# Edward Brown, Quebecor, Inc., Intervening v. The Raymond Corporation

> Court of Appeals for the Sixth Circuit · December 21, 2005 · 432 F.3d 640

URL: https://www.frixlaw.com/law-library/cases/9498576

## Case

- **Full name:** Edward BROWN, Plaintiff-Appellant, Quebecor, Inc., Intervening Plaintiff-Appellant, v. THE RAYMOND CORPORATION, Defendant-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** December 21, 2005
- **Citations:** 432 F.3d 640; 2005 U.S. App. LEXIS 28264; 2005 WL 3489491
- **Precedential status:** Published
- **Opinion:** Concurrence by Ryan
- **Judges:** Ryan, Gilman, Cook, Judgesl
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498576

## How later opinions describe it (automated extraction)

- holding that in a products lability action arising from an accident involving a forklift, the testimony of the plaintiffs proposed expert witness regarding whether the manufacturer of the forklift should have provided additional warnings was not admissible because the witness …
- concluding that an expert witness’s failure to provide evidence of testing on his own alternative design justified the district court’s ruling to exclude testimony
- noting that an allegation that a forklift was defectively designed is precisely the type of situation in which the ordinary consumer would not have an expectation regarding the safety of a product
- noting that in construing state law, "we are of course bound by the Tennessee Supreme Court's construction of the [Tennessee Products Liability Act], not that of the Tennessee Court of Appeals”

## Opinion text

RYAN, Circuit Judge, concurring in the judgment.
In my opinion, if a federal court exercising its diversity jurisdiction can properly decide the case before it without declaring a new rule of state law — for example, interpreting a provision of a state statute not previously interpreted by the state’s highest court — it should do so. This is such a case.
This case can be decided under familiar federal summary judgment rules, without this court venturing an educated guess as to which dangerousness test applies under Section 102(8) of the Tennessee Products Liability Act of 1978. TENN. CODE ANN. § 29-28-102(8). For purposes of deciding this appeal, it does not matter whether the alleged dangerousness of the Raymond Corporation’s forklift is measured by the Tennessee consumer expectation test, as Brown argues, or the prudent manufacturer test as Raymond and my colleagues argue, because, under either test, Raymond is entitled to summary judgment.
If the consumer expectation test applies, and the relevant consumer is, as Brown argues, “the ordinary consumer who purchases [the forklift],” id, and not the average lay juror as my colleagues insist, Raymond is 'entitled to summary judgment because Brown has made no showing whatever that even a highly trained and experienced consumer of Raymond’s product would have any expectation about the safety of the forklift, much less a showing that the forklift “is dangerous to an extent beyond that which would be contemplated by the ordinary [forklift] consumer who purchases it,” id
And if the prudent manufacturer test applies as Raymond and my colleagues claim, Raymond is entitled to summary judgment because the district court did not abuse its discretion by excluding the opinion testimony of Driver and Romansky, and Brown has produced no other evidence to show that “a reasonably prudent manufacturer or seller,” id., of the forklift would not have put it on the market because of its “dangerous condition,” id.
Unfortunately, and contrary to settled and familiar principles of state/federal judicial deference, my colleagues have chosen to interpret a statutory provision never before interpreted by the Tennessee Supreme Court and pronounce a new rule of Tennessee state product liability law. The result is a published majority opinion that is entirely dicta. Worse, it is an imposition on the Tennessee courts, particularly given that the Tennessee Court of Appeals has held that the “ordinary consumer” in the TPLA is the ordinary consumer of the product, rather than the average lay juror, as the majority opinion holds. See Hughes v. Lumbermens Mut. Cas. Co., 2 S.W.3d 218, 226 (Tenn.Ct.App. 1999).
I concur fully in Judge Gilman’s disposition of Brown’s claims regarding the inadmissibility of the proffered opinion testimony, the district court’s handling of the summary judgment proceedings, and the grant of summary judgment in favor of Raymond on the defective brakes claim. But as to the majority’s interpretation of the language of Tennessee’s consumer expectation test, and whether that test should be applied in this case, I concur in the judgment only.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498576. Public record. Not legal advice.