Mollie L. KENNEDY, Administratrix of the Estate of Gregory R. Kennedy, deceased, Plaintiff-Appellant, v. JOY TECHNOLOGIES, INCORPORATED; Matric Limited, Defendants-Appellees.
No. 06-2307.
United States Court of Appeals, Fourth Circuit.
Argued: Dec. 5, 2007. Decided: March 12, 2008.
269 F. App‘x 302
Before WILKINSON and KING, Circuit Judges, and HENRY F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.
Affirmed in part, reversed in part, vacated in part, and remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises from a lawsuit relating to a 2003 mining accident in southwestern Virginia, in which coal miner Gregory Kennedy was fatally crushed by a continuous mining machine.1 Mollie Kennedy, the administratrix of her husband‘s estate, appeals from the district court‘s award of summary judgment to defendants Joy Technologies, Incorporated, and Matric Limited. See Kennedy v. Joy Tech., Inc., 455 F.Supp.2d 522 (2006) (the “Opinion“).2 Mrs. Kennedy contends on appeal that the court erred in excluding from evidence a portion of the accident investigation report made by the Mine Safety and Health Administration concerning her husband‘s death (the “MSHA Report“), and in excluding the opinions of her causation ex-
I.
A.
At approximately 10 a.m. on October 22, 2003, Gregory Kennedy, a forty-one-year-old coal miner, was operating a continuous miner (the “mining machine“) with a remote control device (the “remote controller“) in an underground mining operation in Paramount Coal Company‘s No. 7 mine, in Dickenson County, Virginia.4 Although Joy sold the remote controller under its name as a component of the mining machine, Matric had manufactured the remote controller under contract with Joy. The remote controller contained two levers, each of which controlled one of the mining machine‘s two tracks, generally referred to as “trams,” on its right and left sides. By utilizing the remote controller‘s two levers, the operator controlled the trams and thus the direction of the mining machine. In his work, Mr. Kennedy walked alongside the mining machine during its operations and wore the remote controller on a harness strapped to his body.
On the morning of October 22, 2003, Mr. Kennedy was engaged in a process called “retreat” mining (also known as “pillaring“), and was backing the mining machine out of a cut it had made in a pillar of coal.5 Mr. Kennedy backed the mining machine through an intersection of two mine entries (underground tunnels within a coal mine), preparing to make the next cut into the pillar. At the time, two other coal miners, Anthony Blackburn and Willie Mullins, were nearby hanging a ventilation curtain, with their backs to Mr. Kennedy. After noticing a change in the sound of the mining machine, Blackburn turned and observed that Mr. Kennedy was no longer moving. He immediately illuminated Mr. Kennedy and the mining machine with a light, and saw that Kennedy was slumped over with blood flowing from his nose and mouth. Blackburn promptly approached Mr. Kennedy and discovered that he was stuck between the mining machine and the corner of the coal rib (the wall of the mine) around which the machine had been maneuvering. At that time, Mr. Kennedy‘s back was against the coal rib and the mining machine was pressed against his abdomen. Although the mining machine‘s left tram was spinning, Blackburn observed that the levers on the remote controller were not depressed.
Blackburn promptly hit the emergency stop button on the remote controller, de-energizing the mining machine and stopping the left tram from spinning. While other miners hurriedly sought emergency assistance, Blackburn tried to move the mining machine away from Mr. Kennedy‘s body by using the remote controller. Al-
The state agency responsible for mine safety in Virginia, the Commonwealth‘s Department of Mines, Minerals, and Energy (“DMME“), was notified of Mr. Kennedy‘s fatal accident within twenty minutes. A few minutes later, MSHA also received such notification, and representatives of both agencies arrived at the coal mine about mid-day to begin a joint investigation. The MSHA investigatory team included an electrical engineer, a mining engineer, a mine inspection supervisor, and a mine safety and health inspector. The MSHA team, working with DMME, collected relevant information, questioned company personnel, and examined and photographed the accident scene, beginning their work within two or three hours of the accident. The investigation proceeded thereafter over several months with an expanded investigative team, including, inter alia, the district manager and assistant district manager of MSHA‘s regional office. From this effort, the MSHA team developed precise drawings of the accident scene. The team conducted extensive interviews with those having knowledge of the accident and tested the mining machine to assess whether it had been functioning properly at the time of the fatality. It also tested the remote controller, along with its various power sources and components, in a laboratory setting.
