Alfred v. Caterpillar Inc.

• Decision Date: 21 August 2001
• Docket Number: No. 00-6317,00-6317
• Citation: 262 F.3d 1083
• Parties: (10th Cir. 2001) CHRISTI ALFRED, Plaintiff - Appellant, v. CATERPILLAR, INC., a foreign corporation, doing business as CAT, also known as CAT, Defendant - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1083

262 F.3d 1083 (10th Cir. 2001)

CHRISTI ALFRED, Plaintiff - Appellant, v. CATERPILLAR, INC., a foreign corporation, doing business as CAT, also known as CAT, Defendant - Appellee.

No. 00-6317

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 21, 2001

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. CV-99-14-C) [Copyrighted Material Omitted] Thomas J. Steece (Steven R. Jung and Mark A. Mathews with him on the brief), Steece, Mathews & Associates, P.C., Oklahoma City, Oklahoma, for the Plaintiff-Appellant.

James A. Jennings, III (W.T. Womble, Womble & Cotellesse, Houston, Texas, with him on the brief), Jennings Cook & Hoisington, Oklahoma City, Oklahoma, for the Defendant-Appellee.

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiff Christi Alfred was on active duty with the United States Navy when she was severely injured by a paver manufactured by defendant Caterpillar. In this product liability suit, she alleges the paver's design was defective and that the defect caused her injury. At the close of her case, the district court struck the testimony of plaintiff's expert witness and granted defendant's motion for judgment as a matter of law under Fed. R. Civ. P. 50(a). Plaintiff challenges both rulings. We again address the issue of timing of Daubert motions, and exercising jurisdiction pursuant to 28 U.S.C. 1291, we reverse in part and affirm in part the district court's decision to strike plaintiff's expert testimony on the merits and affirm the trial court's grant of judgment as a matter of law in defendant's favor.

I

Alfred was assigned to a construction battalion at the United States Naval Base in Rota, Spain. While giving hand signals to the operator of an asphalt paver, Alfred was ordered to stand between the paver and a tree. Nearing the tree, the operator stopped the paver on plaintiff's signal, but upon her subsequent order to reverse direction the operator mistakenly moved the paver forward, pinning her against the tree. His mistake appears to have consisted of failing to place the direction toggle switch into reverse mode before turning the rotary dial that controls the vehicle's speed. As a result of the accident, plaintiff's right leg was injured and later amputated below the knee.

Plaintiff alleges the paver's control mechanism is defective because it is counterintuitive; defendant responds that the accident was caused by human error and that the mechanism is not defective or unreasonably dangerous. At trial, plaintiff admitted that the operator made a mistake with the controls and that she should not have been standing between the paver and the tree.

To prove her case plaintiff relied on the testimony of her liability expert, William P. Munsell, that the paver contained a defect that made it unreasonably dangerous and caused plaintiff's injury--two of the elements of a manufacturer's product liability cause of action in Oklahoma. See Alexander v. Smith & Nephew, P.L.C., 98 F. Supp. 2d 1310, 1318 (N.D. Okla. 2000) (citing Kirkland v. Gen. Motors Corp., 521 P.2d 1353, 1363 (Okla. 1974)). Munsell, a mechanical engineer, testified that the use of a rotary variable speed control instead of a lever was "not intuitive" and was a direct cause of plaintiff's injury. (Appellee's App. at 40.) Plaintiff's only evidence regarding defendant's liability for product design was Munsell's testimony.

After plaintiff rested, defendant moved to strike Munsell's testimony on the ground that he was not qualified by knowledge, skill, training, or education to offer opinion testimony in the case and that he had done insufficient research to support his conclusion that the paver was defective in design. Defendant concurrently moved for judgment as a matter of law under Fed. R. Civ. P. 50(a). The court granted the motion to strike and, concluding that without Munsell's opinion plaintiff's case was not supported by the evidence, proceeded to grant judgment as a matter of law for defendant. The court made the following observations:

Mr. Munsell gave an opinion that was very limited and it was backed by very little work and very little expertise. I think Mr. Jennings has covered all that at the bench and it need not be repeated.

