McKee v. Bowers Window & Door Co., Inc. et al.
| Docket Number: | 2009-CA-01314-SCT Linked Case(s): 2009-CA-01314-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 04-21-2011 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Property damage - Expert testimony - M.R.E. 702 - Products liability - Design-defect claim - Negligence - Warranty claims Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 07-01-2009 Appealed from: Madison County Circuit Court Judge: Marcus D. Gordon Disposition: Granted summary judgment to the Appellees. Case Number: 2002-0230 |
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| Consolidated: 2009-CA-01315-SCT M. Curtiss McKee and Ann Craft McKee v. Weather Shield Manufacturing, Inc. and Bowers Window & Door Company, Inc.; Madison Circuit Court; LC Case #: 2002-0230; Ruling Date: 08/06/2009; Ruling Judge: Marcus D. Gordon | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | M. Curtiss McKee and Ann Craft McKee |
DENNIS L. HORN
SHIRLEY PAYNE |
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| Appellee: | Bowers Window & Door Company, Inc. and Weather Shield Manufacturing, Inc. | J. WADE SWEAT MARISA CAMPBELL ATKINSON TIMOTHY DALE CRAWLEY MITZI LEASHA GEORGE | ||
| Appellee #2: | ||||
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| Topic: | Property damage - Expert testimony - M.R.E. 702 - Products liability - Design-defect claim - Negligence - Warranty claims |
| Summary of the Facts: | In 1998, the McKees entered into a home-construction contact with Ellington Homes, Inc. Thereafter, the president of Ellington Homes instructed the McKees to look at windows at Bowers Window & Door Co., Inc. Ultimately, the McKees selected wooden windows designed and manufactured by Weather Shield Manufacturing, Inc. The windows were installed by either Ellington Homes or its subcontractors, with no involvement by either Bowers Window or Weather Shield. After the McKees moved into their new home in 1999, they experienced a multitude of problems related to construction, including leaking windows. By the spring of 2002, the wooden windows were rotting. Subsequently, the home underwent a significant reconstruction to remedy its various problems. The McKees filed suit against Ellington Homes, Weather Shield, and Bowers Window. Both Weather Shield and Bowers Window filed motions for summary judgment which the court granted. The McKees appeal. |
| Summary of Opinion Analysis: | Issue 1: Expert testimony In evaluating reliability of expert testimony under M.R.E. 702, the court’s focus must be solely on principles and methodology, not on the conclusions that they generate. Expert testimony admitted at trial must be based on scientific methods and procedures, not on unsupported speculation or subjective belief. Regarding the defectiveness of the windows, the McKees designated Birdsong, a home building contractor. At his deposition, Birdsong stated that he had twenty-four years of experience as a general contractor in the metro Jackson area. Birdsong acknowledged that he had never worked for a window manufacturer or window seller; had no special education, training, or experience specific to windows; had no professional resume or curriculum vitae; and had never previously testified as an expert witness in any capacity. Moreover, Birdsong conceded that, although he had been retained by the McKees, he had prepared no notes or written reports regarding his one-time, exterior observations of the McKees’ windows and that, in formulating his opinions, he had reviewed no documents from other experts or sources, such as books, magazines, treatises, articles, or other publications. The circuit judge summarized Birdsong’s testimony as follows, “he was involved with construction, evaluation of homes of all values, . . . and he finally . . . gave an opinion that the . . . finger-joint window should be outlawed and not allowed although . . . it is still in use.” Based thereon, the circuit judge granted the motion to exclude his expert testimony. Birdsong’s twenty-four years of experience as a general contractor likely would have qualified him as an expert in the broad field of general contracting. But Birdsong was not offered as an expert in that general field, but rather in the specific field of window manufacture and design, assessing the purported defectiveness of the subject windows. Furthermore, the limited nature of Birdsong’s one-time, exterior observation of the windows in the spring of 2002, calls into question his specific qualifications to testify as either a layperson or expert regarding the defectiveness of those windows. Even assuming arguendo that Birdsong was qualified, his testimony lacked both sufficient relevance and reliability. Issue 2: Summary judgment In a product liability suit, proof of injury alone is insufficient, and more is needed to satisfy the claimant’s burden. In order for the McKees’ design-defect claim to survive Weather Shield’s “Motion for Summary Judgment,” they must establish that, when the windows left Weather Shield’s control, there are genuine issues of material fact regarding whether the windows were designed in a defective manner; which rendered them unreasonably dangerous to the McKees; that the defective and unreasonably dangerous condition proximately caused the McKees’ damages; that the damages were not caused by an inherent characteristic of the wooden windows which cannot be eliminated without substantially compromising the product’s usefulness or desirability and which an ordinary person would recognize; that Weather Shield knew or should have known of the danger that caused the damage; and that there existed a feasible design alternative that would have to a reasonable probability prevented the harm without also impairing the utility, usefulness, practicality or desirability of the windows. The McKees offer only mere proof of damage following the use of the Weather Shield windows. The fact that their windows leaked and rotted is insufficient for this design-defect claim to survive Weather Shield’s motion for summary judgment. With regard to Bowers Windows, no proof was adduced that Bowers Window exercised substantial control over the design, testing, manufacture, packaging or labeling of the product that caused the harm, altered or modified the product, or had actual or constructive knowledge of the defective condition of the product at the time it supplied the product. Thus, summary judgment was properly entered in favor of Bowers Window on the McKees’ product-liability claims. The McKees’ negligence claim required that they prove, by a preponderance of the evidence, duty, breach of that duty, causation or proximate cause, and damages. The McKees’ negligence claim fails to present any new discussion or claim that does not relate back to the products liability claim which has previously been determined to be legally insufficient to survive summary judgment. The McKees’ warranty claims against Bowers Window are procedurally barred, because they never, over the course of filing three complaints, pleaded claims for breach of implied or express warranty against Bowers Window. |
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