Shaver v. AVCO Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

LINDA K. SHAVER, as Personal )

Representative of the Estate of Larry )

Shaver, Deceased, )

)

Plaintiff, )

)

v. ) Civ. Act. No.: 2:20-cv-739-ECM

) (WO)

AVCO CORPORATION, )

)

Defendant. )

MEMORANDUM OPINION and ORDER

Now pending before the Court are a motion for summary judgment filed by AVCO

Corporation on May 25, 2022, (doc. 57), motions to strike (25 & 34), and motions to

exclude expert testimony (docs. 53, 55, 61, 63, & 64).

The Plaintiff, Linda K. Shaver, acting as the Personal Representative of the Estate

of Larry Shaver, originally filed a complaint in the Circuit Court for Pike County, Alabama.

The case was removed on the basis of federal diversity jurisdiction. No motion to remand

was filed. Linda Shaver brings claims for violation of the Alabama Extended

Manufacturer’s Liability Doctrine (AEMLD), negligence, and wantonness.

Upon consideration of the briefs, the record, and applicable law, and for the reasons

that follow, the motion for summary judgment is due to be GRANTED and the motions to

exclude and strike are due to be GRANTED in part, DENIED in part, and DENIED in part

as moot.

I. JURISDICTION

The Court exercises subject matter jurisdiction over this dispute pursuant to 28

U.S.C. § 1332, the parties having complete diversity of citizenship and the requisite amount

being in controversy. Personal jurisdiction and venue are uncontested.

II. LEGAL STANDARDS

A. Motions to Exclude

The admissibility of expert opinions in diversity actions is governed by Federal

Rules of Evidence 702, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and

Daubert’s progeny. The admissibility requirements laid out in those authorities apply to

expert opinions proffered in advance of summary judgment. See Williams v. Mosaic

Fertilizer, LLC, 889 F.3d 1239, 1242, 1243 n.1 (11th Cir. 2018). Rule 702 provides:

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 methods; and

(d) the expert has reliably applied the principles and methods to the facts of

the case.

FED.R.EVID. 702. In Daubert, the Supreme Court held that district courts serve a

gatekeeping role to “ensure that any and all scientific testimony or evidence admitted is

not only relevant but reliable.” 509 U.S. at 590. District courts serve the same role when

considering the admissibility of opinions based on technical or other specialized

knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999).

The Eleventh Circuit has distilled Daubert, Kumho Tire, and Rule 702 into a three-

part test for any proffered expert opinion: (1) the expert must be qualified to testify

competently regarding the matter he or she intends to address, (2) the expert’s methodology

must be reliable as determined by a Daubert inquiry, and (3) the expert’s testimony must

assist the trier of fact through the application of expertise to understand the evidence or

determine a fact in issue. Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1328 (11th Cir.

2014). “The proponent of expert testimony bears the burden of showing, by a

preponderance of the evidence, that the testimony satisfies each prong.” Hendrix ex rel.

G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010).

B. Motions to Strike

Under Rule 37, failure to comply with Rule 26(a) empowers a court to preclude use

of an expert and that expert's information at trial, “unless the failure was substantially

justified or is harmless.” FED.R.CIV.P. 37(c)(1).

Under Rule 26(a)(2), which governs the disclosure of expert testimony, “a party

must disclose to the other parties the identity of any witness it may use at trial to present

evidence under Federal Rule Evidence 702, 703, or 705.” FED.R.CIV.P. 26(a)(2)(A). Rule

26(2) divides experts into two categories with different reporting requirements. Under

Rule 26(a)(2)(B), the expert must provide a written report if the expert was “retained or

employed specially to provide testimony or one whose duties as the party's employee

regularly involve giving expert testimony;” and, under Rule 26(a)(2)(C), any expert who

does not need to provide a written report under Rule 26(a)(2)(B), must provide a disclosure

that meets certain requirements.

C. Motion for Summary Judgment

“Summary judgment is proper if the evidence shows ‘that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (quoting FED.R.CIV.P.

