Opinion
Case No. CIV-99-1559-F
January 17, 2002
MEMORANDUM
I. Introduction
By order entered on January 11, 2002, the Court memorialized, among other things, its ruling on MCFA's Motion in Limine to Exclude the Testimony of Daniel Pacheco (docket entry no. 100). In the Court's January 11 Order, the Court stated that the reasons for its ruling would be set forth in greater detail in a separate memorandum. This is that memorandum.
The moving parties have submitted excellent briefs in support of and in opposition to the motion. Relevant and helpful exhibits have been attached to the briefs. The Court has reviewed the briefs and all of the exhibits. In particular, the Court has reviewed Mr. Pacheco's deposition in its entirety. Even though the briefs which have been submitted have been very well done, the Court has supplemented those briefs with its independent legal research. Finally, the Court has had the benefit of extensive arguments of counsel in open court in support of and in opposition to the motion. Those arguments were heard on January 9, 2002.
II. The Gatekeeper Function
The Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) and Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999) establish a "gatekeeper" function for trial judges under Fed.R.Evid. 702. See also, Goebel v. Denver and Rio Grande Western Railroad Company, 215 F.3d 1083, at 1087 (10th Cir. 2000). The gatekeeper function "requires the judge to assess the reasoning and methodology underlying the expert's opinion, and determine whether it is scientifically valid and applicable to a particular set of facts." Goebel at 1087.
The question of how to perform its gatekeeping function is a discretionary matter for the trial court. The court may conduct a hearing, it may perform its gatekeeping obligation by ruling on a motion in limine or on an objection at trial, or even by ruling on a post-trial motion. Id. When faced with a Daubert/Kumho objection to proposed expert testimony, the Court must adequately demonstrate by specific findings on the record that it has performed its duty as gatekeeper. Goebel at 1088.
Even though the court may delve deeply into the minutia of the proposed expert's opinions while conducting the Daubert/Kumho analysis, the Court must always remain mindful that its focus "must be solely on principles and methodology, not on the conclusions that they generate." Daubert at 595. Thus, the ultimate objective of Daubert scrutiny is to ascertain whether the proffered expert testimony is "not only relevant, but reliable," Daubert at 589, and it must be emphasized that the evaluation for reliability cannot be permitted to evolve into an assessment of the ultimate persuasiveness of the proffered expert testimony.
One of the most important aspects of the relevance evaluation is the question of "fit." In assessing "fit," the court must determine whether the "expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Daubert at 591 [internal quotation marks omitted]. In explaining the 2000 amendment to Rule 702, the Advisory Committee expressed the "fit" requirement by stating that "the testimony must be the product of reliable principles and methods that are reliably applied to the facts of the case."
In Kumho the Court elaborated upon the Daubert gatekeeping function as applied to proposed expert testimony other than classical scientific testimony. The Court emphasized that, even where the proposed expert testimony is not scientific in nature, in the classical sense, the trial judge is nevertheless required to ascertain whether the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152 (emphasis added).
It is clear that, in our circuit, the Daubert/Kumho gatekeeping function is undertaken by means of a two-step analysis. Ralston v. Smith Nephew Richards, Inc., F.3d __, 2001 W.L. 1647303, at *3 (10th Cir. 2001). First, the court must determine whether the proposed expert is qualified. This requires an assessment of his "knowledge, skill, experience, training or education". See Rule 702 and Ralston at *3. InGardner v. General Motors Corporation, 507 F.2d 525 (10th Cir. 1974), our Court of Appeals noted that a proposed expert "should not be required to satisfy an overly narrow test of his own qualification." 507 F.2d at 528. Even though Gardner was a pre-Daubert decision, that admonition from the Court of Appeals is still relevant. Secondly, if the proposed expert is determined to be sufficiently qualified, the court must determine whether his or her opinions are "reliable" in the sense required byDaubert and Kumho. Ralston at *3.
The Daubert case, of course, involved a proffer of expert testimony in a classical scientific discipline — epidemiology. Bearing that context in mind, it is nevertheless appropriate to review the non-exclusive list of five factors which were provided by the Daubert court. The Court, in Daubert, said that the trial judge should (1) assess whether the expert's technique or theory can be or has been tested — that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability, (2) determine whether the technique or theory has been subject to peer review and publication, (3) evaluate the known or potential rate of error of the technique or theory when applied, (4) ascertain the existence and maintenance of standards and controls and, (5) determine whether the technique or theory has been generally accepted in the scientific community. See 509 U.S. at 590-594.