The only actual investigation that he did was to find a machine that had the lever rather than the dial in order to satisfy himself that it was possible, and to identify for the benefit of the jury the guidelines and standards on which he based his conclusion.

Aside from identifying those guidelines and standards, however, he has done no work that supports his conclusion that they are prohibited, that the design of this machine is defective, or that the guidelines and standard apply even to the mechanics of this machine.

I find that his opinion is simply not competent under Daubert and other cases construing Daubert; that it is not supported by sufficient testing, experience, background, education, or thought to be relied upon by this jury. Without that opinion, I think it's quite clear that there is no evidence on which this case can go to the jury, and it is for those reasons and on that basis that I grant the defendant--first, the defendant's motion to strike the expert testimony and, secondly, its Rule 50 motion for judgment as a matter of law.

(Appellant's App. at 89.)

II

Rule 702 of the Federal Rules of Evidence authorizes a "witness qualified as an expert by knowledge, skill, experience, training, or education" to give opinion testimony "[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." Consistent with the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., Rule 702 requires trial courts to act as gatekeepers, admitting only expert testimony that is both reliable and relevant. 509 U.S. 579, 589 (1993). "This 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 v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000) (citing Daubert, 509 U.S. at 592).

A

We turn briefly to the timeliness of defendant's motion to strike expert testimony after the close of plaintiff's case. In our recent decision of Macsenti v. Becker 237 F.3d 1223, 123034 (10th Cir. 2001), this Court affirmed a district court's rejection of Daubert objections raised by a defendant at the close of all the evidence. In doing so, we concluded "that Defendant forfeited the opportunity to subject the expert testimony of [the] plaintiff's . . . experts to a Daubert challenge by failure to make a timely objection before that testimony was admitted." Id. at 1231.

Recognizing that the law traditionally does not reward ambush trial tactics, in Macsenti this Court correctly criticized the practice of filing Daubert motions at a late stage in the adversarial process when there has been no motion in limine or concurrent objection to an expert's participation. Counsel should not "sandbag" Daubert concerns until the close of an opponent's case, thereby placing opposing counsel and the trial court at a severe disadvantage. See Macsenti, 237 F.3d at 123334. The truth-seeking function of litigation is best served by an orderly progression, and because Daubert generally contemplates a "gatekeeping" function, not a "gotcha" junction, Macsenti permits a district court to reject as untimely Daubert motions raised late in the trial process; only in rare circumstances will such tardy motions, albeit allowed under our decision in Goebel, be warranted. 215 F.3d at 1087 (indicating a district court can satisfy its Daubert gatekeeping role "when asked to rule on a motion in limine, on an objection during trial, or on a post-trial motion"). In this case, unlike in Macsenti, the district court chose to address the defendant's Daubert objections on the merits, rather than deeming them waived. Because of the split character of our disposition on the merits--affirming in part and reversing in part the decision to strike Munsell's testimony--we elect not to reach the issue of the motion's belated consideration, leaving for another day further development of Macsenti's timing jurisprudence.

B

Our review of a trial court's exercise of its Daubert gatekeeping function is for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997); Goebel, 215 F.3d at 1087; Mitchell v. Gencorp, Inc., 165 F.3d 778, 780 (10th Cir. 1999). Under an abuse of discretion standard, a ruling will not be disturbed on appeal unless it is "arbitrary, capricious, whimsical or manifestly unreasonable" or when this Court is convinced that the trial court "has made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163 (10th Cir. 2000) (citations omitted).

Plaintiff argues Munsell's testimony qualified as admissible expert testimony under the requirements of Rule 702 and Daubert and therefore was erroneously stricken. Munsell's testimony was based on engineering standards promulgated by the Society of Automotive Engineers ("SAE") as well as on his investigative work. Citing SAE Standard J297, entitled "Operator Controls on Industrial Equipment," he opined that the variable speed control on a paver should be...