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Metallurgists

Admissibility Rate: .600    (3/5)

Fillebrown v. Steelcase, Inc., No. 02-1080 (3d Cir. Feb. 24, 2003) (unpublished).  Man leans back in chair at work.  Metal spindle connecting base and seat of chair breaks.  Man falls to floor and is injured.  Man sues chair's manufacturer.  At trial, both sides offer metallurgical experts.  Plaintiffs' metallurgist, Dr. J. Stephen Duerr, testifies that large machining marks caused spindle to develop fatigue crack and break.  Jury returns verdict for plaintiff.  Defendant moves for judgment as matter of law, arguing that Dr. Duerr's testimony should have been excluded under Daubert.  District court denies motion.  Admissibility affirmed.  Plaintiff says defendants waived Daubert objections at trial court level.  But plaintiff waived his own waiver argument by not presenting it when defendant moved for judgment as matter of law.  However, district court did not err in admitting testimony.  Metallurgy and materials failure analysis are old, well-established sciences, and plaintiff's expert offered detailed explanation of why he believed break to have resulted from fatigue failure and not overload or abuse.

Free v. Bondo-Mar-Hyde Corp., No. 01-2240 (4th Cir. Jan. 10, 2002) (unpublished).  District court awards summary judgment to defendants after excluding causation testimony from plaintiffs' metallurgist in products liability action arising from explosion of aerosol can of paint remover.  Exclusion affirmed.  Metallurgist is qualified in metallurgy but lacks knowledge re: (a) aerosol can manufacturing; (b) process of filling aerosol cans; (c) testing of cans during manufacturing process; (d) pressurization of cans; and (e) normal pressure expected for this type of can.  Metallurgist consequently lacked expertise to opine on whether certain scratches on can were defects or were normal results of manufacturing process, or to opine on whether scratches caused explosion.

Hafstienn v. BMW of N. Am., LLC, No. 05-20424 (5th Cir. Aug. 17, 2006) (unpublished).  BMW 323i collides with GMC truck, rolls over, splits apart, and fatally ejects six-year-old child.  To show causation in their products liability suit against BMW, child's surviving family members offer crash-test evidence and three experts: (1) Thomas Grubbs, mechanical engineer and accident reconstructionist, whose testimony would explain details of plaintiffs' crash test; (2) metallurgist "Dr. McLellan," who proposes to testify that BMW's defective spot welds made it less crashworthy; and (3) osteopath and biomechanical expert "Dr. Nicodemus," who proposes to opine that child died from blow to head on hitting pavement, not from any injury sustained while still inside car.  After three-day hearing, district court grants BMW's motion to exclude crash-test evidence and testimony from all three experts.  Family stipulates that district court's ruling leaves it without sufficient evidence to show causation, and summary judgment is awarded to BMW.  Exclusion affirmed.  District court legitimately excluded evidence of crash-test, because test used Volkswagen Passat, whose extensive dissimilarities with BMW 323i render test irrelevant.  As for experts: (1) District court excluded Grubbs as unqualified and because he relied on inaccurate data.  Those grounds need not be reached on appeal, because given district court's proper exclusion of plaintiffs' crash-test evidence, testimony from Grubbs explaining that crash test would not have assisted trier of fact in any event.  (2) Nor need admissibility of McLellan's testimony be reached on appeal, because he testified he did not know whether properly constructed BMW 323i would have split apart in accident.  (3) District court ruled that Nicodemus was unqualified and his testimony unreliable, but those issues need not be reached, because even if his testimony were taken as true, plaintiffs' evidence does not establish that any defect in BMW 323i caused child's ejectment.