56(a)). “[A] court generally must view all evidence and make all reasonable inferences in

favor of the party opposing summary judgment.” Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l

Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016). However, “conclusory allegations

without specific supporting facts have no probative value.” Jefferson v. Sewon Am., Inc.,

891 F.3d 911, 924–25 (11th Cir. 2018). If the record, taken as a whole, “could not lead a

rational trier of fact to find for the non-moving party,” then there is no genuine dispute as

to any material fact. Hornsby-Culpepper, 906 F.3d at 1311 (citing Matsushita Elec. Indus.

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

The movant bears the initial burden of demonstrating that there is no genuine dispute

as to any material fact, and the movant must identify the portions of the record which

support this proposition. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The movant may carry this burden “by demonstrating that the nonmoving party has failed

to present sufficient evidence to support an essential element of the case.” Id. The burden

then shifts to the non-moving party to establish, by going beyond the pleadings, that a

genuine issue of material fact exists. Id. at 1311–12.

III. FACTS

On November 21, 2018, the decedent, Larry Shaver, was operating an AVCO/New

Idea Model 323 corn picker on his farm (hereinafter “corn picker”). He had purchased the

corn picker at a local farm equipment auction more than a year earlier. The corn picker he

purchased was manufactured in 1965. After he purchased it, Larry Shaver had mechanical

work done on the corn picker.

The corn picker at issue consists of snapping rolls that take ears of corn off of the

stalks. Gathering chains at the inlet of the snapping rolls guide the stalks to the rolls. Ears

of corn are too large to pass between the snapping rolls so they snap off the stalk and fall

onto a conveyor belt that transports them to a husking bed. There is a power take off

(“PTO”) of a tractor that pulls the machine through the field. The corn picker only operates

if the tractor’s PTO is running.

The instruction manual that accompanied the corn picker instructed users to

disengage the PTO and to keep hands and clothing away from moving parts. The corn

picker also included a stenciled warning to keep hands away from moving parts. When

manufactured, the corn picker also had a “BE CAREFUL” label. The BE CAREFUL label

said to stop the machine to adjust and oil; “when mechanism becomes clogged disengage

power before cleaning;” and to keep hands, feet, and clothing away from power-driven

parts. (Doc. 58-13 at 11). This label was painted over on the corn picker used by Larry

Shaver. (Doc. 58-16). The user manual, in the Safety Precautions and Field Operation

section, says “Disengage that PTO” with a graphic and provides that if “the machine should

plug, which it will sometimes do in extreme down corn or for other reasons, disengage

P.T.O. before removing congestion.” (Doc. 58-12 at 5). It also directs the user to “NEVER

UNDER ANY CIRCUMSTANCES GET OFF THE TRACTOR SEAT WITH THE

POWER TAKE-OFF AND MACHINERY IN MOTION TO CLEAN OUT THE

MACHINE BY HAND.” (Id.).

On November 21, 2018, Larry Shaver’s arm became caught in the snapping rolls of

the machine and he suffered injuries that caused his death by exsanguination. Teresa Smith

and Curtis Shaver were first responders on the scene and Linda Shaver seeks to offer their

opinion that Larry Shaver’s death was not immediate.

Linda Shaver has retained an expert who offers the opinion that the corn picker

should have had safety devices, including an emergency-stop device, accessible to a person

trapped in the snapping rolls, to enable the user to interrupt power to the machine. AVCO’s

retained expert opines that the emergency stop device proposed by Linda Shaver’s expert

did not exist in 1965 when the corn picker was manufactured.

IV. DISCUSSION

A. Motions to Strike and Exclude

1. Wallace McDougall, Lyman Gunyou, Teresa Smith, and Curtis Shaver

AVCO has moved to strike portions of the designation of expert witnesses by the

Plaintiff, Linda Shaver, for failure to comply with Rule 26(a)(2). Specifically, AVCO has

moved to strike non-retained experts Wallace McDougall (“McDougall”), Lyman Gunyou

(“Gunyou”), Teresa Smith, and Curtis Shaver. In response, Shaver provided expert reports

for Teresa Smith and Curtis Shaver, which AVCO then moved to strike as untimely. AVCO

also has moved to exclude testimony by Teresa Smith and Curtis Shaver.1

McDougall and Gunyou were former AVCO employees who testified in prior cases,

some of which involved different corn picker models or different injury methods. AVCO

moves to strike the disclosure of them as experts because they are deceased and, AVCO

argues, the Federal Rules of Civil Procedure do not permit a party to designate witnesses

as experts when the party has not obtained their consent. AVCO also objects that Linda

Shaver has not identified the subject matter on which the witnesses are expected to present

evidence. AVCO states that Linda Shaver cannot simply choose portions of testimony

from previous cases and rely on that as expert testimony.

