supported by valid engineering principles.")
7. Scientific Testing — Both Daubert and Kumho properly
emphasize the centrality of scientific testing and the court's
scrutiny of the soundness of that testing. Daubert, 509 U.S. at
593, 113 S.Ct. 2786 ("[A] key question to be answered . . . will
be whether [a theory or technique] can be (and has been)
tested."); Kumho, 526 U.S. at 149-50, 119 S.Ct. 1167. This
testing may involve only the allegedly defective design, or, in
alternative design cases, could address the proposed alternative
as well. Regardless, testing applies scientific or technical
principles to the subject at issue. Before a court can evaluate
the reliability of an expert's methodology, the expert must
For instance, in a case alleging a design defect in clipless
bicycle pedals, the defendant's expert measured the force
necessary to achieve pedal release in a variety of directions, in
conformance with ASTM testing standards. See Saad, 2000 WL
1036253, at *5; see also Lichter v. Case Corp., No. 99 C 4260,
2001 WL 290615 (N.D.Ill. March 20, 2001) (finding that kinematic
and force analysis is "standard engineering procedure" and
therefore product of reliable principles and methods).
Correspondingly, the absence of testing is a consistent factor in
court decisions excluding expert testimony. See, e.g.,
Jaurequi, 173 F.3d at 1084 (finding expert's failure to test
utility of proposed alternative design was permissible reason for
district court to exclude testimony); Bourelle, 220 F.3d at 538
(same); Peitzmeier, 97 F.3d at 297 (same). Particularly in
alternative design cases, merely conceptualizing possibilities is
not alone sufficient. Testing of the proposed alternative is
often required. See Watkins, 121 F.3d at 992; Stanczyk, 836
F. Supp. at 567 ("[T]he history of engineering and science is
filled with finely conceived ideas that are unworkable in
practice."); see also Cummins v. Lyle Indus., 93 F.3d 362, 368
(7th Cir. 1996) ("Our cases have recognized the importance of
testing in alternative design cases.").
8. Feasibility of Suggested Modification — In alternative design
cases, one of most important aspects of an expert's testimony is
whether the proposed alternative design or modification is
feasible and/or compatible with the underlying design. This may
involve computer analyses and calculations and likely involves
testing of the proposed modification. For instance, in Padillas
v. Stork-Gamco, Inc., No. 95-7090, 2000 WL 1470210 (E.D.Pa. Oct.
2, 2000), the court excluded part of the expert's testimony
because he "offered scant testimony concerning an engineering
methodology on the issue of how to design, fabricate or install a
guard that would make a machine safe but not interfere with the
operation of the machine." Id. at * 3. In Watkins, the
circuit court faulted the expert for failing to make any diagrams
or calculations to demonstrate that the alternative design "would
have prevented the accident without sacrificing utility." 121
F.3d at 992. The court concluded, "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 calculations were necessary to demonstrate the feasibility
of [his] ideas." Id. And in Jaurequi, the court affirmed the
exclusion of expert testimony where the expert failed to test the
utility of the suggested design as a safety device or its
compatibility with machine's proper function. 173 F.3d at 1084;
see also Bourelle, 220 F.3d at 536 (noting expert's failure to
test feasibility); Peitzmeier, 97 F.3d at 297 (finding no
factual basis for assertions of feasibility); Pestel, 64 F.3d
at 384 (noting failure to determine feasibility).
9. Risk-Utility of Suggested Modification — Related to the
feasibility issue, and just as important, is the risk-utility of
the suggested modification. Even if a modification is feasible,
the expert must address whether that modification will so affect
the operation of the device that it makes it ineffective for its
intended purpose. As the Seventh Circuit held in Cummins:
There are a number of considerations which must
inform such a conclusion. These include, but are not
limited to, the degree to which the alternative
design is compatible with existing systems and
circuits; the relative efficiency of the two designs;
the short- and long-term maintenance costs associated
with the alternative design; the ability of the
purchaser to service and to maintain the alternative
design; the relative cost of installing the two
designs; and the effect, if any, that the alternative
design would have on the price of the machine.
93 F.3d at 369. As the court further noted, "many of these
considerations are product- and manufacturer-specific, and most
cannot be determined reliably without testing." Id. Without
this type of analysis, courts are hard-pressed to find reliable
an expert's conclusions regarding the defectiveness of the
product and the appropriateness of the proposed alternative
Thus, to recapitulate, among the indicia of reliability that
courts may consider in evaluating expert testimony under Rule 702
are the following: 1) federal design and performance standards;
2) standards established by independent standards organizations;
3) relevant literature; 4) evidence of industry practice; 5)
product design and accident history; 6) illustrative charts and
diagrams; 7) data from scientific testing; 8) the feasibility of
suggested modification; and 9) the risk-utility of suggested
3. Summary Judgment
The Third Circuit has recently considered the circumstances
under which summary judgment is appropriate when based on the
exclusion of expert testimony. In Oddi, the circuit court held
that the expert's failure to conduct any scientific testing and
his reliance on his own intuition were proper considerations in
excluding the expert's report. 234 F.3d at 158. The court
distinguished a prior Third Circuit decision, Padillas v.
Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999), in which the
circuit reversed the district court's exclusion and ordered
further proceedings. In Padillas, the circuit found that "[t]he
district court's analysis of the [report] does not establish that
[the expert] may not have `good grounds' for his opinions, but
rather, that they are insufficiently explained and the reasons
and foundations for them inadequately and perhaps confusingly
explained." Id. at 418 (internal citations omitted).
In contrast, in Oddi, the court did not find the expert's
report conclusory or confusing but rather that his conclusions
were not supported by scientific methods and procedures or by the
record.*fn4 234 F.3d at 158. The court stated that, "[a]lthough
Daubert does not require a paradigm of scientific inquiry as a
condition precedent to admitting expert testimony, it does
require more than the haphazard, intuitive inquiry that [the
expert] engaged in." Id.
at 156. Moreover, the court held, "Padillas certainly does not
establish that a District Court must provide a plaintiff with an
open-ended and never-ending opportunity to meet a Daubert
challenge until plaintiff `gets it right.'" Id. at 154 (quoting
In re TMI Litig., 199 F.3d 158, 159 (3d Cir. 2000)).
4. Stephens's Testimony
In connection with this litigation, Plaintiffs' expert, Paul R.
Stephens, submitted an expert report and was deposed by
Defendant's counsel. The report begins by listing various
documents, manuals, articles, and design standards that Stephens
claims to have reviewed in preparing his report. (Pls.' Opp. Br.
Ex. B at 1-3). Stephens also inspected the lift truck involved in
the accident and observed GM staff operate the lift truck. (Id.
at 3, 7). Based on his review and observations, Stephens'
diagnosis was that:
[1.] Raymond's fork mounting design creates an
incentive for operators to utilize an unsafe
procedure to adjust the forks. It is an inherently
hazardous procedure to adjust the forks on a lift
truck utilizing such a fork mount design because of
the risk that personnel either will inadvertently or
intentionally position their hands between the fork
and carriage when the fork has been lifted away from
the carriage. . . . [2.] Raymond's reach truck
product, lacking a power-operated fork positioning
feature, was defective. . . . [3.] The design defect
in Raymond's reach truck was a proximate cause of Mr.
Milanowicz' incident. . . . [4.] It was technically
and economically feasible to eliminate the hazard at
the time the incident lift truck was manufactured in
(Id. at 7-8). Stephens's deposition testimony substantially
echoed these views.
5. Daubert Analysis
As discussed, the thrust of the Daubert is evaluating the
reliability of the expert's testimony. The Court must focus, not
on the expert's conclusions, but rather on whether his
methodology was sound and whether he had "good grounds" for his
conclusions. Having reconfigured Daubert for application to
technical fields, the Court now reviews Stephens' testimony in
light of the indicia of reliability that the Court has
First, it is necessary to address briefly Plaintiffs' effort to
rebut this analysis, in which they argue that "the factors
enumerated in Daubert are not `reasonable measures of the
reliability of the expert testimony'" and that, as a result,
Defendant's reliance on Daubert and Kumho is "misplaced and
wholly distinguishable from the instant case." (Pls.' Opp. Br. at
17, 19). Instead, Plaintiffs rely on Poust v. Huntleigh
Healthcare, 998 F. Supp. 478 (D.N.J. 1998), a pre-Kumho case
admitting expert testimony based on the expert's experience and
training. Plaintiffs fail to recognize, however, that Kumho
squarely overruled Poust. In fact, Poust prominently cites
the Eleventh Circuit's opinion in Carmichael v. Samyang Tire,
Inc., 131 F.3d 1433 (11th Cir. 1997), that was reversed by the
Supreme Court in Kumho.
Proceeding to the analysis, the Court finds that, while
Stephens lists a number of design standards at the beginning of
his report, he does not specifically reference any of them in the
body of his report. His deposition reveals that Stephens conceded
that he has no reason to believe that the Raymond Model 40 lift
truck at issue in this case did not comply with ANSI Standard
B56.1, the safety standard for low lift and high lift trucks.
(Def.'s Supp. Br. Ex. C at 169-171). More specifically, Stephens
testified that the ANSI standard did not require the powered fork
that he maintains should be required. (Id. at 173). Further,
Stephens could not identify any industry standard requiring
powered fork positioners as standard equipment, (Id. at 180),
nor could he identify any professional organization or consumer
group which had take the position that Raymond Model 40 lift
trucks or similar lift trucks should be outfitted with powered
fork positioners as standard equipment. (Id. at 227-28).
Finally, Stephens acknowledged that the relevant OSHA standards
incorporate the ANSI standard, and, as a result, the Raymond lift
truck, as designed, complied with federal regulations. (Id. at
Stephens also did not find adequate support for his conclusions
in the relevant literature. While he claims to have reviewed a
number of manuals and articles, the only citations he provides in
his report are for the rather uncontroversial propositions that
the elimination of identifiable, foreseeable hazards is a
fundamental concern in industrial design and that users be warned
of those hazards which have not been eliminated. (Pls.' Opp. Br.
Ex. B at 7-8). As he testified at his deposition, he used these
references as the "foundation" for his report. (Def.'s Supp. Br.
at 235). However, he conceded that he never seen a technical
publication or any other document which criticized lift trucks
such as the Raymond Model 40 for not utilizing powered fork
positioners or which argued that powered fork positioners were a
necessary safety feature. (Id. at 234-35). Moreover, he
testified that he had never seen an article, product report, or
advertisement in a trade publication regarding lift trucks sold
with powered fork positioners, though he did state that he had
seen an advertisement for powered fork positioner as an
attachment. (Id. at 184). In short, beyond general design
principles, Stephens identified nothing in the literature which
would suggest peer review of his conclusions.
The central contention of Stephens's report, and thus of
Plaintiff's case, is that, because powered fork positioners were
available and widely used in 1991, Raymond should have
incorporated this device into its Model 40 lift truck. (Pls.'s
Opp. Br. Ex. B. at 8; Opp. Br. at 18). Leaving aside Plaintiffs'
mistaken contention that an expert's experience is sufficient to
satisfy Rule 702, Stephens fails to adequately substantiate his
contentions that powered fork positioners were available and
widely used in 1991.
Q. To your knowledge, does the Raymond Corporation
design and manufacture a powered fork positioner?
A. (Pause.) Near as I recall from Mr. Rogers'
deposition, they did not. I don't know today.
Q. Would you agree then if they did not so design or
manufacture a product, they would have to go out and
get one on the open marketplace to supply for a truck
like the model 40?
Q. Are you aware of the existence of one or more
manufacturers of powered fork positioners in the
country or the world?