Expert Opinion On Industry Standards

In strict product liability litigation, error in excluding decedent expert’s opinion that was based on defendant’s test of a later model of the alleged defective product for its compliance with applicable industry standards (requiring the device perform under conditions that equaled or exceeded those present during the plaintiff’s accident) because it was relevant to the plaintiff’s theory that defendant could and should have produced and supplied this later model for use by the decedent as a reasonable alternative design that would have prevented the accident, in Sappington v. Skyjack, Inc., 512 F.3d 440 (8th Cir. Jan. 4, 2008) (No. 06-3855)

One common sort of expert evidence involves the presentation and application of a relevant industry standard in the determination of the reliability of an expert. Sometimes the standards used are formally promulgated, and other times the standards are more in the nature of testimony of industry practices. See, e.g., SR Intern. Business Ins. Co., Ltd. v. World Trade Center Properties, LLC, 467 F.3d 107, 134 (2d Cir. 2006) (admitting insurance expert’s testimony about the customs and practices in the property insurance industry in defining the term “occurrence”); Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1088 (10th Cir. 2001) (admitting expert’s testimony that the paver manufactured by the defendant was defective because it did not satisfy industry standard). Tthe Eighth Circuit has explored in some detail the admissibility of a party's proffer of expert testimony regarding industry standards.

In the case, decedent Suppington was working for a subcontractor at a parking lot when a SJII scissors lift reversed direction, its rear wheels fell into a hole, and threw him from the device when it tipped. He died. The scissors lift, which was manufactured by defendant Skyjack, did not have “pothole protection” technology, which was used on a later version of the lift. The “pothole protection” served to stabilize the lift when a wheel of the device fell into a pothole.

The decedent’s survivors, the plaintiffs, brought a strict product liability action under state law, contending that safety pothole protection technology was used in the industry and that it had been feasible for use by the defendant at the time it produced the allegedly defective device. Had it been used, argued the plaintiff, it would have prevented the accident. To prove this strict liability claim under applicable Missouri law, the plaintiff sought to present expert testimony.

Among the plaintiff's witnesses was Blundell, a mechanical engineering professor. For purposes of testifying as an expert witness he reviewed “depositions (including testimony detailing stability testing of the SJIII conducted by Skyjack), accident scene photographs, photographs from Skyjack’s post-accident investigation, [and] reports authored by Johnson," an expert for the plaintiff who tested a SJIII model of the lift (a later version of the device involved in the Suppington accident). Johnson "sought to 'determine whether under conditions similar to those at the accident scene," if the SJIII would remain upright. Johnson reported that it did. Additionally, Blundell used "the OSHA investigation file [of the accident] … the SJII and SJIII operating manuals, American National Standards Institute (ANSI) standards” that applied to the lift. He “did not conduct independent testing, but instead relied on stability testing of the SJIII lift performed by Johnson and Skyjack.” Sappington, 512 F.3d at 444.

Based on these materials, Blundell opined that the model involved in the decedent’s accident (SJII) “was defective and unreasonably dangerous because it did not remain upright when its wheels dropped into a depression.” Sappington, 512 F.3d at 444. This would not have happened, reasoned Blundell, had the defendant incorporated the SJIII pothole protection technology in the model, which it “could and should” have done. With use of the feasible pothole protection technology available at the time of manufacture of the defective device “the accident would not have occurred.” Sappington, 512 F.3d at 445.

At the close of discovery, the defense moved for the court to exclude the plaintiff’s expert testimony and for summary judgment. The trial court concluded the expert opinions were not relevant nor reliable. Without expert testimony, the trial court found that the plaintiff failed to prove the strict product liability claim. The plaintiff appealed.

The Eighth Circuit reversed the summary judgment determination and the order excluding the testimony of the plaintiff’s experts, including Blundell. The circuit found that the trial court erred in excluding his testimony on the utility of pothole protection when he based this view on testing the defendant conducted of the later model (SJIII) of the device involved in the accident (the SJII). The defendant was testing the later model to ensure that it satisfied then-current standards of the industry (the ANSI standards). As explained by the circuit: “The testing conditions imposed by the ANSI standard are clearly set forth and equal or exceed those present during the accident and the testing performed by Johnson…. Thus, it was an abuse of discretion for the district court to refuse to allow Dr. Blundell to rely on Skyjack’s own testing, which it concedes was done in compliance with the ANSI standard.” Sappington, 512 F.3d at 442.

The circuit also noted that the trial court erred in applying to this evidence a mistaken standard of relevance to Blundell's testimony. The trial court “believed an ANSI standard would only be relevant to prove the manufacturer’s product was not in compliance with industry standards or the “state of the art” at the time the product was manufactured. A state-of-the-art argument would be relevant if this was a products liability claim based on negligence, where the plaintiff might offer the then existing ANSI standard to argue the manufacturer knew or should have known about the industry standard.” Sappington, 512 F.3d at 442.

However, this was not the plaintiff’s theory of the case. Instead, the plaintiff was offering the ANSI standard not“to show the SJII did not comply with a standard yet to be written. Instead, Plaintiffs argue[d] 1) the SJIII could and should have been manufactured in 1995, 2) the SJIII meets the testing requirements imposed by the current ANSI standard, 3) the conditions required by the current ANSI standard equal or exceed the conditions present at the accident scene, and 4) the SJIII was a reasonable alternative design and would have prevented the accident.” Sappington, 512 F.3d at 442.

The circuit also concluded that the trial court erred in excluding as unreliable the second expert’s opinion that incorporating pothole protection on the device used by the plaintiff had been feasible at the time it was manufactured. The expert based this view on the fact that another manufacturer began outfitting its lifts with pothole protection about eight years before the defendant made the lift that was used by the plaintiff. Sappington, 512 F.3d at 453.

The trial court based its exclusion on its finding that the expert did not personally observe other manufacturer’s lift and did not test that lift for stability. The lack of personal observation and testing was not significant because the evidence was proffered to show that pothole protection was available long before the defendant manufactured the device involved in the accident. The evidence only went to show the availability of the technology.

The circuit also found erroneous the trial court’s exclusion of the expert’s testimony because it did not touch on factors like “1) federal standards, 2) standards established by independent organizations, 3) relevant literature, 4) industry practice, 5) product design and accident history, 6) charts and diagrams, 7) scientific testing, 8) feasibility of alternative design, and 9) risk utility of proposed alternative design.” The circuit did not carefully address this issue and in a conclusory manner stated:

To the extent these factors are relevant to the current inquiry, we are satisfied Dr. Blundell’s opinions comport with the additional requirements…. Dr. Blundell’s opinions take the relevant ANSI standards into account. Dr. Blundell also reviewed relevant literature and the current industry practices and concluded every manufacturer uses pothole protection. He also specifically considered stability testing of the SJIII, and the feasibility and risk utility of implementing the design in 1995.
Sappington, 512 F.3d at 453.

This “satisfied” the circuit that his “opinions survive review under Daubert. The proposed alternative design has been thoroughly tested and subjected to peer review and publication. Further, the known or potential rate of error has been considered and the theory has been widely accepted and implemented throughout the industry.” Sappington, 512 F.3d at 454.

Federal Rules of Evidence
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