United States Court of Appeals,
Fifth Circuit.
No. 96-60084.
Loretta WATKINS, Administrator of the Estate of Eugene Watkins,
Deceased, and Individually as the Wrongful Death Beneficiary of
Eugene Watkins, Deceased, Plaintiff-Appellant,
v.
TELSMITH, INC., et al., Defendants,
Telsmith, Inc., Defendant-Appellee.
Sept. 16, 1997.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before JOLLY, JONES and WIENER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Loretta Watkins sued Telsmith, Inc., after a conveyor
manufactured by Telsmith's predecessor caused the death of her
husband, Eugene Watkins. Telsmith removed the case to federal
court, and the case proceeded to trial under the theory that the
conveyor embodied an unreasonably dangerous design. Upon a motion
by Telsmith, the district court heard outside the jury's presence
and then excluded the testimony of Watkins's proffered expert under
Fed. Rule of Evidence 702. As this exclusion was fatal to the
plaintiff's case, the district court also granted Telsmith's motion
for judgment as a matter of law. Watkins appeals, alleging that
the court improperly applied Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993), to exclude the expert testimony. Finding no abuse of
discretion, we affirm.
1
I.
Eugene Watkins was a superintendent at Memphis Stone and
Gravel Co. During a visit to the company's Batesville, Mississippi
gravel wash plant on November 16, 1989, Watkins and Tommy Bolton
were working with a Model 374 portable conveyor, or "radial
stacker," that was manufactured in 1943 by Barber-Greene Company,
Telsmith's predecessor-in-interest. In order to move the conveyor,
they began clearing away sand accumulated around its base. At some
point, Eugene Watkins walked under the conveyor, the wire rope
supporting the conveyor snapped, and the conveyor fell on him. He
died the next day.
The Model 374 conveyor arm, on which the conveyor belt ran,
was attached to a base that sat on wheels. The conveyor was
portable and could be towed at low speeds. The conveyor arm could
be moved vertically via an elevator system and could also be moved
radially. Neither of these functions had been used in recent
years. The parties stipulated that the machine had been modified
several times by Memphis Stone and Gravel and earlier owners.
The conveyor arm is upheld by a continuous piece of wire rope
that runs the length of the conveyor and wraps around both ends.
The conveyor arm is raised and lowered by a hydraulic cylinder that
acts on the wire rope. At the base of the conveyor, near its
wheels, sand that had fallen off the conveyor over time had hidden
the wire rope from view, and it was in this area that the wire rope
failed.
Loretta Watkins's lawsuit originally alleged negligence,
2
defective design, and failure to warn claims, but only the
defective design claim went to trial. Her theory was that the
conveyor was an unreasonably dangerous product because the conveyor
arm was only supported by one wire rope.
Watkins offered the testimony of Marcus Dean Williams as an
expert to assert that the conveyor was unsafe and that alternative
designs were feasible. The alternative designs were: 1)
supporting the conveyor with two wire ropes, 2) rerouting the cable
to enable easier inspection, 3) supporting the conveyor with two
hydraulic cylinders attached to the frame itself, 4) using side
posts or "outriggers" to hold the conveyor up in the event the wire
rope failed, and 5) using a cross bar or stop plate to lock the
conveyor in place when elevated.
Watkins also intended to introduce the 1987 American National
Standards Institute (ANSI) Safety Standards for Conveyors and
Related Equipment, as well as evidence of Telsmith's post-1943
designs to buttress the feasibility of her proposed design changes.
Telsmith filed two motions in limine to exclude Williams's
testimony and evidence of the post-manufacture standards.
At trial, relying on his perception that Telsmith had conceded
that the proposed alternate designs were feasible, Watkins's
counsel agreed not to introduce the 1987 ANSI standards or evidence
of subsequent designs.1
1
The colloquy on this motion went as follows:
THE COURT: Do you have any problem with that [exclusion
of the 1987 ANSI standard and evidence of subsequent
design] Mr. Smith [plaintiff's counsel]?
3
The next motion was the exclusion of Williams. As part of the
hearing on this motion pursuant to Rule 104(a) of the Federal Rules
of Evidence, the court heard testimony from Williams as well as
from Dr. Raymond Neathery, the defense expert.
