REVISED - March 17, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20851
NORMAN MICHAELS; ET AL,
Plaintiffs,
NORMAN MICHAELS, Executor of Estates of Martin Popowitz and
Harriet Loria Popowitz, Deceased,
Plaintiff-Appellant,
versus
AVITECH INC, also known as Harger Aviation,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
JANUARY 28, 2000
Before HIGGINBOTHAM and SMITH, Circuit Judges, and DUPLANTIER*,
District Judge.
HIGGINBOTHAM, Circuit Judge:
This is a negligence action arising from the crash of a
private plane. Norman Michaels appeals the striking of his experts
and the grant of summary judgment in favor of Avitech, Inc.
Although we find that the plaintiff’s experts were improperly
struck, we also find that no genuine questions of material fact
exist, even considering all of the plaintiff’s experts and reports.
Thus we AFFIRM summary judgment in favor of the defendant.
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
I.
Norman Michaels is the executor of the estates of two people
killed in a Cessna plane crash. In 1990, an aircraft service
company known as Avitech replaced the right vacuum pump on the
Cessna and attempted to repair oil leaks in the engine compartment.
Nine days later, the left vacuum pump failed and was replaced by a
different aircraft service company.
Each year between 1991 and 1993, the Cessna passed FAA
required inspections. A few days before March 1, 1994, a
maintenance facility in New York detected an oil leak near the
turbo controller oil inlet. This facility was unable to repair
that oil leak and recommended that the pilot investigate the leak
further.
On March 1, 1994, the pilot of the aircraft took off from New
Orleans under weather conditions which included severe
thunderstorms within or surrounding his flight path. The pilot was
flying without a legally current license and without current legal
authority to fly in instrument-only conditions. During flight, the
pilot reported the failure of pneumatic instruments that relied on
the plane’s gyroscopes which were powered by the vacuum pumps.
Soon after this failure, radar contact was lost. The plane broke
up in midair and crashed in Alabama, killing all four on board and
scattering debris across more than four miles.
The plaintiff’s theory is that the left vacuum pump failed
during flight, putting increased pressure on the right pump. The
right pump then failed because debris in the pneumatic lines made
the right pump incapable of sustaining a higher than normal
workload. The failure of the two pumps then caused the gyroscopes
to fail, as well as the instruments which relied on them.
2
Consequently, the pilot was unable to navigate away from the severe
weather, which resulted in the Cessna’s destruction.
It is undisputed that the left vacuum pump failed
catastrophically before the crash, although the plane should have
been able to generate sufficient vacuum pressure with only one pump
working. The right vacuum pump was not intact after the crash,
either, although it is disputed whether it failed before or after
the plane was destroyed.
The plaintiff sued the vacuum pump manufacturer, along with
numerous others, including Avitech, in Pennsylvania. The claims
against Avitech were severed and transferred to the Southern
District of Texas, pursuant to 28 U.S.C. § 1406.
The plaintiff claimed Avitech negligently installed the right
vacuum pump, failed to repair oil leaks, and failed to clean the
pump lines.
After the case had been on file for over a year, the district
court held a pretrial conference and apparently questioned the
plaintiff’s ability to establish a case against Avitech. The
plaintiff claimed he had an expert witness who believed Avitech was
responsible. On June 12, 1997, the district court directed the
plaintiff to designate, with a report, his expert witness that
implicated Avitech. The federal rules require that the designation
of expert witnesses “shall be made at the times and in the sequence
directed by the court.” FED. R. CIV. P. 26(a)(2)(C). The order to
designate the expert was entered June 19, 1997, with a deadline of
July 7, 1997.
On July 7, 1997, the plaintiff designated an expert, Douglas
Stimpson, who provided a brief report. The plaintiff also
3
designated Scott Goodley, who also provided a brief report
essentially duplicating Stimpson’s.
On September 29, 1997, Avitech designated several expert
witnesses with their reports. At a conference the same day, the
court directed Avitech to file its motion for summary judgment on
causation by October 31.
On October 29, 1997, two days before Avitech had to file its
motion for summary judgment, the plaintiff’s attorney sent Avitech
a 21-page fax which included radar plots and reports from
previously undisclosed experts. Over the next few days, the
plaintiff also sent Avitech a copy of a “Supplemental Witness/Fact
Witness Designation” identifying the four new expert witnesses and
providing a significantly revised and expanded report from
Stimpson; the plaintiff also sent a correction to his “Supplemental
Expert Witness/Fact Designation,” as well as a “Second Supplemental
Expert Witness Designation.”
