Robert Cannioto, Bonnie Cannioto v. Louisville Ladder, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12885 NOVEMBER 18, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket No. 8:09-cv-01892-JSM-TBM
ROBERT CANNIOTO,
BONNIE CANNIOTO, his wife,
Plaintiffs-Appellants,
versus
LOUISVILLE LADDER, INC., a Delaware
corporation,
THE HOME DEPOT USA, INC., a Delaware
corporation,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 18, 2011)
Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.
PER CURIAM:
This is an appeal from the district court’s order excluding the testimony of
plaintiff’s expert, Charles E. Benedict, Ph.D., and the grant of defendants
Louisville Ladder, Inc. and The Home Depot USA, Inc.’s motion for summary
judgment. The issues presented on appeal are: (1) whether the district court
abused its discretion in excluding the expert testimony of Dr. Benedict; and (2)
whether the district erred in finding that the plaintiffs were not entitled to a
Cassisi1 inference and in granting the defendant’s motion for summary judgment.
This court reviews the district court’s grant of summary judgment de novo. Fanin
v. U.S. Dept. of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009). A district
court’s ruling excluding an expert witness under Rule 702 of the Federal Rules of
Evidence and Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct.
2786 (1993) is reviewed for an abuse of discretion. General Electric Co. v.
Joiner, 522 U.S. 136, 118 S. Ct. 512 (1997); Rink v. Cheminova, 400 F.3d 1286
(11th Cir. 2005).
After reviewing the record, and reading the parties’ briefs, we first conclude
that the district court did not abuse its discretion in excluding the expert testimony
of the plaintiffs’ principal expert witness, Dr. Benedict. We agree with the district
court’s finding that Dr. Benedict’s failed test alone could support an exclusion of
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Cassisi v. Maytag Co., 396 So. 2d 1140 (Fla. 1st DCA 1981).
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his testimony. We also agree with the district court’s finding that Dr. Benedict’s
new opinion set forth in his deposition testimony violated Federal Rule of Civil
Procedure 26(a)(2)(B) and (C).
In Cassisi v. Maytag Company, 396 So. 2d 1140 (Fla. 1st DCA 1981), the
Florida appellate court held that a legal inference is created that a product was
defective at the time of injury or the time of sale when it malfunctions during
normal use. The district court in its well-reasoned order held that the Cassisi
inference is not applicable to this case because the ladder in question still existed
and had been inspected by the plaintiffs’ expert. Moreover, the plaintiffs did not
prove that the ladder malfunctioned as required by Cassisi. See Rink v.
Cheminova, Inc., 400 F.3d at 1295 n.9. Finally, the record demonstrates that the
plaintiff failed to subject the ladder to a normal operation. The ladder was set up
at too steep an angle at the time of Cannioto’s fall which, in turn, caused it to slide
as he climbed it. The record demonstrates that Cannioto also failed to secure the
top of the ladder. Accordingly, for the above-stated reasons, we affirm the district
court’s order granting the motion to exclude plaintiffs’ expert witness and the
grant of summary judgment in favor of the defendants.
AFFIRMED.
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