Williams received a Bachelor of Science in Civil Engineering
from Mississippi State University in 1949 and was a registered
MR. SMITH: No, Your Honor. As long as I get in return
the fact that these alternate designs that our expert
will testify to are feasible. And I think that's what
his response says. And that is that—
THE COURT: There's no contest as to feasibility?
MR. SMITH: That's the response that I got to it. And as
long as that's understood, then I think that would be
absolutely correct.
THE COURT: Well, are we talking about technology that
existed in 1943?
MR. BROCK: The technology existed, Your Honor. It's a
question of whether it's a good design or better design
or bad design.
THE COURT: Yes. Well, you follow me. Under that Ward v.
Hobart case, I believe it was a ... meat grinder that was
manufactured in 1948, and the case was tried in 1966 or
something, and the Fifth Circuit ruled it was error ...
to hold this manufacturer to the duty, using 1965, 1966
standards, for a machine that was manufactured 20 years
earlier. And that's what the Ward v. Hobart case held.
That's still good law.
MR. SMITH: Your Honor, the only reason I brought up the
ANSI standards was if—and any subsequent changes in the
product was if the defense were to say, well, that design
change is not feasible, and since they've now said that
those design changes are feasible, then I have no need to
bring that up. I think the Court is absolutely correct.
THE COURT: Well, as long as we understand that I'm going
to hold this manufacturer to standards that existed in
1943 when the machine as manufactured, not something that
was developed in 1963. That pretty well takes care of
that....
4
professional engineer. He was a B-17 pilot in World War II, and as
a part of his duties served as a maintenance supervisor. His work
in that capacity at least tangentially exposed him to the use of
conveyors. Later, he worked for Boeing in facility engineering and
tool design. Williams also served with the Army Corps of Engineers
in the early 1960's. He worked for the Mississippi Highway
Department for two periods totaling approximately seven years. In
addition, Williams taught drafting, surveying, structural design
and engineering materials at Northwest Mississippi Junior College.
Williams testified that he had extensive experience in
building roads and bridges and other structural engineering
projects, in all of which he observed conveyors in use. For the
Army, Williams participated in setting up a gravel wash facility.
There was a portable conveyor at that wash plant, but he could not
remember how the conveyor arm was supported. Williams had seen
conveyors using hydraulic cylinders, outriggers, and stop plates or
bars, but none using two wire ropes. He could neither remember
many of the types and brands of conveyors that he had worked with
nor clearly describe whether his work directly utilized conveyors.2
2
On direct, he testified:
Q. In [your work with the Highway Department in] '49 and
'50 and '51, were you involved with transporting
materials from place to place?
A. Yes, sir.
Q. Describe what you did with the Highway Department
during those three or four years.
A. Well, in the first place, I was not in charge of any
of that. The contractors handled all of that operation.
5
Williams did not know if any conveyors were built in 1943 using his
But we do the inspection, and so I was involved in the surveying
and inspection end of it at that time.
Q. Were there conveyors being used to transport materials
from place to place during that operation?
A. Yes, sir.
Q. And was it your job to be familiar with those
conveyors?
A. Yes, to some extent, it was.
And then on cross-examination, he testified:
Q. Most of these conveyors that you've seen were not a
major concern to you at the time you had them, were they?
You were basically the civil engineer on the job?
A. Yes, sir.
Q. You saw them there, but—
A. Yes, sir.
Q. —you didn't bring them in; the contractor brought
them in, things like that; right?
A. Lot of them the contractor brought in, yes, sir.
Q. In your accident reconstruction work, you've only
dealt with two other conveyors; isn't that right?
A. I think that's right.
Q. And those were auger or screw-type conveyors?
A. No. One of them was a belt conveyor. Maybe it was
three of them.
Q. Okay. Do you recall telling me in your deposition that
you only had two others and they were both screw
conveyors?
A. Yes, sir. I think that's what I told you.
Q. But now you think there's another belt conveyor?
A. Well, I keep remembering some of these things.
6
alternative proposed designs.
He also stated that he was familiar with the safety factors
employed in using wire rope and has tested the strength of wire
rope. Williams used his education in materials strength and
structural design, information that was "common knowledge" among
engineers, and his experience with conveyors to analyze the design
in question. He considered the problem "not really enough to be a
good engineering project."