In response, Linda Shaver relies on the Federal Rules of Evidence regarding use of

depositions when a witness is deceased, and also argues that AVCO is aware of the bases

of the opinions of these two witnesses because they testified for AVCO in previous cases.

Small v. Amgen, Inc., 2017 WL 5443912, at *2 (M.D. Fla. 2017), cited by AVCO,

offers persuasive analysis of a similar issue. In that case, a plaintiff summarized in a

cursory manner anticipated testimony by treating physicians whom the plaintiff had not

spoken to about their willingness to provide expert opinions. Id. The court struck the expert

designation and excluded the expert testimony, but did not preclude the use of fact witness

testimony. Id. at *4. The court reasoned that referring to medical records without

1 For reasons to be discussed herein, summary judgment is due to be GRANTED on the bases of legal issues

which do not implicate the testimony of some witnesses whose testimony is the subject of pending motions

to exclude. Those motions, therefore, are due to be DENIED as moot.

identifying facts within them was not sufficient to tell the defendants about the opinions

the physicians would offer or the facts on which they base those opinions. Id.; see also

Kondragunta v. Ace Doran Hauling & Rigging Co., 2013 WL 1189493, at *6 (N.D. Ga.

2013)(finding that “[a]llowing medical records to be submitted in lieu of a summary would

invite a party to dump voluminous medical records on the opposing party, contrary to the

rule's attempt to extract a summary.”)(quotation and citation omitted). In addition, the

court in Small struck the experts as inappropriate because the plaintiff’s counsel did not

confirm their willingness to serve as experts. 2017 WL 5443912, at *4.

In this case, Linda Shaver has offered a three-page narrative description of opinions

offered by McDougall in previous cases and an additional description of opinions offered

by Gunyou. Linda Shaver also has listed up to twelve cases and states that their expected

opinions and the basis thereof are set forth in prior depositions and trial testimony in those

cases. (Doc. 25-1 at 3&7). As in Small, this disclosure which only includes counsel’s

summary of opinions in other cases, but refers generally to other case testimony and does

not identify the facts on which opinions would be based, is insufficient under Rule 26(a)(2).

Furthermore, as in Small, the purported experts cannot properly be designated as experts

as they did not agree to provide opinions in this case. 2017 WL 5443912, at *4.

Rule 37 provides that evidence not properly disclosed is excluded absent substantial

justification or harmlessness. Because the use of testimony given by McDougall and

Gunyou out of the context in which it was offered without an ability to question the

witnesses would not be harmless, the Court will not consider opinions offered by those

witnesses. The Court will, however, consider fact testimony from those witnesses where

applicable. See Small, 2017 WL 5443912, at *4.

2. Sevart

Sevart is an expert retained by Linda Shaver. AVCO does not seek to exclude the

entirety of Sevart’s opinions, but specifically moves to exclude opinions that the corn

picker should have incorporated an emergency stop, the emergency stop design would have

limited or prevented Shaver’s injuries, and that the corn picker should have had stripper

plates.2 AVCO argues that Sevart has no testing data to support his opinion that an

emergency stop would have worked on the corn picker in field conditions and that Sevart’s

opinion is no more than a hypothesis that has not been tested.

Sevart states in his report that the emergency stop was common in industrial

operations. Sevart also states that he has videos of machines as they are being field tested

with emergency stops. Shaver argues that just because the corn picker was not tested under

all conceivable conditions does not mean that the opinion is inadmissible, but rather the

criticisms of his testing go to weight.