The decision in Kumho made it clear that the gatekeeper function applies even where the proposed expert testimony is outside the realm of science in the classical sense. Kumho involved a proffer of engineering testimony in a product liability case. The Kumho decision makes it clear that, although the ultimate task of the trial judge, as gatekeeper, remains the same, the factors which were included in the nonexclusive list in Daubert are to be used only to the extent that they are logically applicable. See Kumho, 526 U.S. at 149. Thus, for instance, it has been noted that the factors mentioned by the Court in Daubert do not neatly apply to expert testimony from a sociologist, Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996), and that lack of peer review or publication is not dispositive where the expert's opinion is supported by "widely accepted scientific knowledge." Kannankeril v. Terminix International, Inc., 128 F.3d 802 at 809 (3rd Cir. 1997). Moreover, as noted by the Advisory Committee in commenting on the 2000 amendments to Rule 702, courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the jury. Those additional factors which may be relevant depending on the circumstances include (I) whether the expert proposes to testify about matters growing naturally and directly out of his research, independent of the litigation, or whether he has developed his opinion expressly for the purpose of testifying, (2) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion, (3) whether the expert has adequately accounted for obvious alternative explanations, (4) whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting, and (5) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Advisory Committee notes to 2002 amendments, and cases there cited.
In the context of this case, and probably in most cases involving engineering testimony on issues such as product defect and causation, the trial court's basic task is to ascertain whether the expert's proposed testimony is grounded, at least in some arguable way, in reality. In the Ninth Circuit's opinion on remand in Daubert, Judge Kozinski rather aptly called this a search for "visible means of support." Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 at 1320 (9 th Cir. 1995) ("Daubert II"). Thus, the gatekeeper is not required to "admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." General Electric Company v. Joiner, 522 U.S. 136, 146 (1997). Otherwise stated, the expert's bald assurance of validity is not enough. Rather, the party presenting the expert must show that the expert's findings are based on sound science, and this will require some objective, independent validation of the expert's methodology. Daubert II, 43 F.3d 1311, 1316. See also, United Phosphorus. Ltd. v. Midland Fumigant, Inc., 173 F.R.D. 675, 682 (D. Kan. 1997).
As the opinion of our Court of Appeals in Ralston illustrates, the court's evaluation of qualifications is not always entirely distinct from the court's evaluation of reliability. In Ralston, the Court of Appeals concluded that the proposed expert's testimony was properly excluded because she was unqualified and that there was, consequently no need to address the reliability of her conclusions under Daubert. Ralston, __ F.3d at __, 2001 WL 1647303, *3. The court then went on to note, in support of its conclusion that she was unqualified, that the expert had done no research with the product in question. Id. This, obviously, goes to both qualifications and reliability. The court made it clear that reliance upon general principles and concepts is not sufficient to require admission of the proposed expert testimony. Id. at *3-*4.
The Supreme Court and Tenth Circuit cases make it clear that there are few, if any, bright lines to guide the trial court in ascertaining whether the expert's proposed testimony is sufficiently grounded in arguable reality. This much is made clear by a comparison of the Tenth Circuit's opinions in Black v. M W Gear Company, 269 F.3d 1220 (10th Cir. 2001); Hynes v. Energy West, Inc., 211 F.3d 1193 (10th Cir. 2000) and Smith v. Ingersoll-Rand Company, 214 F.3d 1235 (10th Cir. 2000). In Black, the trial judge excluded the proposed expert testimony because the expert had not based his conclusion on the results of tests or calculations specific to the accident involved in that case.Black at 1237-38. The Court of Appeals affirmed the district court on this point. Conversely, in Hynes, the proposed expert had done testing specific to the case, and the admission of the testimony was affirmed.Hynes, 211 F.3d at 1204. Would that it were that simple. In Smith, the Court of Appeals affirmed the admission of the experts' proposed testimony even though the experts had done no research or testing specific to the case, neither had any first hand experience with machines of the type involved in the case, and, at least with respect to Mr. Gallagher, the entirety of his "preparation" consisted of his review of depositions and discovery documents. Smith, at 1243-44. Perhaps the best that can be said about these three cases, when read together, is thatDaubert issues are highly fact-bound, the district court's evaluation inevitably, but regrettably, includes a subjective element, and, perhaps above all, Circuit Court precedent must be read through the lens of the standard of review applied in the Court of appeals. Thus, there is really no common thread of "law" connecting these three Tenth Circuit cases and leading to the results reached in them. The results reached in these three cases are reconcilable when viewed in light of the applicable standard of review.