Avitech moved to strike the plaintiff’s original report
because it was so insubstantial as to not meet the court’s original
order. Avitech moved to strike the subsequent reports as untimely.
The district court struck them all. The district court entered
summary judgment in favor of the defendant, and the plaintiff
appealed.
II.
The district court’s June 12, 1997, order required that “the
plaintiffs must designate their expert with a report that
implicates Avitech and any three witnesses they believe need to be
deposed.” The plaintiff’s original expert designation and report,
although brief, at least implicates Avitech by providing some
4
theory of Avitech’s negligence with respect to equipment whose
failure was implicated in the crash.
Stimpson’s report claims that his examination of the wreckage
discovered debris in the pneumatic lines. Because both pumps feed
into the same lines, the replacement of either pump could have
contaminated these lines if the pump lines were not properly
cleaned after installation. Because both pumps were replaced in
1990, it is conceivable that either or both installations failed to
properly clean the lines or otherwise introduced contamination.
Stimpson’s report, however, provides no direct evidence that
Avitech failed to clean the pump lines or negligently installed the
pump. The maintenance records cited in Stimpson’s report indicate
that Avitech blew out the lines, as required, and Stimpson gives no
reason for the claim that the pump was negligently installed.
However, Stimpson did note that the maintenance records
indicated that Avitech found numerous oil leaks but did not correct
them. From this, Stimpson concluded also that the failure to
correct the oil leaks contaminated the pneumatic system which led
to the failure of the pumps.
Stimpson’s report, then, facially establishes that the
pneumatic system may have been contaminated from oil leaks which
Avitech failed to repair. Even assuming that Avitech cleaned the
lines and that the second maintenance facility perhaps did not,
Stimpson’s report still “implicates” Avitech, since it pinpoints
them as one source of contamination. If both Avitech and the
subseqeuent facility were sources of contamination, however, that
does not necessarily relieve Avitech of liability, so long as the
sources of contamination combined to create a contaminated
environment which, through a string of events, caused the plane to
5
crash. In such an instance, the contamination could be seen as an
indivisible harm which creates joint and several liability for the
parties whose negligence created it. See, e.g., Borel v.
Fibreboard Paper Products Corp., 493 F.2d 1076, 1095 (5th Cir.
1973); Amstadt v. United States Brass Corp., 919 S.W.2d 644 (Tex.
1996) (both citing Landers v. East Tex. Salt Water Disposal Co.,
248 S.W.2d 731 (Tex. 1952)); cf. Chemical Exp. Carriers, Inc. v.
French, 759 S.W.2d 683 (Tex.App.-Corpus Christi 1988, writ denied)
(ground crew’s negligent failure to detect contaminated jet fuel
did not supersede the negligence of the fuel company which
delivered contaminated fuel).1
Thus, we find that the Stimpson’s original report at least
“implicated” Avitech. The district court, however, struck the
report because it did not live up to the standards of Sierra Club
v. Cedar Point Oil Company, Inc., 73 F.3d 546 (5th Cir. 1996),
which states that expert reports should be “detailed and complete”
so as “to avoid the disclosure of ‘sketchy and vague’ expert
information.” Id. at 571. Sierra Club found no abuse of
discretion when the district court decided that a plaintiff’s
expert reports violated a discovery order because the reports were
brief and conclusory. Id. Unlike the present case, however, the
plaintiff in Sierra Club essentially admitted that it had not
complied with the discovery order, and thus compliance was not at
issue so much as the sanction actually imposed. Id. at 571 n.46,
572-73.
1
For the purposes of this appeal, we have adopted the parties’
implicit assumption that Texas substantive law governs the
plaintiff’s negligence claims.
6
Furthermore, in Sierra Club, the district court had expressly
adopted a discovery plan, and it was an “accelerated” plan. Id.
at 569. With respect to experts, each party in Sierra Club had
been ordered to prepare “a complete statement of all opinions to be
expressed and the basis and reasons therefor.” Id. at 570
(emphasis added). Thus, the plaintiff’s failure in Sierra Club to
provide complete disclosure was an admitted violation of an
explicit and unambiguous discovery order in the context of a
previously adopted and accelerated discovery plan.