Another judge of this district has examined Sevart’s opinion regarding alternative

design of a different piece of machinery and concluded that it was admissible. See Edwards

v. Deere & Company, Inc., 2019 WL 6339901, at *6 (M.D. Ala. 2019). In that case, the

defendant argued that a party cannot be held liable for failing to invent a safer product, a

2 As will be discussed herein, the Court’s analysis of the issues presented does not require consideration of

other opinions offered by Sevart and objected to by AVCO, therefore, the motion to exclude is due to be

DENIED as moot as to those aspects.

proposition with which the court agreed, but found that the experts had offered opinions as

to safer designs at the time the tractor produced. Id. The court explained that although an

expert cannot make bald assertions, testing is not a prerequisite for admissibility. Id. at *7.

Similarly, in this case, the Court concludes that the objections to Sevart’s testimony go to

weight, not admissibility.

With regard to Sevart’s opinion that the corn picker should have been equipped with

stripper plates to minimize the exposure of the snapping rolls, AVCO objects largely based

on relevance; that is, AVCO argues that the stripper plate opinion should be excluded

because adding stripper plates would have made no difference in this case as Shaver was

facing the corn picker when his hand entered it.

Shaver responds with an affidavit from Sevart in which he states that regardless of

where the first contact occurred, stripper plates would prevent access to the nip-point of

the snapping rolls. AVCO characterizes this affidavit as a sham affidavit, but Sevart also

testified in his deposition that stripper plates would have guarded against entanglement at

the “nip point” which is further up the machine. (Doc. 54-2 at 240: 1-5). Sevart’s affidavit,

therefore, is not “an affidavit that merely contradicts, without explanation, previously given

clear testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657

(11th Cir. 1984). The motion to exclude Sevart’s testimony is, therefore, due to be

DENIED as to these opinions.

B. Motion for Summary Judgment

1. AEMLD Claim

To establish liability under the AEMLD, a plaintiff must show the following: injury

by one who sells a product in a defective condition unreasonably dangerous to the plaintiff

as the ultimate user or consumer, if the seller is engaged in the business of selling such a

product, and it is expected to and does reach the user or consumer without substantial

change in the condition in which it is sold. Clarke Indus., Inc. v. Home Indem. Co., 591 So.

2d 458, 461 (Ala. 1991).

AVCO has moved for summary judgment challenging two elements of the claim—

that the corn picker was in “defective” condition and that it reached the user without

substantial change in the condition in which it was sold.

Caselaw in Alabama has interpreted “defective” to mean that the product does not

meet the reasonable expectations of an ordinary consumer as to its safety. Elliott v.

Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir. 1990). To prove that it is defective, a

plaintiff must prove that (1) the product did not meet reasonable safety expectations and

(2) that a safer, practical, alternative design was available to the manufacturer at the time

it manufactured the product. See id.

AVCO argues that Linda Shaver cannot show that the corn picker did not meet the

safety expectations of an ordinary consumer in 1965 because the risk of injury would be

apparent to an ordinary consumer. AVCO points to the report of Linda Shaver’s expert,

Sevart, in which he states that the “basic hazard of exposed snapping rolls cannot be

completely eliminated and maintain a useful corn picker.” (Doc. 58-4 at 5). Sevart

characterized corn picking machines like the Model 323 as “notoriously dangerous.” (Id.

at 4).

In Elliott, the plaintiff claimed that a manufacturer’s design for a boat propeller was

defective because it did not provide a guard to encircle it. 903 F.2d 1505, 1507. The

Eleventh Circuit held that the boat motor manufacturer was not liable under the AEMLD

because the plaintiff failed to show that product did not meet the reasonable expectations

of an ordinary consumer as to safety or that a safer, practical, alternative design was

available. Id. As to the element of consumer expectation, the Eleventh Circuit explained

that although under Alabama law a jury ordinarily evaluates a plaintiff’s claim that a

product is defective, certain products have an inherent danger which the ordinary consumer

understands, and, therefore, are not defective. Id. The Eleventh Circuit interpreted

Alabama law as adopting the following consumer expectations test: a defective product is

a product which is dangerous beyond that which would be contemplated by the ordinary

consumer who purchases it, with the ordinary knowledge common to the community as to

its characteristics. Id. The Eleventh Circuit held that the dangers inherent in the boat

propeller should have been apparent and, therefore, there was no defective product. Id.

