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Admissibility Rate: .390    (32/82)

Beaudette v. Louisville Ladder, Inc., No. 05-2685 (1st Cir. Sept. 6, 2006).  Man and plaintiff-to-be stands on scaffolding supported by three ladders.  Middle ladder collapses, scaffolding falls, and man does likewise, breaking right tibia and dislocating knee.  To show manufacturing defect in products suit against ladder manufacturer, plaintiff produces report from engineer Wilson Dobson, who opines, based on on microscopic examination of samples taken from ladder, that it does not comply with American National Standards Institute (ANSI) Standard 14.5 for fiberglass ladders, which calls for ladders to be free from resin-rich or resin-starved areas "in accordance with good commercial practice."  District court excludes testimony as unreliable after Daubert hearing and awards summary judgment to manufacturer.  Exclusion affirmed.  Expert interpreted ANSI standard as requiring ladder to be entirely free of resin-rich pockets, but he could cite no support and admitted he had no information on what constituted "good commercial practice."

Santos v. Posadas de Puerto Rico Assocs., Inc., 452 F.3d 59 (1st Cir. 2006).  Injured on steps to hotel swimming pool, slip-and-fall plaintiff offers testimony at trial from mechanical engineer Dr. Ricardo Galdos re dangerous condition presented by variable friction between steps and edges, use of unsuitable tile, peculiar configuration of stairs, and lack of handrail.  District court upholds his qualifications and methodology over defense objections.  Jury finds for plaintiff.  Admissibility affirmed.  Defendants say expert has no experience with swimming pools, but he has doctorate in engineering, has been certified by National Academy of Safety as tribologist, and has analyzed approximately 2000 slip-and-falls since 1990.  Defendants also fault expert's methodology, but he interviewed victim, visited pool, examined photographs, made calculations, and drew on friction testing of tiles.  No abuse of discretion. 

Koken v. Black & Veatch Constr., Inc., 426 F.3d 39 (1st Cir. 2005).  Metal slag produced by torch-cutting operations at construction site penetrates 1000-degree fire blanket used to protect generator.  Efforts to extinguish fire damage generator, causing $9 million in repair and delay costs.  In resulting litigation, general contractor claims against manufacturer of fire blanket, on theories including failure to warn.  In support, general contractor offers engineering expert Robert Waite, who opines that fire blanket should have carried warning stating it was unsuitable for use in cutting operations.  District court excludes testimony.  Exclusion affirmed.  Expert failed to articulate any methodology for determining appropriateness of fire blankets for particular operations.

Babcock v. Gen. Motors Corp., 299 F.3d 60 (1st Cir. 2002).  Driver is injured and dies after pickup crashes into tree.  Were his injuries attributable to "false latching" of allegedly defective seatbelt?   District court admits testimony to that effect from plaintiffs' engineering expert and accident reconstructionist, Dr. Malcolm Newman.  Jury returns verdict for plaintiff.  Admissibility affirmed.  Expert determined crash speed by methodology generally accepted in accident reconstruction field and approved by National Highway Traffic Safety Administration (NHTSA).  He then opined that seatbelt would have restrained passenger at that speed if nondefective and in use, and concluded from inspection of seatbelt that it had indeed been in use just prior to impact.  He also illustrated alternative design, actually used in Volvos, that would help prevent false latching.  District court did not abuse discretion in admitting testimony.

Correa v. Cruisers, 298 F.3d 13 (1st Cir. 2002).  Plaintiffs say motorboat sold by defendants has defective engine.  Plaintiffs' expert, Ramon Echeandia, testifies over defendants' objection that engine did not function properly.  Jury finds for plaintiffs and defendants appeal.  Admissibility affirmed.  Defendants question expert's qualifications, but expert has bachelor's degree in engineering, is licensed engineer, and has twenty years experience repairing marine and other engines.  Defendants also complain that expert did not use instruments or gauges to determine whether engine was running properly.  But common sense suggests that expert with extensive experience in engine repair could reliably base conclusions on visual inspection.

Hochen v. Bobst Group, Inc., 290 F.3d 446 (1st Cir. 2002).  Injured worker suing manufacturer of exploding printing press offers testimony from engineer Daniel Harwood to show negligence.  Magistrate judge excludes testimony, and awards judgment as matter of law to defendants.  Exclusion affirmed.  Magistrate judge did not abuse discretion in finding engineer's testimony insufficiently grounded in knowledge of specific machine at issue.

Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376 (1st Cir. 2000).  Worker's thumb is severed when worker's hand is caught between moving guard rail on lift and fixed guard rail on adjacent loading dock.  In negligence action against companies that manufactured and installed lift, worker offers testimony from engineer that whereas space between guard rails was only about 3.5 inches, human hand holding object could measure 4.5 inches in width.  District court excludes testimony as irrelevant and sheer ipse dixit, and awards summary judgment to defendants.  Exclusion affirmed.  Testimony did not fit facts of case, because worker was not holding any object at time of accident.

Kass v. West Bend Co., No. 05-0338 (2d Cir. Dec. 19, 2005) (unpublished).  Girl is scalded by hot water spilled from overturned coffee maker.  In products liability suit against coffee maker's manufacturer, plaintiffs offer testimony from expert engineering witness Dr. Richard Harkness, who opines that alternative designs could have prevented injury.  District court excludes testimony and awards summary judgment to manufacturer.  Exclusion affirmed.  Expert engaged in only cursory testing of design alternatives.  No abuse of discretion.

Barban v. Rheem Textile Sys., Inc., No. 05-1386 (2d Cir. Oct. 26, 2005) (unpublished).  Worker's hands are severely burned while he operates laundry press machine.  He sues machine's manufacturer.  On summary judgment, worker relies on expert testimony from engineer Stanley H. Fein to show machine was defective.  Trial court excludes testimony and awards summary judgment to manufacturer.  Exclusion affirmed.  District court permissibly found that expert demonstrated bias, lacked concrete knowledge regarding many of his assumptions, and did not perform studies that could have buttressed his insufficient knowledge base.  No abuse of discretion.

Doe v. Am. Med. Sys., Inc., No. 02-7674 (2d Cir. Apr. 30, 2004) (unpublished).  Plaintiff alleges that defective manufacture of penile implant caused its failure.  In support, he offers testimony from engineer Barry Feinberg, who opines that prosthesis was made with defective tubing that could not withstand normal forces.  District court excludes testimony and awards summary judgment to defendant.  Plaintiff appeals.  Exclusion affirmed.  Expert has substantial engineering credentials but no special background in penile implants, and expert's medical knowledge derives entirely from seminars and three courses taken while he pursued his engineering doctorate.  Moreover, expert did not sufficiently explain why he discarded alternative explanations for implant's failure.  "For example, Dr. Feinberg presents little explanation for excluding undue stress on the prosthesis, perhaps caused by John Doe, as a potential cause of its failure."

Zaremba v. Gen. Motors Corp., 360 F.3d 355 (2d Cir. 2004).  Injured in automobile crash, plaintiffs sue auto's manufacturer on defective design theory.  In support, plaintiffs offer testimony from engineer and accident reconstructionist Donald Phillips, and physician and biomechanical expert Dr. Joseph Burton.  District court excludes testimony from both experts and awards summary judgment to manufacturer.  Exclusions affirmed.  Engineer did not test vehicle, offered no measurements or calculations to support his theory of how accident occurred, conducted no tests and offered no calculations in support of his proposed alternative design, did not subject his theories to peer review and publication, and offered no evidence that others in automotive design community accepted untested propositions underlying his opinions.  Physician's testimony was flawed insofar as it relied on engineer's, and was also speculative in other respects.

Jarvis v. Ford Motor Co., 283 F.3d 33 (2d Cir.), cert. denied, 537 U.S. 1019 (2002).  Six-day-old Ford Aerostar accelerates sua sponte, causing accident and seriously injuring driver.  At trial of design defect and negligence claims, plaintiff's electrical engineer, Samuel J. Sero, hypothesizes that unintended electrical connections, resulting from simultaneous occurrence of two "random transient events" leaving no physical trace, activated Aerostar's cruise control.  Sero also opines that inexpensive on/off switch could have prevented problem.  Ford's theory is that by mistake, driver hit accelerator pedal instead of brakes.  Jury returns no-defect verdict on products liability claim, but finds for plaintiff on negligent design claim.  Ford says verdict is inconsistent and moves for judgment as matter of law.  District court grants motion, concluding that evidence overwhelmingly supports Ford.  Reversed.  Ford argues that plaintiff's evidence was insufficient to sustain negligence verdict, because verdict was not supported by physical evidence, and also because Sero's scenario was called "virtually impossible" in 1989 report by National Highway and Traffic Safety Administration (NHTSA).  But district court itself admitted Sero's testimony after holding Daubert hearing, and Ford does not challenge that decision on appeal.  In its Daubert ruling, district court specifically found that Sero's theory had been tested and replicated, and also noted that Sero sought only to testify that design of Aerostar made cruise control malfunction physically possible -- not that plaintiff's accident was probably caused as contemplated in Sero's scenario.  Sero's testimony, in combination with circumstantial evidence including testimony from numerous Aerostar owners re incidents of sudden unintended acceleration, was sufficient to sustain negligent design verdict under New York law, whether plaintiff could identify operative defect or not, and regardless of absence of physical evidence supporting Sero's scenario.  Meanwhile, to preserve its inconsistent verdict point, Ford should have made timely objection to jury instructions before jury retired, but did not.  Verdict reinstated.

