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holding that while engineer's expert opinions may have been accurate, he had done nothing to show they were
Summary of this case from Stiefel v. MaloneOpinion
5:02-CV-259-4 (CAR)
December 11, 2003
ORDER MOTION TO EXCLUDE EXPERT TESTIMONY
This case is before the Court on Defendant's Motion to Exclude the testimony of Plaintiff's expert David Brown. Through this motion, Defendant requests that the Court exclude Brown's testimony for failure to satisfy the requirements of the Federal Rules of Evidence and those standards set forth by the United States Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Plaintiff filed a timely Response and objection to this motion and Defendant thereafter filed a timely Reply. The parties further appeared before this Court on November 19, 2003 for a full hearing on the matter. Upon due consideration of the evidence presented, the arguments of the parties, and all relevant authorities, this Court finds that the methodology employed by David Brown in reaching his opinions in this case, does in fact lack that indicia of reliability necessary for his testimony to be admissible under the Federal Rules. Accordingly, and for the reasons set forth below, Defendant's Motion to exclude the expert testimony of David Brown should be GRANTED.
I. BACKGROUND INFORMATION
The instant case arises out of an automobile accident, wherein Michael Chase McGee, a six month old child, was injured and killed. Through this suit, Plaintiffs Cheryl and Jeffrey McGee (herein "Plaintiffs"), the surviving parents of the decedent, assert that the rear-facing "On My Way" (OMW) car seat, in which their child was seated at the time of the accident, was defectively designed by Defendant Evenflo Corporation, Inc. (herein "Evenflo"). Under Plaintiffs' theory, the design of the OMW child seat is defective because it is not equipped with any device to restrict its upward and rearward movement in a rear-impact collision. Plaintiffs specifically contend that, in this case, the OMW child seat did in fact rotate upwards and rearwards during a rear-end collision, and that as a result of the seat's design, their child impacted the rear window of the vehicle and suffered blunt trauma to his head. These injuries later resulted in the infant's death.
Evenflo acknowledges that the OMW car seat is designed to pivot rearwards in a rear-end collision, but objects to Plaintiffs' characterization of this feature as a defect. Evenflo instead argues this rearward rotation is actually a desirable feature, because this design absorbs and diffuses the force of a crash on the infant occupant. It likewise finds any alternative designs which may restrict rearward rotation, to be less desirable because they increase neck loading suffered by infants in more common, frontal collisions. Evenflo further challenges Plaintiffs' theory in this case that it was possible for the car seat to rotate so high as to impact the rear window of the vehicle. Evenflo's expert suggests that the injuries in this case may have been caused when the child's head struck some other portion of the car's interior, such as the side door.
In support of their theory of the case, Plaintiffs have proffered the expert testimony of David Brown. Brown is a mechanical engineer who does consulting work in the area of accident reconstruction, machine design, and fire analysis. He has a master's degree in mechanical engineering from Ohio State University and is certified as a professional engineer by the State of Georgia. Overall, Mr. Brown has twenty-two years of experience in consulting as a mechanical engineer and in accident reconstruction.
Here Brown is expected to support Plaintiffs' theory by offering an opinion as to how the accident actually occurred and how the OMW car seat performed in this case. Brown is further prepared to opine, however, that the OMW car seat, as currently designed, is dangerously defective and that a safer alternative design for the OMW car seat is feasible and would, in his opinion, restrict movement of the OMW car seat during rear-end collisions without increasing the risk of harm to the child or decreasing the car seat's utility.
DISCUSSION
The admissibility of expert opinion testimony is clearly governed by the Federal Rules of Evidence. Rule 702 provides that:
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Civ.P. 702. Thus, simply stated, relevant expert testimony is admissible only upon a finding that the expert is qualified to testify competently regarding the matters he intends to address; that the methodology by which the expert reached his conclusions is sufficiently reliable; and that the testimony will assist the trier of fact, through the application of scientific, technical or specialized expertise, to understand the evidence or determine a fact in issue. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) (citing Maiz v. Virani, 253 F.3d 641, 664 (11th Cir. 2001)); K.W. Plastics v. U.S. Can Co., 131 F. Supp.2d 1289, 1291 (M.D. Ala. 2001).
In the case at bar, Evenflo contends that Plaintiffs can not satisfy these basic prerequisites in proffering the testimony of David Brown. Through its brief filed in support of the instant motion, Evenflo specifically challenges Brown's proffered opinion that the car seat is defective as currently designed and his suggestion of safer, alternative designs. In so doing, Evenflo argues that neither Brown's qualifications nor his methodology can support the opinions he has proffered.
