United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 15, 2004
Charles R. Fulbruge III
Clerk
No. 03-60760
MICHELLE GUY,
Plaintiff-Appellant,
versus
CROWN EQUIPMENT CORPORATION; ET AL.,
Defendants,
CROWN EQUIPMENT CORPORATION,
Defendant-Appellee.
On Appeal from the United States District Court
for the Northern District of Mississippi
(3:02-CV-126-SAA)
Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For her design defect claim under the Mississippi Products
Liability Act, MISS. CODE ANN. § 11-1-63 et seq. (MPLA), Michelle Guy
challenges judgment as a matter of law awarded Crown Equipment
Corporation, following Guy’s case in chief. Guy contends the
district court reversibly erred by excluding Guy’s intended expert
witness before trial and by excluding certain evidence offered
during Guy’s examination of Crown’s expert, called as an adverse
witness. In addition, Guy claims she presented sufficient evidence
during her case in chief to avoid judgment as a matter of law
against her MPLA design defect claim. AFFIRMED.
I.
In 1999, Guy was injured at work in Mississippi while
operating an electric stand-up lift truck, model RR3540-45, unit
R112 (forklift), which was manufactured by Crown and was shipped to
Guy’s employer in 1995. Pursuant to the forklift’s design, the
operator enters the operator compartment at the end opposite the
forks and, to operate the forklift, stands facing sideways to the
forks. In that operating position, the compartment opening is to
the left; the forks, to the right. Except for the compartment
opening, which is wide enough for a person to enter sideways, the
operator compartment is enclosed by four waist-high “walls”. The
forks apparatus raises 198 inches, and there is an overhanging
“roof” that protects the operator from above. When operating the
forklift, the operator leans back against a padded back and hip
rest, which wraps around the wall the operator leans against.
When injured, Guy was operating the forklift in a “forks
following” manner (operator-compartment opening moving forward and
forks behind); the forklift hit metal railings on a warehouse
floor. In that operating mode, the operator-compartment opening
was moving toward the railings when the collision occurred. The
forklift’s maximum speed is six miles per hour; Guy testified she
was traveling at about half-speed when she hit the railings. The
2
distance from the operator-compartment opening to the operator’s
left foot is approximately six inches. The impact caused Guy to
lose her balance, and her left leg came out of the operator
compartment through the opening. Guy’s left leg was crushed
between the forklift and the railings.
Guy sued Crown in Mississippi state court for, inter alia,
strict liability under the MPLA, claiming: the forklift was
defectively designed; and Crown failed to warn of the danger of a
left-leg injury. Crown removed the action to federal court, based
on diversity jurisdiction. The parties agreed to proceed before a
magistrate judge. See 28 U.S.C. § 636(c).
In support of her primary MPLA claim, Guy intended to present
expert testimony through John Lohman that the forklift was
defectively designed because it lacked either an operator restraint
(similar to a seat belt) or a door for the operator-compartment
opening. Crown moved in limine to exclude Lohman as an expert
witness, asserting his testimony was unreliable and, therefore,
inadmissible under Federal Rule of Evidence 702 (testimony by
experts) and the test provided by Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The district court
granted the motion, ruling, inter alia, that Lohman had not
presented any definitive theory, opinion, or MPLA feasible design
alternative (discussed infra) that could be tested to prove the
dangerousness vel non of Crown’s forklift.
3
At trial, Guy presented only MPLA claims for design defect and
failure to warn. To do so, Guy called as an adverse witness Dan
Dunlap, Crown’s Manager of Product Engineering (a Crown employee
since 1978). Dunlap testified that one reason the forklift was
designed without an operator-compartment door was to make it easier
for the operator to exit the forklift in “tip-over” accidents,
where the forklift falls on its side, and in “off-the-dock”
accidents, where the operator mistakenly drives the forklift off a
loading dock.
During Dunlap’s testimony, Guy offered as evidence reports,
obtained from Crown through discovery, of prior accidents involving
all models of Crown forklifts. There were approximately 2,400
reports, but only 360 concerned left-leg injuries like Guy’s. The
district court excluded non-left-leg injury reports.
