Lauzon v. Senco Products Inc.

• Decision Date: 21 August 2001
• Docket Number: DEFENDANT-APPELLEE,No. 01-1058,PLAINTIFF-APPELLANT,01-1058
• Citation: 270 F.3d 681
• Parties: (8th Cir. 2001) FRED LAUZON,, v. SENCO PRODUCTS, INC., Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 681

270 F.3d 681 (8th Cir. 2001)

FRED LAUZON, PLAINTIFF-APPELLANT, v.SENCO PRODUCTS, INC., DEFENDANT-APPELLEE.

No. 01-1058

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: August 21, 2001

Filed: October 26, 2001

Appeal from the United States District Court for the District of Minnesota.[Copyrighted Material Omitted]

[Copyrighted Material Omitted]Before Bye, Lay, and John R. Gibson, Circuit Judges.

Lay, Circuit Judge.

In December 1997, Fred Lauzon, a carpenter, was injured while using Senco Products, Inc.("Senco") bottom-fire pneumatic nailer, model SN2 ("SN2").Lauzon brought suit for negligence, breach of warranty, manufacturing defect, and design defect against Senco for injuries that arose out of the use of the SN2.

The design of the bottom-fire pneumatic nailer enables it to drive nails by two different means.First, it can drive a single nail when the trigger and the bottom contact point are depressed.Second, it can rapid-fire nails when the operator depresses and holds the trigger and bounces the bottom contact point off the surface of the work.Senco markets the bottom-fire pneumatic nailer for the second manner of use, the rapid-fire mode.

Senco produces a second type of pneumatic nailer, a sequential-fire tool.It drives nails only one way, when the bottom contact element is depressed and the trigger is subsequently pulled.Unlike the bottom-fire pneumatic nailer, the trigger of the sequential-fire tool must be released and squeezed each time the user seeks to fire a nail.

Lauzon was using the SN2 to roof a garage.He was lying on the edge of the roof while securing a fourteen-foot 2 x 6 to the roof sheathing.His left hand was supporting the 2 x 6 under the overhang and his right hand was holding the SN2.A fellow workman, Steve Nelson, was standing on a ladder underneath supporting the 2 x 6 Lauzon was attempting to secure.

Lauzon testified that he properly drove a nail and as the SN2 recoiled, two more nails were driven, the second one entering his hand.Lauzon acknowledges his finger was on the trigger, it being constantly depressed as he was employing the bottom-fire pneumatic nailer in its rapid-fire mode.Yet, he contends the SN2 should not have fired successive nails because the bottom contact point was not depressed, since it was four to five inches above the roof sheathing.Lauzon testified it was not possible that the bottom contact point came into contact with the sheathing because it would have shot the nails into the wood and not his thumb.However, he was uncertain of all the details because "it happened so fast, it was-it was like, wow, what-what happened you know."

In spite of his uncertainty, he states that the accident was not the result of a "double-fire."A double-fire occurs when the tool cycles twice before the user is able to remove the bottom contact point from the surface of the work, thereby unintentionally driving a second nail instantaneously after the first.Lauzon testified, although two nails were expelled, it was not a double-fire because the bottom contact point was not depressed.

His fellow worker, Nelson, submitted an affidavit, dated May 22, 2000, stating he does not believe the SN2 double-fired, although he"could not say with absolute certainty," and alluded to the possibility that Lauzon may have been using the SN2 in a hazardous manner.In a second statement, dated June 16, 2000, Nelson modifies his statement slightly.In this statement he claims he does not "specifically remember one way or the other" whether the SN2 double-fired or misfired, although he does "clearly remember that the safety tip of the nail gun was contacting the edge of the wood."

Lauzon retained H. Boulter Kelsey as a proposed expert witness.Kelsey is a licensed professional engineer in the State of Missouri by examination.He earned a Bachelor of Science and a Master's Degree in Mechanical Engineering from Washington University in St. Louis, Missouri.From 1973 until 1980, Kelsey was Assistant Dean at Washington University.For the past twenty years he has worked as a forensic engineer.He has previously testified in approximately forty pneumatic nail gun cases.See, e.g., Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496(8th Cir.1993);Bailey v. Innovative Mgmt. & Inv., Inc., 890 S.W.2d 648(Mo.1994).