Williams lacks education in mechanical engineering, and his
experience in machine design is limited to a project he conducted
in one of his engineering classes in which he designed the base of
a chair. He has never designed a conveyor, although he claimed to
have designed "nuts and bolts and that kind of thing one at a
time." Williams has performed accident reconstruction for three
conveyor cases, but only one was a belt conveyor; in those cases,
he investigated whether the conveyors should have been designed
with guards to prevent workers from being caught in the conveyor.
Preparing for this case, Williams twice examined the
reconstructed conveyor as it operated on site. He reviewed
manufacturer's design drawings for the Model 374 conveyor and
studied photographs of the conveyor. He also considered the 1987
ANSI standard. Although Williams testified that he made some
sketches and calculations as part of his analysis, he had kept none
of them because he did not consider them to be important. He made
no design drawings and conducted no tests of his proposed
alternatives. Williams did not analyze how much the alternative
7
designs would cost or what impact they would have on the conveyor's
utility. He admitted that he reached his opinion in this case
after one day's work.
Raymond Neathery testified as an expert for Telsmith.
Neathery has a Master of Science degree in Mechanical Engineering
and a Ph.D. in Engineering Mechanics and is a professor of
mechanical design. He testified that the process of design,
although varying slightly by product and company, includes several
essential steps: identifying the problem, conceptualizing possible
solutions, investigating the present art, evaluating the concept
through engineering analysis, modeling, and testing, and selecting
the alternative. Neathery described this as an iterative process
that requires a number of attempts at each step. He testified that
Williams's analysis reveals only an attempt at problem
identification and proposing solutions, but no investigation of
other designs, analysis, or testing of alternatives.
On cross-examination, Neathery testified that the designs
proposed by Williams were "conceptual ways of [supporting the
conveyor], and ways which, given time and effort, might be properly
designed to do it." But according to Neathery's analysis,
Williams's proposed alternatives "interfere with function."
Neathery conceded, however, that the conveyor could probably be
operated with two cables, and that a locking pin or other device
could be used to secure the conveyor at a particular height.
Neathery also agreed that the defendant had manufactured a conveyor
that used a hydraulic cylinder lift rather than a cable, but he did
8
not know whether such a conveyor was manufactured in the 1940s. In
response to questioning by the court, Neathery stated that the
proposed alternatives would not be "exorbitant in cost."
The next day, the district court excluded Williams's
testimony. The court found Williams unqualified as an expert
because his training is in civil engineering, while the expertise
required by this case, of which Williams possesses little, lies in
mechanical engineering. The court found Williams's testimony
substantively inadequate under Rule 702, Daubert and applicable
Mississippi products liability law. Watkins now appeals the
exclusion of the expert evidence and the resulting judgment as a
matter of law.
II.
District courts enjoy wide latitude in determining the
admissibility of expert testimony, and "the discretion of the trial
judge and his or her decision will not be disturbed on appeal
unless "manifestly erroneous'." Eiland v. Westinghouse Electric,
58 F.3d 176, 180 (5th Cir.1995) (quoting Smogor v. Enke, 874 F.2d
295 (5th Cir.1989)).
Dispositive of this appeal is the question whether Williams's
testimony satisfied the Daubert standard of rigor.3 Watkins
contends that the standards articulated in Daubert only apply to
"scientific knowledge" and expert testimony based on "novel"
3
We do not reach Watkins's contentions that the trial court
erred in finding Williams insufficiently qualified and in applying
the Mississippi case law on products liability. Sperry-New Holland
v. Prestage, 617 So.2d 248 (Miss.1993).
9
scientific evidence. This case presents no such novelty, she
contends, but merely the application of Williams's experience and
common engineering principles to evaluate the safety of this
conveyor and envision alternative designs. The jury should have
been allowed to hear and evaluate his testimony.
To evaluate these contentions, it is necessary briefly to
recapitulate Daubert. The Supreme Court held that when expert
testimony is offered, the trial judge must perform a screening
function to ensure that the expert's opinion is reliable and
relevant to the facts at issue in the case. See Daubert, 509 U.S.
at 589, 113 S.Ct. at 2794-95. Daubert went on to make "general
observations" intended to guide a district court's evaluation of
scientific evidence.4 The nonexclusive list includes "whether [a
theory or technique] can be (and has been) tested," whether it "has
been subjected to peer review and publication," the "known or
potential rate of error," and the "existence and maintenance of
standards controlling the technique's operation," as well as
"general acceptance." 509 U.S. at 593-594, 113 S.Ct. at 2796-97.