One of whom was Mr. Vincent Gallagher, an expert listed by the plaintiff in this case.
Smith v. Ingersoll-Rand is another illustration of the potential for overlap between the issue of "qualifications" and the issue of "reliability." The concepts which are relevant under these two headings are substantially melded in the Circuit Court's opinion. Id. at 1243-44. Of course, Smith v. Ingersoll-Rand was decided 18 months before the Court of Appeals emphasized the two-step analysis (dealing with qualifications, on one hand and with reliability, on the other) inRalston.
III. Daubert/Kumho Analysis as to Mr. Pacheco
Against this backdrop, the Court undertakes its two-step analysis of Mr. Pacheco's qualifications and of the reliability of his proposed opinion testimony (Ralston), and memorializes its conclusions as gatekeeper by making specific findings on the record (Goebel).A. Qualifications and Work in This Case.
Mr. Pacheco is offered as a "product engineer." Pretrial report at 10. Without getting into subtopics which are fairly encompassed by the following topics, plaintiff proposes that Mr. Pacheco provide expert testimony with respect to (1) whether the forklift was defective and unreasonably dangerous for lack of an aural back-up alarm, a strobe light back-up alarm and rear view mirrors, (2) whether the alleged defect caused the accident, (3) whether the forklift was defective for lack of a warning with respect to the absence of the three safety devices, (4) how the warning should have been expressed, (5) whether the presence of such a warning would have prompted a reasonable person in the position of Mr. Pearson to insist that the forklift be equipped with the safety devices, and (6) whether the presence of a warning would have prevented plaintiff's injuries. See Pretrial Report, pp. 10-12; transcript of Motion in Limine hearing on January 9, 2002 (herein "Transcript"), at pp. 29 and 35-37.
Mr. Pacheco is a registered professional engineer. He has a Bachelor of Science degree in Mechanical Engineering and a Master of Science in Management. He was once employed as manager of engineering and quality control for Pettibone Corporation in Chicago. In that capacity, he was responsible for overseeing product design and quality control of heavy industrial mobile equipment, forklift trucks and other types of equipment and machinery. This included responsibility for development of an improved line of electric forklift trucks. He thus claims experience in design, manufacture, application and operation of powered mobile industrial equipment.
Mr. Pacheco was also employed in various engineering positions for Fiat-Allis Construction Machinery, Inc. Mr. Pacheco states that, in that capacity, he was responsible for design of all wheel-loader systems and conducted computer analysis of stability, vehicle performance, power train stress and durability. He was responsible for engineering efforts to assure product compliance with national and international regulations with respect to braking, steering, noise, guarding, ergonomics and other areas.
Mr. Pacheco became a senior engineering consultant for Polytechnic, Inc. of Lincolnwood, Illinois in 1982. He became the president of the company in 1989. He now specializes in the safety analysis of construction and industrial equipment.
With his educational credentials, employment history and consulting experience, Mr. Pacheco claims expertise with respect to "the interaction between man, machine, human factors and safety as it relates to self-propelled construction equipment and mobile equipment including forklift trucks such as the one involved in Charles Pearson's injuries." Pacheco affidavit, Ex. A to Plaintiff's Response filed December 13, 2001, ¶ 2, p. 2. Mr. Pacheco has had continuing education in human factors concepts and is a member of the Human Factors and Ergonomics Society, the American Society of Mechanical Engineers, the Society of Automotive Engineers, the American Society of Agricultural Engineers, the American Society of Safety Engineers and the National Society of Professional Engineers.