Brooks v. Outboard Marine Corp., 234 F.3d 89 (2d Cir. 2000).  Boy's hand is amputated after being caught in motorboat propeller blade.  In design defect suit against motor's manufacturer, boy offers testimony from engineer [?] that motor should have incorporated kill switch, which would have prevented injury.  Exclusion affirmed.  Plaintiff argues that district court erred in entertaining Daubert objection not itself supported by expert testimony, but Daubert and Kumho Tire do not require that objections be thus supported.  Meanwhile, plaintiff's expert never saw relevant motorboat, whether in photographs or in person, never spoke with boys involved in accident, was unaware of dimensions of boat and placement of seats in relation to motor, did not know details of accident, and never attempted to reconstruct accident or test his theory.  Failure to test theory of causation can justify exclusion of testimony.

Sell v. Ingersoll-Rand Co., No. 04-1965 (3d Cir. June 29, 2005) (unpublished).  Plaintiff's expert in products liability suit opines that any of several alternative designs could have prevented plaintiff's injury by drill rig.  District court permits expert to testify to two such designs.  Jury awards damages and defendant appeals.  Admissibility affirmed.  Defendant says record contains no direct evidence that injury occurred in manner that expert's proposed design modification could have prevented.  But circumstantial evidence did permit jury to draw that inference.

Jaasma v. Shell Oil Co., 412 F.3d 501 (3d Cir. 2005).  After lessee ceases operation of gas station on lessor's property and removes underground storage tank, fuel residue is discovered on adjacent property.  Leased property's marketability is impaired until state department of environmental protection concludes 2.5-year investigation.  Lessor sues lessee for loss of rental value during that period.  To establish impaired marketability, lessor calls environmental engineer Gary J. DiPippo.  District court excludes his testimony as unreliable and awards judgment to defendants.  Exclusion reversed.  Trial court understood expert to be extrapolating from known concentrations of contaminants in 1996 and 2003 to estimate concentrations in 2001 and found such extrapolations to be unacceptably speculative.  But this misunderstands import of expert's testimony, which was offered not to show actual contamination levels in 2001, but rather to establish that site's environmental status was uncertain in 2001 and that legitimate concerns existed over its status at that time.  Lessee also faults expert for relying on lessee's data rather than conducting field tests of his own.  But experts need not collect their own data if they base their findings on information of type reasonably relied on by experts in their field.

Simmons v. Ford Motor Co., No. 04-2393 (3d Cir. May 12, 2005) (unpublished).  Woman is injured when her Lincoln Navigator spontaneously shifts out of park as she is exiting it.  She sues Ford, alleging defective design.  Ford moves for summary judgment and to exclude testimony from plaintiff's engineering expert, Clifford Anderson.  District court finds him to be qualified but excludes his testimony as unreliable and awards summary judgment to Ford.  Exclusion affirmed.  Anderson theorized that vehicle was in "false park" but could not explain why vehicle disengaged from park gear, was unable to replicate vehicular movement that caused plaintiff's injuries, and relied on untested hypotheses not supported by evidence.  He did not support his alternative design with any mock-up or testing, and could not say that any manufacturer had employed his proposed design, or any other, to successfully eliminate possibility of "false park" in vehicles with automatic transmissions.  No abuse of discretion.

Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316 (3d Cir. 2003).  Twelve-year-old girl lies about her age to rent jet ski that carries warning against use by children under fourteen.  While riding, she experiences difficulty navigating and crashes into anchored boat at high speed, suffering fatal injuries.  Girl's parents sue jet ski manufacturer, focusing on theory that jet ski's "squeeze finger throttle," which resembles braking mechanism on bicycles, constituted design defect.  At trial, plaintiffs offer three experts.  Dr. Edward W. Karnes, who holds doctorate in psychology with specialty in human factors engineering, is permitted to opine that children in stressful situations would confuse jet ski throttle with bicycle brakes and accelerate when they intended to brake, but is barred from testifying that people in emergency situations tend to react by clenching hands.  Dr. Karnes is also permitted to testify re appropriate features of jet ski warnings, and to opine that actual warning was deficient, but is barred from testifying that warning should have set minimum age for operators at 16 rather than 14.  Albert Bruton, with sixteen years of experience as marine safety employee, is permitted to describe how jet skis operate, and to explain differences between various brands and models, but is barred from opining on which jet skis or accelerating mechanisms are safest, or on appropriate substantive content for jet ski's product warning.  Dr. Robert A. Warren, marine engineer and accident reconstructionist, is permitted to describe squeeze finger throttle's operation, but not to opine that it is unsafe due to similarity with bicycle braking mechanisms, and is barred from opining on product warnings at all.  Jury returns verdict for defendants.  Exclusions affirmed.  Experts lacked appropriate basis or experience to opine on points as to which their testimony was limited.

Cuffari v. S-B Power Tool Co., No. 02-3763 (3d Cir. Nov. 7, 2003) (unpublished).  Having suffered serious personal injury while using circular saw, plaintiff sues manufacturer, offering testimony from engineer [?] Lewis A. Howarth, who opines that lack of power brake rendered saw defective in design.  District court excludes testimony, and plaintiff elects not to proceed to trial, instead entering into stipulated final judgment preserving evidentiary issue for appeal.  Exclusion affirmed.  Witness was qualified but his methods were unreliable.  His opinion was based entirely on undocumented tests, conducted by witness years ago, and of which he maintained no records, in which he ran various saws at full speed and then used his stopwatch to determine how long they took to stop.  That methodology is questionable at best.  Moreover, witness conducted no cost-benefit analysis and failed to consider potential negative safety consequences of power brakes except via unscientific and anecdotal methods.

Scrofani v. Stihl, Inc., No. 01-3773 (3d Cir. Aug. 6, 2002) (unpublished).  Plaintiff sustains burn injuries from accident with gasoline powered saw.  In products liability suit, district court rejects opinion of plaintiff's expert, Russell Fote, that saw was defectively designed and contained inadequate warnings, and awards summary judgment to defendant.  Exclusion affirmed.   Expert specified no methodology whatsoever, merely reciting bald conclusions.  Plaintiff says Daubert hearing would have established witness's credentials, but even assuming witness to be credentialed, his testimony was unreliable, and no error resulted, therefore, from refusal of Daubert hearing.

Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408 (3d Cir. 2002).  Plaintiffs' decedents die in Osprey helicopter crash.  Plaintiffs sue manufacturer, alleging that negligent design permitted seal to be installed backwards, which permitted leak of transmission oil, which engine ingested, causing crash.  Manufacturer offers testimony from expert in failure analysis and materials science, Dr. Thomas Eagar, who opines that crash resulted from leak of hydraulic fluid, not transmission oil.  Jury finds for defendants.  Admissibility affirmed.  Plaintiffs argue that Dr. Eagar's opinion lacked factual foundation in record, but in fact such foundation existed.  Record shows that of fluids potentially involved in accident, only hydraulic fluid was red.  Red residue was found in helicopter's torquemeter housing.  Tests of red residue found it to be good match for hydraulic fluid.  This places hydraulic fluid where it should not have been -- outside engine, near engine, and in torquemeter housing.  This, in turn, forms sufficient factual foundation that district court did not abuse discretion in admitting testimony and permitting plaintiffs to address it via cross-examination.

Saldana v. Kmart Corp., 260 F.3d 228 (3d Cir. 2001).  Woman slips and falls on puddle of floor wax in Kmart.  In her personal injury action, trial judge excludes testimony from plaintiff's safety engineer regarding length of time puddle was present, based on spill tests performed by expert.  Exclusion affirmed.  Assuming without deciding that witness possessed requisite expert qualifications, testimony was inadmissible.  District court believed testimony was irrelevant, but it was offered to support inference that Kmart was on notice of puddle but failed to take reasonable corrective steps.  Nevertheless, tests were not probative, because plaintiff's fall disturbed puddle and undoubtedly altered its size, so that tests to determine how long puddle of that size would take to develop absent such interference are not germane.  Likewise, amount of time wax takes to empty from bottle does not, by itself, provide evidence of when spill commenced or concluded.  Court notes in passing that expert performed spill tests on own kitchen floor, which may have been of dubious similarity to Kmart floor.

Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000), cert. denied, 532 U.S. 921 (2001).  Driver of bread delivery truck loses legs and use of one arm after vehicle collides with guard rail.  In products liability action against vehicle manufacturers, plaintiff offers testimony from engineer re crashworthiness and negligent testing by manufacturers.  District court excludes testimony and awards summary judgment to defendants.  Exclusion affirmed.  Plaintiff appears to interpret previous Third Circuit decisions as requiring hearings on all motions in limine, but in those earlier decisions, hearings were required only because experts' methods had not otherwise been detailed.  Where expert has been deposed and also submitted affidavits on methodologies, there is no per se requirement for live hearings.  Litigants are not entitled to infinite opportunities to get their expert testimony right.  As to merits of district court's Daubert ruling, engineer conducted no tests, cited no literature, and based conclusions on little more than personal intuitions.

Tormenia v. First Investors Realty Co., 251 F.3d 128 (3d Cir. 2000).  Panels of revolving door collapse, injuring occupant.  In suit versus owner and manager of premises, occupant offers testimony from engineer Alvin Yorra, who opines that inadequate maintenance permitted introduction of contaminant into door's lubricant, causing door's sudden arrest.  District court admits testimony and jury awards damages.  Admissibility affirmed.  Defendants complain that district judge unfairly limited and controlled their thirty-minute cross-examination of expert at Daubert hearing, but trial court merely encouraged defendants to devote some of their allotted time to certain specified issues, and defendants have not shown how they were prejudiced by any time limitation.  Defendants say expert is unqualified, because he has testified in only two prior lawsuits involving revolving doors, and because his masters degree in civil engineering does not qualify him to opine on revolving door's mechanical operation.  But expert's research, and his experience with mechanical and forensic engineering, familiarized him with relevant principles.  Defendants say expert's opinion is unreliable because he employed no discernible methodology, relied on plaintiff's account of accident, and failed to inspect door.  But experts are not required to rely on first-hand personal knowledge, nor barred from reliance on testimony offered by parties, and expert offered detailed explanation of his analysis.

Higginbotham v. KCS Int'l, Inc., No. 02-1527 (4th Cir. Jan. 23, 2004) (unpublished).  Owner of yacht attempts to extend swim ladder and notices it is stuck, because bent.  Pulling harder, he careens across deck and sustains significant injury.  In suit against yacht and ladder manufacturers, he offers mechanical engineer, Kenneth Court, who opines that bend in ladder is attributable to defective design -- i.e., ladder's inability to sustain normal use by someone of yacht owner's weight without bending.  District court excludes testimony after Daubert hearing and grants summary judgment.  Exclusion affirmed.  Expert relied on speculation, performed no tests, and failed to account for alternative causes.

Phelan v. Synthes, Inc., No. 01-2045 (4th Cir. May 28, 2002) (unpublished).  Intramedullary nail must be removed from patient's leg after nail fractures.  At trial of suit against manufacturer, patient offers biomechanical engineer ("Dr. Dyro") to testify that nail was defective, unreasonably dangerous, and inadequately tested.  District court excludes testimony and awards judgment as matter of law to manufacturer.  Exclusion affirmed.  Expert's testimony was too abstract and not sufficiently tied to facts of case.

Garlinger v. Hardee's Food Sys., Inc., No. 98-2044 (4th Cir. Aug. 16, 2001) (unpublished).  Woman suffers second-degree burns and permanent scarring on leg after fast-food employee spills coffee on woman's lap while passing coffee through drive-through window.  Suing on defective product theory, plaintiff offers testimony from expert in biomedical engineering and thermodynamics that coffee served at 180 to 190 poses high risk of burns, whereas coffee served at 150 would be safer.  Exclusion affirmed.  Question in products liability claim is not whether serving coffee at 180 is risky but rather whether alternative of selling coffee at less risky lower temperature was reasonably available.  Expert had no knowledge or experience in food or beverage industry and thus could not opine on latter subject.  His testimony was therefore properly excluded on "fit" grounds.

Columbia Commc'ns Corp. v. EchoStar Satellite Corp., No. 99-1761 (4th Cir. Jan. 25, 2001) (unpublished).  EchoStar refuses to pay Columbia for use of Columbia's satellite technology, claiming that Columbia's satellite did not meet contractual specifications because transponder signal was too weak.  Columbia sues for breach of contract.  Jury finds for Columbia after hearing testimony from Columbia's expert re signal strength.  Admissibility affirmed.  Testimony on satellite signal strength plainly involved specialized knowledge and could assist jury.  Expert was qualified based on: (a) his studies in electrical engineering and computer science; (b) his twenty years of experience in satellite industry; and (c) his testimony that he had measured satellite signal strength dozens of times.  EchoStar's arguments boil down to simple disagreement with expert's conclusion, and that is not grounds for reversal.

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.

Vandiver v. Ohio River Co., LLC, No. 05-60533 (5th Cir. Mar. 30, 2006) (unpublished).  Man is injured in fall when barge lids separate after their latches fail.  He brings products suit against manufacturer.  On summary judgment, he offers testimony from mechanical engineer ("Dr. Sparks"), who says lids were defectively designed, and from human factors expert ("Dr. Fisk"), who says product did not carry adequate warning.  District judge excludes their testimony and awards judgment to manufacturer.  Exclusions affirmed.  Neither expert performed adequate tests to validate testimony.

Guy v. Crown Equip. Corp., 394 F.3d 320 (5th Cir. 2004).  Worker's left leg is crushed in forklift mishap.  To show defective design in her suit against forklift manufacturer, she offers testimony from engineer John Lohman.  Trial court excludes testimony and grants judgment as matter of law following close of plaintiff's case.  Exclusion affirmed.  Expert merely relied on broad ideas and conceptual sketches and never presented specific alternative design.

Rodriguez v. Riddell Sports, Inc., 242 F.3d 567 (5th Cir. 2001).  Football player makes tackle, emerges in permanent vegetative state.  Mother sues alleging defective helmet design and introduces testimony from biomechanical expert that use of different foam in helmet would have reduced risk of subdural hematoma.  Defendant offers testimony that use of new foam was impracticable because helmets would be uncomfortable.  Admissibility questioned.  Remanding on other grounds, court does not reach question whether admitting plaintiff expert's testimony was abuse of discretion, but notes that district courts must articulate basis for admitting such testimony and that proponent bears burden of establishing reliability.

Churchwell v. Bluegrass Marine, Inc., No. 05-5185 (6th Cir. Apr. 21, 2006).  Cook in ship's kitchen spills can of hot grease, slips on same, and is injured.  She sues vessel's owners.  To show negligence, she relies on testimony from Dr. Thomas R. Huston, industrial engineer and human factors expert, who opines that cook should have been given grease container with handle, and that kitchen should have been equipped with grease mat.  On summary judgment, vessel owners move to strike engineer's testimony as irrelevant.  Cook opposes summary judgment but does not oppose motion to strike.  District court excludes expert's testimony and awards summary judgment to owners.  Exclusion affirmed.  District court erred in its ruling that evidence of safer workplace alternatives was irrelevant.  But cook failed to oppose owners' motion to strike and thereby waived error on appeal.  However, cook offered other evidence sufficient to create genuine factual issue, and so summary judgment is reversed.

Brown v. Raymond Corp., 432 F.3d 640 (6th Cir. 2005).  In workplace forklift collision, wheel well enters forklift's operator compartment, resulting in foot injury requiring amputation.  Worker sues forklift manufacturer on defective design theory.  On summary judgment, worker offers testimony from two experts.  Lawyer and industrial engineer Dr. Michael Romansky opines that manufacturer could have identified problem and eliminated hazard, but admits lack of expertise in forklifts and offers no alternative design.  James Driver, experienced forklift operator, testifies that manufacturer's warnings were inadequate, but has neither proposed nor tested any alternative warning.  District court excludes testimony from both experts and awards summary judgment to manufacturer.  Exclusions affirmed.  No abuse of discretion.

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.

Mohney v. USA Hockey, Inc., No. 04-3227 (6th Cir. July 14, 2005) (unpublished), cert. denied, 74 U.S.L.W. 3530 (U.S. 2006).  Teenage hockey player suffers quadriplegia after crashing into boards while wearing helmet of defendant's manufacture.  In products liability suit, plaintiff offers testimony from biomechanical engineer Dr. Richard Collins and mechanical engineer Norman Johanson.  District court excludes Dr. Collins's testimony in its entirety as unreliable, and excludes Johanson's testimony in part.  Plaintiff appeals from ensuing award of summary judgment to defendants.  Exclusions affirmed.  Dr. Collins performed Newtonian calculations to support his conclusion but conducted no testing (he said that testing was feasible but was not authorized by plaintiff).  His theory that helmet could contribute to this injury from this type of impact is not supported by published, peer-reviewed literature, and is not generally accepted.  And he admitted he did not employ actual data as inputs for his calculations -- only "illustration of parameters" (i.e., estimates).  As for Johanson, he performed no tests to support excluded portion of his testimony, but relied on visual inspection and measurements of helmet and mask.  No abuse of discretion.

