St. Laurent v. Metso Minerals, et a l . CV-04-014-SM 09/13/05 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
S t . Laurent et a l .
v. Civil No. 04-cv-l4-SM Opinion No. 2005 DNH 130 Metso Minerals Industries, Inc., et a l .
REPORT AND RECOMMENDATION
Plaintiffs Andre and Kathleen St. Laurent assert claims in
this action based upon alleged design defects in a rock crushing
machine and an alleged failure to warn. During discovery.
Plaintiffs disclosed John A. Wilson, Ph.D., as an expert witness.
Defendant Metso Minerals Industries, Inc. ("Metso") moves for an
order excluding Dr. Wilson's proffered opinion testimony
regarding warnings and alternative design (document no. 32). The
Plaintiffs filed an objection.
Metso presents two grounds in support of its motion. First,
Metso argues that Dr. Wilson's report violates Federal Rule of
Civil Procedure 26(a)(2)(B) by failing to disclose the data and
information that Dr. Wilson considered in reaching his opinions.
Second, Metso argues that Dr. Wilson's proffered testimony fails to satisfy the criteria for admission under Federal Rule of
Evidence 702. The Court considers these two arguments after
briefly stating the pertinent background facts.1
Background
This action arises out of a workplace accident that occurred
on March 20, 2002, during Mr. St. Laurent's employment with Pike
Industries, Inc. ("Pike"). Mr. St. Laurent inserted a metal pry
bar into the crushing cavity of a Nordberg LI 105 rock crushing
machine while attempting to clear a material jam. The machine
was running at the time. One of the machine's moving parts
forced the pry bar back towards Mr. St. Laurent striking him on
1The Court notes that Metso neither asserts that Plaintiffs' expert disclosure was untimely, nor does it challenge Dr. Wilson's qualifications to serve as an expert witness in this case. See Pis.' Objection at 8 and Pis.' Ex. 5 (Wilson D e p . at 5:10-13) (commenting on Dr. Wilson's credentials). In the curriculum vitae attached to his report. Dr. Wilson indicates that he has a B.S., M.S. and Ph.D. in mechanical engineering. See Pis.' Ex. 3. Dr. Wilson has been employed in various capacities in the Mechanical Engineering Department at the University of New Hampshire since 1964. I d . Dr. Wilson has also worked as an engineer, and has had numerous consulting assignments for industry, government, and in relation to litigation. I d . Dr. Wilson testified at his deposition that he has prior experience rendering expert opinions on several "rock crusher cases," and has previously provided expert testimony on the adequacy of warnings on large equipment. Pis.' Ex. 5 (Wilson Dep. at 37:16-18, 45:6-12). The Court finds Dr. Wilson qualified to render an expert opinion in this case.
2 the side of his head resulting in serious injuries.
Defendant Whitney & Son, Inc. ("Whitney") is a distributor
of Metso's Nordberg products, and leased the machine at issue to
Pike. See Metso's Ex. D (Baker Dep. at 20:1-21:20).Mr. St.
Laurent testified that prior to his accident, he had raised
concerns regarding the use of a metal pry bar to free jammed rock
from the crusher to a Whitney employee. Pis.' Ex. 4 (St. Laurent
Dep. at 115:17-116:13). Mr. St. Laurent further testified,
however, that he followed the training and instruction of the
Whitney employee in using the metal pry bar in the manner that he
did. Pis.' Ex. 4 (St. Laurent Dep. at 117:2-14).
In his written report. Dr. Wilson noted that "[t]he practice
of using acrowbar to free or reposition rocks while the crusher
is running violates many of the safety and operating procedures"
in the machine's instruction manual. Pis.' Ex. 3 (Wilson Report
at 2). Dr. Wilson further observed that "[t]he manual
specifically states, 'Never use a crowbar.'" Id. Dr. Wilson
noted, however, that "there are no posted warning labels of a
similar nature on the actual machine." Id. Dr. Wilson opined
that the machine at issue should have had a visual warning "to
provide users with . . . guidance regarding proper and improper
3 procedures." Pis.' Ex. 3 (Wilson Report at 3); see also Pis.'
Ex. 5 (Wilson Dep. at 128:9-22, 135:19-23, 140:9-21) (discussing
Dr. Wilson's opinion regarding a machine-posted warning).
Dr. Wilson further observed in his report that:
There is an electric eye system which detects the level of rock within the crusher jaw cavity and temporarily stops the feed conveyor when the jaw cavity is too full. A similar electric eye system could have been employed to ensure that the crusher would not run if the cover was not properly in place over the top of the jaws. This would prevent the use of crowbars or other such implements being used in an active crusher as inserting a crowbar to move a stuck rock would be much more difficult and most likely totally ineffective with the cover closed.
Pis.' Ex. 3 (Wilson Report at 2). Dr. Wilson opined that the
machine should have had "some kind of crusher cover sensor
system," which "would have prevented the use of a crowbar while
the movable crusher jaw was active and would have prevented the
accident." I d .; see also Pis.' Ex. 5 (Wilson Dep. at 167:2-
173:14) (discussing Dr. Wilson's reference to an electric-eye
system on the crusher).
Discussion
I. Disclosure of Data or Information Considered By Expert
Federal Rule of Civil Procedure 26(a)(2)(A) provides that "a
party shall disclose to other parties the identity of any person
4 who may be used at trial to present evidence under Rules 702, 703
or 705 of the Federal Rules of Evidence." Fed. R. Civ. P.
26(a)(2)(A). Federal Rule of Civil Procedure 26(a)(2)(B)
requires that the disclosure of a witness who has been retained
to provide expert testimony be accompanied by a written report
that contains, among other things, "a complete statement of all
opinions to be expressed and the basis and reasons therefor" and
"the data or other information considered by the witness in
forming the opinions." Fed. R. Civ. P. 26(a)(2)(B). Metso
argues that Dr. Wilson's report fails to disclose the data or
other information that he considered in forming his opinions and
is therefore subject to exclusion under Federal Rule of Civil
Procedure 37(c) (1) .2 See Poulis-Minott v. Smith. 388 F.3d 354,
358 (1st Cir. 2004) (finding that the adoption of Fed. R. Civ. P.
37(c)(1) made the directives of Fed. R. Civ. P. 26(a)(2)(A)-(B)
mandatory); see also Klonoski v. Mahlab, 156 F.3d 255, 269 (1st
Cir. 1998) (finding that Fed. R. Civ. P. 37(c)(1) "clearly
2Rule 37(c)(1) provides in relevant part that: "A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Fed. R. Civ. P. 37(c)(1).
5 contemplates stricter adherence to discovery requirements, and
harsher sanctions for breaches" of the rule).
Plaintiffs respond that Dr. Wilson's written report complies
with the requirements of Rule 26(a) (2) (B) because it presents "a
detailed account of the operation and function of the Nordberg
machine based upon his personal inspection." Pis.' Objection at
5. Additionally, Plaintiffs assert that Dr. Wilson referenced
his analysis of the Nordberg instructional manual including
pertinent safety instructions and posted warning labels in his
report. I d .; see also Pis.' Ex. 3 (Wilson Report at 2-3). In
further support of their argument. Plaintiffs attached pages from
the transcript of Dr. Wilson's October 27, 2004 deposition
wherein Dr. Wilson testified that his report was based on the
instructions and warning manuals that accompanied the Nordberg
machine and his February 14, 2003 inspection of the machine at
issue. See Pis.' Ex. 5 (Wilson Dep. at 48-49).
While Dr. Wilson's report could have stated more clearly the
data and information upon which he relied, the Court finds that
the report meets the requirements of Rule 26(a)(2)(B).
Therefore, the Court finds that the exclusion of Dr. Wilson's
opinion testimony under Rule 37(c)(1) is not warranted.
6 II. Whether Dr. Wilson's Proffered Testimony Meets the Requirements of Fed. R. Evid. 702
As additional grounds for excluding Dr. Wilson's proffered
testimony, Metso argues that Dr. Wilson's testimony fails to
satisfy the criteria for admission under Federal Rule of Evidence
702. The rule provides that:
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.
Fed. R. Evid. 702. Metso argues that Dr. Wilson's testimony was
not based upon sufficient facts and data, and that his opinions
are not the product of reliable principles and methods.
Therefore, Metso argues, the Dr. Wilson's proffered testimony
must be excluded under Rule 702. The Court considers Metso's
arguments under Rule 702 next.
A. Whether the Daubert Factors Apply
In Daubert v. Merrell Dow Pharms.. Inc.. 509 U.S. 579, 597
(1993), the Supreme Court held that the Federal Rules of
Evidence, "assign to the trial judge the task of ensuring that an
7 expert's testimony both rests on a reliable foundation and is
relevant to the task at hand." The Daubert Court identified four
factors that trial courts might find useful in determining the
reliability of scientific expert testimony: (1) whether the
theory or technique can be or has been tested; (2) whether the
theory or technique has been subjected to peer review; (3) the
known or potential rate of error and the existence of standards
controlling the technique's operation; and (4) whether the theory
or technique has been generally accepted in the relevant
scientific community. 509 U.S. at 593-594. The inquiry under
Rule 702 is flexible. I d . at 594. The factors identified in
Daubert were not intended to be used as a definitive checklist or
test. I d . at 593.
Plaintiffs argue that Dr. Wilson's extensive education and
training as a university professor, mechanical engineer and an
engineering consultant over a period of thirty years demonstrates
that he has specialized knowledge in the field of engineering.
Citing the Supreme Court's statement in Daubert that its
discussion "was limited to the scientific context," see 509 U.S.
at 590 n.8. Plaintiffs argue that Dr. Wilson's specialized
knowledge as a thirty year career engineer and consultant alone satisfies the criteria of Rule 702. See Pis.' Objection at 9.
Plaintiffs' argument was considered and rejected in Kumho
Tire Co. v. Carmichael. 526 U.S. 137 (1999) . Kumho Tire was a
case that focused on the admissibility of testimony by a tire
failure analyst with a master's degree in mechanical engineering,
ten years experience at a tire manufacturer and experience
testifying as a tire failure consultant in other tort cases. Id.
at 153. In its decision, the Supreme Court found that the
language of Rule 702 "makes no relevant distinction between
■'scientific' knowledge and ■'technical' or 'other specialized'
knowledge." 526 U.S. at 147. Rather, "the Rule applies its
reliability standard to all 'scientific,' 'technical,' or 'other
specialized' matters within its scope." Id. The Court noted
that Daubert referred only to "scientific" testimony because that
was the nature of the expertise at issue in the case. Id.
The Kumho Tire Court found that where expert testimony is
challenged under Rule 702, and "such testimony's factual basis,
data, principles, methods, or their application are called
sufficiently into question, . . . the trial judge must determine
whether the testimony has 'a reliable basis in the knowledge and
experience of [the relevant] discipline.'" I d . at 149. The
9 trial court may consider one or more of the factors identified in
Daubert in making this determination "where they are reasonable
measures of the reliability of expert testimony." I d . at 152.
The list of Daubert factors, however, "neither necessarily nor
exclusively applies to all experts or in every case." I d . at
141. The trial court has "the same kind of latitude in deciding
how to test an expert's reliability . . . as it enjoys when it
decides whether or not that expert's relevant testimony is
reliable." I d . at 152 (emphasis in original).
In its motion to exclude, Metso argues that Dr. Wilson's
opinions regarding warnings that allegedly should have been
provided are unreliable because they are divorced from scientific
methodology. Metso similarly argues that Dr. Wilson's
alternative design opinions are unreliable because they are not
grounded in scientific methodology and amount to no more than an
undeveloped concept. The Court finds that Metso has sufficiently
called the reliability of Dr. Wilson's opinions into question to
require the Court to apply a Daubert-type reliability inquiry to
determine whether Dr. Wilson's proffered expert testimony
satisfies the requirements for admissibility under Rule 702. Dr.
Wilson's qualifications to render an expert opinion, by itself.
10 does not meet the requirements of the rule. See Bourelle v.
Crown Equip. Corp., 220 F.3d 532, 537 n.ll (7th Cir. 2000). The
Court considers whether Dr. Wilson's opinions are based on
sufficient facts and data, and are the product of reliable
principles and methods next.
B. Reliability Inquiry
Although the Court has not found any First Circuit decision
that is directly on point, numerous other federal appellate
courts have considered the admissibility of expert testimony
under Federal Rule of Evidence 702 in alternative design and
failure to warn cases. In Watkins v. Telsmith, Inc.. 121 F.3d
984, 985 (5th Cir. 1997), the plaintiff alleged that a portable
conveyor that fell on the decedent had an unreasonably dangerous
design. Plaintiff's theory was that the use of only one wire
rope to support the conveyor arm made the product unreasonably
dangerous. I d . at 986. Plaintiff's expert opined that
alternative designs were feasible. Id. The district court
excluded the testimony of the proffered witness because the
testimony "lacked the requisite indicia of reliability to derive
from ■'scientific, technical, or other specialized knowledge.'"
Id. at 992.
11 The Fifth Circuit noted three specific deficiencies in the
proffered testimony. Id. "First, the proper methodology for
proposing alternative designs includes more than just
conceptualizing possibilities." Id. The court noted in this
regard that testing of the proposed design, while not a necessity
in every case, is important. Id. The proffered witness in
Watkins had not performed any testing of his proposed
alternatives. Second, the witness did not investigate designs of
other conveyors then on the market or available in the same year
as the conveyor at issue. Id. Third, the witness "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." Id. The Fifth Circuit held that the
district court did not err in concluding that the witness'
proffered testimony was unreliable because he "made his
assessment of unreasonable dangerousness and proposed his
alternative designs 'without . . . any scientific approach to the
proposition at all.'" I d . at 992-993.
In Jaureaui v. Carter Mfg. Co.. 173 F.3d 1076, 1078 (8th
12 Cir. 1999), the plaintiff alleged that design and warning defects
associated with a corn harvesting machine proximately caused
severe injuries to his legs, which resulted in the plaintiff
having his legs amputated. The plaintiff proffered an expert who
opined that the machine should have been equipped with "larger
and more prominent warnings," and that the machine should have
incorporated "awareness barriers." I d . at 1080. The plaintiff
also proffered a second expert who was prepared to testify that
machine was defective "because the original warning signs were
too small, too far from the point of danger, and oriented at an
angle which made them difficult to read." Id.
The Eighth Circuit found that the district court was correct
in excluding the proffered testimony of plaintiff's witnesses
because the first witness had neither constructed, drawn, or
tested his proposed alternative device, nor had he shown that any
other manufacturer incorporated his proposed device into the corn
harvesting machine at issue or any other similar farm machinery.
I d . at 1084. The court found that the expert's opinion was based
merely on speculation. Id. The court further found that
although both of plaintiff's experts opined that the warnings on
the corn harvesting machine were deficient, neither witness had
13 created, designed or tested a warning device that would be more
effective, or suggested other manufacturers of farm machinery who
were using similar warnings. Id.
In Bourelle v. Crown Equip. Corp., 220 F.3d 532, 533 (7th
Cir. 2000), the plaintiffs alleged that they were injured at work
by the defendant's improperly designed forklift. They further
alleged that the defendant failed to provide adequate operational
warnings for the forklift. Id. In support of their claims, the
plaintiffs proposed to offer a mechanical engineer with
experience investigating lift truck accidents as an expert
witness. I d . at 534. The district court found that expert's
proposed testimony was unreliable under Rule 702 because it was
not supported by sufficient scientific evidence. I d . at 535.
The Seventh Circuit affirmed. I d . at 539.
The court noted that "the plaintiffs' expert surmised and
claimed that an alternative design should have been implemented
for the [forklift], and if it had, neither of the plaintiffs
would have been injured." I d . at 536. The expert admitted when
questioned by defendant's counsel, however, "that he had not done
any scientific testing to support his alternative design theory."
Id. The expert further admitted that he had not prepared any
14 "detailed design or calculations," performed "an economic
feasibility study," prepared "preliminary drawings," or preformed
"any risk utility type testing." I d . at 537. After recognizing
the importance of testing in alternative design cases, the
Seventh Circuit found that the district court did not abuse its
discretion in concluding that the expert's opinions were nothing
more than unreliable speculation. I d . at 538; see also Clark v.
Takata Corp., 192 F.3d 750, 759 (7th Cir. 1999) ("Where the
proffered expert offers nothing more than a 'bottom line'
conclusion, he does not assist the trier of fact.").
With regard to the expert's opinion regarding an alleged
failure to warn, the court held that the same reliability
requirements apply to suggested warnings that apply to suggested
alternative designs. I d . at 538 (citing Cummins v. Lyle Indus.,
93 F.3d 362, 367 (7th Cir. 1996)). The court noted that the
expert failed to draft or test an alternative warning for use
with the machine at issue in the case. Id. The court found that
the experts "failure to even draft a proposed alternative warning
for the TSP's operation manual renders his opinion regarding the
alleged inadequacy of Crown's existing warning concerning the
risk of pallets entering the TSP operator's compartment to be
15 unreliable." I d . at 539 (citing Jaureaui, 173 F.3d at 1084).
The court further found that "[t]he fact that [the proffered
expert] never even drafted a proposed warning renders his opinion
akin to ■'talking off the cuff' and not acceptable methodology."
Bourelle. 220 F.3d at 539.
The Seventh Circuit again affirmed a district court's
exclusion of proposed expert testimony in an alternative design
case based on the expert's failure to engage in any type of
testing in Dhillon v. Crown Controls Corp.. 269 F.3d 865 (7th
Cir. 2001). The Dhillon Court noted that:
We could identify a number of problems with the testimony these witnesses were prepared to offer, but the most glaring among them is the lack of testing, or more generally the failure to take any steps that would show professional rigor in the assessment of the alternative designs (or, as the amended rule puts it, that the testimony is "the product of reliable principles and methods").
I d . at 869.
In Zaremba v. General Motors Corp.. 360 F.3d 355, 360 (2d
Cir. 2004), the Second Circuit affirmed a district court's
decision to exclude proffered expert testimony where the
plaintiff's expert proposed to testify concerning a safer
alternative design for a car involved in a one-car rollover
accident. The district court found that the plaintiffs had not
16 met their burden under Federal Rule of Evidence 702 because their
proposed expert witness, an engineer, had not done any of the
following: (1) examined or tested the car involved in the
accident; (2) offered any measurements or calculations to support
his theory of how the accident happened; (3) made a drawing or
model of his hypothetical alternative design; (4) conducted any
tests of his design; (5) offered calculations in support of the
safety of his design; (6) subjected his alternative design to
peer review and evaluation; (7) presented any evidence that other
designers or manufacturers in the relevant design community
accepted the untested propositions underlying his opinions. Id.
at 357.
In affirming the district court's decision, the Second
Circuit noted that the plaintiffs had not satisfied any of the
four factors identified in Daubert with regard to the proffered
expert's testimony about a safer alterative design. I d . at 358.
The court went on to state that:
It is not enough for Phillips to testify reliably that his hypothetical alternative design would, in some respects, have better performance than the Trans Am involved in the accident; to provide relevant testimony, Phillips must also establish that his hypothetical design would have resulted in greater safety in the rollover accident at issue. Though he is apparently willing to testify to this, Daubert and Rule
17 702 require that this testimony be reliable. In the absence of drawings, models, calculations, or tests, it was not manifest error for the District Court to find that Phillips's testimony was insufficiently reliable.
I d . at 359.
Notwithstanding the holdings in the foregoing cases.
Plaintiffs argue that the majority of courts do not require an
expert to either draft a proposed warning or to create and test a
prototype alternative design in order to find the expert's
testimony admissible. The authorities that Plaintiffs rely upon
for support, however, have no persuasive force. To the extent
that it is applicable here, the decision in United States v.
Sinclair. 74 F.3d 753, 757 (7th Cir. 1996), has been superceded
by the Seventh Circuit's decisions in Bourelle and Dhillon.
discussed supra. Likewise, the decision in Belec v. Havssen Mfg.
C o .. 105 F.3d 406 (8th Cir. 1997), was not followed by the Eight
Circuit when it decided Jaureaui. also discussed supra. And, the
Ninth Circuit has expressly acknowledged that its decision in
McKendall v. Crown Control Corp.. 122 F.3d 803 (9th Cir. 1997),
has been overruled. See United States v. Hankev. 203 F.3d 1160
(9th Cir. 2000); White v. Ford Motor Co.. 312 F.3d 998, 1007 (9th
C i r . 2002).
The Court finds that Dr. Wilson's proffered testimony in the
18 instant case is beset by many of the same problems that led to
the exclusion of expert testimony in Watkins, Jaurequi, Bourelle,
Dhillon and Zaremba. There is no evidence that Dr. Wilson's
proffered testimony meets any of the Daubert factors (testing,
peer review, potential error rate or standards, and general
acceptance). Significantly, Dr. Wilson did not create any
prototypes of his alternative design, or do any testing to
support his alternative design theory, which is perhaps the most
Daubert important factor. See Daubert, 509 U.S. at 593 ("a key
question to be answered in determining whether a theory or
technique is scientific knowledge that will assist the trier of
fact will be whether it can be (and has been) tested."); see also
Cummins, 93 F.3d at 368 (discussing the importance of testing in
alternative design cases); Watkins, 121 F.3d at 985 (same). Nor
did Dr. Wilson rely upon any engineering drawings or sketches,
industry standards, or peer review. And while Dr. Wilson
testified that he has previously had rock crusher cases, he did
not cite any evidence that any other manufacturer had
incorporated his suggested alternative design. Similarly, Dr.
Wilson did not draft or test any proposed warnings for the
Nordberg machine or demonstrate any other indicia of reliability.
19 The Court is cognizant that the reliability inquiry under
Rule 702 is flexible. See Kumho Tire, 526 U.S. at 141. Still,
the Supreme Court has cautioned that "nothing in either Daubert
or the Federal Rules of Evidence requires a district court to
admit opinion evidence which is connected to existing data only
by the ipse dixit of the expert." General Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997). The trial court must ensure that the
expert's testimony, whether it is based upon professional studies
or personal experience, "employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an
expert in the relevant field." Kumho Tire. 526 U.S. at 152. In
this case, the Court can neither find that Dr. Wilson's opinions
are based upon sufficient facts and data, nor that those opinions
are the product of reliable principles and methods as required
under Federal Rule of Evidence 702.
The Plaintiffs assert that "Dr. Wilson applied sound
engineering principles and methods in deriving his opinions."
Pis.' Objection at 8. However, there are no stated principles or
methodology referenced either in Dr. Wilson's report or in the
Plaintiffs' memorandum of law. Plaintiffs' failure to
demonstrate that Dr. Wilson's proffered testimony satisfies
20 either the Daubert factors, or any other set of reasonable
reliability criteria, supports a finding that the requirements of
Rule 702 have not been satisfied. See Kumho Tire. 526 U.S. at
158. Therefore, the Court finds that the portion of Dr. Wilson's
testimony that provides opinions on warnings and an alternative
design for the machine at issue should be excluded.
Conclusion
For the reasons set forth above, the Court recommends that
Metso's Motion to Exclude Certain Testimony of Plaintiffs' Expert
John A. Wilson, Ph.D. (document no. 32) be granted.
Any objections to this Report and Recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court's order. See Unauthorized Practice of
Law Comm, v. Gordon. 979 F.2d 11, 13-14 (1st Cir. 1992); United
States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).
James R. Muirhead United States Magistrate Judge
Date: September 13, 2005
cc: Christopher J. Poulin, Esq. James P. Bassett, Esq.
21 Raymond D. Jamieson, Esq. Thomas N. Harrington, Esq. Lawrence S. Smith, Esq. Todd J. Hathaway, Esq.