Linda Shaver argues that the corn picker at issue in this case is not like the boat

propeller in Elliott because while the snapping rolls of the corn picker pose a hazard, the

average consumer did not realize that they would not be able to pull their hand back faster

than the machine could pull them in if they attempted to unclog the rollers. She contends

that a question of fact is created by evidence that hundreds of people were injured by corn

pickers, supporting that a reasonable person did not appreciate how dangerous the corn

picker was.

Linda Shaver cites to Ex parte Essary, 992 So. 2d 5, 12 (Ala. 2007), for the

proposition that there is a rebuttable presumption that every person will give heed to

instincts of safety and self-preservation to exercise ordinary care for his own protection.

In other words, Linda Shaver seeks to draw an inference from her evidence of incidents

with corn pickers to demonstrate a lack of obviousness of the hazard posed by the corn

picker.

Much of the evidence Linda Shaver relies on in making her argument is in the form

of opinions by McDougall and Gunyou, which, for the reasons discussed above, the Court

will not consider. However, Shaver also presents evidence in the form of a fact testified to

by McDougall, which the Court will consider; namely, when asked in a deposition taken

in a different case whether he was aware of there being hundreds of people being caught

in rolls of corns pickers from the late 1950s to 1961, McDougall testified that the number

was “in the hundreds.” (Doc. 85-4 at 5: 9-13). Linda Shaver also offers a composite exhibit

of corn picker incident reports and complaints, without citing to any relevant information

within that composite exhibit. Most of the complaints within the exhibit concern events

dated after 1965, with no indication as to when the equipment was manufactured. (Doc.

85-3). The composite exhibit does reveal, however, that there were at least some

complaints of injuries stemming from entrapment in “husking rolls,” not the snapping rolls

which are at issue here. (Id. at 42).

Because there is no discussion of accidents from boat propellers in the opinion in

Elliott, it does not appear to this Court that even if there were evidence of relevant accidents

that evidence would distinguish this case from Elliott. Further, the bare fact that there were

“hundreds” of people being caught in the rolls of corn pickers between the late 1950s and

1961, without any details as to whether the rolls were snapping or husking rolls, what the

injuries were, or even how many corn pickers were in service at that time, is not a sufficient

basis for the inference Linda Shaver seeks. Instead, the unrebutted evidence is that the

inherent hazard of exposed snapping rolls cannot be completely eliminated and maintain a

useful corn picker and that corn pickers are “notoriously dangerous.” Both the corn picker

in this case and the boat propeller at issue in Elliott pose an obvious hazard which cannot

be eliminated. This Court concludes, therefore, that this case falls within the holding of

Elliott.

Linda Shaver makes an additional argument, relying on Garrison v. Sturm, Ruger

& Co., Inc., 322 F. Supp. 3d 1217 (N.D. Ala. 2018), that a reasonable consumer would

have expected the corn picker to be equipped with safety devices. In Garrison, the court

applied Elliott to a claim arising from an injury by a firearm originally purchased in 1969.

The court reasoned that the inherently dangerous product had to have been defective

according to the prevailing consumer standards in 1969. Id. The court considered evidence

that the type of safety device argued for by the plaintiff was used in other firearm models

and concluded that the plaintiff had sufficiently created an inference of a reasonable

consumer expectation “in the absence of expert testimony establishing consumer safety

expectations in 1969.” Id. at 1228. Ultimately, however, the court concluded that the

design was not available in the firearm model at issue and granted summary judgment. Id.

at 1232.

Linda Shaver argues in this case that an ordinary consumer in 1965 would have

expected safety devices to be installed on the corn picker.3 Linda Shaver’s evidence to

support her argument comes largely from Sevart’s affidavit. (Doc. 85-5). Sevart provides

evidence that an emergency stop device had existed since before the 1900s, and emergency

stop devices were incorporated into some agricultural machinery, such as corn huskers.