Bureau v. State Farm Fire & Cas. Co., No. 03-1830 (6th Cir. May 5, 2005) (unpublished).  Thunderstorm damages roof of home, causing water damage.  Homeowners' insurer pays claim.  Mold later develops in house and insureds file new claim.  Insurer denies second claim, contending that mold was caused by insureds' failure over time to maintain or repair roof, not by specific damage to roof caused in thunderstorm.  In support, insurer offers expert testimony from structural engineer Michael Newman, who opines that roof should have been repaired years earlier, and that delay in its replacement was significant factor contributing to moisture in house.  District court denies insureds' motion to exclude engineer's testimony, and jury finds for insurer.  Admissibility affirmed.  Insureds say district court summarily denied their Daubert motion, abdicating its gatekeeping function.  But district court convened hearing, said it had thoroughly reviewed motion as well as expert's deposition, and showed familiarity with engineer's testimony.  Nor was district court required to enter detailed findings.  Engineer relied primarily on his visual inspection of premises, not sophisticated scientific methods, and cross-examination was sufficient to explore any limitations in his relatively uncontroversial techniques.  No abuse of discretion.

Nemir v. Mitsubishi Motors Corp., 381 F.3d 540 (6th Cir. 2004).  Crippled for life after auto accident, pediatrician sues Mitsubishi, alleging its seatbelt failed to function properly.  District court excludes testimony from plaintiffs' engineering expert, Dr. Thomas Horton, even though previous exclusion of same testimony on summary judgment was reversed by court of appeals.  See Nemir v. Mitsubishi Motor Sales of Am., Inc., No. 99-1907 (6th Cir. Mar. 2, 2001) (unpublished) (infra).  District court also bars plaintiff from calling court-appointed experts to testify at trial.  Jury finds for defendant.  Exclusion reversed.  Read our lips.  Dr. Horton's testimony is admissible.  It was also error to bar plaintiff from calling court-appointed experts.  Remanded for reassignment to new district judge and new trial.

Coffey v. Dowley Mfg., Inc., No. 02-5454 (6th Cir. Dec. 18, 2003) (unpublished).  Plaintiff uses tool known as Super Hub Shark to remove hub from automobile wheel.  Bolts on tool fail during use, causing tool's jaws to strike plaintiff's ankles, knocking him backwards and injuring him.  In products liability action against tool's manufacturer, plaintiff offers testimony from Dr. Dale Wilson, professor of mechanical engineering.  Dr. Wilson opines that design of tool will cause bolts to fail when tool is configured to remove hubs and rotors.  District court strikes testimony on defendants' motion and awards summary judgment against plaintiff.  Exclusion affirmed.  Witness relied on method of "finite element analysis," which is purely analytical and involves no physical testing, and in which witness later admitted he was not an expert.  That assessment seems accurate, because witness's initial Rule 26 report contained gross errors that experts experienced with method would have spotted.  Even his revised testimony relied on "guesstimates" for parameter values and reflected no effort to test his conclusions.

Clark v. Chrysler Corp., 310 F.3d 461 (6th Cir. 2002), vacated on other grounds, 540 U.S. 801 (2003).  Man dies after being thrown from Dodge pickup in crash.  In suit against vehicle manufacturer, decedent's estate offers testimony from engineers and accident reconstructionists Billy Peterson and  Andrew Gilberg.  Jury finds vehicle was defective in design and/or manufacture, and renders verdict for estate.  Admissibility affirmed.  Mr. Gilberg opined that door latch was defective in design, and that state-of-the-art door latch would have prevented decedent's ejection from pickup.  Chrysler objects that Mr. Gilberg conducted no tests specifically relating to accident, but he did examine vehicle, had extensive experience and knowledge of relevant door latch system, and provided detailed bases for his opinions.  Chrysler's similar objections to Mr. Peterson's similar testimony about vehicle's B-pillars also fail, for similar reasons.

Nemir v. Mitsubishi Motor Sales of Am., Inc., No. 99-1907 (6th Cir. Mar. 2, 2001) (unpublished).  Pediatric physician fastens seatbelt (he says) and drives Dodge Stealth for short distance before colliding with fence post or small tree at 18 m.p.h., is found in back seat with driver's side seatbelt unlatched, suffers major brain damage, sues Mitsubishi.  As his expert, physician retains former director of engineering for company that manufactured seatbelt.  Expert surmises that seatbelt was partially latched at time of accident and became unlatched, and testifies that this represents defective design.  Opinion is based on background work and education, observation and analysis of seatbelt in question, and analysis of exemplar seatbelts of same model.  After several oral arguments focusing primarily on expert's exemplar testing, district court excludes testimony in its entirety and awards summary judgment to defendant.  Exclusion reversed in part.  District court abused discretion in focusing on exemplar testing only.  Engineer offered other admissible testimony not based on exemplar testing, including testimony on mechanics of seatbelt latching, pertinent regulations, availability of alternative designs, physical evidence of plaintiff's frequent seatbelt usage, and testing of plaintiff's actual seatbelt.

Pride v. Bic Corp., 218 F.3d 566 (6th Cir. 2000).  Man mysteriously catches fire while inspecting pipe behind his house.  In products liability action, widow's theory is that man's butane lighter first failed to extinguish, igniting man's clothing, then exploded, dousing man with isobutane and fueling conflagration that ultimately caused his death.  Widow offers three experts: mechanical engineer who has testified in numerous  products liability suits, on subjects ranging "from car seat belts to manure spreaders"; firefighter who has previously testified in Bic lighter cases on causes and origins of fires; and analytical chemist.  Engineer opines, based on inspection of lighter, that exploding-lighter scenario is most likely cause of fire, and that mishap was caused by manufacturing defect, and also by failure of lighter's design to incorporate redundant safety features.   Firefighter opines that lighter was most likely cause of fire based on elimination of other plausible causes as well as information suggesting that fire started in victim's breast pocket.  Chemist opines, based on information re condition of plastic from lighter, that lighter exploded.  After Daubert hearing, magistrate recommends exclusion of all three experts and award of summary judgment in favor of defendants.  District court denies widow's requests to tender additional expert testimony and reopen Daubert hearings, and accepts magistrate's recommendations.  Exclusion affirmed.  Trial court is owed deference on evidentiary rulings, and de novo review of record supports trial court's conclusions.  None of widow's experts conducted replicable laboratory tests showing that explosion of lighter was consistent with failure to extinguish caused by product defect.  Engineer's testimony re manufacturing defect is contradicted by widow's other witnesses and by defense experts' lab tests.  Firefighter admitted he was not engineer, had performed no tests, and was not expert in lighters.  Chemist admitted lack of expertise in fire investigations and did not personally examine lighter.  Chemist also designed lab experiment to test his hypothesis but said he "chickened out and shut the experiment down."

Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir.), cert. denied, 531 U.S. 1044 (2000).  Ford Bronco rolls over, killing and injuring occupants.  In suit against manufacturer, plaintiffs offer mechanical engineer who testifies re defective design and also re his reconstruction of accident.  Admissibility affirmed.  Ford says plaintiffs' expert did not inspect Bronco and was late in visiting scene of accident, but does not explain how these points are material to reliability of expert's methods.  Ford also says expert did not test his theory that Broncos oversteer and "jack," but Ford does not challenge principle that dynamics can be used to analyze vehicle design and predict vehicular motion.  District court acted within its sound discretion in concluding that Ford's points went to weight, not admissibility.

Duffy v. Ford Motor Co., 218 F.3d 623 (6th Cir. 2000).  Another Ford Bronco rolls over, killing occupant.  On third day of trial in original products liability suit, plaintiffs offer testimony from engineer re defective design and police investigator re occupants use of seatbelt.  District court excludes engineer's testimony under Daubert and excludes police investigator's testimony because investigator was not listed as expert witness in final pretrial statement.  Plaintiffs respond by moving for voluntary dismissal.  District court grants voluntary dismissal but only on condition that its rulings be applicable in any later-filed action, and also on condition that plaintiffs pay Ford's costs if they refile.  Plaintiffs refile case in state court.  Ford removes, and case is assigned to original district judge, who dismisses because plaintiffs cannot pay costs.  Reversed.  District courts may set conditions for voluntary dismissal, but here district court did not announce conditions until its order granting voluntary dismissal.  It should have given plaintiffs opportunity to withdraw motion for voluntary dismissal in light of proposed conditions.

Laski v. Bellwood, No. 99-1063 (6th Cir. May 25, 2000) (unpublished).  Plaintiff alleges auto collision caused his back pain.  At first trial, district court excludes four of plaintiffs' causation witnesses.  Plaintiff secures reversal of exclusionary ruling.  At second trial, defense offers biomechanical engineer who testifies at length re general biomechanical points relevant to accident and briefly re his opinion that this specific accident did not cause plaintiff's back pains.  Admissibility affirmed.  Plaintiff complains that biomechanical engineer's testimony should have been excluded as beyond scope of his expertise, but testimony mostly concerned general biomechanical principles, and only briefly touched on issues of specific medical causation that were arguably beyond biomechanical engineer's ken.  Moreover, having rejected defendants' argument, in prior appeal, that plaintiffs' experts should be excluded under Daubert because their expertise was medical as opposed to biomechanical, it would be ironic and unjust to rule now that defendants' expert should be excluded because his expertise is biomechanical as opposed to medical.

Harris v. Gen. Motors Corp., 201 F.3d 800 (6th Cir. 2000).  Driver of auto is injured when airbag deploys in low-speed head-on collision.  On summary judgment in products liability action, driver and passenger both offer affidavits testifying that driver was not injured in collision itself but rather by defective, late-deploying airbag that went off after collision was over.  Defendants offer affidavits from engineer and anatomist who opine, respectively, that airbag deployed during collision, not after, and that plaintiffs' injuries are consistent with deployment of airbag during collision.  District court discounts plaintiff's affidavits under "physical facts rule," which holds that testimony may be disregarded when it contradicts undisputed physical facts, and awards summary judgment to defendant.  Reversed.  Theories of defendants' experts were just that -- theories, and not undisputed physical facts.  Moreover, although plaintiff did not challenge defense experts' testimony under Daubert, district court "must" perform reliability analysis on remand -- particularly re engineer, whose testimony rested on unproven methodology associated with Diagnostic Energy Reserve Module ("black box" device in auto that mechanically records data re airbag deployment).

Fuesting v. Zimmer, Inc., 421 F.3d 528 (7th Cir. 2005) (see the briefs), modified, 448 F.3d 936 (7th Cir. 2006).  Prosthetic knee fails.  Patient sues manufacturer.  To show product defect and causation, patient relies on biomedical engineer James Pugh, who opines that manufacturer's sterilization method (gamma irradiation in air) caused implant's polyethylene to oxidate, delaminate, and fail.  District court admits testimony.  Jury awards damages.  Manufacturer appeals.  Admissibility reversed.  Patient begins appellate brief with five pages citing to published literature offering some support for his expert's theory.  But cited literature is not in record; citations in patient's brief are to quotations of literature by patient's counsel during cross-examination of defendant's expert, who mostly contested their validity.  This portion of patient's appellate brief is therefore stricken as misleading.  As for district court's ruling, its gatekeeping analysis is deficient, because district court focused primarily on expert's qualifications while addressing reliability in only conclusory fashion.  Expert's own causation analysis is, in fact, unreliable, because: (1) expert did not conduct or cite any testing to validate his theory; (2) there are unacceptable analytical gaps between expert's basic underlying theory about general physical processes of delamination (which manufacturer concedes in principle) and expert's concrete conclusions about this particular case; (3) expert's theory that delamination from gamma irradiation leaves physical signature that distinguishes it from delamination attributable to other causes has not been published in peer-reviewed literature and does not enjoy general acceptance; and (4) expert developed his theory for litigation.  Expert's testimony on defect is likewise flawed, in part because sterilization via gamma irradiation in air was universally employed in industry at relevant time.  Remanded with instructions to enter directed verdict for manufacturer.

Mihailovich v. Laatsch, 359 F.3d 892 (7th Cir.) (see the briefs), cert. denied, 543 U.S. 926 (2004).  Plaintiff sustains spinal injury in one-car accident on curved roadway.  She sues Cook County in state court, alleging that its negligent maintenance of roadway caused accident.  Her attorneys fail to secure expert testimony and her claims are dismissed on summary judgment.  Plaintiff proceeds to bring legal malpractice action against her state court attorneys.  To prove that she would have prevailed in underlying litigation but for state court attorneys' inadequate performance, she offers testimony from civil engineer William Berg, who opines, based in part on human factors analysis, that curve's unsafe condition due to county's negligent maintenance helped to cause accident.  District court excludes testimony as unreliable.  Jury finds for defendants.  Exclusion reversed.  District court did not adequately explain basis for exclusionary ruling, merely citing Daubert factors without discussing how they applied to testimony in question.  District court also erred in excluding factual evidence of other accidents at same curve.  On remand, district court should undertake renewed Daubert analysis.  Seventh Circuit panel will not prescribe outcome of that analysis, but notes that expert's opinion was well supported on several grounds.

Chapman v. Maytag Corp., 297 F.3d 682 (7th Cir. 2002) (see the briefs).  Did conceded defect in wiring of Maytag range cause plaintiff's electrocution, or was it caused by plaintiff's conceded failure to heed Maytag's warning to plug range into properly grounded outlet?  Plaintiff offers testimony from James Petry, who holds B.A. in mechanical engineering, and who opines that incident resulted from "resistive short" which would not have tripped circuit breaker even if outlet were grounded.  District court admits testimony over defendants' objection and jury returns verdict for plaintiff.  Admissibility reversed.  Defendants complain that expert's credentials are weak, and that he conducted no tests, cited no supportive literature, and relied on novel and unproven theory.  And indeed, expert satisfied none of Daubert's guideposts for reliability.  Reversed and remanded for new trial. 

Masters v. Hesston Corp., 291 F.3d 985 (7th Cir. 2002) (see the briefs).  Man loses arm to hay baling machine.  In suit against manufacturer, man offers opinion of engineer Paul Walker that machine was negligently designed in light of then-prevailing standards.  District court excludes testimony and grants summary judgment to manufacturer.  Exclusion affirmed.  Engineer testified that feed rollers should have been eliminated or guarded under standards contemporaneously promulgated by American Society of Agricultural Engineers.  But engineer offered no support for proposition that feed rollers could be eliminated, or moved to safe location under machine, without interfering with machinery's functionality.  Engineer also argued that baling machine should have incorporated "open throat" design that would not require feed rolls.  But engineer offered no reliable support for proposition that open throat technology was feasible in 1975, when manufacturer sold machine, and that proposition is suspect, because open throat balers only hit the market in 1977.

Dhillon v. Crown Controls Corp., 269 F.3d 865 (7th Cir. 2001).  Would worker's leg have been injured in forklift mishap if forklift had rear door instead of mere opening?  In suit against forklift manufacturer, worker offers testimony from mechanical engineer and biomechanical engineer re desirability of rear doors in forklifts.  District court excludes testimony as unreliable.  Exclusion affirmed.  Most glaring problem with experts' proposed testimony is that neither expert had designed forklifts with rear doors or tested any model with rear door -- at least not in context of this lawsuit.  Mechanical engineer had previously tested forklifts with rear doors, but those tests were not part of record and were performed on differently designed forklifts.  Moreover, mechanical engineer did not explain how those tests led to his conclusion that doors were appropriate.  Without detailed explanation of tests, defendant could not attempt to duplicate results -- and some evidence actually suggests that doors could exacerbate risk by hindering escape.  Biomechanical expert proposed to testify that leg can fall through opening but not through closed door, but that testimony would not fall outside jury's general knowledge.

Goodwin v. MTD Prods., 232 F.3d 600 (7th Cir. 2000).  Operator of lawnmower suffers eye lacerations when lawnmower discharges plastic wing nut at high velocity.  At resulting products liability trial, defendant offers testimony from engineer who serves as defendant's corporate vice-president.  District court refuses to let engineer testify on cause of eye laceration, or to opine on credibility of plaintiff's claim that he was in operator's zone behind lawnmower when accident occurred.  Exclusion affirmed.  Engineer had no medical training that would qualify him to render opinion on cause of eye laceration, and issue of plaintiff's credibility was for jury.

Bourelle v. Crown Equip. Corp., 220 F.3d 532 (7th Cir. 2000).  Workers are injured when pallet falls into forklift operator's compartment.  In products liability claim against forklift manufacturer, workers offer engineer to testify that forklift was defective because it lacked more extensive guarding, and also because it should have carried warning re falling pallets.  District court excludes testimony and awards summary judgment to defendant.  Exclusion affirmed.  Expert was qualified but admitted he performed no testing or studies re his proposed alternative design, that no lab or organization had tested his theories, that no other manufacturer had incorporated his proposed design, and that he had not reviewed any industry studies of accident experience with this forklift.  He never saw or inspected the forklift at issue (except in pictures and videotapes), observed forklift in operation, prepared any drawings re his alternative design theory, conducted any computer analysis, or submitted his proposed alternative design to American National Standards Institute.  His investigation consisted merely of reading depositions of plaintiffs and other persons with knowledge of plaintiffs' accidents, and reviewing manufacturer's manufacturing and service documents, sales brochures, training manual, and engineering drawings.  District court did not err in emphasizing failure to test, and engineer's testimony on design issues did not satisfy other Daubert factors anyway.  As to engineer's opinion on warning, engineer admitted he had not drafted any warning, and he could propose no language for warning at deposition.  Far from constituting abuse of discretion, district court's exclusion of engineer's opinion on warning was absolutely correct.  "Talking off the cuff -- deploying neither data nor analysis -- is not acceptable methodology."

Weir v. Crown Equip. Corp., 217 F.3d 453 (7th Cir. 2000).  More Seventh Circuit forklift jurisprudence.  (See Dhillon and Bourelle, supra.)  Woman whose foot was injured in workplace forklift mishap offers testimony from engineer that low-speed collision would not have caused woman's foot to protrude from operator compartment if forklift were equipped with rear barrier or door, like some other forklifts from same manufacturer.  Exclusion affirmed.  District court properly concluded that "barrier" evidence was irrelevant because no credible foundation established that impact was what caused woman's foot to be outside forklift.  Likelier scenario is that woman was hopping from her forklift in order to move another, parked forklift, in violation of safety rules.

Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000).  Driver is injured in crash when steering mechanism in van malfunctions.  At products liability trial, driver offers testimony from mechanical engineer who attributes loss of steering to internal gearbox failure.  Driver also offers metallurgical engineer, who has tested gearbox and opines that gearbox failed due to torsion bar overload and that using different metal for torsion bar would have been better choice.  Neither expert can say whether defect should be characterized as design defect or manufacturing defect.  On day of trial, district court excludes testimony from both experts, because neither claims to be gearbox expert or automotive engineer, because their work has not been published or peer reviewed, and because neither will opine on ultimate issue of whether alleged defect is one of design or one of manufacture.  District court then declines plaintiff's request for continuance to find new experts and awards summary judgment to defendant.  Exclusion reversed.  Witnesses concededly were not automotive engineers, but their expertise was nevertheless relevant, and district court appears to have focused inappropriately on peer review and publication, which may be less significant in this context than acceptance of experts' theories in engineering and accident analysis communities.  Nor need expert opine on ultimate issue of design defect versus manufacturing defect for testimony to be admissible.   Because exclusion of witnesses is reversed, court of appeals need not reach issue of whether continuance should have been granted to find new expert witnesses.  However, in cases heavily reliant on expert evidence, trial courts should set discovery and trial schedules that give litigants realistic opportunity to develop such evidence and to locate experts who meet Daubert's requirements.

Walker v. Soo Line R.R., 208 F.3d 581 (7th Cir.), cert. denied, 531 U.S. 930 (2000).  Employee is struck by lightning while working in railroad tower and subsequently suffers from psychological damage and impaired ability to work.  In FELA action against railroad, plaintiff's electrical engineering expert attempts to testify to how lighting striking at various locations in railroad yard would have injured plaintiff, but district court permits engineer to testify only re scenarios involving direct lightning strike on tower.  Exclusion reversed.  Engineer should have been permitted to testify to different scenarios where lightning struck railroad yard in various locations, even though unable to opine on exactly where lightning did strike.  Jury could then hear conflicting eyewitness testimony on actual location of lightning strike and apply engineer's testimony in light of their factual conclusion on subject.

Smith v. Cangieter, No. 05-3902 (8th Cir. Sept. 11, 2006).  Rented 1998 Nissan Pathfinder swerves, spins sideways, enters median, and rolls over into oncoming traffic lanes, ejecting and killing all four passengers.  Did accident result from design defect that rendered Pathfinder unstable when operated on dry pavement in four-wheel drive mode?  Family members think so, and sue.  To support their theory, they offer testimony from mechanical engineer Richard Ziernicki, Ph.D.  District court excludes testimony as unreliable after Daubert hearing, and goes on to award summary judgment to defendants.  Exclusion affirmed.  As district court conceded, peer-reviewed literature does support contention that part-time four-wheel drive systems can cause slippage and loss of traction.  But engineer cited no evidence that this made Pathfinder dangerous.  He neither drove any similar vehicle at high speeds on dry pavement nor cited any testing or research on how much degradation in traction is necessary before vehicles become unsafe. 

Wagner v. Hesston Corp., 450 F.3d 756 (8th Cir. 2006).  Man's hand is caught in hay baler's intake as he attempts to clear obstruction.  Man resolves problem by amputating own hand.  He then brings products liability suit against baler's manufacturer, alleging defective design.  On summary judgment, he offers John Sevart and Jonathan Chaplin as experts on design of agricultural machinery.  They opine that baler should have had safety guard at intake point, emergency stop device, and open throat design.  District court excludes their testimony as unreliable and awards summary judgment to manufacturer.  Exclusions affirmed.  District court applied Daubert factors and found experts' opinions to be thin on testing, peer review, and general acceptance.  Its ruling was within its sound discretion.

Miller v. Baker Implement Co., 439 F.3d 407 (8th Cir. 2006).  Cotton picker is destroyed when it catches fire and its two attached fire extinguishers fail to operate properly.  Owner's subrogated insurer brings products liability suit against cotton picker's manufacturer and fire extinguishers' manufacturer.  Insurer initially submits reports from engineer William Ford, who opines that onboard fire suppression system or operable fire extinguishers would have mitigated damage, and from Jim Swaim, expert on fire origin investigation, who opines along similar lines.  Insurer later moves for late designation of third expert, engineer Ernest Barany, who opines that fire would have caused minimal damage had cotton picker been equipped with automatic fire extinguishing system like those available in combine harvesters.  Defendants move for summary judgment and for exclusion of Ford's and Swaim's testimony under Daubert.  Defendants also oppose insurer's designation of Barany as untimely.  District court excludes Ford's and Swaim's testimony, and also holds, sua sponte, that Barany's opinion would be inadmissible under Daubert.  District court then awards summary judgment to defendants.  Exclusions affirmed.  Neither Ford nor Swaim stated that any onboard fire suppression system could have been employed on cotton picker, nor did either expert offer any substantial basis for their contention that operable fire extinguishers would have contained fire.  Insurer complains that district court held no live Daubert hearing before excluding their testimony, but insurer submitted briefs and affidavits, and its right to be heard was not infringed.  As for Barany, district court did not abuse its discretion in considering Daubert sua sponte in its ruling on insurer's motion for late designation.  Between Barany's report and parties' Daubert briefing on other experts, district court had benefit of sufficient record to conduct its Daubert analysis of Barany's testimony.  Moreover, Barany's report could have established only that it was feasible to install onboard fire suppression system on combine harvesters, not on cotton pickers.

Unrein v. Timesavers, Inc., 394 F.3d 1008 (8th Cir. 2005).  Worker's arm is injured in industrial sander.  Worker sues sander's manufacturer, alleging design defect.  In support, she offers testimony from engineer Tarald O. Kvalseth, Ph.D., who opines that sander should have incorporated guard or automatic braking system.  District court excludes testimony, because Dr. Kvalseth has not shown that his design proposals are feasible or compatible with sander's operation, and awards summary judgment to manufacturer.  Exclusion affirmed.  Contrary to manufacturer's argument, experts need not manufacture prototypes for their design testimony to be admissible.  But engineer's testimony was unreliable for other reasons.  He did not prepare drawings, present photographs showing use of proposed design features in similar machines, or detail how his design proposals would function.

Shaffer v. Amada Am., Inc., No. 03-1388 (8th Cir. Sept. 18, 2003) (unpublished), cert. denied, 541 U.S. 1005 (2004).  Worker crushes fingers while repairing press brake machine.  In suit against machine's manufacturer, worker offers testimony from Dr. Farid Amirouche, mechanical engineer, to prove defective design.  District court excludes testimony and awards summary judgment to defendant.  Exclusion affirmed.  Expert had over twenty years' experience in mechanical engineering, but substantially no experience with press brakes.

Anderson v. Raymond Corp., 340 F.3d 520 (8th Cir. 2003).  Worker is injured when ejected from stand-up power lift truck.  In product liability action against lift truck's manufacturer, worker offers testimony from engineer Andrew LeCocq, who opines that lift truck was defectively designed because it had open cockpit with no operator restraints and because it carried no warnings.  District court excludes testimony as unreliable, and grants continuance for worker to designate new expert.  Worker designates new expert but discloses his preliminary report only after deadline's expiration.  District court strikes testimony from new expert as untimely and grants summary judgment to defendant.  Exclusion affirmed.  LeCocq admits he is not expert in design or engineering of stand-up lift trucks.  He has never participated in design of any lift truck or in preparing any lift truck warning.  He never operated any lift truck, nor observed any lift truck in operation, before this case.  No abuse of discretion.

Lauzon v. Senco Prods., 270 F.3d 681 (8th Cir. 2001).  Worker injures hand with bottom-fired pneumatic nailer.  In design defect suit against manufacturer, engineer testifies for worker that bottom-fired nailers are inherently dangerous and that use of sequential-fire nailers is practicable and safer.  District court excludes testimony under Daubert and awards summary judgment to defendant.  Exclusion reversed.  Engineer has testified in numerous previous cases involving pneumatic nailers.  In this case, he conducted tests, authored and relied on peer-reviewed publications, and offered theory that enjoyed widespread acceptance.  True, engineer's introduction to pneumatic nailers was through litigation, but this slightly negative factor is outweighed by reliability of his methodologies.  District court said that engineer did not rule out competing causes, but this goal cannot be carried to quixotic extremes, and he did rule out manufacturing defects.  Finally, as to relevance, district court was troubled that engineer's reconstruction of accident did not seem to match plaintiff's.  But plaintiff said his account was uncertain, because it happened so fast, and engineer's account of probable events in accident had sufficient nexus to plaintiff's testimony.  All in all, Eighth Circuit is led "ineluctably" to reversal.

Giles v. Miners, Inc., 242 F.3d 810 (8th Cir. 2001).  Girl gets frostbite when attempting to retrieve popsicle from grocery store freezer.  Parents sue freezer manufacturer on design defect theory.  District court excludes proffered testimony from engineer [?] that mesh safety guard would prevent hands from sticking to sides of freezer's interior.  Exclusion affirmed.  Plaintiffs argue that district court erred in applying Daubert factors because expert's testimony involved engineering principles, not novel scientific theories.  But district courts have wide discretion to determine whether Daubert factors are appropriate indicia of reliability in each particular case.  Expert testimony on defective design has been excluded in other cases where reliability was found wanting.  Here, expert apparently did not consider how mesh would interact with freezer's proper functioning.  Also, mesh would apparently violate government and industry design standards, which require sanitary and easily cleanable surfaces that do not allow growth of mold and bacteria.

DiCarlo v. Keller Ladders, Inc., 211 F.3d 465 (8th Cir. 2000).  Man brings products liability claim against manufacturer of stepladder from which he fell.  Jury returns verdict for manufacturer after hearing from defendant's engineering expert.  Admissibility affirmed.  Plaintiff contends testimony from defense expert was unreliable because expert was biased, but district court properly left questions of bias and credibility for jury.

Massok v. Keller Indus., Inc., No. 03-55949 (9th Cir. Sept. 1, 2005) (unpublished).  Plaintiff sues ladder manufacturer for injuries he suffered when ladder slipped from underneath him.  To show defective design, plaintiff offers testimony from engineer David Paul.  Trial court initially denies defendant's pretrial motion in limine but ultimately strikes expert's testimony at trial for lack of sufficient qualifications and awards judgment as matter of law to defendant.  Plaintiff appeals.  Exclusion affirmed.  Expert testified he held bachelor's degree in mechanical engineering, worked as forensic engineer, and had extensive experience in analyzing ladder slip-out cases.  But trial court found that witness had never designed ladders or written or lectured on subject.  Moreover, witness relied on inadequate testing and had failed state mechanical engineering exam five times.  It is true that formal credentials are not necessarily required to qualify as expert witness, and reasonable minds could differ in this instance.  But trial court did not abuse its discretion.  Nor did trial court err in reversing course from its pretrial ruling; even if nothing unexpected happened at trial, trial court was free to change its mind.  Concurrence/dissent: Exclusion of expert's testimony was permissible but judgment as matter of law was improper.

Bobacher v. Wacker USA Corp., No. 03-15752 (9th Cir. Oct. 15, 2004) (unpublished).  District court excludes testimony from plaintiffs' expert in failure to warn claim involving saw.  Exclusion affirmed.  Lower court did not err in finding testimony unreliable because expert performed no tests and produced no published tests on saw's fastening system.

White v. Ford Motor Co., No. 99-15185 (9th Cir. Dec. 3, 2002).  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.

Furry v. Bielomatik, Inc., No. 01-55442 (9th Cir. Mar. 21, 2002) (unpublished), cert. denied, 537 U.S. 886 (2002).  Fingers of worker's right hand are crushed between rollers of paper converting machine.  In products liability suit against machine's manufacturer, worker offers testimony from safety engineer, Dr. Waymon Johnston, that machine should have been equipped with four different safety features.  District court excludes Dr. Johnston's testimony and awards summary judgment to defendant, because Dr. Johnston offers no details on design of safety features he proposes.  Exclusion reversed.  Safety engineers are not required to opine on design or function of safety features.  Rather, according to Dr. Johnston's testimony, their role is to make conceptual determination whether safety feature is required, whereupon design and implementation are left to mechanical or electrical engineers.  True, plaintiff was required to offer evidence that proposed safety features were practicable, but such testimony did not have to come from Dr. Johnston himself, and plaintiffs did offer evidence on this subject from other sources, including defendants' discovery responses.  District court abused discretion in excluding Dr. Johnston's testimony.  Because based entirely on exclusion of plaintiff's expert testimony, summary judgment is reversed.

Guidroz-Brault v. Mo. Pac. R.R., 254 F.3d 825 (9th Cir. 2001).  Unknown saboteurs tamper with train rails and disable electric warning system.  Passengers injured in consequent derailment bring negligence action against railroad, offering three expert witnesses: (1) locomotive engineer, who testifies to duty of locomotive engineers to maintain lookout; (2) technical lighting engineer, who testifies that displacement in rails should be visible for 500 feet; and (3) accident reconstructionist, who testifies, assuming visibility of damage to tracks, that emergency brakes should have been applied 400 feet from site of derailment.  District court awards summary judgment after excluding testimony from all three experts as speculative and unreliable.  Exclusion affirmed.  District court gave only abbreviated consideration to experts' qualifications and reliability, because district court believed plaintiffs' claims to be barred in any event on theory that sabotage of tracks was unforeseeable and superseding cause of injuries.  However, even assuming, arguendo, that saboteurs' conduct was not superseding cause of derailment, plaintiffs must show that railroad could have averted accident.  In this light, district court was correct to exclude most of evidence and did not abuse its discretion.  (1) Locomotive engineer properly testified on operating procedures and standards of care for railroad engineer, but testimony on duty of lookout falsely presupposed that some defect in tracks was visible, whereas no record evidence established this.  (2) Lighting engineer's testimony contradicted locomotive engineer's as to visibility of tracks.  Contradictions between methodologies of plaintiffs' experts make exclusion under Daubert appropriate "to some extent," at least absent firm record evidence that some manifestation of track displacement would have been visible.  (3) Accident reconstructionist's testimony was likewise predicated on unsupported assumption that track damage was visible.

Bitler v. A.O. Smith Corp., 391 F.3d 1114 (10th Cir. 2004), reprinted as amended, 400 F.3d 1227 (10th Cir. 2004), cert. denied, 126 S. Ct. 395 (2005).  Injured in fire sparked by basement gas explosion, man blames propane water heater, alleging that its defective design permitted accumulation of copper sulfide on safety valve seat, preventing seal from closing and creating gas leak.  On summary judgment, manufacturer offers testimony from fire investigation expert, Eden Boh, who opines that water heater was source of accident, and from plaintiffs' engineer and accident investigator, Donald Sommer, who opines that gas leak was caused by copper sulfide deposits.  District judge overrules defendants' reliability objections and denies summary judgment.  In subsequent pretrial proceedings, magistrate judge refuses reconsideration of district judge's ruling on admissibility of Sommer's testimony.  Jury awards substantial damages at trial and manufacturer appeals.  Admissibility affirmed.  Magistrate judge was not required to revisit district judge's prior ruling on admissibility of Sommer's testimony; trial courts must perform their gatekeeping function, but once they have performed it, they are not required to "linger at the 'gate,' as if caught in Zeno's paradox."  On merits of evidentiary rulings, Boh performed standard fire investigation procedure of observing conditions at scene and deducing cause of accident.  Such methods are not susceptible of testing or peer review but are generally accepted in field of fire investigation.  As to Sommer, defendants fault his lack of "testing," but gas explosion was one-time occurrence; Sommer was not relying on novel theories about causal relations among regularly recurring natural phenomena.  His approach of considering various possible causes and ruling out implausible causes is methodologically similar to technique of differential diagnosis upheld in other contexts.  No abuse of discretion. 

Vanover v. Altec Indus., Inc., No. 03-5016 (10th Cir. Nov. 28, 2003) (unpublished).  Lineman is electrocuted while in aerial lift on repair truck.  His survivors sue lift manufacturer, relying on testimony from mechanical engineer, Dr. R.K. Tessman, who opines that lift suffers from design defect, because its mandatory load-holding safety device, which locked boom in position when accident occurred, incorporates no manual override that would have permitted coworker to lower lift to ground so as to administer CPR to lineman.  District court excludes testimony as unreliable and awards summary judgment.  Exclusion affirmed.  Expert has no experience or training in boom trucks or aerial lifts, and his proposed design is untested and unpublished. 

Black v. M&W Gear Co., 269 F.3d 1220 (10th Cir. 2001).  Tractor mower rolls over, killing rider.  In products liability action against mower's manufacturer, plaintiff's theory is that mower was defective because it did not have any rollover protective structure (ROPS).  Manufacturer offers engineering expert to testify that ROPS would not have prevented fatality.  District court excludes testimony because expert made no tests or calculations.  Exclusion affirmed.  Trial court cannot be said to have abused discretion.

Alfred v. Caterpillar, Inc., 262 F.3d 1083 (10th Cir. 2001), cert. denied, 535 U.S. 928 (2002).  Operator accidentally propels paver in wrong direction and pins woman against tree, causing injuries requiring amputation of her leg.  In defective design suit against paver manufacturer, woman offers testimony from engineer that paver's use of rotary speed control instead of lever violated industry standards and made for "counterintuitive" operation.  Trial court grants motion to exclude engineer's testimony after close of plaintiff's evidence and awards judgment to defendant as matter of law.  Exclusion reversed in part.  Tenth Circuit has previously upheld district court's refusal to consider tardily filed Daubert motions and has criticized practice of filing Daubert motions after close of evidence.  Here, district court chose to consider defendant's Daubert motion instead of treating it as waived.  But because of its disposition on merits, Tenth Circuit will leave further development of jurisprudence on timing of Daubert motions for another day.  District court erred in excluding engineer's testimony that use of rotary speed control  violated engineering standards promulgated by Society of Automotive Engineers.  But expert's opinion on "counterintuitive" operation involved analysis of human factors, which fell outside engineer's expertise.  Without latter testimony, plaintiff had insufficient evidence to prove defect, and award to defendant of judgment as matter of law was therefore appropriate.

Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir. 2000).  Operator of construction equipment fails to notice coworker, whose leg is consequently crushed by machine and subsequently amputated.  Should machine have had mirrors, which might have rendered injured worker visible to operator?  Or would mirrors just foster undue operator complacency, thereby causing more accidents than they prevented?  In product liability suit against machine's manufacturer, injured worker offers testimony on design defects from human factors engineer and from safety consultant, as well as nonquantitative testimony on hedonic damages from forensic economist.  Jury returns verdict of $27 million in compensatory and punitive damages.  Admissibility affirmed.  Manufacturer objects that neither engineer nor safety consultant had firsthand experience with relevant machine, but such firsthand knowledge is not prerequisite to admissibility of expert testimony.  This objection goes to weight.  As for forensic economist, defendant succeeded in excluding economist's testimony on value of plaintiff's hedonic damages, and so economist testified only to commonsense qualitative proposition that value of life is not measured exclusively by individual's earning power.  District court soundly exercised discretion in permitting this component of economist's testimony, so that jury would not overlook component of damages permitted under relevant law.

Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir.), cert. denied, 126 S. Ct. 419 (2005).  Tampa residents fall ill after area is sprayed with pesticide.  They sue pesticide manufacturer, claiming that process of chemical decomposition led to formation of toxic isomalathion when pesticide was stored in overheated warehouses in Florida, Georgia, and Texas.  Their chemical engineering expert, Dr. Jack Matson, collects meteorological data for relevant storage sites, calculates warehouse temperatures during pertinent period, and opines that temperatures were high enough to cause decomposition.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Based on indirect evidence that temperature inside Texas warehouse was 18 degrees above ambient outdoor temperature, expert made upward adjustment to temperatures for warehouses in all three states, based on their structural similarities and basic latitudinal equivalence.  But district court permissibly found that Matson could not reliably generalize to all storage facilities from Texas example without investigating all of them.  Moreover, even evidence of temperature differential for Texas depended on leap of faith that district court permissibly rejected.

Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329 (11th Cir. 2003).  Army UH-1 helicopter's tail fin separates from helicopter during Medivac mission in May 1999, causing crash in which two pilots are injured.  Army's investigation reveals that separation resulted from rupture of forward vertical fin spar, caused by crack originating at rivet hole.  Pilots bring separate suits in same district court, assigned to two different judges, against various entities including DynCorp, which handled helicopter inspection and maintenance under Army contract.  DynCorp raises "government contractor" defense, noting that Army's protocols required only unaided visual inspection, and contending that crack was not visible to naked eye prior to crash.  On DynCorp's motion for summary judgment, submitted in both cases, plaintiffs counter with three expert affiants: (1) B.J. Sammons, lead mechanic at helicopter's base for forty years until his retirement one day prior to accident, who opines that if properly conducted in conformity with Army procedures, inspection in October 1998 would have discovered any visible spar cracks; (2) Steve Powell, helicopter manufacturer's field investigator, who opines, based on electron microscope images of wreckage, that crack would have been visible to naked eye prior to crash; and (3) materials engineer Richard H. McSwain, Ph.D., who opines that crack would have been visible to naked eye and also through nondestructive testing.  District court strikes: (1) in one pilot's case, mechanic's testimony re October 1998 inspection; (2) field investigator's testimony that crack would have been visible; and (3) engineer's testimony re visibility of crack to naked eye.  District court then awards summary judgment to DynCorp.  Exclusions affirmed in part and reversed in part.  Even when district court's single reversible expert ruling is rectified, plaintiffs lack evidence sufficient to create genuine issue of material fact on visibility of crack at relevant time.  (1) Exclusion of mechanic's testimony appears to have rested on relevance grounds.  If so, ruling was error, because testimony was relevant to show that DynCorp's conformity to Army inspection protocols would have led to discovery of any visible spar cracks.  (2) In striking field investigator's testimony, district court relied on rationale that witness was unfamiliar with DynCorp's inspection procedures.  This was "error," because district court's rationale is unrelated to physical visibility of cracks, but district court did not abuse discretion in excluding testimony, because mere ability to operate electron microscope would not qualify witness to opine on timing or visibility of spar cracks, and because plaintiffs identified no other reliable methodology supporting investigator's opinion.  (3) In striking engineer's testimony, one district judge inappropriately based decision on irrelevant fact that engineer had not never previously seen any UH-1 helicopter, and second district judge merely alluded conclusorily to lack of "factual basis" for engineer's opinion.  Neither judge's ruling on engineer need be reversed, however, because Daubert required testimony's exclusion, since engineer relied on important inferences for which he offered no reliable basis. 

McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253 (11th Cir. July 24, 2002).  Catheter explodes inside patient.  In suit against manufacturer and distributor, plaintiff offers two physicians and one engineering expert to opine that catheter was defectively designed and/or manufactured.  District court excludes engineering expert's testimony, then awards summary judgment to defendants on theory that physicians' testimony cannot support legal inference of product defect.  Exclusion affirmed.  Plaintiff complains that district court improperly evaluated engineer's credibility, and says that any methodological flaws in expert's analysis could have been addressed on cross.  However, district court did not abuse discretion in excluding his testimony.  Expert did not test alternative catheter designs, did not talk to medical personnel, cited no supporting literature, and did not test for extrinsic causes such as improper storage of catheter.  Nevertheless, testimony from physicians was sufficient to support inference of product defect, so summary judgment is reversed and plaintiffs' claims remanded.  

Biotec Biologische Naturverpackengun GmbH & Co. v. Biocorp, Inc., 249 F.3d 1341 (Fed. Cir. 2001).  Engineering experts in patent dispute differ on how to count crystalline content in thermostatically processable starch.  Should trial court have specifically instructed jury on which diffraction peaks to ignore in calculating crystalline content of relevant products?  Admissibility affirmed.  Trial court's job is not to remove evidence from hearing of jury, but to ensure that expert evidence is relevant and reliable.  It would contravene fundamental principles of fairness and due process to withhold evidence of disparate scientific opinion from jury.

Union Pac. Res. Co. v. Chesapeake Energy Corp., 236 F.3d 684 (Fed. Cir. 2001).  In patent infringement trial conducted in Northern District of Texas prior to amendment of Fed. R. Evid. 701 in 2000 to bar lay opinion testimony calling for specialized knowledge within scope of Fed. R. Evid. 702, defendant calls eight witnesses who testify on enablement, over plaintiff's objection, without being treated as experts.  Judge finds for defendants.  Admissibility affirmed.  Federal Circuit reviews evidentiary decisions under law of circuit where trial was conducted.  Fifth Circuit has permitted lay opinion founded on specialized knowledge, where opinion derives from personal perception and is one that normal person would form from those perceptions.  Witnesses here had extensive experience in relevant industry, and worked for companies that contributed to prior art.  Because they "may have testified based on their own personal experiences," any alleged prejudicial error does not rise to level of abuse of discretion.

Utah Med. Prods., Inc. v. Clinical Innovations Assoc., No. 00-1140 (Fed. Cir. Dec. 13, 2000) (unpublished).  To prove falsity of advertising in Lanham Act claim, plaintiff offers testimony from biomedical engineer that "sensor-tipped" catheters would have pressure transducers in their tip.  District court excludes testimony as irrelevant and awards summary judgment to defendants.  Exclusion affirmed.  Expert admitted he did no research on meaning that "sensor-tipped" would carry to consumers of intrauterine catheters or in context of ads.

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