Plaintiff disengaged

the winch pawl because “he does not specifically remember using the –

disengaging the pawl to lower” the Light Tower on the day in question. (Doc. 28,

69:19–20, 70:4–8).

Relatedly, Engineer Bullen admits he was not able to inspect the Light Tower

itself in its immediate post-incident condition. (Doc. 28, 92:24–93:16, 147:23–

150:8). He concedes, moreover, that his conclusions regarding the defectiveness of

the Light Tower’s safety mechanisms were based on the product’s design in

general, rather than with respect to the specific condition of the Light Tower

immediately after it fell on Plaintiff.4 (Id.). Regardless, any potential

inconsistencies between Engineer Bullen’s testimony or his Report and the mixed

record of evidence regarding the Light Tower’s condition on the day in question do

not so infect his opinions as to render them wholly unreliable: he repeatedly and

thoroughly explained multiple design mechanisms that may have rendered the

Light Tower defective and unreasonably unsafe. (Id. 30:9–31:10, 75:2–4, 77:4–6,

82:23–83:5, 85:8–18, 108:1–3, 153:2–6, 158:12–21). In fact, Engineer Bullen was

consistent in his opinion that the Light Tower was designed defectively because

“the mast break assembly failed on the night in question” as “it failed to stop the

unit from collapsing” and thus “wasn’t designed to function under all the

foreseeable circumstances.” (Id. 99:20–24, 100–101, 110:10–19).5 Put simply, with

the precise mechanism for the Light Tower’s fall still in dispute, to exclude

4 Plaintiff argues this is due to Defendants not making the Light Tower in question available

until well after it had been repaired. (Doc. 35, pp. 3–6). At this time, the Court will not wade

into the propriety of the timing of the availability of the Light Tower in discovery or settle

Plaintiff’s spoliation argument. In addition, the Court declines to settle the factual dispute

regarding the state of the Light Tower on the day in question. Compare (Doc. 27, p. 23 fig.10)

with (Doc. 30, pp. 10–12). Regardless, the Court will not hold these unresolved disputes

against Plaintiff by drawing related conclusions in Defendant’s favor for the purpose of the

motions at issue here.

5 This testimony clearly undercuts Defendant Terex’s interpretation of another portion of

Engineer Bullen’s testimony where it argues he admitted the mast brake was functioning

properly—indeed, Defendant Terex’s interpretation is a mischaracterization of Engineer

Bullen’s testimony because, fairly interpreted, he only admitted he could not know for sure

since he was not able to timely inspect the Light Tower in the conditions under which the

accident occurred. (Doc. 28, 101:5–13).

Engineer Bullen’s testimony because of his reliance on a certain version of

contested events would put the cart before the horse.6

2. Reliable Methodology

Defendant argues that Engineer Bullen did not disclose the methodology by

which he arrived at his conclusions, that his conclusions are incorrect, and

therefore his methodology must also be suspect. (Doc. 30, p. 19). This conclusory

line of reasoning is undercut by Engineer Bullen’s testimony in his deposition

where he repeatedly explains the engineering principles and reasoning that led to

his conclusions, even if the term “methodology” is never expressly mentioned. (See

generally Doc. 28); Houston Specialty Ins. Co. v. Vaughn, No. 8:15-cv-2165, 2017

WL 11415011, *3 (M.D. Fla. Apr. 13, 2017) (noting that “experts are not required to

disclose their methodologies in their written reports. Rather, if a party wants a

more detailed disclosure of how an expert arrived at her opinions, its recourse is

to press for a more detailed report and/or to take [the expert’s] deposition in the

usual course of discovery”) (internal citations and quotations removed). With

Engineer Bullen’s deposition in tow, Defendant Terex fails to show with specificity

why the answers Engineer Bullen provided in his deposition demonstrate he failed

to disclose or even discuss his methodology, and in any event, the Court finds after

an inspection of the deposition transcript that Defendant Terex could not have

done so had it made such an effort.

6 As will be explained further below, the same goes for Engineer Bullen’s conclusions regarding

the adequacy of the Light Tower’s warnings. See infra III.B.2.

3. Reliability of the Application of Methods to the Facts

Defendant Terex argues more of the same with respect to whether Engineer

Bullen reliably applied his methodology to the contested facts, but Defendant

Terex’s self-serving conclusions regarding the contested events in this case cannot

be the basis for finding Engineer Bullen improperly applied his craft to the problem

of the Light Tower’s collapse. (Doc. 30, pp. 19–22). This is not to say that

Defendant Terex is definitively incorrect but instead, in the end, that the Court’s

“gatekeeper role under Daubert is not intended to supplant the adversary system

or the role of the jury” because “vigorous 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.”

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir.

2003) (citations and quotations omitted). With the factual basis for Engineer

Bullen’s Report and testimony still in dispute, the Court finds that there is

sufficient record evidence such that his opinion testimony is reliable enough and

his methodology sound enough to present to the jury. Even so, Defendant Terex is

not without recourse—it can still subject Engineer Bullen’s perceived

inconsistencies and reliance on a certain version of the events to the crucible of

cross-examination—but exclusion of Engineer Bullen’s testimony altogether is far

too drastic at this time.

B. Defendant Terex’s Motion for Summary Judgment

1. The Effect of the Admissibility of Engineer Bullen’s Testimony

Defendant Terex is abundantly clear that its Motion for Summary Judgment

with respect to Plaintiff’s design defect claim hinges on the admissibility of

Engineer Bullen’s testimony. (See Doc. 31, pp. 11–14). This makes sense because

for design defects that are not patently obvious, evidence of the alleged defect

ordinarily requires expert testimony. Humphreys v. General Motors Corp., 839 F.