While at Fiat-Allis, in the early 1970's, Mr. Pacheco was involved in the design of a line of wheel-loaders (also known as front-end loaders). Court's Ex. 1, p. 1. In this capacity, Mr. Pacheco had responsibility for assuring that the equipment met applicable standards and governmental regulations. Id. This testing, performed in the early 1970's, included evaluation of back-up alarms, which were tested as specified in a publication of the Society of Automotive Engineers. Id. This testing included measurement of sound levels emitted by the internal combustion engines which powered the equipment when equipped with a back-up alarm and assessment of whether the alarm could be distinguished from the sound level emitted by the equipment. Id. at p. 2.
Mr. Pacheco has done no testing specific to his proposed design, namely a back-up alarm, plus a horn, plus mirrors. Transcript, p. 24. In fact, he has done no testing specific to this case. Transcript, pp. 23-24. He has done no testing of his proposed alternative design (back-up alarm, plus strobe, plus mirrors) on any medium duty forklift. Transcript, p. 25. Mr. Pacheco has cited no published standard which was contravened by the forklift involved in this case, as used in a civilian, commercial setting. Transcript, pp. 27-28. Mr. Pacheco has authored no articles as to whether a back-up alarm system should be standard equipment. Id. at p. 38.
Mr. Pacheco has drafted a proposed warning for this case (Ex. A to Response filed on November 13, 2001 at p. 11), but makes no claim that it would have prevented this accident. Court Ex. 1, p. 3. He has done no testing of any proposed warning, either specific to this case or otherwise. Transcript, pp. 37-38.
At the time he was deposed in this case, Mr. Pacheco had not been to the scene of the accident. Deposition transcript (herein "deposition"), p. 35. He had never spoken to the individuals involved in the accident. Id. Mr. Pacheco has never measured the noise level on the forklift model involved in this case, when "revving up." Deposition. p. 67. He does not know whether the back-up lights on the forklift involved in this case were working at the time of the accident. Deposition, p. 70. He has done no accident reconstruction in this case, and, at the time of his deposition, had never written a warning label or an operations manual for forklift. Deposition, pp. 190 and 226. Mr. Pacheco has never written anything on human factors engineering. Deposition, p. 228. His opinions in this case have not been peer reviewed. Deposition, p. 261.
B. Analysis by Topics.
1. Opinion testimony with respect to intrinsic product defect (as opposed to warnings issues). With grave misgivings, and being fully mindful of the Seventh Circuit's opinion with respect to Mr. Pacheco, (Bourelle v. Crown Equipment Corporation, 220 F.3d 532 (7th Cir. 2000)), the Court will permit Mr. Pacheco to provide expert opinion testimony on the question of whether the forklift involved in this case was defective and unreasonably dangerous. As the Court noted in its January 11, 2002 Order, Mr. Pacheco will, of course, be permitted to testify as to the bases for this opinion, subject to appropriate limitations on admissibility of evidence of other incidents or accidents and subject to appropriate limitations on the admissibility of hearsay articles, studies, reports and other materials.
Turning to the first prong of the two step analysis mandated byRalston, the Court finds that Mr. Pacheco's "qualifications," specifically his paper credentials, as relevant to his proposed testimony on the issue of product defect, are ample. His paper credentials are summarized above and will not be repeated here. However, it is worth noting that, even though Mr. Pacheco has done no testing specific to this case, or even of his proposed alternative design as applied to the kind of forklift involved in this case, Mr Pacheco does have experience in testing of back-up alarms on other kinds of equipment.
The reason for the Court's grave misgivings in permitting Mr. Pacheco to provide expert opinion testimony on the subject of defect is that, in support of his proposed expert opinion on the subject intrinsic defect, Mr. Pacheco has nothing to offer by way of either of the two prevalent methods of grounding expert opinions in product liability cases in reality, namely (1) the testing of the challenged design or the proposed alternative design (either generally or in a case-specific setting), or (2) a showing that the challenged design contravenes an applicable and reasonably product specific standard having a respectable pedigree. See Joiner at 144-147; Ralston at *3-*4. Black at 1237-39; Hynes at 1204;Smith at 1244; Daubert II at 1317-1319; and United Phosphorus, at 681-82.
