Dancy v. Hyster Co.

• Decision Date: 25 September 1997
• Docket Number: No. 97-1042,97-1042
• Citation: 127 F.3d 649
• Parties: 47 Fed. R. Evid. Serv. 1124, Prod.Liab.Rep. (CCH) P 15,071 Michael R. DANCY, Appellant, v. HYSTER COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 649

127 F.3d 649

47 Fed. R. Evid. Serv. 1124, Prod.Liab.Rep. (CCH) P 15,071

Michael R. DANCY, Appellant, v. HYSTER COMPANY, Appellee.

No. 97-1042.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1997.

Decided Sept. 25, 1997.

Bill Holloway, McGehee, AR, argued (John P. Lewis, Hot Springs, AR, on the brief), for appellant.

H. Keith Morrison, Fayetteville, AR, argued, for appellee.

Before BOWMAN, FLOYD R. GIBSON and MORRIS SHEPPARD ARNOLD, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Michael Dancy ("Dancy") appeals the District Court's ¹ exclusion of his expert witness. Dancy also appeals the grant of summary judgment in favor of Hyster Company ("Hyster"). We affirm.

I. BACKGROUND

Dancy began working for Union Camp Corporation in the Spring of 1994 and was trained to operate a "lift truck." A lift truck is a machine similar in appearance to a forklift. Its appearance differs in that, instead of having a "fork" in front of the machine to raise and lower heavy objects, a lift truck has a large clamp that encircles and grips large objects. In this case, Dancy used the lift truck to lift large cylindrical rolls of paper. On July 7, 1994, Dancy lifted two rolls of paper with the goal of placing them on top of two other rolls stacked on the floor. He accomplished this by lifting the bottom of two rolls that were stacked on top of each other, thereby lifting both rolls simultaneously. See Jt.App. at 205. ² The lift truck overturned, pinning Dancy's right foot under the lift truck. Dancy's right leg had to be amputated just below the knee.

Dancy filed suit against the lift truck's manufacturer, Hyster, alleging that the lift truck was defective because it did not have a cage or guard around the compartment to prevent the operator from being pinned under the lift truck. He also alleged that Hyster was negligent for failing to place a cage or guard around the operator's compartment. Dancy designated Dr. Richard Forbes as his sole expert witness. The District Court granted Hyster's motion to strike this designation in light of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The District Court then granted Hyster summary judgment, concluding Dancy could not prevail in this case without an expert witness. Dancy has appealed both rulings.

II. DISCUSSION

A. The Expert Witness

Dr. Forbes is a mechanical engineer and a professor at the University of Mississippi and was retained by Dancy in 1996. He has never designed a forklift, a lift truck, or any other similar machine; his specialty is in the field of thermal science. At his deposition, Dr. Forbes theorized that the lift truck should have had a guard to keep Dancy's leg within the lift truck's frame. Dr. Forbes had not tested this theory in any way, had not seen this type of device on a forklift or any other similar machine, and had not even designed the device he suggested would have prevented Plaintiff's injury. See Jt.App. at 125-27; 130. Approximately one month after his deposition, Dr. Forbes provided a supplemental report wherein he stated:

It is my opinion that a permanently-located open-mesh guard on the right side of the lift would have prevented Dancy's injury. The guard would be located so as to reduce the probability that the operator's legs would leave the interior of the overhead guard during tipover.... I am confident that such guards can be designed which will not affect the utility of the lift truck and which will not add any significant cost to the machines.

Jt.App. at 19. This wording suggests that Dr. Forbes still had not designed or tested the proposed safety device.

"Decisions concerning the admission of expert testimony lie within the broad discretion of the trial court, and these decisions will not be disturbed on appeal absent an abuse of discretion." Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 296 (8th Cir.1996). The starting point for analyzing expert testimony is Federal Rule of Evidence 702, which provides:

If 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.

Under Daubert, district courts are to perform a "gatekeeping" function and insure that proffered expert testimony is both relevant and reliable. See Penney v. Praxair, Inc., 116 F.3d 330, 333 (8th Cir.1997); Peitzmeier, 97 F.3d at 296-97; Pestel v. Vermeer Mfg. Co., 64 F.3d 382, 384 (8th Cir.1995). "Daubert suggests that a trial court, when assessing the reliability of expert testimony, consider (1) whether the concept has been tested, (2) whether the concept has been subject to peer review, (3) what the known rate of error is, and (4) whether the concept is generally accepted by the community." Pestel, 64 F.3d at 384. The District Court considered these factors in this case and concluded that Dr. Forbes's theory could be, but had not been, tested. In fact, Dr. Forbes had not even attempted to design the device he was suggesting was necessary to prevent the lift truck from being defective. Although he opined that the device he envisioned would work, he had no basis for reaching this conclusion. In fact, it appears that Dr. Forbes's views were being altered and refined based on questions raised during the deposition. ³

Dancy attempts to avoid the effects of Daubert by contending that it does not apply unless the expert's testimony will rely on scientific principles or methods. We have expressly rejected this argument. See Peitzmeier, 97 F.3d at 297. Dancy also contends that Dr. Forbes's testimony should have been admitted based on his explanation that a device similar to the one he envisioned had been used on bobcats and front-end loaders. The District Court concluded that there are significant differences between these two pieces of lifting equipment and lift trucks: differences that prevent the automatic assumption that what works on one will work on another. Dancy has presented no argument demonstrating the District Court's conclusion in this regard was incorrect, and our review of the record reveals no basis for reaching a different conclusion.

We conclude that the District Court was justified in questioning the reliability and usefulness of Dr. Forbes's testimony. Disallowing his testimony did not constitute an abuse of discretion.

B. Summary Judgment

We review the District Court's grant of summary judgment de novo, applying the same standard as applied by the District Court. A moving party is entitled to summary judgment on a claim only if there is a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see generally Williams v. City of St. Louis, 783 F.2d 114, 115 (8th Cir.1986). "[W]hile the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see also Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992). In applying this standard, the Court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir.1984), cert. denied, 470 U.S. 1057, 105 S.Ct. 1767, 84 L.Ed.2d 828 (1985). However, a party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of the ... pleading[s], but ... by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

The District Court concluded that, without the aid of expert testimony, there was no evidence demonstrating (1) the existence of a defect in the product or (2) negligence by Hyster. We consider these issues separately, keeping in mind that Arkansas law controls the substance of these two causes of action.

1. Strict Liability

"Generally speaking, there are three varieties of product defects: manufacturing defects, design defects, and inadequate warnings." West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608, 610 (1991). Plaintiff has alleged a cause of action based on the existence of a design defect and, faced with the unavailability of expert testimony, contends that expert testimony was not needed to establish the existence of a defect.

Arkansas law does not require expert testimony in all product liability cases. "Strictly speaking, since proof of negligence is not an issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are no less applicable." Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741, 743 (1985). Consequently, "[p]roof of a specific defect is not required when common experience teaches the accident would not have occurred in the absence of a defect." Id.; see also Lakeview Country Club, Inc. v. Superior Products, 325 Ark. 218, 926 S.W.2d 428, 431 (1996); Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479, 482 (1987). However, "[t]he mere fact of an accident, standing alone, does not make out a case that the product is defective." Higgins, 699 S.W.2d at 743. Consideration of this issue also requires examination of the extent to which the plaintiff has negated other possible causes for the accident. See Williams, 730 S.W.2d at 482-83; Higgins, 699 S.W.2d at 743.

Initially, we note that this res ipsa loquitur-like doctrine is ill-suited to cases involving defective design...