I. Requisite Qualifications
In order to be sufficiently qualified to testify as an expert, a witness must of course have knowledge, skill, experience, training, or education in the subject for which his testimony is offered. Fed.R.Evid. 702. As mentioned above, in this case, Brown's primary education and academic training have been in the field of mechanical engineering. He holds a Master's degree in mechanical engineering from Ohio State University and is certified as a professional engineer by the State of Georgia. Brown's primary educational focus has been in the areas of machine design and metallurgy, not in the design and performance of safety restraints or even automobiles.
Nevertheless, the record shows that Mr. Brown has received some training in areas relevant to accident reconstruction and has in fact worked in a number of different positions which have allowed him to gain practical experience in general automobile accident reconstruction and occupant kinematics. In fact, Mr. Brown has nearly twenty years of experience in consulting on such matters and has published an article on the concepts involved in automotive accident reconstruction. He has, in the past, been retained as an expert in as many as 150 accident cases, half of which involved car seats or other child restraints. He has sometimes offered his opinion about the general performance of child restraints or the failure of some car seat component in these cases and has, at times, suggested a general opinion about the design of a car seat. Admittedly, however, Brown has not had any experience in the actual design or manufacture of child seats and has had extremely little, if any, non-litigation experience in evaluating such designs.
As was indicated during the hearing on this matter, this Court does not find Mr. Brown's qualifications to be particularly impressive in the precise area of child seat design and manufacturing; nonetheless, the Court does not find that the deficiencies in his training and professional experience, standing alone, warrant the exclusion of his testimony. Simply stated, an expert's training does not always need to be narrowly tailored to match the exact point of dispute in a case. Colon v. Molina, 199 F. Supp.2d 53, 75-79 (S.D. N.Y. 2001); Lovato v. Burlington N. Santa Fe R.R. Co., 2002 WL 1424599 *4 (D.Colo. June 24, 2002). Here, Mr. Brown's knowledge of general automobile accident reconstruction and his experience involving safety restraints may be at least minimally sufficient to qualify him to testify about the performance of the OMW child seat in this case — if a recognized and reliable methodology was employed in reaching his conclusions.
II. Reliable Methodology
Inasmuch, Rule 702 imposes a firm duty upon district courts to act as "gatekeepers" and ensure that speculative and unreliable opinions do not reach the jury. McCorvey, 298 F.3d at 1257; Daubert, 509 U.S. at 589 (requiring that courts "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable"). Fulfilling this "gatekeeper" duty requires a court to "assess the reasoning and methodology underlying the expert's opinion and determine whether it is both scientifically valid and acceptable to a particular set of facts."Goebel v. Denver and Rio Grande W. R.R. Co., 346 F.3d 987, 991 (10th Cir. 2003).
The burden of laying the proper foundation for the admission of expert testimony is, of course, on the party offering the expert; however, the proponent must only prove that the expert testimony is reliable, not that it is scientifically correct. Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Thus, "in ruling on the admissibility of expert testimony, the court must focus solely on the expert's principles and methodology, not on the conclusions that they generate." K.W. Plastics, 131 F. Supp.2d at 1292 (citing Daubert, 509 U.S. at 595); McCorvey, 298 F.3d at 1258 ("Rulings on admissibility underDaubert inherently require the trial court to conduct an exacting analysis of the proffered expert's methodology.").
To aid in this inquiry, the United States Supreme Court has identified several non-exclusive factors which can be considered. Daubert, 509 U.S. at 595. These factors include a consideration of "(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community." McCorvey, 298 F.3d at 1256 (citingDaubert, 509 U.S. at 593-94). These factors, of course, are not limited in application to solely scientific testimony. The Supreme Court'sDaubert factors apply "not only to testimony based on scientific knowledge, but also to testimony based on `technical' and `other specialized' knowledge." Milanowicz v. Raymond Corp., 148 F. Supp.2d 525, 531 (D. N.J. 2001) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)).
The Daubert factors, therefore, should not be used to disfavor expert testimony like that proffered by Brown in this case, which is grounded in experience or practice rather than in pure scientific theory. See Fed.R.Evid. 702. That is not to say, however, that the approach to evaluating the reliability of an expert's proffered testimony must be the same in every case. The Daubert list of relevant factors was never intended to be a "definitive checklist." Daubert, 509 U.S. at 593. Rather, flexibility is essential in assessing the reliability of expert testimony, and, as such "the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Kumho, 526 U.S. at 142. Courts are therefore free to narrowly tailor Daubert's factors to situations presented. Regardless of what factors are specifically relied upon, however, the district court's ultimate responsibility is to simply "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152; see also Watkins v. Telsmith, 121 F.3d 984, 991 (5th Cir. 1997) (noting that the application of Daubert's factors is germane in "evaluating whether the expert is a hired gun or a person whose opinion in the courtroom will withstand the same scrutiny that it would among his professional peers").
Here, as mentioned above, the proffered testimony of David Brown is grounded upon his knowledge of general engineering concepts and his related experience in accident reconstruction. Clearly, unlike the fields of "laboratory or medical testing, which employ rigorous and replicable protocols, technical fields such as engineering often involve more idiosyncratic methods of design and testing." Milanowicz, 148 F. Supp.2d at 532. As a result, it is not unusual for a technical expert, such as an engineer, to state that his opinions are not based upon any specific method, but are based solely upon his general experience and knowledge after a review of the evidence.See id.
Nonetheless, this Court finds that the general field of engineering need not be portrayed so obscurely. As other courts have noticed,
[i]t seems exactly backwards that experts who purport to rely on general engineering principles and practical experience might escape screening by the district court simply by stating that their conclusions were not reached by any particular method or technique. The moral of [such an] approach would be, the less factual support for an expert's opinion, the better."Id. (quoting Watkins, 121 F.3d at 991). While, of course, engineers may not necessarily be required to fulfill the demands of a rigid professional protocol in every case, it is well known that engineers routinely "rely upon established principles of physics, material sciences, and industrial design and often utilize technologically sophisticated and carefully calibrated testing methods and devices" when arriving at their conclusions. Id. As such, the accepted methodology, characterizing the practice of an expert in the field of engineering, simply does not involve guess work or even conjecture; rather, accepted methodology more often involves some inquiry into industry standards, practices, or publications and results in conclusions based upon concrete data, testing, measurements, or calculations. See id. at 532-536.
Other district courts dealing with product liability cases, similar to the one at bar, have likewise held engineering experts to such standards of professional practice. Those courts have recognized that an expert should employ a methodology which includes: testing or specific identification of alternative designs; written calculations in support of the experts theories; or inquiry as to whether the suggested alternative is feasible. E.g., Watkins, 121 F.3d 992-93 (excluding expert testimony where no testing or calculations were done to show that modification would not hinder product's utility); Colon, 199 F. Supp.2d at 77-78 (excluding expert testimony where no test data or design sketches were provided to show that modification would make product safer); Clarke v. LR Systems, 219 F. Supp.2d 323, (E.D. N.Y. 2002) (noting that the expert appeared to have done some risk/utility analysis to determine whether the product was defective).
In Milanowicz v. Raymond Corp., 148 F. Supp.2d 525 (D. N.J. 2001), the district court of New Jersey actually conducted a survey of product liability cases nationwide and identified several components of reliable methodology employed by experts offering opinions on product defect and design. Id. at 532-536. The court concluded that, when an engineer offers an opinion with respect to a product defect or the existence of an alternative design, it is relevant to weigh: (1) whether the expert relied on applicable standards, industry practice, or professional publications; or (2) whether the expert engaged in any substantive testing, measurements, or calculations to support his theories, or otherwise created illustrative models, charts or diagrams of any proposed design changes. See id.
This Court has consolidated the nine specific factors originally listed in Milanowicz into two more general categories.
This Court agrees that when included within a proffered engineering expert's methodology, the Milanowicz criteria does in fact provide an indicia of reliability to the testimony of an expert in a products liability case. The first category of factors contains those sources that an expert may consider and incorporate as part of a reliable methodology, while the second category contains those things that the expert may actually do in an effort to show that his conclusions are reliable. Naturally, no single factors is determinative. Likewise, this criteria is not identified in an effort to ignore Daubert's initial considerations; rather, these more specific factors incorporate Daubert's more general considerations, while also acting to define what level of rigor characterizes the practice of an expert proffering opinions about product design. With this criteria in mind, the Court now turns to the proffered testimony in this case and the specific methodology employed by David Brown in reaching his conclusions.
As mentioned above, through the motion at bar, Evenflo challenges Brown's conclusion that the car seat is defectively designed and his proposed suggestion of alternative designs. In his expert report, Brown explains both his conclusions and on what bases those conclusions were made. (Evenflo's Brief in Support [Tab 22], Ex. B). Based upon witness descriptions, Brown concluded that when the rear-end collision in this case occurred, the OMW rear-facing car seat rotated, not only rearward, but also upward and collided with the rear window of the vehicle. Upon further review of specific information provided on the OMW car seat, photographs and witness information, and inspection of the car seat itself, Brown went on to conclude that the car seat, as currently designed, is defective. Brown opines that the seat is defective because it does not contain any restraint mechanism to restrict its rearward movement in a rear-end collision.
Brown likewise suggests that a safer alternative design for the OMW seat is available through the addition of a "tether" and stabilizer or "rebound bar" and that such a design is available in at least one other rear-facing car seat sold in either Europe or Australia. A reading of Brown's deposition, however, clarifies that his suggested modifications are not exactly embodied in the exemplar car seat he identifies. Rather, Brown suggests that the risk of harmful neck loading could be reduced by the addition of a rip-stitch type tether, which would elongate under an accident situation. It also appears from the deposition that Brown believes the current OMW harness may have to be altered to incorporate this design and that he may want to modify the current design to include some type of plastic, upholstered shield. Additionally, as yet another alternative design, Brown mentions that some change could be made to the base of the OMW car seat, which would prevent it from rotating so freely. (Brown Depo. at 153-55, 90).
As an initial premise, it is clear that an expert, relying solely or primarily on experience, such as Mr. Brown, "must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Fed.R.Evid. 702 Advisory Committee's Note. Clearly, a court can not evaluate the reliability of an expert's methodology until he has actually employed one. Milanowicz, 148 F. Supp.2d at 535.
Yet, having fully reviewed Brown's deposition, this Court can not find that he has articulated a concrete, reliable basis for the challenged opinions or a clear method of arriving at his conclusions. Instead, Brown ambiguously explains that his opinions are based upon his review of the evidence and his general experience in the field of automobile accident reconstruction. Inasmuch, Brown has failed to show that the methodology he employed in this case included the basic factors defined in Daubert or that the methods employed were otherwise consistent with that level of rigor often characterizing the practice of experts proffering opinions on product design.
A. Brown Did Not Consider Relevant Standards, Industry Practice, or Trade Publications, and Has Not Submitted his Opinions for Peer Review
First, Brown has failed to show that he relied upon any federal or industry standards, studies, published materials, or industry practices when arriving at his opinions in this case. Experts in cases like the one at bar, however, often identify and discuss "relevant design or performance standards, such as those promulgated by . . . the National Highway Traffic Safety Administration (NHTSA)" or "standards published by independent standards organizations." Milanowicz, 148 F. Supp.2d at 533. Such federal regulations both have independent legal significance and represent important parameters for industrial design. Id. Less formal publications, of course, lack the legal authority of federal regulations, but do nevertheless provide "detailed design standards which reflect systematic testing and safety certification." Id.
Here, in reaching his conclusion of product defect, Brown chose not to research or incorporate recognized federal motor vehicle safety standards, information from the insurance institute of highway safety, or studies from the NHTSA. In fact, Brown further stated that he is unaware of whether his opinions in this case are either consistent or inconsistent with accepted standards. (Brown Depo. at 24). And while Brown acknowledges that NTHSA's position on the rotation of child safety restraints "may be" relevant in determining whether or not there is a defect in the OMW child seat, he admits that he does not know whether NTHSA is aware of any problem with child seat rotation in rear-end accidents and that he did not conduct any research to determine what NTHSA's position may be on child seat rotation. (Id. at 88-89).
Brown additionally opines in this case that the seatbelt webbing had enough flexibility to allow the OMW car seat to raise up high enough for the child to hit the back window of the car; yet, he admittedly does not rely upon the accepted performance standards for seatbelts in reaching this opinion. Brown did not, in this case, research the acceptable standards for the performance of seatbelts or what exact degree of stretch such seatbelts may have. Brown further admits that while he has an appreciation for the fact that federal regulations incorporate some assumptions about car seat installation and seatbelt performance, he does not know what those assumptions are and he did not attempt to look at them in formulating his opinions in this case. (Id. at 116-18).
The Court further notes that Mr. Brown failed to properly reference industry practice or to point to any industry publication that supports his theories. It is often relevant "whether other manufacturers and consumers in the industry utilize the allegedly defective design or proposed alternative." Milanowicz, 148 F. Supp.2d at 533. In fact, "[i]ndustry practice may be used as a proxy for peer review" and "may help negate criticism based on lack of testing." Id. "Conversely, the absence of industry practice — or the expert's failure to include such evidence — may undermine the proposed alternative." Id.
However, in this instance, Brown did not inquire as to whether any of the other manufacturers of car seats in North America utilize designs which freely rotate on rear impacts like the OMW seat does. (Brown Depo. at 87). Moreover, despite the fact that Brown plans to testify that tether and stabilizer designs are generally available in the market place, he fails to clearly distinguish whether those designs are incorporated in front-facing or rear-facing car seats and only attempts to identify one car seat, the Australian exemplar, as a product incorporating his suggested modifications. The exemplar, however, is not equivalent to the design modification Brown suggests in his deposition; he suggests that a rip-stitch material be used. Brown has not identified any manufacturer using a rip-stitch tether design on a rear-facing car seat.See Milanowicz, 148 F. Supp.2d at 533-34 (noting that where an expert "seeks to base his conclusions on the existence of products incorporating his proposed alternative," the expert must "identify this product, their manufacturers, and the extent of their use.").
Brown has further failed in showing that this lack of reliance upon industry standards or practices is offset by reliance on relevant publications. Such publications often reflect "general guidelines or rules of thumb, industry practice, developments in industrial design, testing protocols, and design standards for the particular type of product."Milanowicz, 148 F. Supp.2d at 533-34 (noting that "[s]urveying relevant literature is one aspect of Daubert's peer review prong."). Yet here, Brown failed to point to any specific article or study published, which supports his opinion of product defect or design modification. By the same turn, he has chosen not to subject his theories of defect and alternative design to peer review. See Daubert, 509 U.S. 593 (noting the importance of determining whether the theory has been subjected to peer review and publication).
Although Brown initially acknowledged that he was given some "articles" addressing the use of tether designs, he later states that he has not looked at any articles, studies, or tests evaluating the effectiveness of a tether such as the one he is proposing. (Brown Depo. at 79, 147).
B. Brown Did Not Perform Any Testing to Confirm his Theories or Provide Notes, Measurements, Calculations, Charts or Diagrams to Support his Theories
Mr. Brown has additionally failed to show that his theories have been tested or to otherwise provide notes, measurements, calculations, charts, or illustrative diagrams supporting his conclusions. A key question in determining if an expert's proffered conclusion is sufficiently reliable is whether his theory "can be (and has been) tested." Daubert, 509 U.S. at 593; see also Kumho, 526 U.S. at 149-50. Such "testing may involve only the allegedly defective design, or in alternative design cases, [may] address the proposed alternative. . . ."Milanowicz, 148 F. Supp.2d at 535.
Regardless, it is not sufficient that an expert merely "conceptualizes possibilities." See id.; Colon, 199 F. Supp.2d at 75 ("solid qualifications are not enough."). "Conjecture by a qualified expert is [of course] worthy of careful attention, [but] the courtroom is `not the place for . . . guess work, even of the inspired sort.'" Id. (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996)). As such, most courts have noted the importance that actual testing serves in a technical expert's methodology. See Milanowicz, 148 F. Supp.2d at 535. That is not to say that the testing of defect and design theories is "an absolute prerequisite for an expert's theory of causation or alternative design to be admissible in a design defect case;" however, testing is "usually critical to show that an expert adhered to the same standards of intellectual rigor that are demanded in their professional work." Colon, 199 F. Supp.2d at 75 (citing Cummins v. Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1996)).
Accordingly, "the absence of testing is a consistent factor in court decisions excluding expert testimony." Milanowicz, 148 F. Supp.2d at 535;see e.g., Brooks v. Outboard Marine Corp., 234 F.3d 89, 92 (2nd Cir. 2000) (noting that failure to test theory of causation can justify trial court's exclusion of expert testimony). This is especially true in cases dealing with product design. Id. (citing e.g., Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076, 1084 (8th Cir. 1999) (finding that expert's failure to test proposed alternative design was factor justifying the exclusion of expert testimony)); see also e.g., Clark v. Takata Corp., 192 F.3d 750, 758-59 (7th Cir. 1999) (holding that expert's failure to test his alternative design was proper basis for excluding testimony);Dancy v. Hyster Co., 127 F.3d 649, 651 (8th Cir. 1997) (same); Kinser v. Gehl Co., 184 F.3d 1259, 1271-72 (10th Cir. 1999) (holding that expert testimony was unreliable and should have been excluded, because its foundation did not include any testing of alternative design for product that was allegedly defective). In this case, however, Mr. Brown admittedly did not perform any substantive testing of his theories to confirm that the current design of the OMW car seat is dangerously defective as designed or to prove that his proposed alternative design would in fact reduce injury and provide a safer environment for car seat occupants.
Brown first opines that the current design of the OMW car seat is dangerously defective and contends that he reached this conclusion independent of whether his theory of causation is correct in this particular case. (Brown Depo. at 102-103). Yet, having reviewed his deposition, this Court must find that Brown has not employed a clear methodology in reaching this conclusion. He merely assumes and ultimately concludes, that as a general matter, it is not desirable for a car seat to be designed to impact other portions of the car's interior in a rear-end collisions. (Brown Depo. at 22, 103). Brown, however, has not conducted substantive tests, taken any measurements, or made any calculations to confirm this assumption. Similarly, Brown made no effort to formulate, identify, or incorporate any accident history analysis, injury statistics or product design evolution information to support his theory that the product is dangerously defective. See Milanowicz, 148 F. Supp.2d at 535 (noting that the expert's testimony may also address accident experience with an allegedly defective product).
Of course, hands-on testing or review of data gathered by others may sometimes serve as reliable methodology and may serve as a substitute for actual testing, see id.; Cummins, 93 F.3d at 392, and in this case, Brown did review selected CD-ROMs showing sled tests previously conducted by Evenflo. However, these sled tests primarily involved frontal collisions. Further, Brown has not specifically articulated how these tests show that the design permitting the seat to impact the rear cushion of the back seat following rear-end collisions support his theory of defect.
For example, when commenting on these sled tests, Brown pointed out what he believed to be a deformation of the seat back during the collisions, which would, in his opinion, reduce the distance between the bench seat and the rear window. Yet, when asked whether this alleged shorter distance increased the risk of impact with the rear window instead of the seat back, Brown answered that he did not know and did not have an opinion. (Brown Depo. at 176).
Brown has likewise failed to conduct any testing to support his conclusion that the current design of the OMW car seat was the cause of the injuries suffered by the child, or to show that his proposed modifications would have prevented the injury in this case. "Courts have insisted time and time again that an expert may not give opinion testimony to a jury regarding specific causation if the expert has not engaged in the process of differential diagnosis — that is, the process of eliminating other possible diagnoses." Milanowicz, 148 F. Supp.2d at 539 (quote omitted). Here, Brown concluded that the infant's injuries were caused by his impact with the rear window of the automobile; yet, at same time, Brown admits he has done no substantive research or testing to either confirm this theory of causation or disprove Evenflo's. While Brown concedes that some rough calculations could have been made in this case to support his theories, he chose not to calculate the dynamics of what happened in this case or even propose a rough estimate. (Brown Depo. at 138, 140). He did not attempt to calculate the speed of the vehicles prior to impact, to inspect the length of a seatbelt or height of the rear seat in a Saturn automobile, or to determine where the car seat was located at the time of impact. Brown has likewise failed to ascertain under what circumstances and how often a car seat will actually hit the back window of an automobile. He has never attempted to recreate the situation where an impact force was great enough to raise a car seat as high as the rear window of an automobile, as he contends the OMW car seat did in this case. (Brown Depo. at 73, 110-112, 126-144). In fact, Brown failed to provide any notes, measurements, calculations, illustrative charts or diagrams to support his theories of how the OMW car seat performed in this instance, to illustrate how he determined the occupant kinematics, or to show that his alternative designs would have prevented the injuries suffered.
Additionally Brown failed to conduct any testing of his proposed alternative designs so as to determine whether the modifications he suggested would have prevented the injuries in this case without affecting the seat's utility. He has failed to conduct any tests to determine how the OMW car seat would have behaved if the current design was modified as he suggests. He has not attempted to conduct any formal or informal testing of a car seat with a rip-stitch tether. He did not conduct any concrete evaluations on how the addition of this proposed modification would impact the loads on a child's neck in collisions or even determine if any such testing was done during the design of the exemplar model. Similarly, while Brown proposes that a shield attachment be included in his alternative design, he has not looked to any data which evaluates injury to children when they impact foam or upholstery-covered plastic similar to what he proposes be used. In short, Brown does not have any data which would indicate that it is in fact possible to prevent rotation of a car seat through his proposed modifications and, at the same time, prevent the risk of increased harm to the infant occupant. (Brown Depo. at 147, 151-54, 158-9, 178-79).
