[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-14330 July 3, 2007
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00634 CV-CG-B
RICHARD PHILLIPS,
DEDA PHILLIPS,
Plaintiffs-Appellants,
versus
AMERICAN HONDA MOTOR CO., INC.,
HONDA MOTOR COMPANY, LTD.,
HONDA R&D AMERICAS, INC.,
HONDA OF AMERICA MANUFACTURING, INC.,
HONDA OF NORTH AMERICA, INC.,
Defendants-Appellees.
_________________________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________________________
(July 3, 2007)
Before EDMONDSON, Chief Judge, HULL, Circuit Judge and FORRESTER,*
District Judge.
PER CURIAM:
Plaintiff-Appellant Richard Phillips (“Plaintiff”) filed this product liability
suit against Defendants-Appellees American Honda Motor Co., Inc., Honda Motor
Co., Ltd., Honda R&D Americas, Inc., Honda of America Mfg., Inc., and Honda
North America, Inc. (collectively, “Defendants”), alleging that a Honda
All-Terrain Vehicle (“ATV”) was unreasonably dangerous. After excluding some
testimony from Plaintiff’s expert and treating physicians, the district court granted
summary judgment in favor of Defendants. Plaintiff appealed. We affirm.
I. Background
This case is a product liability action arising under Alabama law. Plaintiff
has type-2 diabetes. As a result, he has no sensation in his feet and cannot feel
temperature changes around his feet or ankles.
On 7 September 2001, Plaintiff used an ATV to pull a lawn mower around
his farm. He mowed his field for about an hour and a half while wearing work
*
Honorable J. Owen Forrester, United States District Judge for the Northern District of Georgia,
sitting by designation.
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boots and thick cotton socks. Plaintiff alleges that when he arrived home and
removed his boots, he discovered burns on his feet. Plaintiff filed this suit against
Defendants, alleging that high temperatures inside the footwells made the ATV
unreasonably dangerous and that the high temperatures caused his injuries.
Defendants moved for summary judgment. In opposing summary judgment,
Plaintiff relied principally on testimony from Mike Burleson, an expert in ATV
design and safety. After some preliminary testing, Burleson conducted tests on the
Honda ATV in July and September 2003. In both tests, he placed thermocouples
-- temperature measuring probes -- on the ankles of a dummy. He covered the
ankles and heels with socks and boots like the ones Plaintiff wore on the date of
the alleged accident; he also placed thermocouples on the outside of the boots at
the ankles. He then placed the dummy on the Honda ATV, hooked the ATV to a
similar mower, and operated the ATV for a similar time. The tests were conducted
in an open environment with wind and fluctuating temperatures.
During the July test, Burleson also tested a different ATV to determine
whether a safer, practical alternative design existed. The other ATV was an Arctic
Cat 400 ATV with a water-cooled engine.1 This ATV was tested in the same way
the Honda ATV was tested.
1
The Honda ATV has an air-cooled engine.
3
On the basis of these tests, Burleson concluded that the Honda ATV was
unreasonably dangerous. His data for the Honda ATV showed that temperatures --
at least for some time -- inside the boot exceeded the temperature that causes
burns. Burleson acknowledged that a person with sensation in his feet could avoid
injury by simply moving his feet out of harm’s way in response to the high
temperatures. But he said the Honda ATV gave no warning indication to a person
like Plaintiff -- with no sensation in his feet -- when the temperatures became
dangerously high. Burleson also opined that the Arctic Cat ATV provided a
viable alternative design that could have prevented or reduced Plaintiff’s injury.
Burleson’s data for the Arctic Cat ATV from the July test purported to show
temperatures inside the boot that were insufficient to cause burns.
The district court excluded Burleson’s testimony under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), concluding that the testimony
was the product of an unreliable methodology. The district court also excluded
part of the testimony given by Plaintiff’s treating physicians, who testified about
causation, because they were not timely disclosed as experts under Fed. R. Civ. P.
26(a)(2)(A).
4
After excluding this testimony, the district court granted summary judgment
to Defendants because Plaintiff failed to produce evidence of defect, alternative
design, or causation. Plaintiff appealed.
II. Standard of Review
We review a district court’s decision to exclude expert testimony under
Daubert for abuse of discretion. Gen. Elec. Co. v. Joiner, 118 S. Ct. 512, 515
(1997). Under this standard, this Court defers to the district court’s ruling unless it
is manifestly erroneous. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326
F.3d 1333, 1340 (11th Cir. 2003).
We also review for abuse of discretion a decision to exclude expert
testimony for failure to disclose as required under Rule 26. See Prieto v. Malgor,
361 F.3d 1313, 1317 (11th Cir. 2004). Finally, we review a grant of summary
judgment de novo, construing the evidence in the light most favorable to the
nonmovant. Rojas v. Florida, 285 F.3d 1339, 1341 (11th Cir. 2002).
