In Cannioto vs. Louisville Ladder, Inc., Civil Action No.: 09-1892 TBM (M.D. Fla. 2011), the plaintiff was severely injured when he fell off of a 24 foot aluminum extension ladder manufactured by Louisville Ladder and sold by Home Depot. The plaintiff filed suit in the United District Court for the Middle District of Florida, Tampa Division, alleging that the manufacturer and the seller were strictly liable and negligent. The plaintiffs sought $5,000,000 in damages

Cannioto alleged that he climbed the extension ladder with the intent of securing the top of the ladder to the building. While he was in the process of securing the ladder, he alleged that the bottom rail of the ladder twisted and failed. This resulted in him falling a distance of 16 to 18 feet.

The plaintiff retained Dr. Charles Benedict as an expert engineer. He opined that the ladder was inherently defective and unreasonably dangerous in that the design of the foot connection to the ladder rail was loose, thereby allowing it to bend inward when in use. In an effort to prove his theory that the ladder failed as a result of torsional forces on a defectively designed foot, Benedict had one of his engineers test an exemplar ladder in a manner similar to the one used by the plaintiff. The engineer grossly misused the ladder during the test. The expert was unable to get the ladder rail to bend or break during the test.

During his deposition, Benedict offered a new theory which was not contained in his expert report. He claimed that the rungs were not properly or adequately attached to the rail and that the rung pulled out. Benedict testified that it was a combination of the defective design of the foot-to-rail connection of the subject ladder and the defective rung-to-rail connection that caused the plaintiff’s accident.

The defendants initially moved to exclude Benedict pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993). In excluding the expert, the trial court noted that his testing did not support his theory. The court further excluded his testimony on the grounds that he relied on an opinion (the alleged faulty rung-to-rail connection) which was not contained in his report.

The court then addressed the defendants’ Motion for Summary Judgment. The court granted the motion on the grounds that the plaintiff’s case was “bereft of any evidence of a defect” after the expert testimony had been excluded. (See Cannioto v. Louisville Ladder, Inc., 2011 W.L. 2014260 (M.D. Fla. 5-20-2011).

The plaintiff subsequently filed an appeal with the United States Court of Appeal for the Eleventh Circuit. The plaintiff initial argued on appeal that the trial court erred in excluding the expert testimony of Benedict. The court rejected this argument and held that “we agree with the District Court’s finding that Dr. Benedict’s failed test alone could support an exclusion of his testimony. We also agree with the District Court’s finding that Dr. Benedict’s new opinion set forth in his deposition violated Federal Rule of Civil Procedure 26(a)(2)(B)(C).”

The Eleventh Circuit then addressed the plaintiff’s argument that the trial court should have given the plaintiff a Cassisi inference. In Cassisi vs. Maytag, Co., 396 So.2d 1140 (Fla. 1st DCA 1981), the Florida court held that a legal inference is created that a product is defective at the time of the injury or the time of sale when it malfunctions during normal use. The court found that the plaintiff was not entitled to a Cassisi inference because the ladder in question still existed and had been inspected by the plaintiff’s expert. Moreover, the court found that the plaintiff did not prove that the ladder malfunctioned as required by Cassisi. See Cannioto vs. Louiville Ladder, Inc. 449 Fed. Appx. 797 (11th Cir. 2011), 2011 W.L. 5603810 (11th Cir. 2011).  Following the appeal, the District Court addressed the defendants’ motion to tax the plaintiff with costs. The trial court awarded the defendants $4,783.96 in costs (See Cannioto vs. Louiville Ladder, Inc., 2011 W.L. 2473100 (M.D. Fla. 2011).

Cannioto is significant in that the court found that a plaintiff is not entitled to the benefit of a Cassisi inference when the product in question was saved and available for inspection. When applied, the Cassisi inference precludes a defendant-manufacturer from prevailing on a motion for summary judgment.

For more information on the Cannioto case, please contact James R. Silverstein.