Sixth Circuit Identifies Daubert "Red Flag" Factors

Excluding proffered testimony by plaintiff's forensic engineer about alleged design defect of the forklift made by defendant manufacturer that resulted in a serious injury when used by the plaintiff's employee; the testimony included "Red flags that caution against certifying an expert" because of lack of reliability, such as a methodology dependent on the use of "anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing," in Newell Rubbermaid, Inc. v. Raymond Corp., __ F.3d __ (6th Cir. April 3, 2012) (No. 10-3912)

Ever since the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), trial courts have tried to identify relevant factors that can be used to assess the reliability of proffered expert testimony under FRE 702. In a recent case, the Sixth Circuit identified what it considered to be "[r]ed flags that caution against certifying an expert [to give expert testimony] includ[ing] reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity." Newell Rubbermaid, Inc., __ F.3d at __.

In the case, employer-plaintiff Newell-Rubbermaid (Newll) brought a subrogation action against defendant Raymond Corp. (Raymond), the manufacturer of a forklift (Dockstocker) used by a Newell employee (Hashmond). Her use of the device resulted in severe injuries to her foot, which had to be amputated. In the subrogation action, Newell alleged that it was owed damages to the extent that the victim received workers compensation for the amputation, caused by her injuries from Raymond's defective design of the Dockstocker forklift.

In support of its claim that the Dockstocker was defectively designed, Newell presented testimony by a forensic engineer, Railsback, under FRE 702. The expert opined that the design of the Dockstocker -- with no seat nor rearguard door -- was defective. In response, Raymond moved to exclude the expert's testimony under Daubert and then that the court grant the defendant summary judgment as, under applicable state law, expert testimony was necessary to make out a design defect claim.

The motion to exclude the expert's testimony was based on both the lack of qualifications and reliability under Daubert. As the trial court explained:

Railsback’s methods are clearly not scientifically sound. He merely counts accidents from accident reports relating to non-Raymond forklifts. Without questioning or verifying the data and without conducting any tests of his own . . . , he reaches conclusions about the forklift involved in this case. Furthermore, although . . . he opines that a latching or spring-loaded rear door is necessary to make this forklift safe and that such a modification would be technically and economically feasible, he never actually tested either of these alternative designs.

Newell Rubbermaid, Inc. v. Raymond Corp., No. 5:08CV2632, 2010 WL 2643417, at *6 (N.D. Ohio July 1, 2010) (unpublished opinion) (footnotes omitted, ellipses added) (as quoted in Newell Rubbermaid, __ F.3d at __). The trial court also decided that he "did not have sufficient training or experience with forklifts to qualify ... as an expert witness." In addition, Railsback's proffered expert testimony on forklift design defects "was not relevant because it involved different models of forklifts" than defendant's Dockstocker lift. Newell Rubbermaid, __ F.3d at __. Finally, the trial judge excluded the testimony because it found his testimony scientifically unreliable. The expert's testimony was not admissible under FRE 702 according to the trial court. Absent expert testimony regarding a design defect, the employer could not prevail on a defective product claim under applicable state law. The trial court granted summary judgment to Raymond. Newell appealed the exclusion of the expert testimony and the resulting dismissal of the action.

The Sixth Circuit affirmed the exclusion of the proffered expert testimony and the resulting summary judgment in the case. The circuit noted the presence in Railsback's proffered expert testimony of some of the:

Red flags that caution against certifying an expert includ[ing] reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. In addition, if a purported expert's opinion was prepared solely for litigation, that may also be considered as a basis for exclusion.
Newell Rubbermaid, __ F.3d at __ (citing Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009); Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007)). The circuit emphasized that there were at least "four red flags in Railsback's methodology: anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing. These concerns have been deemed sufficient to warrant exclusion in prior cases." Newell Rubbermaid, __ F.3d at __ (citing Best, 563 F.3d at 177–78; Brown v. Raymond Corp., 432 F.3d 640, 647-48 (6th Cir. 2005)).


The circuit noted that it did not need to consider whether or not Railsback was qualified to serve as an expert. Although the fact that his testimony was a "work product ... necessarily prepared for litigation," suggested a lack of qualification, that factor alone was not conclusive. However, the circuit could easily affirm the exclusion of the expert because he presented only "his work product [which] was necessarily prepared for litigation." Newell Rubbermaid, __ F.3d at __.

The circuit was not persuaded by the plaintiff's argument that the testimony was admissible because the "only evidence available to Railsback was anecdotal in nature." This factor "should have been an indication to Newell that it needed a different expert" in order to make its case. Newell Rubbermaid, __ F.3d at __. Because the plaintiff's appeal failed to address the "red flags" contained in Railsback's testimony, the circuit agreed with exclusion of the expert and dismissal of the case because it lack the requisite expert testimony necessary to prevail on the product liability claim.

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