Opinion
No. C98-2077.
March 10, 2000.
ORDER
This matter comes before the court pursuant to the defendant's motion in limine. The motion challenges testimony to be offered through Dr. Bruce Hopkins, plaintiff's liability expert. The motion is brought pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
This is an action for civil damages arising out of injuries suffered by the plaintiff on August 8, 1996. At that time, he was struck by a forklift truck manufactured by the defendant. The plaintiff alleges that the defendant was negligent and strictly liable for the defective design of the forklift.
The specifications of negligence and design defects are found in the final pretrial order and plaintiff's proposed jury instructions. Basically, plaintiff will offer three theories of the alleged defective nature of the forklift. First, plaintiff contends that the forklift is defective because of its failure to incorporate a dual braking system. Second, plaintiff alleges that it is defective in that the position and angle of the seat and the brake pedal make it unreasonably difficult to set the parking brake while operating the forklift. Third, plaintiff alleges that the forklift was defective in its failure to place a warning detail explaining the operation of the parking brake light and in failing to place a warning detail on the machine explaining that wheel chocks should be placed when parking the forklift on an incline.
Plaintiff's expert, Dr. Bruce Hopkins, holds a Ph.D. degree in agricultural engineering from Michigan State University, earned in 1955. He also holds masters and bachelor of science degrees in agricultural engineering. Since 1978 he has been a consulting engineer providing machine design services to industry and engineering services to insurance companies and attorneys for litigation purposes. From 1978 through 1987 he taught machine design at Iowa State University to mechanical engineering students. From 1955 to 1978 he worked in design analysis for agricultural and industrial tractors at John Deere in Waterloo, Iowa. He has an extensive list of publications although none of them were shown to deal with the subject matter at issue in this litigation. He has testified as an expert in a number of industrial cases involving off-road self-propelled equipment.
The defendant is critical of Dr. Hopkins' testimony in the following particulars.
1. He has never before consulted on any case in connection with a forklift truck although he has consulted with respect to a "straddle truck," another material handling piece of equipment.
2. Dr. Hopkins contends that the forklift violates an OSHA standard indirectly despite the fact that OSHA standards are applicable to employers, not manufacturers.
3. Dr. Hopkins opined in his deposition that the forklift truck violated SAEJ-1814 in that the effort required to operate the parking brake, on the model forklift in question, exceeds the value given in the standard. However, the defendant contends that the standard does not apply to forklift trucks.
4. Dr. Hopkins testified that the forklift is defective in its failure to incorporate a hydraulic brake system manufactured by MICO but knows of no forklift manufacturer who either provides such a system as original or optional equipment.
5. Dr. Hopkins has not created an alternative design, subjected the alternative to peer review, tested it, shown a potential rate of error or general acceptance of the alternative design in industrial applications.
According to his deposition, Dr. Hopkins will testify that the forklift should have had a dual braking system. He identified a number of ways in which this could be accomplished and has identified specific forklifts or forklift-type trucks in which such brakes have been incorporated.
Dr. Hopkins' testimony concerning the foot pressure necessary to apply the parking brake is more troubling. First, he did not measure the foot pressure necessary to set the brake on the forklift in question. When asked whether the plaintiff did not possess the strength to properly set the parking brake, Dr. Hopkins simply stated that it was possible that the plaintiff did not. Second, Dr. Hopkins relied on anecdotal evidence from the coworkers about the difficulty in setting the brake. Third, when Dr. Hopkins examined the forklift in question, the plaintiff was able to set the brake with his left foot, the injured one. Finally, Dr. Hopkins has not been shown to have designed seats or tested alternative seat designs. He simply appears to rely on plaintiff's exhibit 39, a human factors design book for all his opinions in this regard.
Dr. Hopkins' warnings testimony is not specifically criticized in the defendant's motion in limine except to the extent set forth generally above. Dr. Hopkins contends that the parking brake on the forklift is much like the parking brake on our automobile. It is appropriately engaged when it is depressed to the point where it will no longer make a clicking noise. However, his testing revealed that the parking brake indicator light illuminates when the parking brake has been depressed to the point where only one or two of the total six clicks is heard. His other criticism regarding warnings concerns the absence of an instruction to use wheel chocks when parking on an incline. This is closely related to Dr. Hopkins' first criticism regarding the lack of a dual braking system.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court set forth a non-exclusive four-part test to determine the admissibility of novel scientific testimony pursuant to Fed.R.Evid. 702. Those factors include whether the subject matter of the expert testimony had been subjected to testing, whether it had been subjected to peer review, whether the expert had determined a known rate of error for the concept, and finally, whether the concept is generally accepted by the scientific community. The confusion over whetherDaubert factors should be applied beyond novel scientific testimony was settled last year in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). The Supreme Court concluded thatDaubert's general holding concerning the trial judge's gatekeeping obligation applies to testimony based on technical and other specialized knowledge. The Court emphasized that Daubert's test of reliability was meant to be flexible. Its factors neither necessarily nor exclusively apply to experts in every case.
The Eighth Circuit Court of Appeals had been applying Daubert's factors to the expertise of mechanical engineers since Daubert was decided. In Pestel v. Vermeer Mfg. Co., 64 F.3d 382 (8th Cir. 1995), the defendant's motion for judgment as a matter of law at the close of the plaintiff's case was appropriately granted where the plaintiff's expert's testimony on the need for a guard to protect the operator of a stump cutter did not reference other manufacturer's products, the expert had never used a stump cutter, and did not consult with stump cutter operators.
