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Hayes v. Douglas Dynamics, 1st Cir. (1993)
Hayes v. Douglas Dynamics, 1st Cir. (1993)
Hayes v. Douglas Dynamics, 1st Cir. (1993)
br
John L. Kerr
_____________
appellee.
with
whom
was on
____________________
November 1, 1993
____________________
_____________________
*Of the District of Puerto Rico, sitting by designation.
brief
-22
from
breach
Robert Hayes,
a grant
Jr., the
of summary
son of
judgment
Mary
in a
and brother
negligence and
of Eric,
was
killed.
adequate
evidence
to
show
that defendant's
product
was
the
We affirm.
affirm
I.
I.
Background
Background
__________
On January 30, 1988, Robert Hayes, Jr. and his
Eric were passengers
Robert, Jr. was
in the
sitting in
behind the
rear compartment of
the right rear
to swerve
Tempo.
and
was
was
attempted
a Ford
passenger seat,
driver's seat.
brother
and avoid
the
The collision
pushed the car into oncoming traffic where it was hit in the left
front area by a van.
right ear.
The
other
which part
Western
Douglas
brand
Dynamics.
case.
snowplow
of the
truck hit
the Tempo
is a
The snowplow
-22
unit is
by
defendant-appellee
designed so
that the
attached to the
at the
time of the
the
truck.
The end
accident.
Part of
lift
arm
is a
U-shaped
plate
district
negligence
and
brought
a diversity
jurisdiction
court
alleging
breach
of
contending
that
defendant is
suit in
warranty1
liable
for
and
the
Hayes as a
injury.
The plaintiffs'
lift arm
truck altered
the dynamics
some metal
pickup, making
it more
dangerous in a collision.
In order to succeed
under
Massachusetts
law,
the
plaintiff
must
of warranty
show
that
the
____________________
defendant's
product
was
the
proximate cause
of
the
injury.
N.E.2d 1305,
A plaintiff
caused
or
enhanced
the
alleged.
Simmons v. Monarch Mach. Tool Co., 413 Mass. 205, 212, 596 N.E.2d
_________________________________
318, 323 (1992).
killed by a
single blow to
plaintiffs must
show
injury
If
attached to
frame
itself, or that
it
that
Proximate cause
is a
precipitating
object
the
sequence,
unbroken
by any
need
251,
not prove
likelihood
defendant's
that
action
cause,
"in
produces an
254,
198
the exact
N.E. 159,
161
cause
of the
continuous
event
the
accident
(1935).
accident or
resulted
from
is a
the
Enrich v. Windmere
__________________
(1993).
Therefore, in
and
Wallace v.
___________
which requires
or
new
event would
292 Mass.
plaintiff
legal definition
must be
there is a
lift
alleges
that
the
evidence
offered
that there is a
by
genuine
the
filed
injury to
a motion
Robert, Jr.
for summary
Accordingly,
judgment.
the
defendant's
motion
Plaintiffs
relief.
for
the defendant
opposed and
summary
judgment.
The
cross-motion.
Plaintiffs
also
challenge
several
purpose
of summary
judgment
is
"to pierce
the
Therefore,
if
the pleadings,
depositions,
the moving
party is
entitled to judgment
as a
matter of
law.
Where, as
here, the
moving
party does
not have
the
burden of proof at trial, that party must make a showing that the
evidence is
has been
establish the
made,
it
existence of
material fact.
to
a genuine
the
(1986).
Once this
nonmoving party
disagreement
as to
and a "material
return a
fact" is one
the governing
plenary.
1990).
some
verdict
to
review
of
summary
applying this
judgment
F.2d
standard, we view
decisions
112, 115
is
(1st Cir.
the record
in the
Bank One
________
97 (1st Cir.
1992).
IV.
IV.
Discussion
Discussion
__________
in
photographs
the
form
of
the
depositions
of
witnesses
and
experts.3
____________________
A.
A.
Direct Evidence
Direct Evidence
_______________
1.
1.
Paul Porter
Paul Porter
___________
Paul Porter, a
immediately
on his examination
was still
in the
car.
rear of the
with an
of
at the accident
of the Tempo, a
In addition, Porter
boy was
between
____________________
-77
Porter
did not
distinguish between
the plow
not help to
of Robert, Jr.
the lack of
the lift arm itself came into contact with the victim's head.
addition, the
In
for how Robert, Jr. may have received the head injury.
2.
2.
William Richardson
William Richardson
__________________
William Richardson,
avoid the
the driver
of
the truck,
accident.
He
testified
stated
attempt
that approximately
the
center of the front end of his truck hit the right rear passenger
side of the Tempo, but he was unable
itself impacted the car.
to Robert, Jr. was more severe than that to any other occupant of
the car.
Because
causal link
between
defendant's
to the
not help
product and
to
the
Police Photographs
Police Photographs
__________________
-88
and some
damage to
the left
pictures
was
more extensive
far
region.
that
the
The
than that
photographs do
defendant's
suggest a number
product
front of
the truck.
The
by the
left rear
plaintiffs' claim
injury,
of the
but
rather
might have
Wolf
firm, was
The
Technical
Services,
employed to analyze
consultants concluded
an
engineering
the photographs of
that
the rear
seat
consulting
the accident.
back was
moved
24 inches
on the right end, and the rear bumper was displaced approximately
15 inches at
side.
the
and at least
30 inches on
the right
damage.
part
of the
However, as the
Tempo sustained
the brunt
of the
claim that
Tempo.
If shown,
mechanism played a
district
-99
Expert Witnesses
Expert Witnesses
________________
caused,
to establish
photographs.
B.
B.
mark is visible
that the
lift
As noted by the
in the police
expert
witnesses
Evidence 705, we
and
argue
that,
under
Federal Rule
of
conclusions of these
experts.
in order
P. 56(e) requires
genuine issue
Rule of
Fed. R. Civ.
for trial."
Evidence 705,
Plaintiff's reliance
which allows
an expert
of
the underlying
facts
or
data, is
on
to give
reasons, without
underlying
showing that
inapposite.4
a trial, where
to probe the
expert's
the expert.
Although expert testimony may be
that of fact witnesses, in
judgment
an
expert
opinion
must
be
n.16 (1st
Cir. 1992).
more
than
for summary
a conclusory
See also
________
____________________
4Fed. R. Evid. 705 provides:
The expert may testify in terms of opinion or
inference and give reasons therefor without
prior disclosure of the underlying facts or
data, unless the court requires otherwise.
The expert may in any event be required to
disclose the underlying facts or data on
cross-examination.
-1010
690
evidentiary rules
intended
1, 5 (1st
F. Supp.
100,
make summary
an expert
not
to support its
willing to
1988).
666, 673
(D.C. Cir.
allow the
reliance
on a
time that
a conflict of fact
is based on expert
with
other
judgment,
expert
submitted
affidavits
Merit
_____
569 F.2d
evidence
whenever a
position."
all
The
judgment impossible
(D. Mass.
. . . to
1977).
103
must
on
be
trial every
testimony.
motion
reviewed
bare
As
for summary
in
light
of
F.R.Civ.P. 56.
no
hypotheses
hint
of
considered
an inferential
and
process,
rejected", such
no
discussion of
testimony
summary judgment.
will
be
Mid-State
_________
Fertilizer v. Exchange Natl. Bank, 877 F.2d 1333, 1339 (7th Cir.
__________________________________
1989).
See also Evers v. General Motors, 770 F.2d 984, 986 (11th
________ _______________________
Cir. 1985);
Cir.
1985).
Although
an
scientific or
expert
affidavit need
confusing to a
basis
process of
and the
not
other specialized
1318 (9th
conclusion,
be
the conclusion
include
We find
contain sufficient
-1111
conclusion that
the injury to
Robert, Jr.
was
Nicholas Miller
Nicholas Miller
_______________
Nicholas
used
the
hospital
police
and
medical
autopsy
records,
report,
depositions,
death
certificate,
pictures
of
the
accident
scene
and vehicles,
and the
study conducted
by Wolf
Miller
graphic
reenactment.
Based on
this
video
input,
Miller
opines that
forward
by the
the deceased
lift
arm
was struck
of the
snowplow.
near the
decedent's
of similar shape,
head; (3)
He
by sheet
therefore,
product
was killed by
that
no other
part
of
the car
or
truck
had that
Tempo after
the crash
are not
size of each of
The
sufficiently
the pieces of
the
wreck.