MSHA‘s investigative efforts culminated in its detailed MSHA Report, which fully described the accident investigation and included appendices on MSHA‘s examination and testing of the mining machine and remote controller. After describing Mr. Kennedy‘s activities prior to the accident, the MSHA Report detailed the tragic event, including the following:
Kennedy was located close to the inby, left corner of the outby block when the machine pivoted to the right. He was crushed between the machine‘s motor compartment of the ripper head and the coal rib. He was standing with his back against the coal rib and the machine against his abdomen. The bottom of the remote controller was against the right portion of Kennedy‘s abdomen. The controls of the remote controller were not depressed by any means. Neither his hands nor any other objects were on the controls. The left side track on the machine was still spinning in the forward direction.
J.A. 627. The MSHA Report observed that there were no eye witnesses to the accident, “[n]o one stated the continuous mining machine would make unexpected movements prior to the accident,” and “[n]o one stated Kennedy had been previously observed within the turning radius of the machine.” Id. at 630. Importantly, the “Overview” section of the Report concluded that:
The most likely explanation for this continued operation is a build up of debris in the left side track operating lever‘s socket, located on the remote controller, which prevented the lever from returning to its neutral position.
Id. at 623. The MSHA Report listed “causal factors” in its “Root Cause Analysis” section, concluding that the “primary cause was the victim‘s position within the turning radius of the continuous mining
The left side track of the machine apparently continued to move due to a fouled tram lever on the remote controller. Debris accumulated in the lever‘s socket prevented the lever from returning to its neutral position.
Id. In its Appendix C, the MSHA Report indicated that “the socket for the left tram lever was nearly full of dust and dirt, restricting its free travel.” Id. at 639.6
B.
On July 7, 2005, Mrs. Kennedy, for her husband‘s estate, filed suit against the defendants in the Western District of Virginia, asserting that his death was caused by a defective mining machine and its associated defective remote controller. Specifically, Mrs. Kennedy alleged two negligence claims plus a products liability claim, contending that the defendants had negligently designed the mining machine and remote controller and negligently failed to warn of their dangers. In her products liability claim, Mrs. Kennedy contended that the defendants had breached implied warranties of merchantability and fitness for a particular purpose because the mining machine and remote controller were defectively designed, manufactured, and marketed. These allegations are spelled out in the Amended Complaint filed by Mrs. Kennedy on September 29, 2005, which sought both compensatory and punitive damages. On August 11, 2006, Mrs. Kennedy abandoned her negligence claims.
On September 5, 2006, the defendants moved for summary judgment on the products liability claim, asserting that Mrs. Kennedy was unable to prove that their products were defective. Defendant Matric also contended that Mrs. Kennedy could not prove that any defect in its remote controller caused the death of Mr. Kennedy. In support of their contentions, the defendants argued alternate causes of the fatal accident, through expert testimony and other evidence—first, that Mr. Kennedy had committed user error, based in part on his alleged position within the “red zone,” or turning radius of the mining machine, at the time of the accident; and, second, that Paramount Coal had made unauthorized alterations to the remote controller that allowed excessive dust and debris to accumulate in its tram levers.
When they sought summary judgment, the defendants also moved to exclude the evidence of Mrs. Kennedy‘s expert witnesses, Dr. Thomas Butler and Dr. Farhad Booeshaghi. In response to the exclusion motion, Mrs. Kennedy withdrew Dr. Booeshaghi as an expert, but opposed the motion to exclude Dr. Butler. In opposition to the defendants’ summary judgment and exclusion motions, Mrs. Kennedy filed, inter alia, the expert report and testimony of Dr. Butler, the MSHA Report, and various documents illustrating the problems that defendant Joy had experienced earlier with debris accumulation in its remote con-
The district court conducted a motions hearing on October 4, 2006, and issued its Opinion the next day, granting summary judgment to the defendants and excluding the opinions of Dr. Butler. By its Opinion, the court concluded that “[a]fter a careful review of the summary judgment record, ... the plaintiff is unable to prove causation in this case, an essential element of her claim of breach of warranty.” Opinion 5. The court went on to relate that,
[w]hile it is certainly possible that this tragic accident was caused by the excessive accumulation of coal fines and debris in the control sockets, the evidence is equally strong that the unplanned movement of the left-hand tram resulted from other causes—for example, an electronic malfunction (as suggested by one of the plaintiff‘s former experts) or an inadvertent error on the operator‘s part (as suggested by a defense expert).