The Court summarized:
The inquiry envisioned by Rule 702 is, we emphasize, a
flexible one. Its overarching subject is the scientific
validity and thus the evidentiary relevance and reliability—of
the principles that underlie a proposed submission. The
focus, of course, must be solely on principles and
methodology, not on the conclusions that they generate.
Id. at 594-95, 113 S.Ct. at 2796.
4
The Daubert case concerned admissibility of novel expert
witness testimony on the relation of an expectant mother's taking
of Bendectin and the incidence of children's birth defects.
10
One appellate court case supports Watkins's position that
Daubert does not apply here. In Compton v. Subaru of America,
Inc., 82 F.3d 1513 (10th Cir.), cert. denied, --- U.S. ----, 117
S.Ct. 611, 136 L.Ed.2d 536 (1996),5 the Tenth Circuit held that
"Daubert sets out additional factors the trial court should
consider under Rule 702 if an expert witness offers testimony based
upon a particular methodology or technique," but "application of
the Daubert factors is unwarranted in cases where expert testimony
is based solely upon experience or training." Id. at 1518-19. The
court concluded that Daubert did not apply to the proposed
testimony of an automotive engineer in a car rollover case because
he was not relying on "some particular methodology or technique,"
but upon "general engineering principles and his twenty-two years
of experience as an automotive engineer." Id. at 1519.
Two other circuits have, however, disagreed with Compton and
held that Daubert is not limited to novel scientific techniques or
methodologies. See Cummins v. Lyle Indus., 93 F.3d 362, 366-371
(7th Cir.1996); Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293,
296-98 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1552,
5
The Ninth Circuit has held that the standards for admission
of scientific knowledge do not apply to expert testimony based on
specialized knowledge of criminal behavior patterns. See United
States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1997) (modus operandi
of drug traffickers); United States v. Webb, 115 F.3d 711 (9th
Cir.1997) (expert testimony as to why people typically hide guns in
the engine compartments of their cars). However, two judges wrote
in separate concurrences in Webb to explain that the trial judge
still has a significant role in ensuring the reliability of expert
testimony based on specialized knowledge. See Id. at 715-22
(Jenkins, J. concurring) and Id. at 722 (Fletcher, J. concurring).
These cases are not particularly relevant to engineering or applied
science testimony about product design efficacy and safety.
11
137 L.Ed.2d 701 (1997).
In Cummins, the Seventh Circuit affirmed the exclusion of
expert testimony in a products liability case brought against the
manufacturer of an industrial trim press. 93 F.3d at 365. The
district court excluded testimony by the plaintiff's expert
regarding adequacy of warnings and the feasibility of alternative
designs because the expert lacked a reliable basis for his opinions
under Daubert. The court based its decision on the facts that "he
had never tested his alternative designs and warnings or read any
studies of such tests," and did "not have practical knowledge
concerning the use of the alternative components in an industrial,
machine-tool production environment." Id. at 366. The court of
appeals agreed that the proffered expert's testimony did not meet
the requirements of Rule 702. Cummins outlined how Seventh Circuit
cases have interpreted Daubert:
First, the district court must determine whether the expert's
testimony is reliable.... [A] district judge should assure
himself, before admitting expert testimony, that the expert
knows whereof he speaks. In the context of theoretical and
applied science, this requirement places on the court the
obligation to ensure that the proffered testimony pertains to
scientific knowledge....[I]t must rule out subjective belief
or unsupported speculation.... Second, the district court has
to determine whether the evidence or testimony assists the
trier of fact in understanding the evidence or in determining
a fact in issue.
Id. at 367-68 (citations and quotations omitted).
Much like Watkins, the plaintiff in Cummins argued that the
case dealt not with a novel scientific theory but "the application
of well-known instruments of the engineering profession to a
particular and not-out-of-the-ordinary application." Id. at 368,
12
n. 2. The court responded that although Daubert's holding was
limited to the "scientific context," Daubert, 509 U.S. at 589-90,
n. 8, 113 S.Ct. at 2795, the Supreme Court also stated that "we do
not read the requirements of Rule 702 to apply specially or
exclusively to unconventional evidence." Id. at 593, n. 11, 113
S.Ct. at 2796. As Cummins explained, this language "counsels
against wholesale abandonment" of Daubert in cases involving "the
application of science to a concrete and practical problem,"
particularly because of the difficulty in differentiating between
scientific and technical testimony. Cummins, 93 F.3d at 368, n. 2.
The court concluded:
The basic task of the district court remains essentially the
same—to ensure that the evidentiary submission is of an
acceptable level of "evidentiary reliability." It may be
that, in some "as applied" situations, some of the
non-exhaustive factors noted by the Supreme Court in Daubert
are worthy of less emphasis than in situations involving more
abstract or novel scientific theory. We do not believe,
however, that [the plaintiff] has established here that the
district court exceeded the bounds of permissible judgment in
placing significant emphasis on the lack of any testing of
[her expert's] view. Indeed, the witness had acknowledged
that testing was a part of the design process.
93 F.3d at 368, n. 2 (citations omitted). Testing is not an
"absolute prerequisite" to the admission of expert testimony on
alternative designs, but Rule 702 demands that experts "adhere to
the same standards of intellectual rigor that are demanded in their
professional work." Id. at 369.
The Eighth Circuit has also applied Daubert to engineering
testimony about the efficacy of alternative designs for a
13
"low-tech" product.6 In Peitzmeier, the court affirmed the
exclusion of expert testimony regarding design defects in, and
alternative designs to, a tire-changing machine. 97 F.3d at 297.
The court noted that the expert had "neither designed nor tested"
proposed safety devices, having only made "rough sketches that have
not been adapted into engineering drawings, much less prototypes."
Id. The expert admitted "that he has never designed, built, or
tested a platform that has been shown to reduce the launch effect
of an exploding tire and wheel assembly while adequately supporting
the tire and wheel assembly during the tire-changing process." Id.
The expert's proposed designs had not been subjected to peer review
and could not be evaluated for their "general acceptance" or known
rate of error because they had not been designed or tested. Id. at
297-98.
We agree for the reasons stated by the Seventh and Eighth
Circuits that the Daubert analysis applies to the type of expert
testimony presented by Williams.7 Not every guidepost outlined in
6
See also Pestel v. Vermeer Mfg. Co., 64 F.3d 382 (8th
Cir.1995) (evidence of expert's proposed alternative engineering
design excluded on basis of Daubert).
7
Although no Fifth Circuit case has directly addressed the
applicability of Daubert to a case such as this, the opinion in
United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th
Cir.1996), which reversed the exclusion of expert valuation
evidence in a condemnation case, touches on a related issue. After
noting that Daubert limited itself to scientific evidence, the
court concluded that the decision "did not otherwise work a sea
change over federal evidence law." Id. However, the panel agreed
that Daubert articulated the district court's role in ensuring
"that an expert's testimony both rests on a reliable foundation and
is relevant to the task at hand," while not replacing the adversary
system's traditional methods for attacking "shaky evidence." Id.
(quoting Daubert, 509 U.S. at 597, 113 S.Ct. at 2799).
14
Daubert will necessarily apply to expert testimony based on
engineering principles and practical experience, but the district
court's "preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to
the facts in issue" is no less important. Daubert, 509 U.S. at
592-93, 113 S.Ct. at 2796. We cannot agree with the Compton
court's conclusion that Daubert only applies when "unique, untested
or controversial methodologies or techniques" are relied on by the
expert. 82 F.3d at 1518. Daubert expressly denies that the
precepts of Rule 702 apply only to unconventional evidence. 509
U.S. at 592 n. 11, 113 S.Ct. at 2796 n. 11. And while Daubert dealt
with expert scientific evidence, 509 U.S. at 590 n. 8, 113 S.Ct. at
2795 n. 8, the decision's focus on a standard of evidentiary
reliability and the requirement that proposed expert testimony must
be appropriately validated are criteria equally applicable to
"technical, or other specialized knowledge...." Fed. Rule of Evid.