Along this line, Guy attempted to question Dunlap about a
survey showing K-Mart employees preferred using forklifts with
operator-compartment doors. K-Mart had purchased Crown forklifts,
similar to the one on which Guy was injured, but with such doors.
The district court excluded these surveys.
Following Guy’s case in chief, Crown moved for judgment as a
matter of law, under FED. R. CIV. P. 50(a)(1), contending Guy did
not present sufficient evidence for a reasonable jury to decide in
her favor under the MPLA on either the failure to warn or design
defect claims. The motion was granted.
4
II.
The MPLA’s substantive provisions became effective on 1 July
1994 and apply to all actions filed after that date. See MISS. CODE
ANN. § 11-1-63 note (1993); Clark v. Brass Eagle, Inc., 866 So.2d
456, 460 (Miss. 2004). The injured party must prove, by a
preponderance of the evidence, that, when the product left the
manufacturer: “[t]he product was defective”; that defect “rendered
the product unreasonably dangerous”; and that “condition ...
proximately caused the” injury. See MISS. CODE ANN. § 11-1-63(a).
A defect that renders a product unreasonably dangerous can result
from several situations. In general, the product: (1) “deviated
in a material way from the manufacturer’s specifications”; (2) did
not “contain adequate warnings or instructions”; (3) “was designed
in a defective manner”; or (4) “breached an express warranty”.
MISS. CODE ANN. § 11-1-63(a)(i). Here, Guy presents only a design
defect claim.
For a design defect to render a product unreasonably
dangerous, the injured party must show that, when the product left
the manufacturer’s control: (1) the manufacturer knew, or should
have known, about the danger that caused the injury; (2) “[t]he
product failed to function as expected”; and (3) “there existed a
feasible design alternative that would have to a reasonable
probability prevented the harm”. MISS. CODE ANN. § 11-1-63(f)
(emphasis added). “A feasible design alternative is a design that
5
would have to a reasonable probability prevented the harm without
impairing the utility, usefulness, practicality or desirability of
the product to users or consumers.” MISS. CODE ANN. § 11-1-63(f)(ii)
(emphasis added).
A.
The three contested evidentiary rulings are reviewed only for
abuse of discretion. E.g., Southern Pacific Transp. Co. v.
Chabert, 973 F.2d 441, 448 (5th Cir. 1992), cert. denied, 507 U.S.
987 (1993). Of course, for reversible error, the ruling must
affect a substantial right. FED. R. CIV. P. 61 (harmless error);
FED. R. EVID. 103(a), (d) (rulings on evidence); e.g., Jones v.
Benefit Trust Life Ins. Co., 800 F.2d 1397, 1400 (5th Cir. 1986).
1.
The district court ruled that Guy’s expert witness, Lohman,
did not satisfy FED. R. EVID. 702 and Daubert. Because a district
court has broad discretion in deciding the admissibility vel non of
expert testimony, we will not find error unless the ruling is
manifestly erroneous. General Electric Co. v. Joiner, 522 U.S.
136, 141-42 (1993); see also, e.g., Watkins v. Telsmith, 121 F.3d
984, 989 (5th Cir. 1997); Eiland v. Westinghouse Electric, 58 F.3d
176, 180 (5th Cir. 1995). “Manifest error” is one that “is plain
and indisputable, and that amounts to a complete disregard of the
controlling law”. Venegas-Hernandez v. Sonolux Records, 370 F.3d
183, 195 (1st Cir. 2004) (citing BLACK’S LAW DICTIONARY 563 (7th ed.
6
1999)); see also Andreiu v. Ashcroft, 253 F.3d 477, 490 (9th Cir.
2001) (Beezer, J., concurring); LaCombe v. A-T-O, Inc., 679 F.2d
431, 435 (5th Cir. 1982) (manifest error where district court
employed wrong standard in excluding a witness); Bank One, Texas,
N.A. v. F.D.I.C., 16 F. Supp. 2d 698, 713 (N.D. Tex. 1998) (“a
manifest error is an obvious mistake or departure from the truth”)
(internal quotation omitted).