One Beacon Ins. Co. v. Broad. Dev. Group, Inc., No. 04-5517 (6th Cir. Aug. 29, 2005) (unpublished).  Central Tower ("Central") designs broadcast tower and manufactures component parts.  Its sister company, Ryan Construction ("Ryan"), bolts parts together into 20-foot sections at site.  Ryan hires Broadcast Development Group ("BDG") to assemble tower from 20-foot sections.  Tower collapses during construction when guy wires slip.  Ryan's insurer pays and sues BDG for negligence.  BDG counterclaims against Central and Ryan, alleging that their negligent design and manufacture caused tower to collapse.  In particular, BDG alleges welds holding flanges to legs were too small.  In support, BDG offers three experts: (1) metallurgist Richard Roberts, who inspected some welds and says they were poorly executed, as well as being smaller than Central's design required, perhaps because diagrams given to welders were confusing and inaccurate; (2) tower design expert Dr. Joseph Vellozzi, who opines that if tower had been built as designed, bolts should have failed before welds; and (3) structural engineer Ernie Jones, who says that if tower were constructed as designed, guy wire slippage would not have caused collapse.  District court admits testimony from all three experts over insurer's objections.  Jury allocates 75% of fault to Central and 25% to BDG, and damages are apportioned accordingly on claims and counterclaims.  Insurer appeals.  Admissibility affirmed.  Insurer complains that Roberts did not opine on ultimate issue of causation, but his testimony was relevant to defects in welding and how those defects arose.  So too with Dr. Vellozzi; he did not opine on ultimate causal issue, but his testimony was relevant to show nonconformity to tower's planned design.  Insurer complains that Jones's testimony relied in part on "guesstimates," but insurer has not shown that figures at issue were based solely on guesswork.  Insurer's other arguments to weight, not admissibility.  No abuse of discretion.

Krueger v. Johnson & Johnson Prof'l, Inc., No. 02-3553 (8th Cir. May 21, 2003) (unpublished).  Surgeons implant Codman Plate to aid fusion of vertebrae.  Screws break, necessitating follow-up surgery to remove device.  Patient sues manufacturer, alleging defective design.  District court grants summary judgment to manufacturer after excluding testimony from patient's metallurgist, George Otto, who opines that device's cam-lock system exerted unintended pressure on head of device's screws, and patient's other expert, Edward Reese, who opines that device was defectively designed in light of its noncompliance with FDA regulations and lack of clinical testing.  Exclusion affirmed.  Neither expert had sufficient knowledge or expertise re design of Codman Plate or similar systems to explain or validate their theories.  Both admitted they lacked expertise in medical issues, neither conducted any testing, and neither addressed likely alternative cause of breakage -- viz., that failure of patient's bones to fuse caused device to fail. 

White v. Ford Motor Co., 312 F.3d 998 (9th Cir. 2002), amended, 335 F.3d 833 (9th Cir. 2003).  Father parks Ford pickup on incline, leaving vehicle in first gear and engaging parking brake (or so he later testifies).  His young son clambers into truck unobserved, jumps or falls out when truck begins to roll backwards down incline, and is crushed beneath pickup's wheels.  Ford knew when truck was sold, based on tests performed by Ford as well as brake's manufacturer, that defect in brake's design could lead to failure in rare instances, but Ford did not warn consumers or issue recall.  Did defect cause brake failure here?  In family's suit versus Ford, family says boy must have shifted truck into neutral, which boy would lack strength to do unless brake were engaged, and that parking brake must then have failed on its own, because boy was too small to disengage it.  Ford suggests that perhaps father did not really set parking brake at all.  To support its own theory, family offers testimony from professor of material science and engineering, Dr. Campbell Laird, whose principal experience is in metallurgy.  Dr. Laird opines on three points: (1) that this particular brake did suffer from relevant defect, based on his inspection; (2) that defect could cause parking brake to disengage if truck were shaken or otherwise disturbed; and (3) that defect must have caused accident.  Ford objects to Dr. Campbell's testimony on points (2) and (3), but district court permits testimony, and jury returns large verdict for plaintiffs.  Admissibility affirmed.  District court believed Daubert inapplicable to nonscientific issues such as product design, but that view was rejected in Kumho Tire.  District court was nevertheless within its sound discretion to admit Dr. Laird's testimony on point (2).  Dr. Laird does not purport to be accident reconstructionist, and performed no tests of his own.  But his training did render him competent to read and interpret reports on tests performed by manufacturers, and those reports support his conclusion that brake was vulnerable to disengaging if vehicle was disturbed.  Absence of peer-reviewed scientific publications supporting same conclusion does not alter result, because there is no reason to suppose that parking brake design is of sufficient interest to scientific community to generate any peer-reviewed literature.  Admissibility of Dr. Laird's opinion on point (3) is closer question.  From presence of defect in brake, credible record evidence that truck had been parked in first gear with brake engaged, and undisputed fact that truck rolled over boy, Dr. Laird simply employed logic to conclude that accident probably happened in hypothesized fashion.  This opinion arguably required little or no expertise in metallurgy or engineering, or any expertise beyond what any layperson might possess.  But district court cannot be said to have abused its discretion.

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