Miller
possibilities
as to
provides no factual
claims
what
to
have
could have
details about
eliminated
struck
all
other
Robert, Jr.,
this analysis.
He fails
but
to
even mention or discuss the only object which anyone saw near the
victim's head, the metal window support which Porter observed.
In his second
the
exemplar vehicles.
pickup
truck with a
Ford Tempo,
Miller drew a
up if
it proceeded directly
concludes
mechanism attached
right-rear
of a Chevrolet
situated behind a
would end
lift
with a picture
to
as an observable
the truck
the snowplow
reached and
Miller
invaded the
rear passenger."
Miller provides
no supporting
data to
establish that
time of the
only that
car, in a straight
the
to
plow mechanism,
up in
the rear
truck, including
passenger area.
the vehicles,
that the
plow caused
injury.
the conclusion
-1313
that it
is
directly,
more probable
without
than
not that
any resistance,
into
the
plow frame
the
car in
tore
linear
Norris Shoemaker
Norris Shoemaker
________________
Norris
Shoemaker,
his initial
about
consultant
in
transportation
affidavit, Shoemaker
made
Miller.
general observations
product "changes
the crush
in
configuration"
inflicted
of
what
concerned.
characteristics of the
energy of
front
of
the
the collision in
vehicle
in
pickup truck
a narrow
narrow
area
spearlike
in the
Although in his
with which
we are
supplemental affidavit
Shoemaker
hand, they
Shoemaker
accident
asserts
that "a
comparison
damage photographs
of the
additional facts,
photographs does
vehicles and
exemplar
comparison of
not sustain
such a
the
these
conclusion.
However,
two sets
The
of
exemplar
pictures show only where the truck may have struck the Tempo, and
the
damage pictures
show
that the
are not
lift arm or
sufficiently clear or
other parts
of the
detailed to
3.
3.
Gerald Feigin
Gerald Feigin
_____________
Dr. Gerald
the
his
experience,
examination
the
autopsy
who performed
submitted an affidavit.
report
and
pictures,
Based on
and
an
object shaped like a lift armcaused the fatal blow to Robert, Jr.
Feigin's
affidavit
was
written four
years
after he
noted a
he suggests that
size of
inches.
This creates a
bruise.
In
pictures
attached to the
conclusion.
addition, as
They
do
the district
court pointed
autopsy do little
not
clearly
show
out, the
to support Feigin's
a
U-shaped
bruise
It is
the witness,
sufficient
basis,
on
evidence.
on the
summary
would result if a
for
themselves be
disregarding the
an injury which
lift arm"
Jr.
4.
4.
Dr. Ommaya
Dr. Ommaya
__________
-1515
this
Hayes,
accident
neurosurgeon.
photographs,
Ommaya
medical
examined
the police
records, autopsy
report,
death
of the
other
certificate, witness
depositions,
experts.
Based upon
and affidavits
from
other
passengers
in
the path of
Ommaya added
the dynamics
of the
accident,
the car
if
among
of the bruising
was inevitable
was seated in
conclusion
the fatal
that
report,
the
lift
of the
mechanism was
not
present.
The
difficulty with
Dr. Ommaya's
opinion is
that he
the path of
other
As we
establish that
have seen,
there are
not
to
Robert, Jr. was sitting, and Ommaya does not offer any additional
facts.
the
16
the
"dynamics of
the
accident"
Ommaya fails to
or the
"acceleration
Jr. would
of the other
car if
police
the
right
rear area
of
the
passengers in the
damage to the
car.
The
driver
of the collision.
Regardless
frame,
have sustained
of the presence
Tempo was in
of the
truck
snowplow
compartment would have been more severely injured than any of the
other passengers.
V.
V.
Conclusion
Conclusion
__________
We hold that
fact
as to
whether the
there is no
defendant's
genuine dispute of
product was
material
the proximate
not establish
that it is
more probable
the plow
unsubstantiated
conclusions.
-1717
The
Affirmed.
Affirmed
________
to provide no
district
court