Kelsey performed a number of tests and analyzed the circumstances surrounding the injury.As a result of this analysis, Kelsey rendered an opinion: "[g]iven the tests that were conducted, Mr. Lauzon's recollection of the accident occurrence is in error."He stated that "Mr. Lauzon's testimony that he believed the gun was some 4 to 5 inches above the plywood surface when the accident occurred can only be an error on his part."Kelsey proposed a different interpretation of the event.

It would appear that in the process of moving his body down the sloped roof surface, Lauzon unintentionally and unconsciously caused the nose trigger of the subject Senco nailer to contact the edge of the plywood roof sheathing.When this occurred, only a portion of the bottom fire or nose trigger engaged the edge of the plywood which allowed a nail to be fired into or just past the edge of the plywood.Since the nail that was fired was totally unintended and unconsciously driven by Mr. Lauzon's movements, he undoubtedly experienced a second firing of the nailer due to recoil....This second nail was driven in the same fashion with the nose trigger of the gun contacting the very edge of the plywood sheathing in such a manner as to allow the nail to be expelled past the sheathing and 2 x 6 and enter his hand below.Given the circumstanced [sic] described by Mr. Lauzon and the testing accomplished on the subject model SN2 Senco nailer, no other scenario of the accident can be reasonably deduced.

H. Boulter Kelsey, Expert Report, at 6.Kelsey's conclusion that Lauzon's injuries were the result of a double-fire precludes the finding of a manufacturing defect, leaving only the claim of a design defect.

Kelsey opines the design of the SN2, a bottom-fire nailer, is defective because of the propensity to double-fire, therefore, he concludes the SN2 was unreasonably dangerous, and Lauzon's injuries were the result of a double-fire.Further, Kelsey opines the sequential-fire nailer is commensurate in its use to the bottom-fire nailer but is much safer because its design ensures a double-fire cannot occur.As a result, Kelsey proffers the inherently dangerous designed bottom-fire tool should no longer be on the market.

In applying the rules of Daubert v. Merrell Dow Pharm., 509 U.S. 579(1993), but without holding a pretrial Daubert hearing, the district court excluded Kelsey's expert testimony, finding insufficient evidence to sustain plaintiff's case, and granted summary judgment for the defendant.Daubert emphasizes that the district court is the "gatekeeper" for the admissibility of expert testimony which, of course, is true when the district court passes upon the admissibility of any evidence.Our standard of review is one of abuse of discretion, and in exercising this review, this court must give great deference to the ruling of the trial court.Yet, as the Supreme Court reminds us, it is the hallmark of our review, absent abdicating our duty, to analyze the trial court's ruling in light of the principles of Daubert and the Federal Rules of Evidence.

I.Analysis

Lauzon contends the district court erred by excluding the testimony of the proposed expert witness, Kelsey.The abuse of discretion "standard applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion."Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152(1999).The proponent of the expert testimony must prove its admissibility by a preponderance of the evidence.Daubert, 509 U.S. at 592.

Federal Rule of Evidence 702 governs admissibility of expert testimony.SeeFed. R. Evid. 702."Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony."Weisgram v. Marley Co., 169 F.3d 514, 523(8th Cir1999)aff'd, 528 U.S. 440(2000);see alsoDaubert, 509 U.S. at 588(citingBeech Aircraft Corp. v. Rainey, 488 U.S. 153, 169(1988))(highlighting the "'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to 'opinion' testimony'").The rule clearly "is one of admissibility rather than exclusion."Arcoren v. United States, 929 F.2d 1235, 1239(8th Cir.1991).

The proposed expert testimony must meet three prerequisites in order to be admitted under Rule 702. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence§ 702.02[3](2001).First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact.Id.This is the basic rule of relevancy.Second, the proposed witness must be qualified to assist the finder of fact.Id.Third, "the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires...."Id.;see alsoDaubert, 509 U.S. at 591.

The basis for the third prerequisite lies in the recent amendment of Rule 702, which adds the following language to the former rule: "(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. Evid. 702.¹The language of the amendment codifies Daubert and its progeny.Id.Comm. Note.

In Daubert, the U.S. Supreme Court emphasized the district court's gatekeeper role when screening expert testimony for relevance and reliability.Daubert, 509 U.S. at 591-93;see alsoBlue Dane Simmental Corp. v. Am. Simmental Ass'n, 178 F.3d 1035, 1040(8th Cir.1999)(during the...