In this case, however, the intended purpose of the order at
issue is ambiguous. The plaintiff claims that the district court
doubted that the plaintiff could find any negligence on the part of
Avitech; thus, the district court merely wanted disclosure of some
evidence of Avitech’s negligence. The defendant claims that the
district court doubted that the plaintiff could prove negligence,
causation, and defeat the defendant’s affirmative defenses; thus,
the district court wanted the plaintiff to disclose all of his
expert evidence and theories.
Because the pretrial meetings were not recorded, we have
little evidence which reveals their content. On file is an
affidavit by an attorney for the other plaintiff below who took
part in both the June and September conferences. According to her
sworn statement, the parties and court “did not discuss a discovery
schedule or a trial date” at the June 12, 1997 conference, which
was directed primarily toward the issue of abatement. Furthermore,
according to the affidavit, it was not until the September
conference that the court expressed doubt as to the sufficiency of
the plaintiff’s expert reports and set a briefing schedule for
Avitech’s summary judgment motion.
7
Consequently, it was the plaintiff’s alleged belief that the
June 19, 1997 order denying abatement only required him to
designate one expert who could point to some maintenance negligence
on the part of Avitech, rather than designate and disclose all
potential experts and expert opinions regarding negligence,
causation, and the affirmative defenses.
The district court expressly found the plaintiff’s
understanding to be “totally unreasonable” and consequently ruled
that the plaintiff had violated the discovery order by not
disclosing all experts and opinions at once. As a sanction for
violating the discovery order, the district court struck all of the
plaintiff’s expert witness designations.
While such a sanction may sometimes be appropriate for the
violation of discovery orders, we can find no violation in this
case because the order allegedly violated does not on its face
require complete disclosure of experts and opinions, nor was the
order part of a current discovery plan, let alone an accelerated
plan.
Instead, the order simply instructed the plaintiff to
designate one expert and report which could implicate Avitech,
which the plaintiff did. Given that the district court expressed
skepticism at the plaintiff’s case, it would make sense to require
a brief initial disclosure on the part of the plaintiff, for if the
plaintiff could not overcome that low hurdle, then the case could
be dismissed. As such, the plaintiff’s alleged interpretation is
tenable.
The defendant suggests that the district court’s extreme
measures resulted from the court’s belief that the plaintiff
tokenly complied with the literal wording of the initial order but
8
purposefully ignored the common understanding between the parties
and the court in order to gain a tactical advantage by the late
designation of experts. While such bad faith might warrant the
result in this case, the district court accepted the plaintiff’s
understanding of the order at face value, yet still found it to be
unreasonable.
A district court has wide latitude in determining whether
disclosure is “detailed and complete,” at least when the discovery
order requests complete disclosure. See, e.g., Sierra Club, 73
F.3d at 571-72 n.46. However, when a discovery order fails to
specify complete disclosure, no current or accelerated discovery
schedule is in place, and the plaintiff has some reason to believe
that less than full disclosure is required, then the discretion to
find a violation must likewise be reduced. Thus, given the record
before us, we find that it was an abuse of discretion to hold that
the plaintiff’s initial disclosures violated the discovery order.
Consequently, the plaintiff’s supplemental and rebuttal reports
should not have been struck since it is not disputed that these
reports were timely filed under the rules.
The district court was justified in his skeptical view of the
case, as we will explain, and the expert testimony he struck may
not have survived a Daubert hearing. While it may be that the
district court believed it deprived plaintiff of little by his
order, the record reasons for it are not sufficient.
III.
It remains to determine whether the plaintiff can withstand
summary judgment, even considering all of his experts and reports.
See, e.g., In re TMI Litigation, 193 F.3d 613, 716 (3rd Cir.1999),
9
(considering whether improperly excluded expert evidence sufficed
to create a genuine issue of material fact), amended by Nos.
96-7623, 96-7624, 96-7625, 2000 WL 18950 (3d Cir. Jan 04, 2000).
Our review of the summary judgment record is de novo and
summary judgment can be affirmed on any legally sufficient ground,
even one not relied on by the district court. See BMG Music v.
Martinez, 74 F.3d 87, 89 (5th Cir. 1996). Fact questions are
viewed in the light most favorable to the nonmovant. See Hassan v.
Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir.1995).
However, only materials in the pretrial record that would have been
admissible evidence can be considered. See Martin v. John W. Stone
Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987). After
reviewing the complete summary judgment record, we find that no
genuine issue of material fact exists which would preclude summary
judgment for the defendant. See FED. RULE CIV. PROC. 56(e).
Essentially, the plaintiff’s theory is that a particular chain
of events which began with the defendant’s negligence in 1990 led
to the fatal crash in 1994. At the summary judgment hearing,
however, the plaintiff abandoned his theory that the oil leak
caused the plane crash. Plaintiff’s counsel at the hearing noted,
“I think we’re getting all bogged down in the oil leak when we
shouldn’t be, because the problem that caused this airplane crash
in our view is not the oil leak.” The plaintiff has also abandoned
the theory on appeal by failing to argue the theory in its briefs
except to mention that “Michael’s expert faulted Avitech for not
taking care of the leak.” Brief of Appellant at 44.
The abandonment of the theory makes sense, even though there
was some evidence that after Avitech located an oil leak and made
repairs, there was still some oil leaking. However, it was
10
undisputed that the potential oil leak was at the bottom of the
engine and the vacuum pumps were at the top. The plaintiff’s
expert never offered any credible theory as to how an oil leak
could have leaked upward to contaminate the vacuum pumps other than
to simply reiterate that the oil leak could contaminate the general
environment. Furthermore, it was undisputed that three annual
inspections of the aircraft engine between 1990 and 1994 that
searched for oil leaks found none. The only oil leak ever detected
was found near the left vacuum pump days before the fatal crash.
A New York facility was unable to repair this leak and instead
recommended that the pilot investigate it further.
Because the plaintiff’s expert had no rational explanation as
to why the first oil leak mattered, given that it disappeared after
1990, yet the 1994 oil leak did not matter, despite the fact that
it was near the pump which catastrophically failed, there was
insufficient evidence to send the oil leak theory to a jury. Thus,
this theory cannot survive summary judgment, even if we assume the
theory is properly before us.
Consequently, the plaintiff must stake his case on the
allegation that Avitech negligently installed the right vacuum pump
and contaminated the pump lines. Assuming such negligence
occurred, the plaintiff argues that over time this contamination
worked its way into the system and during the fateful flight four
years later, the contamination led to a failure of the left vacuum
pump, which then placed an increased load on the right pump. The
right pump then failed, under the increased workload, because of
the contamination in the system. The failure of both pumps caused
the gyroscopes to fail, and the failure of the gyroscopes caused
certain instruments to fail. The lack of instruments prevented the
11
pilot from navigating away from the most severe weather, and then
the plane was destroyed by a storm that the pilot could not escape.
This is quite a long chain of events, although it is not an
inconceivable sequence. In fact, a cursory review of the record
reveals at least some evidence that both pumps and the gyroscopes
failed during flight, and that the pump system was contaminated.
The defendant argues that the pilot was a superseding cause of
the accident because he took off in bad weather after receiving
several warnings and because he did not have a current license or
instrument rating. The record evidence, however, reveals a “battle
of the experts” as to whether the weather conditions made it
unreasonable for a pilot to take off that morning. Thus, summary
judgment is precluded as to the pilot’s decision to fly.
It is true that some courts have held that the violation of
Federal Aviation Regulations is negligence as a matter of law. See
Associated Aviation Underwriters v. United States, 462 F. Supp.
674, 680 (N.D. Tex. 1978) (citing Gatenby v. Altoona Aviation
Corp., 407 F.2d 443 (3rd Cir. 1969); Gas Service Co. v. Helmers,
179 F.2d 101 (8th Cir. 1950)). However, the violation of licensing
regulations is often an exception to the general rule that the
violation of a safety regulation or statute is negligence per se.
See Duty v. East Coast Tender Service, Inc., 660 F.2d 933, 948-49
& nn. 1-2 (4th Cir. 1981) (in [sic] banc) (Hall, J. dissenting)
(collecting cases from twenty jurisdictions, including Texas, which
have a licensing exception).
One reason for having a licensing exception is that there may
be reasons a license has not been renewed that do not relate to the
operator’s lack of skill. See RESTATEMENT (THIRD) OF TORTS, § 12 cmt.
h (D.D., 1999). For the purposes of this case, however, it does
12
not matter whether the violation is negligence per se or merely
evidence of negligence. In either case, to win on summary
judgment, the defendant must show that such negligence was the sole
proximate cause of the accident as a matter of law. See, e.g.,
Duty v. East Coast Tender Service, Inc., 660 F.2d 933, 947 (4th
Cir. 1981) (holding that proximate cause is still an issue for the
jury even if the violation of a licensing regulation is negligence
per se). If the jury believes the plaintiff’s theory of the case,
the fact that the pilot did not have a current license or
instrument rating may be irrelevant, since the allegation is that
the plane crashed because it was rendered instrumentless and the
pilot was unable to navigate out of the bad weather. Under such
conditions, a jury might find that the lack of instrumentation was
a proximate cause of the accident. For these reasons, the
defendant’s affirmative defense cannot prevail on summary judgment.