702. Moreover, the nonexclusive list of factors relevant under
Daubert to assessing scientific methodology—testing, peer review,
and "general acceptance"—are also relevant to assessing other types
of expert evidence. Whether the expert would opine on economic
valuation,8 advertising psychology,9 or engineering,10 application
8
Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 186 (7th
Cir.1993).
9
Tyus v. Urban Search Management, 102 F.3d 256, 262-63 (7th
Cir.1996).
10
Pestel, 64 F.3d at 384.
15
of the Daubert factors is germane to evaluating whether the expert
is a hired gun or a person whose opinion in the courtroom will
withstand the same scrutiny that it would among his professional
peers.11
Compton also suffers from the vagueness of the line it draws
between "methodology" and other scientific or technical knowledge.
As one of our district judges aptly observed:
An alternative design is by definition a different method of
configuring the product. In the Compton case, for example,
the expert was clearly proposing that the vehicles be
constructed by some other method that would embody his
proposed standards.
Tassin v. Sears, Roebuck and Co., 946 F.Supp. 1241, 1247
(M.D.La.1996). Alternative designs by definition include elements
of science, technology, and methodology. Further, it seems exactly
backwards that experts who purport to rely on general engineering
principles and practical experience might escape screening by the
district court simply by stating that their conclusions were not
reached by any particular method or technique. The moral of this
approach would be, the less factual support for an expert's
opinion, the better. Compton's view of the admissibility of expert
evidence is untenable.
We conclude that whether an expert's testimony is based on
"scientific, technical or other specialized knowledge," Daubert and
Rule 702 demand that the district court evaluate the methods,
11
See Navarro v. Fuji Heavy Indus., 117 F.3d 1027(7th Cir.
1997) ("a conclusion without any support is not one based on expert
knowledge and entitled to the dignity of evidence"; under Daubert,
engineering expert must "show how his conclusion ... is grounded
in—follows from—an expert study of the problem").
16
analysis, and principles relied upon in reaching the opinion. The
court should ensure that the opinion comports with applicable
professional standards outside the courtroom and that it "will have
a reliable basis in the knowledge and experience of [the]
discipline." 509 U.S. at 592, 113 S.Ct. at 2796.
III.
Turning to the testimony of Williams, Watkins defends his
analysis because he relied on his experience with conveyors and his
familiarity with hydraulic cylinders and other technologies in
conveying his design proposals. He reviewed drawings of the
conveyor, inspected the rebuilt conveyor, reviewed photographs of
the accident aftermath, and reviewed the 1987 ANSI standards.
Williams had seen hydraulic cylinders, outriggers, and stop plates
on other conveyors.
In support, Watkins cites Dixon v. International Harvester,
754 F.2d 573, 579 (5th Cir.1985). In Dixon, the expert witness was
a design engineer, a member of a committee that performed crash
testing and investigations, "was familiar with the standards-making
processes of professional societies and ... had experience in
investigating crane, tractor, and automobile accidents." Id. This
court held that the expert's testimony should have been considered
in ruling on the motion for directed verdict. Noting that the
expert "inspected the design of the [tractor involved] ... [and]
the control arrangements of the Harvester tractor, examined a set
of blueprints of the tractor, and viewed photographs showing the
condition of the tractor at the time of the accident," we concluded
17
that "[o]nce [he] was properly admitted as an expert, the jury was
at liberty to accept or reject his testimony, and to judge his
credibility." Id. at 580 (citations omitted). Dixon's facts are
sketchy, and in any event, the opinion's emphasis on qualifications
over reliability of the expert testimony reflect a pre-Daubert
sensibility. Dixon is not controlling.
Having evaluated the district court's gate-keeping effort in
this case, we conclude that there was no manifest error.
Williams's testimony lacked the requisite indicia of reliability to
derive from "scientific, technical, or other specialized
knowledge." Fed.R.Civ.Ev. 702. First, the proper methodology for
proposing alternative designs includes more than just
conceptualizing possibilities. The district court appropriately
noted the lack of testing of any of the proposed alternatives. See
Daubert, 509 U.S. 579, 590, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469;
Cummins, 93 F.3d at 368-69; Peitzmeier, 97 F.3d at 297; American
& Foreign Ins. Co., 45 F.3d at 139 (electrical engineer's failure
to test theory that circuit breakers should have tripped faster).
This is not to say that alternative product designs must always be
tested by a plaintiff's expert, but in this case, both Neathery and
Williams acknowledged the importance of testing in design. See
Cummins, 93 F.3d at 368, n. 2 (district court has not "exceeded the
bounds of permissible judgment in placing significant emphasis on
the lack of any testing of [the expert's] view. Indeed, the
witness had acknowledged that testing was a part of the design
process"). Second, the fact that Williams had "seen" conveyors
18
with hydraulic cylinders, outriggers, and stop-plates, without more
information regarding the types of conveyors and their intended
functions, does not save his testimony from its lack of empirical
support. Williams did not investigate designs of other conveyors
available today or those available in 1943. When directly asked
about his efforts to find similar conveyors, Williams stated:
"I've looked around." His testimony about his prior experiences
with conveyors was similarly vague. Where an expert bases his
opinion in part on his experience with similar machines, we cannot
fault the court for demanding a more detailed recollection of the
expert's review and understanding of similar machines than was
reported by Williams.
Furthermore, Williams did not even make any drawings or
perform any calculations that would allow a trier of fact to infer
that his theory that the conveyor design was defective and that
alternative designs would have prevented the accident without
sacrificing utility were supported by valid engineering principles.
Any calculations or sketches he made he did not consider important
enough to keep. Perhaps a design defect case can be mounted
without calculations to support an expert's theories, but the
district court did not err in concluding that some such
calculations were necessary to demonstrate the feasibility of
Williams's ideas. Although he claimed experience in analyzing
stresses and the appropriate safety factors in cable wires,
Williams did not perform any such calculations (that he thought
were important enough to retain) about the load put on the wire in
19
this conveyor, or about the loads the wire was capable of
sustaining, or about the effect of improper maintenance, or about
the marginal safety factor of an additional wire or any of the
other redundant systems he proposed. See Rosado v. C.J. Deters, 5
F.3d 119, 124 (5th Cir.1993) (accident reconstruction expert
properly excluded where "he could not independently establish the
necessary physical and mathematical bases for his opinion"). In
fact, Williams never even asked to examine the wire rope used on
this conveyor.
Thus, the district court did not err in concluding that
Williams made his assessment of unreasonable dangerousness and
proposed his alternative designs "without ... any scientific
approach to the proposition at all."
Watkins also argues that because Telsmith conceded that
Williams's design alternatives were "feasible," much of the
objection to Williams's testimony falls away. A "feasible
alternative design" under Mississippi law "is a design that 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). The concession of feasibility, Watkins argues, means
that Telsmith can have no objection to whatever basis Williams has
for his opinions. We disagree, because Telsmith did not concede so
much. Telsmith's motion to exclude subsequent designs states that
"Defendant certainly does not contest feasibility of such designs,
although Defendant does claim that subsequent designs do not serve
20
the identified functions the Model 374 served." Telsmith clearly
did not stipulate that the alternative designs do not impair the
"utility, usefulness, practicability or desirability of the product
to users or consumers." Miss.Code. Ann. § 11-1-63(f)(ii). In open
court, Telsmith's counsel stated that "[t]he technology existed,"
but that there was "a question of whether it's a good design or
better design or bad design." Accordingly, the trial judge did not
misconstrue the scope or effect of the defendant's concession on
this issue in deciding that Williams must still be able to
independently establish the technical basis for the utility and
safety of the proposed alternative designs.
IV.
The district court properly applied the principles of Daubert
and did not commit manifest error in excluding Williams's testimony
for lack of a sufficiently reliable scientific or technical basis.
Without the testimony by Williams, the district court's decision to
grant judgment as a matter of law was mandated, as the plaintiff
had not produced evidence that the utility of the conveyor was
outweighed by any dangers in its design. It is unnecessary to
reach Watkins's disagreement with the district court's
interpretation of Mississippi products liability law.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
21
Watkins v. Telsmith, Inc.
Court: Court of Appeals for the Fifth Circuit
Date filed: 1997-09-16
Citations: 121 F.3d 984, 47 Fed. R. Serv. 950, 1997 U.S. App. LEXIS 24925, 1997 WL 534148
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