Rule 702, amended post-Daubert in 2000, provides that a
witness “qualified as an expert ... may testify ... in the form of
an opinion ... if (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”. Amended Rule 702
reflects the Supreme Court’s decisions in Daubert and its progeny
emphasizing the district courts’ broad latitude in weighing the
reliability of expert testimony for admissibility. E.g., Daubert,
509 U.S. at 591; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142
(1999). Kuhmo Tire clarified that the Rule 702/Daubert analysis
applies to all proposed expert testimony, including nonscientific
“technical analysis” and other “specialized knowledge”. 526 U.S.
at 141.
It goes without saying that Daubert clarified a district
court’s gate-keeping function: the court must ensure the expert
uses reliable methods to reach his opinions; and those opinions
7
must be relevant to the facts of the case. The Supreme Court
listed several non-exclusive factors to guide courts in their
screening function: whether the proposed evidence or theory “can
be (and has been) tested”; whether it “has been subjected to peer
review and publication”; whether it has been evaluated in the light
of “potential rate[s] of error”; and whether the theory has been
accepted in the “relevant scientific community”. Daubert, 509 U.S.
at 593-94.
The Daubert factors remain relevant to the determination of
the reliability of expert testimony under Rule 702, as amended.
See FED. R. EVID. 702 advisory committee’s note (2000 Amendment).
The 2000 amendments to Rule 702 also reflect the Supreme Court’s
determination that the reliability analysis must remain flexible:
not every Daubert factor will be applicable in every situation; and
a court has discretion to consider other factors it deems relevant.
Kumho Tire, 526 U.S. at 151. Although the Daubert analysis is
applied to ensure expert witnesses have employed reliable
principles and methods in reaching their conclusions, the test does
not judge the expert conclusions themselves. Daubert, 509 U.S. at
594-95.
To assist in proving a design defect rendered the forklift
unreasonably dangerous, Lohman intended to opine that a feasible
design alternative existed for the RR model forklift that could
have prevented Guy’s injuries. Toward that end, Lohman submitted
8
a preliminary report on 2 January 2003, reconstructing Guy’s
accident and suggesting alternatives that could have prevented the
injury; was deposed on 30 April 2003; submitted a supplemental
report on 9 May 2003; and was again deposed on 25 June 2003. Trial
was set for, and began, on 18 August 2003. On 16 July 2003,
approximately a month before trial, the district court granted
Crown’s motion to exclude Lohman’s testimony.
Lohman’s January report opined: the forklift was unreasonably
dangerous because it did not have a mechanism to restrain the
operator to the operator compartment; and either an operator-
compartment closure (metal or textile door) or an operator body
restraint could have prevented Guy’s injuries. That report,
however, did not state which design alternative Lohman preferred;
did not refer to specific designs Crown could adopt as
alternatives; did not estimate the cost to Crown of either design;
and did not state whether the design alternatives would satisfy the
standard for a MPLA feasible design alternative — whether they
would impair the usefulness, utility desirability, or practicality
of the forklift.
In his 30 April deposition, Lohman stated he preferred an
operator restraint device, as opposed to a door, as a safer design
for the forklift; discussed the idea of a metal bar enclosure as
another design alternative; admitted he had neither designed nor
tested any of his suggestions; and stated that his sketch for a
9
metal bar across the operator compartment opening was a “conceptual
drawing”, rather than a precise design or prototype.
Lohman’s 9 May supplemental report again recommended an
operator restraint device, similar to a seatbelt, as the “most
effective means of retention of an operator of this type of
forklift”. To illustrate examples of a possible operator
restraining device, he attached print-outs from an Internet site
selling airline seatbelt expanders. He also stated Crown’s design
process for the forklift was inadequate because Crown had not
tested the feasibility of a restraint device.