Nevertheless, the plaintiff has failed to provide evidence on
the issue of Avitech’s negligence sufficient for a reasonable juror
to find for the plaintiff by a preponderance of the evidence, which
mandates summary judgment in Avitech’s favor. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-51 (1986).
The plaintiff’s contention is that Avitech’s negligent
installation of the right pump contaminated the system. Indeed, if
Avitech negligently installed the pump and either introduced
contamination or failed to remove contamination, then there is a
reasonable inference that such contamination led first to the
failure of the left pump nine days later, and then led to the
failure of both pumps less than 200 flight hours after that.
However, the plaintiff still must have sufficient evidence to
generate a jury question that Avitech was negligent in its
13
installation of the right pump. The plaintiff claims that Avitech
did not clean out the pump lines and check the system. However,
the maintenance records indicate that Avitech did. The plaintiff’s
assertion to the contrary is based on three facts: (A) debris was
found in the system four years later, after the crash; (B) the left
pump failed nine days after Avitech’s installation of the right
pump; and (C) Avitech only recorded 3.2 hours of labor for
replacing the right vacuum pump, cleaning the lines, and checking
the system. We examine each in turn.
A. Pump System Debris
After Avitech replaced the right pump, the left pump failed
and was replaced a few days later. Four years later, during the
fatal flight, the left pump failed again followed, allegedly, by
the failure of the right pump. Additionally, the engine was
cleaned at least four times after Avitech replaced the right pump.
According to the evidence, all of the following can introduce
contamination into the system: the negligent installation of a
pump, the actual failure of a pump, engine cleaning, and even
normal operation. In this case, debris was found after (1) four
years of operation, (2) four engine cleanings, (3) three pump
failures, (4) the installation of the left pump, and (5) the
discovery of an oil leak near the left pump, which all agree was
never fixed.
Given the variety of intervening events, the finding of debris
alone cannot support any rational inference that Avitech’s
installation of the right pump was negligent, given that the
plaintiff’s experts wholly fail to address and rule out the
numerous other potential causes. Had the expert’s opinions
14
undergone a Daubert analysis, they likely would not have been
admissible, since an important factor under Daubert is the
testability of an expert’s conclusions and theory. See Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). In
this case, expert testimony was necessary to establish the likely
cause of an aircraft disaster. A necessary ingredient of such
theorizing, however, is the exclusion of alternative causes. See
In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 757, 759 n.27
(3rd Cir. 1994).
Although the plaintiff’s expert’s theory that debris was
evidence of negligence would likely have been inadmissible at trial
under Daubert because it failed to exclude other causes, and
although only admissible evidence should be considered at summary
judgment, it is perhaps remiss to attempt a Daubert inquiry at the
appellate level when the district court did not perform one.2 See
Cortes-Irizarry v. Corporacion Insular De Seguros, 111 F.3d 184,
189 (1st Cir. 1997). However, in determining whether the plaintiff
has sufficient and competent summary judgment evidence for a given
issue, it would be equally remiss for us to ignore the fact that a
plaintiff’s expert evidence lacks any rational probative value.
For if evidence gives rise to numerous inferences which are equally
plausible, yet only one inference is consistent with the
plaintiff’s theory, the plaintiff has failed to offer evidence
which is “significantly probative,” see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986), absent at least some evidence that
2
Thus, we in no way suggest that the Daubert gatekeeping
function may be transferred from the district court to the court of
appeals.
15
excludes the other potential causes. The reason for this is as
follows:
Under Texas law, if a plaintiff has evidence that a
defendant’s negligence is a proximate cause of an accident, the
plaintiff need not make any attempt to rule out other proximate
causes of the accident because “[t]here can be more than one
proximate cause of an injury, and all persons whose negligent
conduct contributed to the injury are responsible for it.” Coleman
v. Equitable Real Estate Investment Management, Inc., 971 S.W.2d
611 (Tex.App.-Dallas 1998).
However, if the plaintiff’s only evidence of the defendant’s
negligence is an inference from the observation of a dangerous
condition such as contaminated pump lines, then the plaintiff must
at least make an attempt to rule out other likely sources of
negligence because such an inference is essentially a form of res
ipsa loquitur, even if the plaintiff does not label it as such.