Supp. 822, 826 (N.D. Fla. 1993), aff’d, 47 F.3d 430 (11th Cir. 1995) (granting

summary judgment where plaintiff had no expert to testify as to a non-obvious

product defect); see also Chapman v. Proctor & Gamble Distrib., LLC, 766 F.3d

1296 (11th Cir. 2014) (affirming summary judgment where the plaintiff’s only

expert on the issues of general and specific causation was excluded under

Daubert). On the flipside, however, since the Court finds Engineer Bullen’s

testimony admissible, genuine issues of material fact remain and, thus, summary

judgment is inappropriate. Finally, any potential misuse of the Light Tower is a

comparative fault issue most appropriate for the jury. Standard Havens Prods.,

Inc. v. Benitez, 648 So.2d 1192, 1194 (Fla. 1994) (“product misuse merges into the

defense of comparative negligence [and] reduces a plaintiff's recovery in

proportion to his or her own comparative fault.”).

2. The Adequacy of Warnings in the Operating Manual

As for Plaintiff’s failure to warn claims, Defendant Terex focuses the Court’s

attention on Plaintiff’s admission that he did not read the Operator’s Manual and

that this omission is his ordinary practice at jobsites. (Doc. 31, pp. 7–10).

Defendant Terex argues that its warnings cannot be the proximate cause of

Plaintiff’s injuries if he did not and would not have read them; in any event,

Defendant Terex argues the warnings it provides in the Operator’s Manual are

adequate. (Id.). Defendant Terex’s focus on the adequacy of the content of the

warnings in the Operator’s Manual as well as the undisputed fact that Plaintiff did

not read the Operator’s Manual, however, is a red herring.

Plaintiff contends not only that the warnings in the Operator’s Manual were

inadequate but that the lack of warning affixed to the Light Tower itself constituted

a failure to warn. (Doc. 36, pp. 14–16). Indeed, this was one of Engineer Bullen’s

primary conclusions in his Report. (Doc. 27, p. 29). It is true that ordinarily a

failure to read a product’s warnings extinguishes proximate cause in a failure to

warn claim.7 Lopez v. S. Coatings, Inc., 580 So. 2d 864 (Fla. 3d DCA 1991). At the

same time, under Florida law the adequacy of product warnings is generally a

question of fact unless a warning is sufficiently accurate, clear, and unambiguous.

Felix v. Hoffman-LaRoche, Inc., 540 So. 2d 102, 104 (Fla. 1989). Moreover, “[a]

warning may be defective not only by virtue of inadequate wording, but as a result

of its location and the manner in which the warning is conveyed.” Brown v. Glade

& Grove Supply, Inc., 647 So. 2d 1033, 1035 (Fla. 4th DCA 1994); Stanley Indus.,

Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570, 1575 (S.D. Fla. 1992) (“[A]

7 As a result, to the extent that Plaintiff is arguing the warnings in the Operator’s Manual itself

are inadequate, the Court agrees with Defendant Terex that this theory of recovery is

foreclosed to Plaintiff.

warning is adequate if it is communicated by means of positioning, lettering,

coloring, and language that will convey to the typical user of average intelligence

the information necessary to permit the user to avoid the risk and to use the

product safely.”); Mizrahi v. Yamaha Motor Corp., No. 17-24484-civ, 2019 WL

3890311, at *4 (S.D. Fla. June 20, 2019) (denying manufacturer’s motion for

summary judgment because a jury should decide whether the product’s warnings

would “catch the attention” of a user); Fisher v. Bumbo Int’l Trust, No. 1:14–cv–

22209, 2014 WL 12026083, at *13 (S.D. Fla. Aug. 20, 2014) (denying

manufacturer’s motion for summary judgment on a failure to warn claim because

“there are questions of fact regarding whether the warnings are adequately

prominent and conspicuous”); see also Faddish v. Buffalo Pumps, 881 F. Supp. 2d

1361, 1369–73 (S.D. Fla. 2012) (collecting and summarizing Florida product

warning case law in both the strict liability and negligence contexts). The Court

thus agrees with Plaintiff that an issue of fact remains regarding the adequacy of

the placement and prominence of the Light Tower’s warnings.

C. Defendant Sunbelt’s Motion for Summary Judgment

Likewise, Defendant Sunbelt’s Motion for Summary Judgment is due to be

denied because it also is premised upon the faulty conclusion that Plaintiff has

indisputably admitted to releasing the pawl on the day in question.8 (See Doc. 32,

pp. 1–3, 5–7) (“This act of releasing the spring-loaded pawl on the part of the

8 The Court has already elucidated why genuine issues of material fact remain on this crucial

point. See supra Section I.B.

Plaintiff caused the [L]ight [T]ower mast sections to collapse all the way down such

that the light fixtures and/or the rotating winch handle were the cause of

[Plaintiff’s] injuries”).

Moreover, while testimony from Defendant Sunbelt’s expert, H. Thomas

Baker, P.E., certainly weighs in Defendant Sunbelt’s favor on the issue of whether

the Light Tower was defective at the time of Plaintiff’s injuries, (Doc. 32, p. 9),

Plaintiff presents competing record evidence, including the expert opinion

testimony of Engineer Bullen, (Docs. 27, 28), such that a reasonable jury could find

for either party.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant Terex’s Daubert Motion (Doc. 30) is DENIED;

2. Defendant Terex’s Motion for Summary Judgment (Doc. 31) is

DENIED;9

3. Defendant Sunbelt’s Motion for Summary Judgment (Doc. 32) is

DENIED.

9 The Court finds oral argument (Doc. 34) and an evidentiary hearing (Doc. 35, p. 20)

unnecessary to resolve the motions in question. As such, those related requests are likewise

denied.

DONE AND ORDERED in Orlando, Florida on March 7, 2023.

c..-

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties