Parker v. Tricam Industries, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

TATE PARKER and )

TAMARA PARKER, )

)

Plaintiff, )

)

v. ) CASE NO. 3:24-cv-79-RAH

) [WO]

TRICAM INDUSTRIES, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This case concerns an extension ladder accident that resulted in serious

injuries to Plaintiff Tate Parker. Through his expert witness, Parker claims the ladder

was defective. The ladder manufacturer, Tricam Industries, Inc., disputes this

assertion. Pending before the Court is Tricam’s motion to exclude Parker’s expert

witness and for summary judgment. For the reasons below, Tricam’s motions will

be granted.

BACKGROUND AND COURSE OF PROCEEDINGS

Tate Parker is a field insurance adjuster for Alfa Insurance Company. At the

time of the accident at issue, his job duties included inspecting residential roofs that

had endured storm damage.

On October 1, 2021, Parker purchased a Tricam Industries, Inc. Gorilla

articulated extension ladder (Model GLMPXA-14) from Home Depot in Opelika,

Alabama. The ladder was manufactured for Tricam in China in July 2020,

transported to Alabama, and ultimately sold to Parker. Parker used the ladder on

over 100 occasions without incident before the accident at issue.

The Tricam ladder can extend to 14 feet at full extension but fold and retract

to an approximate 3.5-foot length for easy storage and carrying. The extension

ladder works by telescoping metal rails on both ends that lock into place through the

engagement of rail lock rods.

On February 14, 2022, Parker was injured while using his Tricam ladder to

access a residential roof for an insurance-related inspection. According to Parker,

he fully extended the ladder to its 14-foot length and locked the rail lock rods in

place. He then checked to ensure the rods were engaged and the rails secured and

leaned the ladder against the roof edge. Afterward, Parker climbed the ladder.

Toward the top, as he was beginning to step off the 3rd or 4th rung onto the roof, the

upper ladder rails retracted, and the ladder collapsed. Parker fell to the ground where

he suffered significant injuries. Parker identified the configuration of the ladder at

the time of the accident as follows:

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□□ Vee

Parker filed suit against Tricam on January 22, 2024, claiming the ladder was

defectively manufactured and designed. He brought a claim under the Alabama

Extended Manufacturers’ Liability Doctrine (AELMD), and other claims for

negligence, wantonness, breach of warranty of merchantability, and failure to warn;

his wife brought a consortium claim.

During the discovery period, Parker identified an expert witness, as did

Tricam, to speak to the issue of the cause of the ladder collapse. Parker’s expert,

Barton C. Prorok, Ph.D., is a materials engineer, metallurgist, and chair of the

materials science and engineering department at Auburn University. He has no

experience in ladder design and safety. Dr. Prorok opined that the ladder collapsed

because one of the upper side rails was twisted, which allowed a rail lock rod to slip

out of the locking hole and the ladder to retract with Parker on it. (Doc. 29-2 at 5–

7.) According to Dr. Prorok, the “twisted rail” was a “manufacturing defect” that

compromised the ladder’s ability to safely bear weight. (Id. at 5–6.) Dr. Prorok also

believed there was a “design defect” because the “short length of the rail lock rods”

reduced the load carrying capacity of the ladder “especially when manufacturing

variations or normal wear and tear occur.” (Id. at 1.) The combination of the two

caused Parker’s accident.

As to the cause of the manufacturing defect itself, Dr. Prorok could only say

that the “twist occurs near the area where the rail is mechanically deformed during

manufacture to widen the ladder’s base for added stability” and that this twist “went

undetected by quality control.” (Id. at 4–5.) As to the design defect, Dr. Prorok

opined that the rail lock rods should have been longer. (Id. at 7–8.)

Tricam retained Erick H. Knox, Ph.D., P.E. as its expert. Dr. Knox is a

licensed engineer with a focus in biomechanics, mechanical design, and accident

reconstruction, and serves on American National Standards Institute (ANSI)

committees on ladders and portable metal ladders. Through Dr. Knox, Tricam

offered a different explanation for the accident. (Doc. 26-3.) According to Dr.

Knox, the accident occurred because the feet of the ladder slid outward and away

from the house, thereby causing the ladder to collapse. (Id. at 59.) Dr. Knox also

believed the twisting of the rail resulted from impact damage, possibly because of

abuse or the accident itself. (Id. at 47–48.)

Dr. Knox was also critical of Dr. Prorok’s opinions, particularly Dr. Prorok’s

lack of explanation of where or how a rail could twist during the manufacturing

process and Dr. Prorok’s failure to explain away other possible causes of the twisted

rail. (Id. at 47–48.) As to the design defect regarding the length of the rail lock rods,

Dr. Knox was critical in that Dr. Prorok provided no analysis for his opinion, nor did

Dr. Prorok seek to duplicate his hypothesis as to what happened. (Id. at 47–49.) Dr.

Knox also criticized Dr. Prorok for failing to address how the accident could have

happened in the manner that he claims it did given the built-in redundancy afforded

by the other rail lock, which was engaged with no twist in the rail. (Id. at 52.)

Finally, he noted that the photographs taken of the ladder immediately post-accident

did not support Dr. Prorok’s theory about the accident’s cause because the

photographs showed that the bottom of the ladder was in a fully retracted position,

not the top as Dr. Prorok hypothesized. (Id. at 56–58.)

After discovery closed, Tricam moved to exclude the expert testimony of Dr.

Prorok, attacking his qualifications given his lack of experience in the ladder

industry and attacking his methodology which Tricam argued was unreliable,

unscientific, and unhelpful. Based on Parker’s expert problems, Tricam also moved

for summary judgment on all claims.1

APPLICABLE LEGAL STANDARDS

Summary judgment is appropriate where the materials in the record show

there is no genuine dispute as to any material fact and that the moving party is

1 Parker concedes summary judgment as to the claims for failure to warn and wantonness.

entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). “[A] party

seeking summary judgment always bears the initial responsibility of informing the

district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). To meet its responsibility, the moving party must “identify[] those portions

of the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits . . . which it believes demonstrate the absence of a

genuine issue of material fact.” Id. (quotation marks omitted). This Court must view

the evidence and the inferences from that evidence in the light most favorable to the

nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010);

Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984) (citation

omitted).

If the movant meets its burden, the burden shifts to the nonmoving party to

establish—with evidence beyond the pleadings—that a genuine dispute material to

each of its claims for relief exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586–88 (1986). To prevent summary judgment, a factual dispute must

be both material and genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–

48 (1986). A fact is “material” if it has the potential of “affect[ing] the outcome” of

the case. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016)

(quoting Liberty Lobby, 477 U.S. at 248). And to raise a “genuine” dispute of

material fact sufficient to preclude summary judgment, “the nonmoving party must

point to enough evidence that a reasonable jur[or] could return a verdict” in his favor.

Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (internal quotation

marks omitted) (quoting Furcron, 843 F.3d at 1303).

The nonmoving party is required “to go beyond the pleadings” and to present

competent evidence designating “specific facts showing that there is a genuine issue

for trial.” Celotex, 477 U.S. at 324. The “mere existence of a scintilla of evidence

in support of the [non-moving party]’s position” cannot defeat a motion for summary

judgment. Liberty Lobby, 477 U.S. at 252.

DISCUSSION

A. Motion to Exclude

Since Parker’s claims largely depend on the admissibility of his expert’s

opinions, the admissibility of Dr. Prorok’s opinions first will be addressed.

In determining the admissibility of expert testimony, the Court must “engage

in a rigorous three-part inquiry,” considering whether: “(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.” Rosenfeld v. Oceania

Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) (citation omitted, alteration in

original) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en

banc)); United States v. Markovich, 95 F.4th 1367, 1377 (11th Cir. 2024). It is this

Court’s role to function as a gatekeeper to ensure that any and all expert testimony

is both relevant and reliable. It is not this Court’s role to make ultimate conclusions

on the persuasiveness of the proffered evidence. Rather, vigorous cross-

examination, presentation of contrary evidence, and careful instruction on the burden

of proof are generally the traditional and appropriate ways to attack shaky but

admissible evidence. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596

(1993).

i. Methodology

An expert’s methodology must be reliable enough to meet the second

consideration. A court must assess “whether the reasoning or methodology

underlying the [expert] testimony is scientifically valid and . . . whether that

reasoning or methodology properly can be applied to the facts in issue.” Chapman

v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) (internal

quotation marks and citation omitted). The Court “must determine whether the

evidence is genuinely scientific, as distinct from being unscientific speculation

offered by a genuine scientist.” Id. (internal quotation marks and citation omitted);

see also McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1244 (11th Cir. 2005)

(explaining that an “expert’s assurances that he has utilized generally accepted

scientific methodology are insufficient” and that a court must do more than just take

“the expert’s word for it” (alteration, internal quotation marks, and citations

omitted)).

There are four more factors that courts generally consider in the assessment

of the expert’s methodology:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential error rate of the technique; and (4) whether the

technique is generally accepted in the scientific community.

Adams v. Lab’y Corp. of Am., 760 F.3d 1322, 1327 (11th Cir. 2014) (citing Kilpatrick

v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010)). “These factors are illustrative, not

exhaustive; not all of them will apply in every case, and in some cases other factors

will be equally important in evaluating the reliability of proffered expert opinion.”

Frazier, 387 F.3d at 1262 (citation omitted). Accordingly, “the trial judge [has]

considerable leeway in deciding in a particular case how to go about determining

whether particular expert testimony is reliable.” Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 152 (1999). Regardless of the specific factors considered,

“[p]roposed testimony must be supported by appropriate validation—i.e., ‘good

grounds,’ based on what is known.” Daubert, 509 U.S. at 590. And “[a]lthough

testing is not always a prerequisite to reliability, an expert who conducts no testing

must be prepared with a good explanation as to why his or her conclusion remained

reliable notwithstanding the absence of testing.” Hendrix v. Evenflo Co., 255 F.R.D.

568, 588–89 (N.D. Fla. 2009) (internal quotations and citation omitted).

Accordingly, “[t]he focus, of course, must be solely on principles and

methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595.

On the other hand, “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.” Gen. Elec. Co.

v. Joiner, 522 U.S. 136, 146 (1997) (citation omitted).

ii. Helpfulness

Federal Rule of Evidence 702 requires that expert testimony “help the trier of

fact to understand the evidence or to determine a fact in issue.” That is, it must be

helpful. To be helpful, expert testimony must fit the facts of the case. McDowell v.

Brown, 392 F.3d 1283, 1298–99 (11th Cir. 2004); Allison v. McGhan Med. Corp.,

184 F.3d 1300, 1312 (11th Cir. 1999). To do so, it must “logically advance[] a

material aspect of the case” and “assist the trier of fact.” McDowell, 392 F.3d at

1299 (internal quotation marks and citation omitted). “Fit is not always obvious,

and scientific validity for one purpose is not necessarily scientific validity for other,

unrelated purposes.” Daubert, 509 U.S. at 591 (internal quotation marks and citation

omitted). Expert testimony that “offers nothing more than what lawyers for the

parties can argue in closing arguments” generally will not assist the trier of fact and

will be excluded. Frazier, 387 F.3d at 1262–63 (citation omitted). Just as an opinion

is unreliable if it is based on an analytical leap that is too great between the

underlying information and the proffered opinion, there is not a “fit” for purposes of

the helpfulness prong when “a large analytical leap must be made between the facts

and the opinion.” McDowell, 392 F.3d at 1298–99 (citing Joiner, 522 U.S. at 146).

An “expert opinion is inadmissible when the only connection between the

conclusion and the existing data is the expert’s own assertions.” Id. at 1300.

Further, “[b]asing an expert opinion on facts not in evidence is not helpful to

the trier of fact in understanding the evidence or determining a fact in issue.”

Browder v. Gen. Motors Corp., 5 F. Supp. 2d 1267, 1283 (M.D. Ala. 1998) (citation

and internal quotation marks omitted). Instead, testimony by an expert must be

based on “facts which enable him to express a reasonably accurate conclusion as

opposed to conjecture or speculation.” Jones v. Otis Elevator Co., 861 F.2d 655,

662 (11th Cir. 1988) (citations omitted). “Without an underlying basis of support,

the expert’s opinion is only one of many possible theories and interpretations of the

facts at issue, and is no more or less helpful than the trier of fact's own reading of

the evidence.” Browder, 5 F. Supp. 2d at 1283.

iii. Dr. Prorok

While Tricam raises valid concerns with Dr. Prorok’s qualifications to give

opinions about ladder manufacturing and design due to Dr. Prorok’s lack of

experience in the ladder industry, the Court will assume without finding that Dr.

Prorok is sufficiently qualified for purposes of the first consideration of the three-

part inquiry. But the Court otherwise concludes that Dr. Prorok’s opinions fail the

second and third considerations–reliability and helpfulness.2

Dr. Prorok’s opinions stem, first, from his observation that one of the rails on

the subject ladder was twisted upon post-accident inspection. From there, he posits

2 The Court shares Tricam’s concerns about Dr. Prorok’s qualifications to testify as an expert about

ladder manufacturing and design, as other courts have held with similar experts who had no

experience with ladders. See, e.g., Sittig v. Louisville Ladder Grp. LLC, 136 F. Supp. 2d 610, 616–

19 (W.D. La. 2001) (“[T]he experts’ lack of experience and training in ladder design, renders the

experts' opinions unreliable in this case.”); Fosberg v. Tricam Indus., Inc., No. 4:20-cv-126-A,

2021 WL 489060, at *2 (N.D. Tex. Feb. 10, 2021); Phillips v. Tricam Indus., Inc., No. 1:19-cv-

00184, 2020 WL 1816468, at *7–*9 (W.D. Mich. Feb. 20, 2020); Edmons v. Home Depot, U.S.A.,

Inc., No. CIV-09-987, 2011 WL 127165, at *5–*7 (D. Or. Jan. 14, 2011); Clark v. R.D. Werner

Co., No. CIV A-99-1426, 2000 WL 666380, at *3–*5 (E.D. La. May 18, 2020).

there was a defect in the manufacturing process that caused an upper rail to twist and

become distorted. He also believes there is a design defect in the length of the rail

lock rods that allowed the rail lock rods to disengage because of the single twisted

rail. The combination of the two defects, according to Dr. Prorok, caused both upper

rails to slip, the upper ladder portion to retract, and the ladder to collapse and fall to

the ground. To support these opinions, Dr. Prorok visually inspected the subject

ladder, took measurements, purchased an exemplar ladder for comparison, inspected

the site of the accident, and considered eye-witness accounts from Parker and the

son of the homeowner.

Where, as Dr. Prorok does here, an expert has prepared an opinion solely for

litigation, the Court applies the Daubert factors more rigorously and may weigh this

fact heavily against the admissibility of the opinion. Sumner v. Biomet, Inc., 434 F.

App’x 834, 842–43 (11th Cir. 2011). Applying this rigorous analysis, Dr. Prorok’s

opinions lack sufficient indicia of reliability required under Daubert and Rule 702.

See In re Deepwater Horizon BELO Cases, 119 F.4th 937, 944–45 (11th Cir. 2024)

(“Under Federal Rule of Evidence 702, expert evidence is admissible if the expert is

qualified, the expert's methodology reaches a ‘sufficiently reliable’ conclusion under

Daubert . . . .” (citations omitted)).

First, Dr. Prorok did not use a scientifically reliable methodology. He visually

inspected Parker’s ladder and an exemplar ladder and used a caliper to “quantify

some dimensions.” He provided no evidence that ladder manufacturers rely on

visual inspections or caliper measurements to assess ladder defects. He did not

explain how his measurements led to a scientifically reliable methodology. He never

conducted tests to determine whether those measurements constituted a defect or

unreasonable danger, or caused the ladder collapse. He did not cite peer-reviewed

literature or an error rate to support his methodology, nor did he cite or consider any

governing ladder standards, such as an ANSI standard. Additionally, Dr. Prorok

performed no ANSI/OSHA tests to reach his conclusions, even though such

standards do exist for designing and testing ladders.

Further, Dr. Prorok provided no insight or information supporting his

opinion that there was a manufacturing defect that caused the collapse. He states

that the alleged manufacturing defect in the form of a “twisted rail” occurred

“during the rail’s mechanical deformation stage, where the base is widened to

enhance stability.” (Doc. 29-2 at 5.) But he failed to explain or confirm this belief.

He did not describe the manufacturing process or what the “deformation stage”

involved or how a rail could become twisted during that process. He also provided

no information or opinions about why that twisting could not have occurred for

other common sense reasons such as during the ladder’s transit from China to the

United States before sale, or during Parker’s storage, and use of the ladder for

months on over 100 occasions, or because of the accident itself. See Guinn v.

AstraZeneca Pharms. LP, 602 F.3d 1245, 1253 (11th Cir. 2010) (“[A]n expert must

provide some explanation of why other potential causes were not the sole cause.”

(citing Westberry v. Gislaved Gummi AB, 178 F.3d 257, 265 (4th Cir. 1999))).

In fact, Dr. Prorok never considered the possibility that the twist could have

formed from Parker’s pre-accident use or during Parker’s accident. (Doc. 26-3 at

46–48.) Broadly saying that a rail twisted during the metal deformation stage is

not enough, especially absent any discussion about other very reasonable

explanations for the twist. And on this manufacturing-related point, neither Dr.

Prorok nor Parker have presented any evidence of other ladders that exited the

assembly line in China with similar manufacturing defects, whether that be in the

form of QA analyses or reports, warranty claims or complaints, other lawsuits, etc.

Thus, the only basis suggesting that Parker’s ladder had a manufacturing defect is

Dr. Prorok’s ipse dixit opinion. Joiner, 522 U.S. at 146; Graff v. Baja Marine

Corp., No. CIV.A. 06-CV-68, 2007 WL 6900363, at *5 (N.D. Ga. Dec. 21, 2007),

aff’d, 310 F. App’x 298 (11th Cir. 2009).

And as to the design defect, Dr. Prorok opined that the length of the rail lock

rods “is a design flaw that reduces load-carrying capacity, especially when

manufacturing variations or normal wear and tear occur.” (Doc. 29-2 at 1.) He does

not explain what those “manufacturing variations” may be, or what impacts to the

ladder there may be from “normal wear and tear.” For all appearances, Dr. Prorok

simply believes that the rail lock rods are too small to account for the twisted rail

and fails to explain why this is a “defect” in design. And again, Dr. Prorok did not

employ any particular methods or procedures to support his assertions.

Dr. Prorok also did not produce any literature, reports, or other

documentation to support his contention that the accident occurred in the manner

that he claims it did. And he tested none of his opinions. Indeed, he performed no

testing to duplicate the conditions or manner in which he claims the collapse

occurred.

More importantly, he failed to explain, and altogether ignored, the

inconsistency and contradiction between his opinions about the mechanism of the

accident and the actual photographs of the ladder taken almost immediately after the

accident. The post-incident photographs show that the bottom half of the ladder—

not the upper half—was in a retracted position. This conflicts with Dr. Prorok’s

opinion that the upper half retracted from a fully extended position:

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Figure 5. The post-incident position of the subject ladder

Dr. Prorok does not explain this discrepancy. This inconsistency — a substantial one

at that — shows that his opinions lack sufficient reliability.* In short, Dr. Prorok’s

methodology amounts to no more than visual analyses and physical measurements

that lack sufficient reliability. See, e.g., Borum v. Werner Co., No. 5:11-cv-997, 2012

WL 2047678, at *12 (N.D. Ala. June 6, 2012) (excluding an opinion where the

expert “fail[ed] to properly explain his methodology with respect to his theory that

the ladder was defectively designed—more specifically, [the expert] neglect[ed] to

account for industry standards, why additional bracing is recommended, the

feasibility of his proposed alternative design, and testing for the alternative design’)

(internal quotation marks omitted).

On the methodology issue, the parties spend considerable effort in explaining

the application of two local decisions—Slay v. Keller Indus., Inc., 823 So. 2d 623

(Ala. 2001), and Borum v. Werner Co., No. 5:11-cv-997, 2012 WL 2047678 (N.D.

Ala. June 6, 2012) — regarding similar expert witness issues involving ladder

failures. These decisions are somewhat helpful. In S/ay, the Alabama Supreme

Court affirmed the trial court’s exclusion of the plaintiff's ladder expert because

mere assertions of belief, without any supporting research, testing, or experiments,

could not qualify as proper expert scientific testimony. 823 So. 2d at 626 (noting

that Alabama still follows the “general-acceptance” test for expert witnesses

enunciated in Frve but ultimately analyzing the expert’s admissibility under both

Daubert and Frye).

In Borum, the Northern District of Alabama, discussing Slay, excluded a

ladder expert under Daubert because the expert “merely state[d] that the [product]’s

3 At the summary judgment hearing, the Court inquired of Parker’s counsel as to the discrepancy

between Dr. Prorok’s opinion for the cause of the accident (1.e., that the upper section had retracted

because the upper lock rods disengaged because of the upper twisted rail) against the photograph

which showed the upper section as being fully extended. Counsel stated that the upper section

must have recoiled into position. Other than this statement by counsel, Dr. Prorok did not explain

this observation.

14

failure could have been prevented by employing a [particular reasonable alternative

design],” without providing any more analysis on his methodology. Werner Co.,

2012 WL 2047678, at *13–*14 (internal quotation marks omitted). The district court

reasoned that “[m]ere assertions of belief, without any supporting research, testing,

or experiments, cannot qualify as proper expert scientific testimony.” Id. at *13.

The district court also found that even if the proposed alternative design may have

prevented the accident, the expert’s failure to provide a reliable methodology

supporting this conclusion meant that the opinion must be excluded. Id. at *14.

Parker’s expert here, Dr. Prorok, suffers from many of the same infirmities.

Finally, Federal Rule of Evidence 702 requires that expert testimony “help the

trier of fact to understand the evidence or to determine a fact in issue.” Rule 703, in

turn, mandates that “[a]n expert may base an opinion on facts or data in the case that

the expert has been made aware of or personally observed.” The rules do not

“provide for an expert opinion based on sheer speculation over the circumstances

surrounding the issue upon which he or she purports to provide expert testimony.”

Browder, 5 F. Supp. 2d at 1283. “Basing an expert opinion on facts not in evidence

is not helpful to the trier of fact in understanding the evidence or determining a fact

in issue.” Id. (citation and internal quotation marks omitted). Instead, testimony by

an expert must be based on “facts which enable him to express a reasonably accurate

conclusion as opposed to conjecture or speculation.” Jones v. Otis Elevator Co., 861

F.2d 655, 662 (11th Cir. 1988) (citations omitted). “Without an underlying basis of

support, the ‘expert’s’ opinion is only one of many possible theories and

interpretations of the facts at issue, and is no more or less helpful than the trier of

fact's own reading of the evidence.” Browder, 5 F. Supp. 2d at 1283.

Multiple portions of Dr. Prorok’s opinions are not based on facts in evidence,

and thus would not assist the trier of fact. The most glaring example is his position

that the twisting was caused during the metal deformation stage of the manufacturing

process. There is no evidence about the metal deformation process. Nor is there any

evidence explaining how the upper part of the ladder, post-accident, was observed

to be in the fully extended position while the bottom portion was fully retracted if

the accident occurred in the manner that Dr. Prorok claims it did. Dr. Prorok does

not address this.4

For all these reasons, Dr. Prorok’s expert opinion will be excluded. To say

that the accident occurred in the manner that it did and for there to be a vaguely

described manufacturing defect that caused the rail to twist, to the exclusion of

various other logical reasons for the twist, lacks sufficient evidentiary support and

reliability and would not aid the trier of fact. Without more, the Court may not

blindly accept Dr. Prorok’s conclusions.

B. Summary Judgment Motion

Parker’s Complaint brings claims for negligence, a violation of the AEMLD,

breach of warranty, and a consortium claim by his wife that depends on the survival

of one or more of Parker’s tort claims. Tricam contends that all these claims fail as

a matter of law without admissible expert opinion testimony to support Parker's

defect and causation theories. The Court agrees.

To state a claim under the AEMLD for a design and manufacturing defect, a

plaintiff must prove, among other things, that (1) he suffered injury proximately

caused by a product that was in a defective and unreasonably dangerous condition

and (2) the product reached the plaintiff without substantial change in condition from

when it was sold. See Casrell v. Altec Indus., Inc., 335 So. 2d 128, 130–33 (Ala.

1976). To that end, “‘ordinarily, expert testimony is required’ in AEMLD cases” to

prove that the product is defective and that the defective condition of the product

4 Tricam offers the explanation that Parker only extended the ladder’s top half, left the bottom half

retracted, and then leaned the ladder against the roof edge and that the accident occurred when the

feet of the ladder slid out from underneath the ladder. According to Tricam, this is common in

ladder accidents.

caused the product to fail and injure the plaintiff, especially when the product is

complex and technical. Rudd v. Gen. Motors Corp., 127 F. Supp. 2d 1330, 1338

(M.D. Ala. 2001) (alteration and citation omitted). Without proof of a defect, an

AEMLD claim fails. See, e.g., Jordan v. Gen. Motors Corp., 581 So. 2d 835, 836–

37 (Ala. 1991) (citation omitted) (holding that ‘”[w]ithout evidence to support the

conclusion that the product was defective and/or unreasonably dangerous when it

left the hands of the seller, the [plaintiff’s] burden is not sustained.”); Tanksley v.

ProSoft Automation, Inc., 982 So. 2d 1046, 1051 (Ala. 2007) (“Proof of an accident

and injury is not in itself sufficient to establish liability under the AELMD; a defect

in the product must be affirmatively shown.” (quoting Townsend v. Gen. Motors

Corp., 642 So. 2d 411, 415 (Ala.1994))); Britt v. Chrysler Corp., 699 So. 2d 179,

181–83 (Ala. Civ. App. 1997) (requiring expert testimony to prove the existence of

a defect in an air bag system); Brooks v. Colonial Chevrolet-Buick, Inc., 579 So. 2d

1328, 1332–33 (Ala. 1991); Verchot v. Gen. Motors Corp., 812 So. 2d 296, 301–03

(Ala. 2001); Townsend, 642 So. 2d at 415–18 (requiring expert testimony to prove

the existence of a defect in a vehicle’s brake system); Beam v. McNeilus Truck &

Mfg., Inc., 697 F. Supp. 2d 1267, 1278 (N.D. Ala. 2010) (“Because plaintiff has

presented no admissible evidence demonstrating a design defect or causation,

plaintiff has not established a prima facie case under the AEMLD.”).

Likewise, where the same defect and causation theories underlie negligence

and warranty claims (assuming they are not subsumed by the AEMLD), those claims

also require proof of a defect. Connally v. Sears, Roebuck & Co., 86 F. Supp. 2d

1133, 1136–38 (S.D. Ala. 1999); Sears, Roebuck & Co. v. Haven Hills Farm, Inc.,

395 So. 2d 991, 995–96 (Ala. 1981). For this reason, if the AEMLD design and

manufacturing defect claim fails, so do Parker’s negligence and warranty claims.

See Connally, 86 F. Supp. 2d at 1138; Pearl v. Mad Engine, Inc., No. 7:12-cv-2850,

2015 WL 5179517, at *3–*7 (N.D. Ala. Sept. 4, 2015) (holding the plaintiffs’

warranty claim failed for the same reason as their AEMLD claim—failure to

demonstrate that the product was defective); McCreless v. Glob. Upholstery Co.,

500 F. Supp. 2d 1350, 1358–59 (N.D. Ala. 2007) (determining that an AEMLD

claim failed for want of expert testimony on defect and causation, and granting

summary judgment on negligence and wantonness theories “[b]ecause defective

design or manufacture and proximate cause are essential elements of all theories

being pursued . . . and because . . . [plaintiff] has no evidence to support these

essential elements”).

Parker does not dispute that expert testimony is a necessary ingredient of his

case. Indeed, under the AEMLD and similarly focused tort claims based on

defective products, Alabama courts consistently require expert testimony to prove a

defect. Lay juries lack the knowledge, training, and experience necessary to

determine the existence of a defect in a technical product. There is no question that

the Tricam ladder is sufficiently complex and technical in nature such that a lay juror

could not, without any expert testimony, infer that a defective condition of the

product caused the product's failure and caused the resulting injury to Parker.

Cooper v. Toshiba Home Tech. Corp., 76 F. Supp. 2d 1269, 1276–78 (M.D. Ala.

1999). But without Dr. Prorok’s opinions, Parker cannot produce admissible expert

testimony to support the essential elements of his defect-based claims. This failure

ends the Court’s inquiry at summary judgment. Put another way, Tricam is due

summary judgment because defective design or manufacture and proximate

causation are essential elements of all of Parker's claims, and he has failed to present

sufficient evidence of both.

CONCLUSION

With insufficient evidence of a defect that proximately caused the ladder’s

failure, Tricam’s summary judgment motions (doc. 26; doc. 27) are due to be

GRANTED. A separate judgment will be issued.

DONE, on this the Ist day of May 2025.

R. AUSTIN Go JR.

UNITED STATES DISTRICT JUDGE

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