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Monday, September 5, 2011

In General, Take 2: ND Iowa Allows For Admission Of Expert Testimony About Device Not "Generally Accepted" By Lawnmower Manufacturers

In yesterday's post, I noted the courts in a decent number of cases have allowed for the admission of expert evidence under the Daubert test despite the test/methodology underlying the evidence not having general acceptance in the relevant expert community. This usually happens in cases where the test/methodology is novel and has not yet had a chance to gain general acceptance. That left the question of whether a court has ever allowed for the admission of expert evidence under the Daubert test despite the test/methodology underlying the evidence being rejected by the relevant expert community. Well, the recent opinion of the United States District Court for the Northern District of Iowa in Estate of Bruess ex rel. Bruess v. Blount Intern., Inc., 2011 WL 2680760 (N.D. Iowa 2011), kind of fits that description, but it also kind of doesn't.

In Bruess

Donald J. Bruess died on October 24, 2007, when a riding lawn mower he was operating rolled over into a pond, pinning Bruess under the water. While the mower being operated by Bruess c[ould not] be located, it [wa]s believed to be a model 5022 ZTR, manufactured by Dixon. In his amended complaint, Bruess[' son] allege[d], among other things, that the mower was negligently designed and unreasonably dangerous as a consequence of not having a rollover protective system (“ROPS”).

Before trial, Bruess' son identified Thomas A. Berry as an expert witness.

After an extensive review of the "hazard/risk" of a riding lawn mower rolling over, and the types of operator protection which can be employed when a rollover occurs, Berry opines in his report that the zero-turn mower involved in this incident was "defective in design and unreasonably dangerous." Among other things, Berry concluded that "[t]he manufacturer knew or should have known of technically and economically feasible design alternatives that would have significantly reduced the risk without adversely affecting the utility of the machine." Moreover, Berry concluded that "design alternatives" were available for the Dixon zero-turn mower.

Specifically, Berry asserted that

The Dixon 5000 Series should have been provided with a rollover protective structure or rollbar and seat belts that would create an operator protective zone in the event of a tipover and/or rollover accident. The cost of providing a ROPS and seatbelt for the Dixon 5000 Series is estimated to be in the range of $100 if the mounting structure is designed into the frame up and up to $150 if not.

Dixon thereafter moved to exclude Berry from testifying because his testimony would not satisfy the Daubert test.

In response, the Northern District of Iowa noted that "[t]he first, and perhaps most important, factor in a design defect case is whether or not the theory has been tested." And, according to the court,

In reaching his initial opinions, Berry had not designed, tested, or certified a ROPS on this particular model. Furthermore, there is no evidence that he has designed, tested, or certified a ROPS for ZTR mowers of this particular size. However, Berry has done extensive testing of ROPS on various mowers throughout his career, both for manufacturers and for litigation purposes. The Eighth Circuit cases "do not require that experts manufacture a new device or prototype in order for their opinion to be admitted."...Rather, "an expert proposing safety modifications must demonstrate by some means that they would work to protect the machine operators but would not interfere with the machine's utility."...The Court is satisfied that Berry's previous experience designing, testing, and certifying ROPS for other mowers sufficiently validates Berry's opinion that a ROPS on this mower could protect the machine operator and would not interfere with the machine's utility, even though he did not conduct testing on this machine. Therefore, Berry's testimony meets the first factor of Daubert.

Conversely, under the second Daubert factor, th court concluded that "Berry's theory about this mower's defective design is not supported by peer review and this detracts from the reliability of his opinion."

The Northern District then noted that

The third factor looks at the rate of error of the theory or technique. Neither Dixon nor Bruess have briefed this issue and the Court does not believe this factor is relevant. The Daubert reliability factors should only be relied upon to the extent they are relevant.

That then took the court to the "general acceptance" factor. The court started by noting that

The parties substantially disagree on whether or not Mr. Berry's theory about rollover protection systems has gained a general acceptance in the relevant community. Bruess asserts that ROPS have been placed on more safety-minded manufacturers' tractors since the 1970s, and that at least nineteen competitors have put them on ZTR mowers of 850 pounds or less. In contrast, Dixon points out that Berry agreed that the "vast majority" of ZTR mowers under 850 pounds were not equipped with ROPS in 1999. In Wagner v. Hesston Corp., 450 F.3d 756, 759 (8th Cir. 2006), the Eighth Circuit Court of Appeals looked at industry standards in measuring "general acceptance," by noting "the lack of evidence showing general acceptance in the industry of safety guards for large bailers[.]" 

The Northern District of Iowa resolved this issue by concluding that

In this case, the most relevant community is manufacturers of riding lawnmowers of similar size (850 pounds or less) during 1999. Plaintiff's Exhibit 6014 shows that only two of the current nineteen manufacturers had manufactured ROPS for their mowers of 850 pounds or less at that time. In fact, these manufacturers only had ROPS as optional equipment. Furthermore, the industry standard at the time did not require ROPS for ZTR mowers. The fact that the evidence on the record shows that only two manufacturers of ZTR mowers of this size included ROPS as even optional equipment establishes that Berry's testimony falls short of meeting the "general acceptance" standard articulated in Daubert.Therefore, Berry's failure to establish this factor detracts from the reliability of his testimony.

So, that's 1 factor supporting admissibility, and 3 factors cutting against admissibility. But wait, there's more. The court therefter noted that "[t]he Eighth Circuit Court of Appeals has also held that an opinion that is based on research conducted independent of litigation is more reliable than one that has been developed for litigation." Applying this factor, the Northern District of Iowa found that

At Mr. Berry's deposition, he testified that he was hired out of college to begin working with an engineering company and spent 40–80 of his time on litigation matters. Since 2005, Berry has devoted 60–70% of his time to being an expert witness in lawsuits and he derives 100% of his working income from serving as an expert witness. Berry estimates he has been hired by Bruess's attorney, Mr. Gehlhausen, seven or eight times and has previously testified about ZTR lawn mowers. Furthermore, Berry's article entitled "Stability Related Accidents Involving Ride-on Mowers" was published after litigation began. On the other hand, Berry has designed, tested, and certified mowers throughout his professional career for manufacturers as well. The Court concludes that this factor weighs against the reliability of Berry's testimony.

And the court then also noted that "[a]nother factor the Eighth Circuit Court of Appeals has adopted is whether the expert has ruled out alternative ways the harm may have occurred." Applying this factor, the court concluded that

Although it is possible that the accident occurred because the decedent was incapacitated, the proper consideration is whether Mr. Berry has ruled out other possible alternatives that could have caused the harm once the accident did occur. In this case, Berry's opinion suggests a ROPS may have altered the outcome of the accident, and the issue is whether this mower was defectively designed because it did not include a ROPS. The Court concludes that Berry has met the requirements of this factor.

Thus, based upon these additional factors, the Northern District of Iowa determined that Berry's testimony was sufficiently reliable to satisfy the Daubert test.

So, there you (sort of) have it. ROPS has been rejected by the lawnmower manufacturer community, and yet the Northern District of Iowa allowed expert testimony concluding that the decedent's death could have been prevented if his lawnmower were equipped with it. Of course, as I noted above, this isn't a clear cut case because we don't know (all of) the reasons that most lawnmower manufacturers have refused to install ROPS. Is it because they think that it wouldn't improve the safety of lawnmowers (much)? Or is it because they don't want to spend the extra money to install it? Or, as is likely, is it some combination of the two along with other factors?

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/09/daubert-estate-of-bruess-ex-rel-bruess-v-blount-intern-incslip-copy-2011-wl-2680760ndiowa2011.html

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