III. Discussion
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A. Burleson’s testimony
We first consider the district court’s decision to exclude Burleson’s
testimony under Daubert. Fed. R. Evid. 702 governs the admission of expert
testimony in federal court:
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, 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.
District courts have a duty under Rule 702 to “ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” Daubert, 113 S.
Ct. at 2795. The proponent of expert testimony bears the burden of showing that
the expert’s methodology is reliable. United States v. Frazier, 387 F.3d 1244,
1260 (11th Cir. 2004).
In Daubert, the Supreme Court set out four non-exclusive criteria for
reliability determinations: “(1) whether the expert’s methodology has been tested
or is capable of being tested; (2) whether the technique has been subjected to peer
review and publication; (3) the known and potential error rate of the methodology;
and (4) whether the technique has been generally accepted in the proper scientific
6
community.” McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004) (citing
Daubert, 113 S. Ct. at 2796-97). These factors may guide a district court’s
reliability inquiry, but the district court ultimately has “broad latitude when it
decides how to determine reliability.” Kumho Tire Co. v. Carmichael, 119 S. Ct.
1167, 1171 (1999). We conclude that the district court did not abuse its discretion
in excluding Burleson’s testimony.
Substantial evidence supports the district court’s conclusion that Burleson’s
methodology was unreliable. First, he obtained his temperature readings from a
plastic dummy reinforced with metal bars rather than from a human being. We
recognize he may have had valid safety reasons for using a dummy instead of a
human. But Burleson produced no data showing that the conductive and heat-
retentive properties of the dummy’s foot were similar to those of a human foot.
Nor did he show a reliable way to extrapolate from the temperature readings on
the dummy’s foot to the comparable temperatures on a human foot.
As a result, Burleson provided no reliable link between his data and the
facts at issue in the case: the temperature Plaintiff’s feet experienced while riding
the Honda ATV and the temperature his feet would have experienced had he been
riding the Arctic Cat ATV.2 Thus, the district court was entitled to exclude
2
Burleson’s failure to link his temperature readings from the dummy foot to his extrapolations
about Plaintiff’s injuries presents another Daubert problem: when an expert’s data is not directly
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Burleson’s testimony. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th
Cir. 2005) (affirming exclusion of testimony from expert who extrapolated
temperature data from Texas to Georgia and Florida “because storage conditions
were supposedly similar and the sites were all in the same basic latitudinal range”
and expressing that “[t]ransposition of data based on such conjecture and rough
approximation lacks the ‘intellectual rigor’ required by Daubert”).
Second, Burleson’s tests failed to control or account for alternative sources
of temperature variation. He conducted the tests outdoors where the ATVs were
exposed to fluctuating ambient temperatures. Burleson’s temperature
measurements fluctuated significantly throughout his tests,3 and he testified that
this dynamic fluctuation was due to changes in the wind. In the July test, the
starting ambient temperature for the Arctic Cat was ten degrees less than that of
the Honda, and the average ambient temperature was lower for the Arctic Cat as
well. Yet despite the constant fluctuation in Burleson’s temperature readings,
Plaintiff has offered no evidence showing that Burleson accounted for -- or ruled
out -- the effect the ambient temperature may have had on the readings.
relevant to the matter at issue in a case, the expert’s testimony does not assist the trier of fact and is
therefore inadmissible under Daubert. See Daubert, 113 S. Ct. at 2796 (terming this a problem of
“fit,” and stating that Rule 702 “requires a valid scientific connection to the pertinent inquiry”).
3
For instance, during the July test, the exterior left boot temperature reading at 2625 seconds was
217.18 degrees Fahrenheit. The next reading -- fifteen seconds later -- was 172.7E F, representing
a swing of 44.48 degrees.
8
Burleson’s failure to control or account for the fluctuating ambient temperatures
casts serious doubt on the reliability of his methodology.4
Third, the temperature readings from the September test revealed an
irregularity. For the latter half of the test, the temperature inside the left boot
exceeded the temperature outside the left boot even though the outside of the left
boot was closer to the source of the heat.5
Burleson explained that this irregularity could be due to an accumulation of
heat. But this explanation appears internally inconsistent with Burleson’s
September readings from the right boot, where the outside temperatures were
higher than the inside temperatures. And both of the dummy’s feet were dressed
in the same boots and socks. Furthermore, in the July test, the outside
4
Burleson could have either conducted his tests in a controlled environment where the heat
generated by the ATVs would be the only variable or, alternatively, accounted in some way for the
variations in ambient conditions to show that the variation did not vitiate his test results. We note
that Burleson’s methodology was not unreliable simply because his tests were conducted outside.
There may have been good reasons for the outdoor tests: for example, it allowed Burleson to
simulate the field conditions under which Plaintiff used the Honda ATV. Honda’s experts conducted
tests in a field for the same reason. But Plaintiff has the burden of proving that Burleson either
reliably accounted for the impact of ambient temperature variation or demonstrated that the variation
did not vitiate his ultimate conclusions. See United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.
2004) (“The proponent of expert testimony always bears the burden to show that . . . the
methodology by which the expert reach[ed] his conclusions is sufficiently reliable . . . .”) (alteration
in original) (citation and quotation marks omitted).
5
Near the end of the test, the temperature inside the left boot reached its maximum of 173.3E F,
but at that same time, the temperature outside the left boot was more than 26 degrees lower.
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temperatures of the right boot were higher than the inside temperatures.6 With no
reliable explanation for the abnormal readings from the September test of the left
boot, the district court was entitled to call Burleson’s methodology into question.7
Not only did Burleson conduct his tests on a plastic dummy without
providing a reliable link to the facts of this case, his tests reveal significant
uncontrolled and unexplained variables. Thus, the district court did not abuse its
discretion in excluding Burleson’s testimony because his methodology was
unreliable.8
6
We cannot compare the September left-boot irregularity to the left-boot temperature readings
from the July test because, during that test, the temperature probe inside the left boot malfunctioned.
7
Plaintiff contends that a court may not exclude expert testimony on the basis of the expert’s
conclusions and that, when it does, it usurps the role of the jury. Although the district court’s
decision to exclude Burleson’s testimony was partially, but not wholly, based on its observations of
problems and inconsistencies with Burleson’s temperature readings -- such as the irregularity of the
left boot’s interior and exterior temperature during the September test -- the district court was
permitted to examine Burleson’s data to assess the reliability of his methodology. See Joiner, 118
S. Ct. at 519 (noting that “conclusions and methodology are not entirely distinct from one another”
and saying “[a] court may conclude that there is simply too great an analytical gap between the data
and the opinion proffered”).
8
We recognize that, by itself, an expert’s failure to account for every alternative cause will usually
“affect the analysis’ probativeness, not its admissibility.” See Bazemore v. Friday, 106 S. Ct. 3000,
3008-09 & n.10 (1986) (Brennan, J., joined by all other Members of the Court, concurring in part)
(rejecting proposition “that petitioners’ regression analyses were unacceptable . . . because they did
not include all measurable variables,” but noting an exception for “regressions so incomplete as to
be inadmissible” (internal quotation marks omitted)). But Burleson’s failure to control for
significant alternative sources of temperature variation is especially problematic in this case because
the number of trials in Burleson’s tests was so low. He performed only two trials of the Honda ATV
-- one in July and one in September -- and neither was seemingly free of problems: during the July
test, the thermocouple inside the left boot malfunctioned, and during the September test, the
temperature readings inside the left boot were abnormally higher than outside the left boot. Thus,
Burleson performed no error-free test of the Honda ATV that is central to this case.
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B. Summary Judgment
After excluding Burleson’s testimony, the district court excluded some of
the testimony of Plaintiff’s treating physicians and then granted summary
judgment to Defendants. Even assuming the district court improperly excluded
the treating physician testimony, we conclude that summary judgment was still
proper.
Under the Alabama Extended Manufacturer’s Liability Doctrine
(“AEMLD”), a plaintiff must prove that “(1) the defendant manufacturer sold a
defective product, (2) the defect was the cause in fact of the plaintiff's injury and is
traceable to the defendant, and (3) the product reached the plaintiff without
substantial modification to the condition in which it was sold.” Goree v.
Winnebago Indus., Inc., 958 F.2d 1537, 1541 (11th Cir. 1992) (citing Sears,
Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So.2d 991, 994 (Ala. 1981)).
A defective product is a product that is “ ‘unreasonably dangerous,’ i.e., not
fit for its intended purpose.” Goree, 958 F.2d at 1541 (quoting Casrell v. Altec
Indus., Inc., 335 So.2d 128, 133 (Ala. 1976)). To show that a product is defective
under the AEMLD,
a plaintiff must prove that a safer, practical, alternative design was
available to the manufacturer at the time it manufactured the
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[product]. The existence of a safer, practical, alternative design must
be proved by showing that:
(a) The plaintiff's injuries would have been eliminated or in some way
reduced by use of the alternative design; and that
(b) . . . the utility of the alternative design outweighed the utility of
the design actually used.
Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 858 (Ala. 2002) (alteration
in original) (emphasis omitted) (internal citations and quotation marks omitted).
Aside from Burleson’s testimony about the Arctic Cat ATV -- which we
have concluded was properly excluded -- Plaintiff produced no evidence of a
safer, practical, alternative design.
Plaintiff did argue that a heat shield or fan could have resulted in a safer
design, but these arguments were speculative. Plaintiff conducted no tests with a
heat shield or fan and produced no evidence that these options would have
lowered the temperature in the Honda ATV’s footwells. With no evidence of a
practical alternative design that would have eliminated or in some way reduced
Plaintiff’s injuries, the district court properly granted summary judgment under the
AEMLD.
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IV. Conclusion
For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of Defendants.
AFFIRMED.
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