NEW ORLEANS – A federal judge has dismissed several claims against a major equipment manufacturer in a case of the death of a 50-year-old Ponchatoula man in a small excavator.
On September 30, U.S. District Judge Carl J. Barbier granted Kubota Corporation’s motion for summary judgment in part. The claims against defendants Kubota Tractor Corporation, Kubota Manufacturing of America Corporation and Kubota Industrial Equipment Corporation were dismissed with prejudice. He also dismissed with prejudice claims against all defendants under the theories of “construction or composition,” inadequate warning and breach of express warranty.
Kubota had filed a motion to strike expert testimony and for summary judgment in the lawsuit over the unwitnessed death of Michael "Pinball" Perrilloux, Jr.
The husband and father-of-one was found with his feet still in the cab but his top half slumped over the side of the Kubota U17 excavator in August 2020 after renting it from The Home Depot. The lawsuit alleges the excavator rocked and threw Perrilloux's head through a cab opening. His head struck a nearby pole.
His wife Sharon found his body and sued on behalf of herself and their daughter in 2021. With a trial scheduled for November 4 in front of Barbier, Kubota says she has failed to prove the excavator malfunctioned in any way that would open it to liability under the state's Products Liability Act.
Her case relies on expert testimony from Christopher Ferrone, who has a classical engineering degree from the University of Wisconsin. On Aug. 30, Kubota moved to strike his opinions as speculative.
His report hypothesizes three scenarios:
* Perrilloux stood up while operating the machine and lost his balance;
* He stopped the machine, stood up and accidently hit the controls, causing him and the machine to become unstable; or
* Perrilloux was sitting when he became unstable and was partially ejected.
“Ferrone professes to have expertise in the area of accident reconstruction, but in this case, he clearly did not perform an accident reconstruction, and his testimony reveals that his reconstruction opinions are not 'the fruit of a rigorous, objectively verifiable approach," Kubota's motion says.
"Among other things, in this case, he never operated the U17 excavator at issue, or any U17, to develop an understanding of what an operator experiences while doing so. He never visited the accident scene. He never measured dimensions of the machine, operating speeds, response to control-lever input; he never calculated reaction times, etc."
The short complaint alleged an "unreasonably dangerous condition" in the excavator. A cab enclosure would have prevented Perrilloux from striking his head on the pole, it is alleged.
A decal on the excavator tells operators to wear seatbelts "to avoid personal injury or death," but Perrilloux did not. During his deposition, Ferrone was asked about his contention that the warning should have had a consequence statement past "personal injury or death," specifically that the operator could be ejected.
Had that warning been included, would Perrilloux have worn his seat belt?
"All I know is that information would be available to him, and it would instruct him if he had an oversight or refresh his memory," Ferrone replied.
Considering Ferrone's testimony that warnings "have been generally documented to be ineffective," Kubota says he should not be permitted to testify about the adequacy of the safety instructions.
"The patent inconsistency there renders the opinion inherently unreliable and overly prejudicial, and without any suggestion that a different warning would have produced a different outcoe in the case, simply unhelpful," Kubota argues.
Deirdre McGlinchey and Patrick O'Cain of McGlinchey Stafford in New Orleans represent Kubota. Paul Wilkins, Adras Laborde II and Monica Moton of Dudley Debosier in Baton Rouge represent the plaintiffs.