Mr. Pacheco's proposed expert opinion testimony, even on the subject of intrinsic defect, thus comes perilously close to falling into the impermissible "off the cuff" category, as was discussed by the Seventh Circuit in Bourelle (in assessing Mr. Pacheco's proposed opinion in the warnings context in a forklift case). In summary, on the question of the admissibility of Mr. Pacheco's proposed opinion testimony on the issue of intrinsic defect, his qualifications are ample and the "reliability" of his expert opinion clears the Daubert/Kumho threshold, albeit just barely, by virtue of his professional experience and the safety equipment testing he has done in other contexts. See Court's Ex. 1.
2. Opinion testimony with respect to causation. As noted above, Mr. Pacheco has done no testing specific to this case. Neither has he done any testing of the design which is challenged in this case or of his proposed alternative design. He has done no reconstruction. He does not have enough information to reconstruct this accident (deposition, p. 190), and he is essentially unfamiliar with the noise levels produced by the FG25 forklift under the relevant circumstances. On the issue of causation, Mr. Pacheco has little or nothing to offer other than "the ipse dixit of the expert." Joiner, at 146. This is clearly insufficient.
Having so concluded, on the question of the "reliability" of Mr. Pacheco's expert opinion testimony with respect to causation, it is perhaps not necessary to dwell at length on his qualifications to offer that testimony. Suffice it to say, for present purposes, that, although he does possess the base level of paper credentials which the Court might expect, his relative lack of qualifications in the realm of "human factors" would, in the context of the facts of this case, substantially impair his eligibility to expound on the question of causation.
As to Mr. Pacheco's qualifications in the realm of human factors, see deposition, pp. 38, 46, 135, 214, 226, 228, 258 and 261.
3. Opinion testimony with respect to warnings issues. As noted above, at the time he gave his deposition in this case, Mr. Pacheco had never written a warning label for a forklift. He had never written an operations manual for a forklift. In support of Plaintiff's Response to MCFA's Motion in Limine, Mr. Pacheco came up with a proposed warning (Exhibit A to Plaintiff's Response, filed December 13, 2001, at ¶ 18, p. 18), but Mr. Pacheco makes no claim that this warning would have prevented the accident in this case. Court's exhibit 1, p. 3. Mr. Pacheco has not tested his proposed warning, either in the context of his assignment in this case or otherwise. Transcript, pp. 37-38.
With respect to the admissibility of Mr. Pacheco's proposed testimony on the warnings issue, there is, inevitably, some overlap between the considerations relevant to the Court's assessment of his qualifications and the considerations relevant to the Court's assessment of the reliability of his proposed testimony. On this point, the two issues merge somewhat, as they did in Smith v. Ingersoll-Rand, see 214 F.3d at 1243-44. On the narrow question of Mr. Pacheco's qualification to expound on the warnings issues, the Court finds that his qualifications are deficient. Such qualifications as he has are discussed above. Well qualified experts on the issue of warnings are plentiful. The Court finds that Mr. Pacheco is not one of them.
Mr. Pacheco's proposed expert opinions with respect to warnings also fail the reliability prong of the test. To clear the reliability hurdle with respect to Mr. Pacheco's proposed expert testimony on the subject of warnings, Plaintiffs must show, at a minimum, that Mr. Pacheco, armed with appropriate expertise (i.e. "qualifications"), has sufficiently grounded himself in the facts of this case, and has sufficiently tested his hypothesis by means relevant to the facts of this case (by specific testing or standards-based analysis or otherwise), that he can tell the jury, with reasonable engineering certainty: (1) what an effective warning should have said, (2) that a warning about the lack of the proposed devices would probably have prompted a reasonable man in the position of Mr. Pearson to reject the forklift when he rented it, and (3) that the proposed warning, if given, would have prevented Mr. Pearson's injuries. See Black v. MW Gear Company, 269 F.3d at 1231-32; Transcript, at 31-35. On the subject of warnings, Mr. Pacheco's work in this case does not put him in a position to offer expert testimony which is rooted in reality in the sense required by Rule 702. The Court accordingly concludes that Mr. Pacheco's proposed expert testimony with respect to warnings lacks the foundation minimally required to clear theDaubert/Kumho reliability threshold.