Leibfried v. Caterpillar Inc.

• Docket Number: 20-CV-1874
• Decision Date: 03 November 2023
• Parties: KELLY LEIBFRIED, Individually and as Special Administrator of the Estate of Charles Leibfried, et al., Plaintiffs, v. CATERPILLAR, INC, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

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KELLY LEIBFRIED, Individually and as Special Administrator of the Estate of Charles Leibfried, et al., Plaintiffs, v. CATERPILLAR, INC, Defendant.

No. 20-CV-1874

United States District Court, E.D. Wisconsin

November 3, 2023

DECISION AND ORDER

WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

1. Background

Charles Leibfried died when the Caterpillar model 745C articulated dump truck he was driving rolled over. Kelly Leibfried, on her own behalf as Charles's wife and as special administrator of Charles's estate, brought this action against Caterpillar, Inc., alleging that Charles's death was caused by the defective design of its dump truck. Joining Kelly as a plaintiff is Sentry Insurance Company, which provided worker's compensation benefits related to Charles's death. (ECF No. 1, ¶ 16.)

The plaintiffs allege that the rollover protective structure (sometimes referred to as the ROPS) in the truck was defective. Akin to a roll cage or rollbar, a rollover protective structure is a metal structure around the cab of the truck and is intended to maintain a safe space for the operator if the vehicle rolls over. The plaintiffs allege that Caterpillar's rollover protective structure was defective because it collapsed when the dump truck rolled over.

2. Caterpillar's Motion to Exclude the Expert Testimony of Brian Herbst

The admissibility of expert opinions is governed by Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Kirk v. Clark Equip. Co., 991 F.3d 865, 871 (7th Cir. 2021). Under Rule 702 the court acts as gatekeeper to ensure that proffered expert testimony is both relevant and reliable. Id. at 872 (quoting Daubert, 509 U.S. at 589). “In performing this role, the district court must engage in a three-step analysis, evaluating: ‘(1) the proffered expert's qualifications; (2) the reliability of the expert's methodology; and (3) the relevance of the expert's testimony.'” Id. (quoting Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017)).

Brian Herbst opines, in material part, that Caterpillar's articulated dump truck was “defective and unreasonably dangerous due to an inadequate occupant protection system for rollovers. Specifically, it employs a structurally inadequate [rollover protective structure] design that allows excessive intrusion in a very foreseeable and low severity rollover environment.” (ECF No. 57-1 at 40.) Alternative designs “were readily and inexpensively available that would have resulted in a non-defective roof with minimal roof crush susceptibility.” (ECF No. 57-1 at 40.)

2.1. Qualifications

Brian Herbst is a mechanical engineer with more than 20 years of experience, nearly all of which relates “directly to motor vehicle testing, crashworthiness, restraint system, and structural analysis.” (ECF No. 57-1 at 4.) He has “been called upon to analyze several hundred real world accidents.” (ECF No. 57-1 at 4.)

Caterpillar argues that Herbst is not qualified to offer his opinions because most of his experience relates to on-highway vehicles, whereas here his opinions relate to an off-highway vehicle. (ECF No. 57 at 3-4.) Before this case the only off-road vehicles Herbst assessed were utility task vehicles (UTVs). (ECF No. 57 at 5.) “He has never offered testimony regarding the crashworthiness of off-highway, earth-moving machinery,” been involved in the design of such a vehicle, never tested the rollover protective structure in this type of vehicle, or performed or otherwise been involved in testing whether such a vehicle met the industry standard for such a structure. (ECF No. 57 at 5.)

It is not enough that an expert possesses some manner of general expertise. An engineer is not necessarily qualified to opine on all engineering questions. See Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (“Simply because a doctor has a medical degree does not make him qualified to opine on all medical subjects.”). What matters under Rule 702 is whether the expert is qualified to answer the specific question presented. See Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010).

But an expert need not have experience answering the precise question presented to be qualified as an expert. For example, the Court of Appeals for the Seventh Circuit acknowledged that an engineer could offer an opinion about the safety of a ladder despite having never designed a ladder for commercial use or worked in the ladder industry. Baugh v. Cuprum S.A. De C.V., 845 F.3d 838, 845 (7th Cir. 2017); see also Superior Aluminum Alloys, LLC v. United States Fire Ins. Co., No. 1:05-CV-207, 2007 U.S. Dist. LEXIS 46688, at *16 (N.D. Ind. June 25, 2007) (“District courts in the Seventh Circuit have qualified witnesses as experts even though they did not specialize or have experience in the particular product or field involved in the case.” (citing cases)).

Although on-highway vehicles may be different from off-highway vehicles, the plaintiffs have demonstrated that, in terms of the sort of analysis that Herbst undertook regarding how structures respond to the forces of an accident, the engineering principles are the same. Herbst's lack of experience in designing or testing rollover protective structures in off-road earth-moving machinery does not preclude him from applying engineering principles within his ken to the facts of this case. The plaintiffs have demonstrated that Herbst has ample experience to be able to provide the opinions he offers in his report.

2.2. Reliability

The fact that an expert is qualified to give an opinion is not by itself a sufficient basis for admissibility. Kirk, 991 F.3d at 873. In assessing the reliability of an expert opinion courts may consider the following non-exhaustive factors:

(1) Whether the particular scientific theory can be (and has been) tested;

(2) whether the theory has been subjected to peer review and publication;

(3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the technique has achieved general acceptance in the relevant scientific or expert community.

Id. (quoting Deputy v. Lehman Bros., Inc., 345 F.3d 494, 505 (7th Cir. 2003)) (internal brackets and quotation marks omitted); see also Gopalratnam, 877 F.3d at 779-80 (discussing additional factors outlined in the Notes of Advisory Committee on Rules to the 2000 Amendment of Rule 702).

Because there are many different kinds of experts and expertise, the test for reliability is flexible, and no one factor is dispositive. Kirk, 991 F.3d at 873; Gopalratnam, 877 F.3d at 780. Courts must be mindful that they are not assessing the correctness of the expert's opinion but merely the soundness of the expert's methods. Daubert, 509 U.S. at 595 (“The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”); Kirk, 991 F.3d at 873; Kopplin v. Wis. Cent. Ltd., 914 F.3d 1099, 1104 (7th Cir. 2019) (“The focus is on the expert's methodology, not his ultimate conclusions.”). “The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact, or where appropriate, on summary judgment.” Gopalratnam, 877 F.3d at 781 (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000); citing Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013)).

Herbst created a digital model of Leibfried's damaged truck. He then purchased a new rollover protective structure from Caterpillar, created a digital model of it, and subjected it to a crash test to roughly simulate the rollover of Leibfried's truck. With that data he conducted a finite element analysis, which is a type of computer modeling where he can test how forces affect a three-dimensional structure. See Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1170 (Fed. Cir. 2008). He validated his digital model by conducting a crash test in the model and confirming that the results in the model were consistent with the result of his real-world crash test. He then manipulated the virtual crash test to produce damage consistent with the damage to Leibfried's truck. From there, he tested his recommended design changes to confirm that, with his recommended changes, the rollover protective structure would not have collapsed during the rollover that Leibfried experienced.

The International Organization for Standardization, an independent, nongovernmental international organization with a membership of 169 national standards bodies, see ISO, About Us, https://www.iso.org/about-us.html, promulgated ISO 3471, setting forth minimum requirements for rollover protection in earth moving equipment like the Caterpillar truck Leibfried was driving. As recounted by Herbst in his report, ISO 3471 states that the driver compartment of such a vehicle should provide crush protection for a seat-belted driver if the vehicle is traveling 10 miles per hour and completely rolls over down a 30-degree hill. (ECF No. 57-1 at 18.) The Occupational Safety and Health Administration (OSHA) requires that “rollover protective structures for designated scrapers, loaders, dozers, graders, crawler tractors, compactors, and rubber-tired skid steer equipment” meet the test and performance requirements of ISO 3471. 29 C.F.R. § 1926.1001. Herbst acknowledges that Caterpillar's truck exceeded that standard.

Caterpillar argues that Herbst did not apply a reliable methodology because he did not confine himself to determining whether the Caterpillar truck that Leibfried was driving met the ISO 3471 standard. Its argument incorrectly assumes that Caterpillar's compliance with ISO 3471 precludes a claim...