That supplemental report discussed the economic feasibility of
including a restraining device on the forklift and again suggested
a door as a second-choice design alternative. Concerning a door,
Lohman discussed, for the first time, operator-compartment doors
already manufactured by Crown (for use by Ford on their Crown RR
model forklifts) as a feasible design alternative; concluded doors
must be safe and economically feasible because Crown already
manufactured them; and stated, without further discussion, that a
door would not impair the utility, usefulness, desirability, or
practicality of the forklift.
In his second (final) deposition (25 June), Lohman reiterated
his preference for restraining devices as a design alternative;
noted Toyota manufactured a stand-up forklift equipped with a
restraining device; stated Crown could use a similar design in its
10
forklifts; and stated that his research on this design alternative
consisted of reading Toyota’s website the day before being deposed.
Neither Crown nor the district court judge questioned Lohman’s
expert qualifications; but, in an extremely detailed and well-
reasoned opinion, the court decided Lohman’s opinions about both
the restraining device and the door were untested and unreliable
and thus failed the Daubert analysis. The district court
disapproved of the approach Lohman used to reach his purported
conclusions, finding he relied on unscientific conceptual sketches
and broad ideas. It also disapproved of Lohman’s failure to test
any of his designs.
The district court did not exclude Lohman solely on his
failure to test. The court also found: as close to the August
trial as his 30 April deposition, Lohman had not reached any
concrete conclusions about the best design alternative; although
Lohman professed to prefer a restraining system to a door, he never
specified which design he planned to support at trial, and,
therefore, defendants did not have sufficient opportunity, before
trial, to prepare a reply to his proposed opinions; and Lohman
presented conceptual suggestions, instead of specifically
formulated opinions. The district court ruled that these
deficiencies, coupled with the lack of testing, rendered Lohman’s
expert opinion unreliable.
a.
11
In his reports and depositions, Lohman consistently advocated
a restraining device as a feasible design alternative; but he never
presented a specific design. Although he eventually suggested
Crown could adopt a restraining device similar to Toyota’s, he
never submitted a complete “end product”. “[T]he proper
methodology for proposing alternative designs includes more than
just conceptualizing possibilities”. Watkins, 121 F.3d at 992. As
Guy conceded at oral argument here, the district court acted within
its broad discretion when it decided Lohman’s conceptual
suggestions about a restraining device as a feasible design
alternative did not rise to the level of an admissible expert
opinion.
b.
Regarding Crown’s having manufactured, tested, and sold
forklifts with operator-compartment doors, Guy contends: Lohman
was qualified to examine Crown’s tests and designs and testify
about their feasibility, including safety; Lohman supported the
door as a feasible design alternative; and the district court
abused its discretion when it did not consider Lohman’s suggestion
to adopt Crown’s pre-existing door design as a feasible design
alternative.
12
i.
The district court did not fail to consider Lohman’s
qualifications to review Crown’s door design and tests. Instead,
the court noted that Crown’s tests on a forklift with a door were
only in “off-the-dock” or “tip-over” scenarios, not left-leg-injury
scenarios, as was Guy’s. Therefore, Lohman had reviewed only tests
that did not concern left-leg injuries.
The district court did not base its decision on Lohman’s
inability to test the door design. Instead, its decision was based
on Lohman’s inability, so close to trial, to definitively offer a
specific feasible design alternative. It was not until his 9 May
(second) report that Lohman mentioned, as a feasible design
alternative, the door already manufactured by Crown for Ford. Even
then, he used equivocal language, showing he had not closely
studied this design. For example, although Lohman estimated the
per-forklift cost of the door, he only concluded cursorily, in the
language of the MPLA, that the door would not impair the forklift’s
utility, usefulness, practicality or desirability. The district
court did not commit manifest error in ruling inadmissible Lohman’s
proposed testimony concerning a door as a feasible design
alternative.
2.
For Guy’s case in chief, during the adverse witness testimony
by Crown’s earlier-referenced expert, Dunlap, Guy offered in
13
evidence 2400 reports produced by Crown concerning accidents
involving its forklifts. Guy did so in the presence of the jury.
Upon Crown’s objecting, a bench conference was held. Guy
maintained all of the reports formed the basis for Dunlap’s expert
opinions. Crown responded that the reports were inadmissible
hearsay and irrelevant. The district court sustained Crown’s
objection in part, admitting only reports concerning left-leg
injuries like the one Guy suffered. In so doing, the court stated:
“I don’t want theatrics in this courtroom. So let’s talk about
what the facts really are, and let’s don’t be throwing box after
box[,] with the jury thinking every single one of [the accident
reports] is an accident just like Ms. Guy’s”. Later, after
additional testimony, the court ruled the non-left-leg accident
reports were not relevant.
Guy contends the district court abused its discretion when it
refused to admit all of the reports, even though she admits on
appeal some concerned non-relevant “slip and fall” accidents. She
asserts all of those reports, not just those concerning left-leg
injuries, formed the basis of Dunlap’s expert testimony that an
operator-compartment door would have caused more harm than good.
Guy contends this reliance makes all the reports relevant. Crown
responds the district court properly excluded the accident reports,
other than for left-leg injuries, because those excluded were more
prejudicial than probative. See FED. R. EVID. 403. Crown also
14
maintains Guy’s substantial rights were not affected by those that
were excluded because 360 were admitted.
a.
Federal Rule of Evidence 103(a)(2) (offer of proof) provides
error may not be based on evidence being excluded unless “the
substance of the evidence was made known to the court by offer or
was apparent from the context within which questions were asked”.
Guy did not make a formal offer of proof when Crown objected to the
accident reports. Pursuant to Rule 103(a)(2), although a formal
offer is not necessarily required in order for exclusion to be
reviewed, “the proponent of excluded evidence must show in some
fashion the substance of his proposed [evidence]”. United States
v. Winkle, 587 F.2d 705, 710 (5th Cir. 1979).
When the district court asked if all the reports were related
to forklifts without doors, Crown responded that the reports
concerned all types of accidents, including slip and fall,
involving all models of their forklifts. The court next asked:
“How many accidents do we have relating to door versus no door, or
leg injuries on an RR [model]?” Guy responded, explaining all of
the reports concerned injuries sustained in forklifts without
doors. In conjunction with Guy’s maintaining all of the reports
formed the basis for Dunlap’s expert opinion, this was a
sufficient, although scant, offer of proof.
15
b.
The district court did not abuse its discretion in excluding
all but the 360 accident reports for left-leg injuries incurred by
operators of forklifts without doors. For starters, the court
noted, and criticized, the “theatrics” employed by Guy in offering
the evidence – bringing boxes of accident reports into the
courtroom, in the presence of the jury. Obviously, this was
prejudicial. See FED. R. CIV. P. 103(c) (should not suggest
inadmissible evidence to jury); FED. R. EVID. 403.
Moreover, the district court did not abuse its discretion in
deciding more than 2000 accident reports were not relevant,
especially because some of them did not concern injury while
operating a Crown forklift. This was especially true in the light
of the scant offer of proof by Guy. These some 2000 reports were
globally offered by Guy, some were clearly inadmissible, and the
district court was not bound on its own initiative to go through
all 2000 of them, one by one, to determine which, if any, might be
relevant. The non-left-leg injury reports (approximately 2000 in
number) were also unfairly prejudicial, would confuse the issues,
and would mislead the jury, among other things. See FED. R. EVID.
403.
3.
Finally, Guy contends the district court abused its discretion
by not permitting Crown’s expert, Dunlap, to answer questions about
16
surveys of K-Mart employees regarding the past use of operator-
compartment doors on Crown’s forklifts. Guy does not contend the
surveys were admissible (they were not offered in evidence).
Instead, she claims: Dunlap had personal knowledge of the relevant
underlying facts disclosed in those surveys; therefore, he should
have been permitted to testify about his claimed participation in,
and knowledge gained from, the dealings with K-Mart.
In response, Crown claims: neither Dunlap nor Crown performed
the K-Mart surveys; and any personal knowledge Dunlap may have had
concerning the underlying facts resulted only from his reading the
surveys. Therefore, Crown contends: any statements by Dunlap
regarding the contents of those surveys would have constituted
hearsay within hearsay; and both levels of hearsay had to satisfy
exceptions to the hearsay rule. FED. R. EVID. 805; see, e.g., Rock
v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 280 (5th Cir. 1991).
Hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered to prove the
truth of the matter asserted”. FED. R. EVID. 801(c). Such evidence
is generally inadmissable unless it falls within an exception
stated by the Federal Rules of Evidence. FED. R. EVID. 802.
Guy does not contend that Dunlap’s desired testimony regarding
his claimed knowledge of the surveys falls under any exception.
Instead, Guy contends she should have been allowed to question
Dunlap about his claimed personal involvement and resulting
17
knowledge concerning the K-Mart surveys. The comments about Dunlap
and Crown’s participation vel non in the surveys were made,
however, by counsel during the bench conference; no evidence was
cited. Along this line, Guy never attempted to question Dunlap
about any personal involvement in the surveys.
Instead, prior to Crown’s objection interrupting and ending
the question, Guy asked: “[I]sn’t it true that when a survey of
the various K-Mart factories was done, most of the factories came
back and said that they wanted to keep the doors despite Crown’s
attempt” (at this point, Crown’s objection terminated the
incomplete question). This question called for a hearsay response
concerning the surveys’ contents. At the sidebar, when the court
ruled the question called for inadmissible hearsay, Guy did not
state why the desired testimony fell within an exception. Instead,
Guy questioned the ruling, asking: “Even though Mr. Dunlap was
involved with the process?” Because Guy made no attempt to show
Dunlap’s desired testimony fell within an exception to the hearsay
rule, the district court did not abuse its discretion in excluding
it.
B.
The judgment as a matter of law, awarded Crown at the close of
Guy’s case in chief, is reviewed de novo. E.g., Hidden Oaks Ltd.
v. City of Austin, 138 F.3d 1036, 1042 (5th Cir. 1998). In doing
so, “all reasonable inferences [are made] in the light most
18
favorable to the non-moving party”. Id. Such judgment is proper
when “a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find
for that party on that issue”. Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 149 (2000) (quoting FED. R. CIV. P. 50(a)(1)).
(Prior to trial, after the court excluded Guy’s expert witness,
Crown moved for judgment, asserting expert testimony is required to
prove a MPLA claim. In denying the motion, the district court
declined to rule on the necessity vel non of expert testimony for
a MPLA claim. Following Guy’s case in chief, Crown re-urged this
point as a basis for judgment as a matter of law, but the district
court again declined to base judgment on it. Crown’s contention
that a MPLA claim may not be proved without expert testimony is
discussed infra.)
Again, to succeed on her MPLA design defect claim, Guy was
required to prove, by a preponderance of the evidence, that, when
the forklift left Crown’s control in 1995: (1) Crown “knew, or
should have known, about the danger that caused the damage for
which recovery is sought”; (2) the forklift “failed to function as
expected”; and (3) “there existed a feasible design alternative
that would have to a reasonable probability prevented the harm” in
1999. MISS. CODE ANN. § 11-1-63(f). Crown does not contest its
knowledge of the danger of left-leg crush injuries with this model
19
forklift. Nor does Crown contend that the forklift functioned as
expected.*
The only design alternative Guy presented at trial was an
operator-compartment door. Therefore, pursuant to our de novo
review and Rule 50(a)(1), we must determine whether Guy presented
legally sufficient evidence for a reasonable jury to find that the
door was a satisfactory MPLA feasible design alternative. As
discussed, for the operator-compartment door to satisfy that
standard, Guy was required to prove that the door “would have to a
reasonable probability prevented [her injury], without impairing
the utility, usefulness, practicality, or desirability of the
[forklift] to users or consumers”. MISS. CODE ANN. § 11-1-63(f)(ii).
The district court ruled Guy relied properly on Crown’s pre-
existing design and manufacture of a door for this model forklift
*
Pursuant to the MPLA’s plain language, our court has held
that, for design defect claims, the MPLA “unambiguously precludes
recovery against the manufacturer on the basis of design defect
unless the product failed to function as expected”. Austin v.
Will-Burt Co., 361 F.3d 862, 872 (5th Cir. 2004). At trial, in
moving for judgment as a matter of law, Crown contended, unlike
here, that there was no evidence to prove the forklift failed to
function as expected. The district court disagreed, stating:
The law requires ... the plaintiff prove that
as a result of the design defect, the subject
forklift failed to function as expected.
[Y]ou do expect a forklift to function without
injuring its operator. So, in that sense, the
plaintiffs perhaps have made that element of
proof.
(Emphasis added.)
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as evidence the door was a design alternative. The court found,
however, that Guy presented no evidence that the door was a
feasible design alternative: that it did not impair the utility,
usefulness, practicality, or desirability of the forklift to users
or consumers. Accordingly, the court ruled that, because Guy did
not prove the door design satisfied the MPLA standard, she did not
prove a design defect.
Guy asserts she produced the requisite evidence through the
testimony of Crown’s expert, Dunlap. Guy claims Dunlap’s testimony
provided the jury with ample evidence of the door’s benefit: it
decreased risk of left-leg injury; and Crown’s already having
manufactured forklifts with doors showed the feasibility of adding
a door. Guy contends a jury could have applied a common-sense
analysis to these facts and concluded the door satisfied the MPLA
standard.
Crown responds that the district court concluded correctly
that Guy did not show the door was a MPLA feasible design
alternative because she failed to produce specific evidence for
such factors as the cost of a door and how its inclusion would have
affected the forklift’s utility in terms of other possible dangers
faced by forklift operators. Crown notes a major aspect of a
design’s utility is its safety, and claims Guy did not prove a
forklift with a door is, on the whole, safer than one without.
Along this line, Crown contends that, without the aid of expert
21
testimony, a jury cannot determine whether the addition of a door
would pass the MPLA feasible-design-alternative analysis.
Based upon our de novo review, Guy did not present the
requisite evidence for a reasonable jury to find that a door is a
MPLA feasible design alternative. In this regard, however, we note
that the MPLA’s plain language does not state expert testimony is
required per se to prove a design defect. See MISS CODE ANN. §§
11-1-63(a), (b), (f). See also Malbrough v. Crown Equip. Corp.,
No. 04-30118, slip op. 630, ___ F.3d ___ (5th Cir. 23 Nov. 2004)
(holding, on interlocutory appeal, that expert testimony not always
required by the terms of the Louisiana Product Liability Act to
prove prima facie design defect). In any event, we need not reach
the question whether such testimony was required because Guy did
present expert testimony: she called Dunlap, Crown’s expert, as an
adverse witness.
Dunlap, Guy’s only witness testifying about the forklift
design, presented no opinion, however, that a door would be a MPLA
feasible design alternative. His testimony was just the opposite:
there were suitable warnings or instructions in the operator’s
manual to advise operators about the dangers of left-leg injuries;
forklifts without doors were safe if used as instructed and were
not likely to cause serious injuries; an operator of a forklift
without a door could avoid left-leg injuries in most instances by
keeping her leg within the operator compartment and operating the
22
forklift in a safe manner; Crown provided doors for the forklift at
issue only upon special order; the majority of its customers used
and wanted forklifts without doors; although forklifts with doors
were available as substitute products, they were not necessarily as
safe in all situations as those without doors; and Crown could not
put a door on a forklift without impairing the forklift’s safety in
situations where the forklift tips over laterally or falls off a
loading dock.
Judgment as a matter of law was properly granted. Guy failed
to provide the requisite evidence for a MPLA feasible design
alternative. Therefore, the evidence produced by Guy was not
sufficient for a reasonable jury to find, inter alia, that the
Crown forklift had a design defect that rendered the forklift
unreasonably dangerous.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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