Similarly, in Peitzmeier v. Hennessey Ind., Inc., 97 F.3d 293 (8th Cir. 1996), the plaintiff's expert was critical of a popular machine used to dismount and mount motor vehicle tires. The expert, who had been accepted as an expert in numerous cases across the country, opined that the machine was defective in that a surface below the tire created a launch pad from which the tire would be propelled from the machine under a number of circumstances. The expert had neither designed nor tested any of the proposed safety devices that he claimed were missing from the defendant's machine. He had never built, designed, nor tested a platform that had been shown to reduce the launching effect of an exploding tire. The expert's proposed changes were not subjected to peer review and thus his testimony was totally speculative. The district court properly excluded that expert's testimony from consideration when ruling on the defendant's motion for summary judgment.
In Dancy v. Hyster Co., 127 F.3d 649 (8th Cir. 1997), a product similar to a forklift overturned pinning the plaintiff's right foot under the lift truck. The plaintiff's expert contended that the manufacturer was negligent for failing to place a cage or guard around the operator's compartment. This mechanical engineer had never designed a forklift, a lift truck, or any similar machine. He had not tested his theory that a guard should have been provided nor had he seen such a device on a forklift or other similar machine. He had not designed the device that he suggested would have prevented the plaintiff's injury. His testimony was properly excluded.
In Robertson v. Norton Co., 148 F.3d 905 (8th Cir. 1998), a ceramics expert was permitting to testify that product warnings accompanying a concrete grinding wheel were completely inadequate because the warning label did not explain what constituted "improper use." While the expert was qualified to testify about a manufacturing defect in the grinding wheel, that did not qualify him as an expert on grinding wheel warnings. He had never designed a warning, his opinion was not supported by scientific theory, practical knowledge, experience, or empirical research and testing. His opinion was found to be not sufficiently reliable pursuant to Daubert.
The Eighth Circuit Court of Appeals recently decided in Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076 (8th Cir. 1999), that the analysis set forth above in these mechanical engineering expert testimony cases, properly satisfied the requirements of Kumho Tire. The case arose out of plaintiff's injury while operating a 1974 cornhead mounted on a 1961 combine. The cornhead and its original warnings had been painted over prior to plaintiff's accident. The plaintiff was quite obviously misusing the cornhead by hand feeding sorghum into the dangerous portions of the cornhead. At trial, a mechanical engineer testified that the plaintiff was not provided with the necessary detail to identify the hazard zone of the cornhead. He testified that the risk associated with the cornhead was not obvious. However, the expert had never observed the cornhead while it was running. He had no basis for his belief that larger warnings would not have been painted over. His testimony concerning "awareness barriers" was completely novel and had never been studied, designed, or tested. Similarly, plaintiff's human factors engineer had not read the original warnings and found no other product of any vintage which employed the types of warnings advocated. Under these circumstances, the testimony was properly excluded.
Dr. Hopkins' testimony is different in several important respects from that of the experts whose testimony was excluded in the cases described above. With respect to his theory concerning the need for a dual braking system, the theory itself is not novel. Most self-propelled vehicles have two forms of braking and the expert has identified very specifically the kinds of braking systems that can and have been employed in similar circumstances. Second, the expert's training and academic and industrial experience shows that he is well qualified generally on issues relating to self-propelled, off-road industrial equipment. Third, the expert has studied industrial accidents concerning forklifts, and has for the most part relied upon appropriate standards set forth in the industry concerning the braking mechanisms at issue. He has surveyed the industry and found examples of similar equipment that incorporate features that he has described or has at least identified manufacturers of equipment that could have been incorporated as a supplemental braking system.
With respect to the plaintiff's criticism regarding the foot pressure necessary to engage the parking brake, the court believes that the deficiencies set forth by the defendant show that the opinions expressed by Dr. Hopkins are not sufficiently reliable to survive scrutiny pursuant to Daubert and the Eighth Circuit Court of Appeal cases cited above. The motion in limine pertaining to the expert's foot pressure and seat height and angle testimony is hereby sustained.
The defendant has criticized Dr. Hopkins' use of certain exhibits in formulating his expert testimony. Specifically, the defendant is critical of Dr. Hopkins' reliance on SAE Standard J1116. This standard, Plaintiff's Exhibit 25, by its own terms does not apply to powered industrial trucks such as forklifts. It does not apply because such trucks are covered by standards developed by the American Society of Mechanical Engineers. Dr. Hopkins will not be permitting during his testimony to cite to a standard that does not apply to forklift trucks. However, despite the fact that OSHA regulations apply to employers, not manufacturers, Dr. Hopkins may still refer to OSHA standards as a manufacturer would clearly be aware of the need for its machinery to comply with such standards when selling a product exclusively for industrial use. The plaintiff should make it very clear through the testimony, however, that he is not implying that the standard is directly applicable to manufacturers.
There are a number of other exhibits in the motion in limine some of which the court has already received and some of which it has not. The court reserves ruling on the motion and will address these exhibits as the trial progresses and will determine their admissibility in light of the testimony surrounding them.
Upon the foregoing,
IT IS ORDERED
That the defendant's motion in limine is denied with respect to Dr. Hopkins' testimony concerning the need for a dual braking system and the defective nature of the warnings. It is granted with respect to Dr. Hopkins' testimony concerning foot pressure, seat height, and seat angel and Plaintiff's Exhibit 25. Ruling is reserved on the remainder of the motion.
IT IS FURTHER ORDERED
That counsel shall appear in second floor chambers at 8:30 a.m. on March 13, 2000, for brief discussion concerning the jury selection process and an opportunity to discuss any remaining matters before trial.