Linda Shaver also points to evidence that in the 1960s, another manufacturer, Gehl, used a

disconnect box on a forage box and that another company had applied for a patent for a

device that would allow a farmer to shut down a tractor from a remote location. Linda

Shaver cites to a portion of Sevart’s affidavit in which he states that there was a

recommendation in 1975 by the American Society of Agricultural Engineers that corn

pickers not equipped with stripper plates be equipped with a roll separating device. (Id. at

8). Linda Shaver also presents evidence that the medical profession coined the term “corn

picker hand” (id. at 9), and an article published before 1965 referred to that term. Linda

Shaver further relies on fact testimony by McDougall that New Idea had stripper plates on

Uni-systems, not the corn picker at issue, in 1965. Finally, she points to evidence that the

3 Linda Shaver also argues that under a “crashworthiness” analysis, she must only rely on “risk-utility”

balancing, citing Flemister v. GMC, 723 So. 2d 25, 27 (Ala. 1998). However, in that case the Court

explained, “[w]e acknowledge the plaintiff's excellent discussion of the authorities criticizing the use of

consumer expectation as an element of design defectiveness in products-liability cases, as well as a trend

in other jurisdictions to adopt a pure risk/utility analysis as the standard by which to judge an alleged design

defect. However, whether our law for crashworthiness cases will be better served by maintaining the present

‘mixed’ analysis or by adopting a risk/utility analysis is not an appropriate consideration under the facts of

this case.” Id. at 28.

corn picker had a throw-out clutch which was used to remotely stop the wagon elevator.

Linda Shaver’s argument is that there is enough evidence in this case to justify a reasonable

inference that in lacking an emergency stop or stripper plates, the corn picker failed to meet

the ordinary expectations of a consumer in 1965.

In response, AVCO contends that Linda Shaver cannot show that the ordinary

consumer in 1965 would have expected corn pickers to be equipped with the safety devices

Sevart has proposed today. AVCO’s expert, William Field (“Field”), has presented

evidence that an emergency stop device and stripper plates were not “applicable or in

general use on corn pickers when the New Idea Model 323 was designed, manufactured,

or sold . . . .” (Doc. 58-10 at 7-8). Field offers the opinion that additional design features

including stripper plates or emergency stop devices “would not have been expected by a

buyer of the New Idea 323 corn picker or any other corn picker manufactured at that time.”

(Doc. 58-10 at 7-8).

This evidence from Field is significant because in this case, unlike in Garrison, the

Court has affirmative expert opinion testimony that additional design features including

stripper plates or emergency stop devices would not have been expected by a reasonable

consumer in 1965. (Doc. 58-10 at 7-8). The evidence Linda Shaver has presented is of

safety devices that existed within the agricultural industry, but there is no evidence of safety

devices in the form of emergency stops on corn pickers existing in 1965. The evidence

regarding stripper plates concerned a different type of corn picker. This Court cannot

conclude, therefore, that Linda Shaver’s evidence of safety devices in agricultural

equipment other than the corn picker, or, in the case of the throw-out clutch on the elevator

for the wagon, a different safety device, is sufficient to create a question of fact which

precludes summary judgment as to consumer expectations. Summary judgment is,

therefore, due to be GRANTED on the AEMLD claim for failure to create a question of

fact as to whether in 1965 the corn picker met the reasonable expectations of an ordinary

consumer.

2. Negligence and Wantonness Claims

Under Alabama law, negligence and wantonness claims are not subsumed by the

AEMLD. Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d 101, 106 (Ala. 2003).

Although they are conceptually distinct causes of action, a plaintiff can only succeed on a

products-liability claim on a negligence theory if the product at issue is sufficiently unsafe

so as to render it defective. McMahon v. Yamaha Motor Corp., U.S.A., 95 So. 3d 769, 772

(Ala. 2012). “In a negligence case, the plaintiff must establish not only that the product at

issue is defective, but also that the manufacturer failed to exercise due care in the product's

manufacture, design, or sale.” Id. For reasons discussed, Linda Shaver has not presented

sufficient evidence of defect. Summary judgment is, therefore, due to be GRANTED as to

the negligence claim.

“Wantonness” has been defined . . . as the conscious doing of some act or the

omission of some duty while knowing of the existing conditions and being

conscious that, from doing or omitting to do an act, injury will likely or

probably result. The knowledge of the defendant is the sine qua non of

wantonness.

Mazda Motor Corp. v. Hurst, 261 So. 3d 167, 189 (Ala. 2017) (emphasis original); see also

McMahon, 95 So. 3d at 773 (after jury verdict in favor of the defendant on AEMLD claim

concluding that there was substantial evidence introduced at trial from which the jury could

have found a specific knowledge of the risk of arm and leg injuries and wanton failure to

address that risk in a timely manner).

AVCO argues that summary judgment is due on the wantonness claim because

Linda Shaver cannot prove that the corn picker was defective and, alternatively, AVCO’s

warning precludes the wantonness claim.

For reasons discussed above, the Court has concluded that Linda Shaver has failed

to create a question of fact as to the defective nature of the corn picker. Additionally, Linda

Shaver’s evidence of AVCO’s knowledge of dangers posed by the corn picker comes from

the opinion testimony of McDougall which, for the reasons discussed, the Court has not

considered because that testimony is due to be excluded. Therefore, summary judgment is

due to be GRANTED as to wantonness.

3. Warning claims

To maintain an action for failure to warn based upon a negligence theory or under

the AEMLD, a plaintiff must show that the defendant breached a duty and that the breach

proximately caused plaintiff's injury. E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963, 970

(Ala.1985). “Where a warning is necessary, the warning need only be one that is

reasonable under the circumstances and it need not be the best possible warning.” Gurley

By & Through Gurley v. Am. Honda Motor Co., 505 So. 2d 358, 361 (Ala. 1987). To

establish a claim for wanton failure to warn, a plaintiff must also show that the defendant

“consciously and intentionally failed to give reasonable and adequate warnings with

knowledge of, or reckless indifference to, the fact that the lack of warnings made [the

plaintiff's] injury likely or probable.” Richards v. Michelin Tire Corp., 21 F.3d 1048, 1058

(11th Cir. 1994). “A negligent- or wanton-failure-to-warn claim cannot be submitted to a

jury unless there is substantial evidence that the allegedly inadequate warning would have

been read and heeded and that it would have prevented the accident.” Sears, Roebuck &

Co. v. Harris, 630 So. 2d 1018, 1030 (Ala. 1993).

AVCO has moved for summary judgment on the grounds that its warnings were

adequate as a matter of law and that Linda Shaver cannot prove proximate cause. AVCO

has not moved for summary judgment on the element of duty.

Linda Shaver argues, relying on testimony of Sevart, that the instructions AVCO

used were not adequate warnings in part because they did not identify the danger. Linda

Shaver further contends that the warnings were inadequate because Larry Shaver still could

have been injured if he acted consistently with the recommendations provided if he made

inadvertent contact with the picker while inspecting the picker from a distance. Linda

Shaver’s argument on this point, however, is purportedly supported by testimony from

Gunyou, which she characterizes as offering an opinion as to what AVCO expected of its

consumers. For reasons discussed above, the Court will not consider the inadmissible

opinion testimony of Gunyou. Linda Shaver further points to evidence of warnings given

in the 1980s. Evidence of warnings given later, however, does not address the adequacy

of the warning in 1965. See Alabama Power Co. v. Marine Builders, Inc., 475 So. 2d 168,

173 (Ala. 1985)(holding that exclusion of evidence of a mast warning used in 1976 as

evidence for a 1975 model was not an abuse of discretion).

As to proximate cause, Linda Shaver argues that she has expert testimony from

AVCO’s expert, Dr. David Bizzak, to support the existence of a different warning that was

not provided on the corn picker that would have prevented the accident. She points to a

warning that the user should always disengage the PTO before dismounting from the

tractor. Linda Shaver argues that that warning was not provided by AVCO anywhere in

1965, in either the manual or the on-product labels. (Doc. 85 at 79).

The deposition page provided by Linda Shaver contains the question “[i]s there

anything on here that speaks to disengage [sic] the PTO before you get off the tractor?”

and Bizzak’s answer which is “[n]ot that I see on that page you’re showing there . . . .”

(Doc. 85-19 at 254: 2-6).

The user manual provided to the Court, however, which is stamped “January 26,

1965,” (doc. 58-12 at 73), contains the following language: “[i]f the machine should plug

. . . disengage P.T.O. before removing congestion . . . . NEVER UNDER ANY

CIRCUMSTANCES GET OFF THE TRACTOR SEAT WITH THE POWER TAKE-OFF

AND MACHINERY IN MOTION TO CLEAN OUT THE MACHINE BY HAND.” (Id.

at 5). Although in two separate sentences, the manual directs the user to disengage the

PTO before removing congestion and to not leave the tractor seat with the power take-off

and machinery in motion. In addition to the instructions in the manual, the BE CAREFUL

label located on the corn picker, which had been painted over on the corn picker at issue,

instructed the user to “disengage power before cleaning.” (Doc. 58-13 at 11). The Court

cannot conclude that Linda Shaver has created a genuine issue of fact as to the existence

of the very warning she argues would have prevented the accident.4

4 Although the Court finds that there is no genuine issue of fact as to whether the warning Linda Shaver

contends would have prevented this accident existed in 1965, the Court notes that Linda Shaver also argues

The expert testimony supports Linda Shaver’s position that the warnings on the corn

picker, if read and heeded, would have prevented the accident. AVCO’s expert Bizzak5

stated in his report that the most basic precaution in the use of powered agricultural

equipment is to disengage the PTO of the tractor before dismounting, and that if Larry

Shaver had done that, the accident in question would not have happened. (Doc. 58-1 at 10).

Sevart’s opinion is consistent with that as well. When asked in his deposition whether if

Larry Shaver had shut off the corn picker so that it was not running, he would not have

been caught in it, Sevart answered, “If the corn picker is not running, he won’t get ingested

in the machine. That’s true.” (Doc. 58-6 at 185: 18-25).

A manufacturer must only “warn of those dangers which the owner or user would

not be aware of under the particular circumstances of his use of the product in question.”

Gurley, 505 So. 2d at 361. In Gurley, a passenger on a motorcycle was injured. Id. A label

on the motorcycle said “WARNING—OPERATOR ONLY—NO PASSENGERS,” as did

the warning in the owner’s manual. Id. The Court concluded that these were adequate

warnings as a matter of law. Id.

that she need not present evidence that Larry Shaver read the instructions, citing Reed v. Tracker Marine,

LLC, 574 F. Supp. 3d 1065, 1093 (N.D. Ala. 2021). Instead of falling within the reasoning of Reed,

however, the undisputed facts in this case fall within the proximate cause holding of E.R. Squibb & Sons,

Inc., 477 So. 2d at 970 (explaining that the situation of an “allegedly inadequate, unspecific warning” is in

contrast to cases in which the plaintiff cannot read at all or the warning provided was “inadequate with

respect to prominence.”). Linda Shaver further argues that this case is like Lakeman v. Otis Elevator Co.,

930 F.2d 1547 (11th Cir. 1991), which held that testimony that the decedent was “careful and safety

conscious” was enough evidence for a fact-finder to determine a warning would have been read and heeded.

However, in this case, the instructions provided on the corn picker were painted over and illegible and the

Court has not been pointed to evidence that Larry Shaver had obtained a copy of the user manual.

5 Linda Shaver has moved to exclude an opinion of AVCO’s expert witness Bizzak, but Bizzak’s opinion

about disengaging the PTO is not the subject of that motion.

Considering the admissible testimony before the Court, the Court concludes that the

warnings here, as in Gurley, were adequate as a matter of law. While AVCO might not

have provided the best possible warning, under Alabama law, the warning need only be

one that is reasonable under the circumstances. Id. Here, the unrefuted evidence is that the

warnings provided, if read and heeded, would have prevented the accident. Accordingly,

there is no question of fact sufficient to preclude summary judgment and the motion is due

to be GRANTED as to the warning claims.

V. CONCLUSION

For the reasons discussed, it is hereby ORDERED as follows:

1. The motions to strike (doc. 25 & 34) are GRANTED in part and DENIED in

part as moot.

2. The motion to exclude expert testimony (doc. 53) is DENIED in part and

DENIED as moot in part and the motions to exclude expert testimony (doc. 55,

61, 63, & 64) are DENIED as moot.

3. The motion for summary judgment filed by AVCO Corporation (doc. 57) is

GRANTED.

A final judgment will be entered in accordance with this Memorandum Opinion and

Order.

Done this 22nd day of September, 2022.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE