Pestel v. Vermeer Mfg. Co., 94-4057EM
| Decision Date | 24 August 1995 |
| Docket Number | No. 94-4057EM,94-4057EM |
| Citation | 64 F.3d 382 |
| Parties | 42 Fed. R. Evid. Serv. 1324, Prod.Liab.Rep. (CCH) P 14,313 Mark PESTEL, Appellant, v. VERMEER MANUFACTURING COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Terry A. Bond, argued, Clayton, MO, for appellant.
Peter von Gontard, argued, St. Louis, MO (Teresa D. Bartosiak, on the brief), for appellee.
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
Mark Pestel brought this action against Vermeer Manufacturing Company after he was injured when he slipped in front of a Vermeer 186 stump cutter. The District Court 1 granted Vermeer's motion for directed verdict at the close of Mr. Pestel's case. On appeal, Mr. Pestel claims the District Court erred in refusing to allow testimony from an expert witness.
We affirm.
In 1989, Mr. Pestel crossed in front of a Vermeer Model 186 stump cutter to check whether the operator of the machine was cutting into the stump at a point too low or too deep. When Mr. Pestel was about 28 to 30 inches from the stump cutter, he slipped on the grass, and his right foot went into the cutter wheel.
During preparation for trial the plaintiff hired Keith Vidal to see whether a safety-bar guard could be made for the stump cutter which would have protected Mr. Pestel's foot from the cutter wheel. 2 Mr. Vidal came up with a design concept for a guard after starting with a design Vermeer was using for its 206 Model stump cutter. 3 The 206 Model has had a single-bar safety guard on it since 1988. Mr. Vidal designed his guard by taking two 206 safety guards and welding them together so that each guard was parallel to the other and ten inches apart--somewhat like a football-helmet guard. He then placed a wire mesh between the top bar and the bottom bar. While Mr. Vidal was working on his design, he did not look at any other manufacturers's stump cutters, and he did not make a patent search to determine whether there were patents on guards for stump cutters. Mr. Vidal had never used a stump cutter, and he did not consult with any stump-cutter operators to determine how his design would work in the field. Mr. Vidal did not test his fabricated guard, but the Vermeer Company did.
Vermeer duplicated the guard developed by Keith Vidal and ran a comparison between that guard and the guard already on the 206 stump cutter. It then prepared a video comparing the Vidal guard against the 206 guard in six stump-cutting situations: (1) a regular small stump; (2) a V-shaped stump; (3) a stump that has two branches, one significantly higher than the other; (4) a single large irregular stump; (5) a stump in a hole; and (6) a "minefield" of approximately 10 small stumps ranging in size from 1 inch to 5 inches in diameter.
Before watching the video Mr. Vidal had never seen a 206 with a guard cutting a stump. After seeing Vermeer's video tape, he admitted his guard needed further refinements. The corners of the bottom part of the guard needed to be rounded so that they would ride more easily over rough surfaces, and the mesh on the bottom edge of the guard needed to be worked on so that it would not interfere with the guard while it was floating over the ground. He also considered making the guard out of smaller tubing so that it would be lighter.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702, 4 and it is the trial judge's duty to screen such evidence for relevance and reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, ---- - ----, 113 S.Ct. 2786, 2795-96, 125 L.Ed.2d 469 (1993). Such evidence is admissible if it is scientifically based and will assist the trier of fact in determining a fact in issue. 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. Id. at ---- - ----, 113 S.Ct. at 2796-97.
The District Court barred plaintiff's use of Mr. Vidal's fabricated guard and also barred the plaintiff from using Vermeer's video. The Court found the guard was not relevant because the expert admitted that he would not use the guard in its present state on a stump cutter. Mr. Vidal was hired to show that a guard could be made which would have prevented the injury from occurring. He was not prepared, however, to show that such a guard was ready for the market--his design was not finished. Therefore, his fabricated guard was not...
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