Accordingly, Brown can not offer any definitive opinions as to either the feasibility or risk utility of his suggested modifications. "[O]ne of the most important aspects of an expert's testimony [in alternative design cases] is whether the proposed . . . modification is feasible and/or compatible with the underlying design." Milanowicz, 148 F. Supp.2d at 535. Moreover, "even if a modification is feasible, the expert must also address whether that modification will so affect the operation of the device that it makes it ineffective for its intended purpose." Id. at 536. Failure to make such practical determinations before suggesting alternative designs can be grounds for exclusion of expert testimony. See Watkins, 121 F.3d at 992 (excluding expert for failure to provide any data demonstrating that alternative design "would have prevented the accident without sacrificing utility").
In this case, Plaintiffs of course acknowledge that no testing has been done; however, they argue that requiring testing of proposed design modifications as a pre-requisite for the admission of expert testimony is unduly burdensome. Surely, such testing is both expensive and time consuming. However, "the history of engineering and science is filled with finely conceived ideas that are unworkable in practice."Milanowicz, 148 F. Supp.2d at 535 (quoting Stanczyk v. Black Decker, Inc., 836 F. Supp. 565, 567 (N.D. Ill. 1993)). The requirement of testing is therefore necessary in most cases to "ensure that the focus of the jury's deliberation is on whether the manufacturer could have designed a safer product, not on whether an expert's proposed but untested hypothesis might bear fruit." Colon, 199 F. Supp.2d at 75 (emphasis Padded); see also Stanczyk, 836 F. Supp. at 568 ("proof of any kind is often expensive to gather").
Here, Mr. Brown even acknowledges that some designs may conceptually appear to make sense, but are nevertheless impossible from a manufacturing perspective. (Brown Depo. at 91). In fact, when questioned about the specifics of his designs, Brown repeatedly clarifies that additional research would need to be done to determine what material should be used and that testing of his concepts would be necessary before his modifications could be finally incorporated. (Id. at 90-91, 148, 151, 156).
Q: What would you recommend the tension be on the tether that you are recommending ?
A: Depends on how you construct the tether. You could use something that had some elastic qualities. Ideally you would probably use something that has a rip-stitch type tether . . .
. . .
Q: Did you evaluate how the tether would impact any of the loads on the child's neck?
. . .
A: . . . [W]hen you actually go to design and construct the tether, you would want to run some testing, slight testing, to measure neck loading. . . .
(Id. at 145-48).
Q: How much rotation in the restraint would be permissible ?
A: Depends on the severity of the crash. As I said, what you would do is go ahead and design a rip-stitch, you run some initial calculations, but design is evolutionary in nature. In other words, you run some calculations and then you run the test and that's how rip-stitch devices are designed. So go ahead and run the calculations, run a rip-stitch device, run the test, and then measure the loads on the neck. And if there — I am not a medical doctor, but there is a variety of other testing accelerometers, decelerometers and such that are used. At some point in time we get to the point where the medical people say that this accident is approaching the limit of endurance. And then you may want to say, well, that's where we allow final full rotation or full extension of the rip-stitch device.
Q: As an expert in this case proposing an alternative design, you don't have answers to those questions ?
A: No. There is a difference in proposing a design versus being able to conduct a full developmental program and actually produce the product.
(Id. at 156-57).
Q: And you said that if you were required to accept the rotation, you would incorporate some other feature . . . to provide additional protection ?
A: I would have some form of a shield or wing assembly, something that would largely enclose the child so that the child would still be held within the harness and the restraint system and not be impacting the vehicle interior.
Q: An what would you make that out of ?
A: I would probably start with some sort of plastic design. . . . then . . . put some upholstery on it, low rebounding foam, similar to what car seats are made out of already.
. . .
Q: How thick would that foam and upholstery need to be?
A: That, I couldn't tell you. In other words, that would require some additional research to actually go into the design. Conceptually, it's relatively straightforward. Actually getting into the fabrication is a different issue.
(Id. at 90-91). Thus, it is clear in this case that clarification and testing is not only important in establishing the viability of Brown's proposed modifications, but is in fact required. Compare Watkins, 121 F.3d at 992 (noting that while testing was not always a requirement, expert testimony about alternative design was not sufficiently reliable where the proffered expert acknowledged the importance of testing in design but failed to test his suggested modifications).
Moreover, Brown's failure to provide proper foundation for his proposed design is not limited simply to an absence of expensive, time-consuming testing. As Evenflo suggests, Brown not only failed to test any of his theories himself, but his suggestions are still undeveloped. See Watkins, 121 F.3d at 992; see also Jaurequi, 173 F.3d at 1084 (noting that the expert "has not attempted to construct or even draw the suggested device, much less test its utility"). In fact, Brown has done little more than conceptualize his proposed modifications. As discussed above, Brown admits that he is unsure how exactly his alternative designs would ultimately be made or even what materials would be used.
The Court of course notes that Evenflo's experts have, since reviewing Brown's expert report, attempted some testing using a tether device. Nonetheless, any reliance Plaintiffs may have placed on such testing for the purpose of this Motion is misplaced. Plaintiffs themselves even noted that Evenflo's test results using a tethered design were not representative of Brown's proposed modification because a "rip-stitch tether" was not used. (Pl's Response [Tab 26] at 18). Thus, if permitted to testify at trial, Brown would be able to suggest that additional testing using his rip-stitch tether design would show greater decreases in neck loading without diminishing utility of the seat as currently designed. This theory may be entirely correct; yet Brown has no done no testing and has no data to support such conjecture and has not sufficiently identified the exact materials he suggests to be used so that Evenflo can do such testing. The same can be said for Brown's proffered suggestions of a padded, upholstered shield design or rebound bar or any other modifications mentioned in his deposition. As stated above, the focus of the jury's deliberation at trial must be "on whether the manufacturer could have designed a safer product, not on whether an expert's proposed but untested hypothesis might bear fruit." Colon, 199 F. Supp.2d at 75 (emphasis added). Simply put, this Court finds that Plaintiffs are asking this Court to permit testimony that a design incorporating Brown's suggestions may likely be better than the current design, rather than properly proposing testimony which attempts to prove that such designs are in fact better.
Thus, in sum, this Court must find that Brown has proffered his defect and design theories in this case without properly incorporating recognized, reliable criteria such as relevant standards, industry practices, peer review, or testing. At the same time, however, this Court is of course cognizant that its "gatekeeper" role in this instance is not "intended to supplant the adversary system or the role of the jury: `vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'" Allison, 184 F.3d at 1311-12 (quoting Daubert, 509 U.S. at 596). Oftentimes, weaknesses in an expert's methodology are more appropriately subject for cross examination than grounds for exclusion of his testimony.
Yet, in this case, having reviewed Brown's deposition and the relevant law, this Court must find that Brown's conclusions of product defect and alternative design are based more upon his subjective opinion and unsupported conjecture, rather than on concrete objective technical knowledge. While Brown's conclusions may be altogether accurate, he has done nothing in this case to show that they are. See K.W. Plastics, 131 F. Supp.2d at 1292 (noting that the court's "gatekeeping function requires more than simply taking the expert's word for it"); General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) ("[A] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered"); see also K.W. Plastics, 131 F. Supp.2d at 1292 (explaining that when "ruling on the admissibility of expert testimony, the court must focus solely on the expert's principles and methodology, not on the conclusions that they generate).
This Court therefore finds that the methodology employed by Brown in this case lacks sufficient indica of reliability for his theories of product defect and alternative design to be admissible under the Federal Rules. See Fed.R.Evid. 702, 703. Accordingly, Brown may not testify as to his opinion that the OMW car seat is dangerously defective as designed or to his suggestions of alternative designs, which involve a rip-stitch type tether, shield attachment, or other alteration of the current OMW car seat base or harness that may have been alluded to in his deposition. Accord Oddi v. Ford Motor Co., 234 F.3d 136, 156-59 (3rd Cir. 2000) (affirming exclusion of expert accident reconstruction/design engineer testimony from product liability action because expert failed to test either alternative design, failed to consider possibility that accident was attributable to design of guardrail rather than truck, failed to calculate force of impact in accident, failed to measure strength of guardrail, failed to calculate strength of metal to be used in his alternative designs, and based his opinion on nothing more than his training and experience as engineer).
CONCLUSION
Because the Court finds that the methodology employed by David Brown in arriving at his proffered opinions in this case is without sufficient reliability to be presented to a jury under the Federal Rules, Evenflo's Motion to Exclude Brown's expert testimony is hereby GRANTED. To this extent, Brown may not testify as to his theory of design defect and may not suggest any alternative design involving a rip-stitch tether, shield attachment or any other alteration of the current OMW car seat base or harness.