Notwithstanding the fact that res ipsa is only applicable when
the condition in question was under the exclusive control of the
defendant – which was not the case here – res ipsa also requires an
exclusion of alternative causes. See, e.g., Harris v. National
Passenger Railroad Corp., 79 F.Supp.2d 673, 679 (E.D.Tex. 1999)
(“While res ipsa loquitur alleviates the plaintiff of the burden of
directly proving causation, it is only applicable where the
likelihood of causes other than the defendant are ruled out . . .
.”).
Because the plaintiff’s expert made no attempt to rule out the
numerous other sources of contamination of the alleged debris, the
evidence was not “significantly probative” as to the issue of
Avitech’s negligence, and thus does not preclude summary judgment.
16
B. Avitech’s Time Record
The plaintiff claims that 3.2 hours was insufficient time for
Avitech to correctly install the right pump, clean the lines, and
check the system, yet the plaintiff gives no explanation for this
claim. If such an installation, cleaning, and check takes even a
fast mechanic over 7 hours, for example, then the evidence would
support an inference that perhaps the pump was installed but the
lines were never cleaned and the system never checked. However,
the plaintiff’s expert never justifies the conclusory assertion
that 3.2 hours was insufficient time to do the job properly. As
such, the plaintiff’s evidence, without more, is insufficient to
preclude summary judgment on the issue of negligence. See, e.g.,
Boyd v. State Farm Ins. Companies, 158 F.3d 326, 331 (5th Cir.
1998) (“For the purposes of summary judgment under Fed.R.Civ.P.
56(e), an expert affidavit must include materials on which the
expert based his opinion, as well as an indication of the reasoning
process underlying the opinion.”); cf. General Elec. Co. v. Joiner,
522 U.S. 136, 519 (1997) (“[N]othing in either Daubert or the
Federal Rules of Evidence requires a district court to admit
opinion evidence which is connected to existing data only by the
ipse dixit of the expert.”).
C. The Left Pump Failure
The plaintiff claims that the failure of the left pump nine
days after the failure of the right pump supports an inference that
the right pump must have been negligently installed. This
contradicts the plaintiff’s own theory that the failure of one pump
puts such an increased load on the other pump that premature
failure of the other pump is expected and not uncommon. If we
17
assume the plaintiff’s own theory, however, then when the right
pump failed in 1990, the left pump was immediately stressed; thus,
even before Avitech replaced the right pump, the left pump would
have sustained injury that brings risk of premature failure.
Moreover, it is undisputed that the left pump failure occurred at
the normal life expectancy of the left pump. Specifically, the
left pump failed at 700 hours, while its warranty was for only 400
hours. Avitech’s undisputed expert testimony stated that the left
pump’s life span was about what could be expected. The plaintiff
still insists, however, that the failure of the left pump is
evidence that Avitech negligently installed the right pump.
While the proximity in time of the 1990 pump failures might
generate some speculation that a problem existed with the
installation of the right pump by Avitech, the plaintiff’s expert
gives no analysis of the other potential causes of the left pump’s
failure, such as earlier failure of the right pump or the age of
the left pump. In fact, it is conceivable that a problem with the
left pump led to the premature failure of the right pump before the
left pump initially failed. As with the case of the pump debris,
the plaintiff’s experts do not discuss let alone exclude the
alternative causes of the left pump’s failure. Thus, the expert
theories on this point are simply insufficient for a reasonable
juror to find by a preponderance of the evidence that Avitech
committed negligence. See Richoux v. Armstrong Cork Corp., 777
F.2d 296, 297 (5th Cir. 1985) (“The inferences drawn from the
record, however, must be rational and reasonable, not idle,
speculative, or conjectural.”).
Because none of the plaintiff’s inferences of Avitech’s
negligence are sufficient to support finding of negligence, they do
18
not suffice to create a genuine issue of material fact that would
preclude summary judgment. See, e.g., Krim v. BancTexas Group,
Inc., 989 F.2d 1435, 1449 (5th Cir. 1993) (summary judgment is
appropriate if "nonmoving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation");
see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 596 (1993) (if “the trial court concludes that the scintilla
of evidence presented supporting a position is insufficient to
allow a reasonable juror to conclude that the position more likely
than not is true, the court remains free . . .to grant summary
judgment”). For these reasons, we AFFIRM the grant of summary
judgment.
AFFIRMED.
19
Michaels v. Avitech Inc
Combined Opinion