Id. After observing that, in a products liability action, proof of causation must ordinarily be supported by expert testimony, the court considered the issue of whether the opinions of Dr. Butler were admissible. Id. In so doing, the court recognized that Dr. Butler had “opine[d] in his report that the accident was caused by accumulated debris in a tram control lever socket,” but noted that Dr. Butler “did no testing,” failed to “perform[] any calculations regarding the accident and admitted that there could be alternative explanations,” and that his testimony relied primarily on the MSHA Report. Accordingly, the court granted the defendants’ “motion to exclude Butler‘s testimony on this point.” Id. at 6.8
The district court—acting sua sponte9—then determined that “the MSHA report‘s opinion that ‘the most likely explanation’ for the accident is debris in the lever socket of the 3-X remote [controller] is likewise entirely speculative and thus inadmissible under [Federal Rule of Evidence] 803(8)(C).” Id. at 7.10 Accordingly, the court concluded that “the plaintiff is unable to prove an essential element of her
Two weeks later, on October 20, 2006, Mrs. Kennedy sought relief under
II.
We review de novo a district court‘s award of summary judgment, viewing the facts and all inferences drawn properly therefrom in the light most favorable to the nonmoving party. Seabulk Offshore, Ltd. v. Am. Home Assur. Co., 377 F.3d 408, 418 (4th Cir.2004). An award of summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
A district court possesses broad latitude in ruling on the admissibility of evidence, including expert opinions, and we are unable to overturn evidentiary rulings with respect to relevance and reliability absent a finding that the presiding court abused its discretion. See GE v. Joiner, 522 U.S. 136, 141-42 (1997). A district court has abused its discretion if its evidentiary ruling was guided by erroneous legal principles, or rested upon a clearly erroneous factual finding. See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.1999).
III.
A.
In considering this appeal, we first assess Mrs. Kennedy‘s contention that the district court abused its discretion in excluding the MSHA Report‘s conclusion on the cause of her husband‘s fatal accident, as being “entirely speculative and thus inadmissible under [Federal Rule of Evidence] 803(8)(C).” Opinion 7. As noted, a team of MSHA officials and investigators arrived on the accident scene shortly after it occurred on October 22, 2003. The MSHA team, comprised of engineers, safety inspectors, and other experts, worked jointly with the DMME to secure the relevant information, question witnesses, and examine and photograph the accident scene, beginning their effort within a few
When the MSHA Report was finalized, its “Overview” section concluded that:
The most likely explanation for this continued operation is a build up of debris in the left side track operating lever‘s socket, located on the remote controller, which prevented the lever from returning to its neutral position.
J.A. 623. In its summary judgment ruling, however, the Opinion determined that “the MSHA report‘s opinion that ‘the most likely explanation’ for the accident is debris in the lever socket of the 3-X remote [controller] is likewise entirely speculative and thus inadmissible under Rule 803(8)(C).” Opinion 7. Mrs. Kennedy challenges this adverse admissibility determination, contending that consideration of this aspect of the MSHA Report is proper with respect to the summary judgment issue, and that such consideration will compel the denial of summary judgment to the defendants.
Mrs. Kennedy‘s appellate contention on the admissibility of the MSHA Report‘s conclusion implicates the provisions of
The following are not excluded by the hearsay rule, even though the declarant is available as a witness ... (8) ... Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (C) [when used] in civil actions and proceedings ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Under
In light of the foregoing, the district court necessarily abused its discretion in excluding the MSHA Report‘s conclusion from its summary judgment assessment. First and foremost, the court failed to recognize and apply a presumption of admissibility to the MSHA Report. As we recognized in Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 241 (4th Cir.1999), “[t]he admissibility of a public record specified in the rule is assumed as a matter of course, unless there are sufficient negative factors to indicate a lack of trustworthiness” (internal citations omitted). Furthermore, the party opposing the admission of such a report bears the burden of establishing its unreliability. Ellis, 745 F.2d at 301. Thus,
In this situation, the district court excluded the MSHA Report‘s conclusion from its summary judgment assessment without identifying or explaining any “negative factors [that] indicate a lack of trustworthiness,” sufficient to overcome the presumption of admissibility. Id. at 241. Although the court observed that the Report‘s conclusion was speculative, it failed to identify any deficiencies in the MSHA investigation or in MSHA‘s testing on the mining machine and remote controller. As the Supreme Court recognized in Beech Aircraft, if an investigatory report is otherwise admissible under
Moreover, the district court failed to assess the reliability of the MSHA report‘s conclusion by use of the various factors recognized by our precedent. And, these factors plainly weighed in favor of the admissibility of the Report, i.e.,—MSHA had investigated the fatal accident over several months, beginning immediately after it occurred; the MSHA investigators possessed special skills and experience; and the defendants have not suggested any “motivational problems” relating to either the investigation or the Report. Ellis, 745 F.2d at 300-01 (determining that court should assess admissibility of investigatory report by examining timeliness of investigation, special skill or experience of officials, and possible motivation problems).
Mrs. Kennedy also emphasizes on appeal that the court should not have ruled sua sponte on the admissibility of the MSHA Report‘s conclusion. She argues that, despite extensive briefing on the summary judgment issues, the defendants had never challenged the admissibility of the Report. As a result, Mrs. Kennedy relied on the Report‘s unchallenged and unassailed contents as being admissible in their entirety, and she contends that the Report was central to her opposition to the defendants’ summary judgment request.12
In these circumstances, the district court erred, as a matter of law, in failing to accord a presumption of admissibility to the conclusions of the MSHA Report. It also erred in failing to apply the various factors recognized by our precedent for assessing the reliability of such a report, and in presumably placing the burden on Mrs. Kennedy to establish that the Report‘s conclusions were admissible—rather than on the moving defendants to show they were inadmissible. Accordingly, the district court abused its discretion in excluding the MSHA Report‘s conclusion from its summary judgment consideration.13 We thus reverse the court‘s ruling as to the MSHA Report‘s conclusion.14
B.
Finally, Mrs. Kennedy asserts that the district court erred in excluding her proffered expert, Dr. Thomas Butler. According to Mrs. Kennedy, the court abused its discretion when it excluded Dr. Butler‘s opinions, premised on its determination that Butler had failed to perform any independent testing, and relied solely on the MSHA Report. The defendants, in contrast, contend that Butler‘s qualifications were highly questionable and that he based his opinion on a single line in the MSHA report‘s “Overview.” After acknowledging that Dr. Butler had opined that the accident was caused by accumulated debris in a tram control lever socket, the court determined that “Dr. Butler‘s deposition, part of the summary judgment record, clearly shows that this opinion is mere supposition on his part, based primarily on his reading of the report of the investigation of the accident by [MSHA].” Opinion 6. Because “Dr. Butler did no testing nor performed any calculations regarding the accident and admitted that there could be alternative explanations for the accident that were beyond his expertise,” the court excluded Dr. Butler‘s testimony “on this point.” Id.
We review a district court‘s exclusion of expert testimony for abuse of discretion,
Dr. Butler‘s report indicates that he was “asked to review the available documents and other materials and to determine, if possible, the cause of the accident.” J.A. 795. The documents and materials that Dr. Butler reviewed in the preparation of his report included: the complaint, answer, and certain other pleadings; photographs and videotapes of the scene of the accident; the DMME report, the MSHA Report and data; audio cassettes of interviews with those who witnessed relevant events on October 22, 2003; documents produced by Joy; and deposition testimony. Although Dr. Butler‘s report provides a helpful summary of the deposition testimony, the MSHA Report, and the documents produced by Joy, it does not do so with any specific scientific gloss or expertise. Furthermore, most of the conclusions of his report were apparently adopted from the MSHA Report.
The Supreme Court‘s decisions in Daubert and Kumho Tire, read together, mandate the trial courts to serve as gatekeepers on expert evidence, and to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589; see also Kumho Tire, 526 U.S. at 152. In this case, Dr. Butler‘s report does not demonstrate any particular scientific expertise that can be assessed for reliability or that would ultimately assist the finder of fact. The Report merely summarizes the evidence of record, without providing any specialized analysis to support its conclusions.
In according the district court the deference to which its challenged ruling is entitled, we are therefore unable to disturb its exclusion of Dr. Butler‘s opinions. We thus affirm that aspect of this appeal, but authorize the court to revisit it on remand if it sees fit so to do—in light of this opinion.
IV.
Pursuant to the foregoing, we affirm the district court‘s ruling on the expert witness, reverse its ruling on the MSHA Report, vacate the summary judgment award, and remand for such further proceedings as may be appropriate.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED.