MacCleery v . Royce Union Bicycle CV-93-419-JD 06/11/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lee D. MacCleery

v. Civil N o . 93-419-JD

Royce Union Bicycle, Inc., et a l .

O R D E R

This case is scheduled for trial on June 1 8 , 1996. By prior

order the court precluded the plaintiff's expert, John Allen,

from offering an expert opinion with respect to defendant Waite

Corporation's allegedly negligent assembly and inspection of the

plaintiff's bicycle. See MacCleery v . Royce Union Bicycle, Inc.,

N o . 93-419-JD, slip o p . at 5-6 (D.N.H. June 3 , 1995). Before the

court is defendant Royce Union's motion in limine under Rule 7 0 2 ,

Fed. R. Evid., to preclude Allen from offering an expert opinion

concerning the bicycle's allegedly defective design (document n o . 72).

Background

Allen is an electrical engineer and bicycling enthusiast who

has authored and edited a variety of bicycling magazines and

books since 1977. See Plaintiff's Answer and Objection to Royce

Union's Motion in Limine ("Plaintiff's Objection") at ¶ 2 &

Attachment A ("Allen Resume"). He also has served on safety

councils and advisory boards at the local, state, and national level and personally bicycles an average of 5,000 miles each

year. See id.

According to the plaintiff, Allen will testify that "a

positive-torque locking nut was available on the market and used

in the manufacture of bicycles at the time the bicycle in

question was manufactured and that the use of such a nut to

secure the brake assembly on the MacCleery bicycle would have

prevented the assembly from coming loose and causing the

accident." Plaintiff's Objection at ¶ 1 .

Discussion

The admissibility of expert testimony is governed by Rule

702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The First Circuit, incorporating the Supreme Court's decision of

Daubert v . Merrell Dow Pharmaceutical, Inc., 113 S . C t . 2786

(1995), requires the proponent of expert testimony to establish

that 1 ) the expert is qualified; 2 ) his testimony is reliable;

and 3 ) his expert conclusions "fit" the facts of the case. See

Grimes v . Hoffmann-LaRoche, Inc.,

3 , 34-35 (D.N.H.

1995) (citing United States v . Shay,

(1st Cir.

2 1995)); accord Pacamor Bearings, Inc. v . Minebea Co., Ltd.,

9 1 , 506-07 (D.N.H. 1996). Thus, "[q]ualifications

alone are insufficient to satisfy the rule's requirements if the

expert's testimony is based on unreliable methodology or if it

cannot reliably be applied to the facts in issue." Grimes,

-45 (citing Daubert v . Merrell Dow Pharmaceutical,

, 1319 (9th Cir. 1995), cert. denied, ___ S . C t . ___

(1996)). The rule's threshold requirements guide the trial

court's exercise of its broad discretion in evidentiary matters,

see Shay,

3 2 , to ensure that "an expert's testimony

both rests on a reliable foundation and is relevant to the task

at hand," Vadala v . Teledyne Indus., Inc.,

6 , 39 (1st

Cir. 1995) (quotation marks omitted). See also Pacamor Bearings,

(listing authority and discussing

"gatekeeping function" of court's preliminary assessment of

expert evidence under Rule 7 0 2 ) . Finally, the proponent of

expert testimony must establish by a preponderance of the

evidence that Rule 702's requirements have been satisfied.

Grimes,

(citing Daubert, 113 S . C t . at 2796

n.10).

The reliability requirement concerns the process by which an

expert arrives at a given conclusion and, thus, demands that the

proffered "opinion be based on the methods and procedures of

3 science rather than on subjective belief or unsupported

speculation." Grimes,

(quoting In re Paoli

R.R. Yard PCB Litig.,

1 7 , 742 (3d Cir. 1994) (quotation

marks omitted), cert. denied, 115 S . C t . 1253 (1995)). The

Supreme Court, concerned that experts have "good grounds" for

their beliefs, has distilled the trial court's inquiry into the

reliability of a proffered opinion into a non-exhaustive list of

considerations:

1) Whether the opinion can be or has been tested; 2) whether the theory or technique on which the opinion is based has been subjected to peer review and publication;

3) the technique's known or potential error rate;

4) the existence and maintenance of standards controlling the technique's operations; and 5) "general acceptance."1

1 The "general acceptance" criteria, first applied to expert testimony in Frye v . United States,

(D.C. Cir. 1923), see Grimes, 907 F. Supp. at n.1, is based on the view that

[w]idespread acceptance can be an important factor in ruling particular evidence admissible, and a "known technique that has been able to attract only minimal support within the community" may properly be viewed with skepticism.

Daubert, 113 S . C t . at 2797 (quoting United States v . Downing,

(3d Cir. 1985)). The Supreme Court's recognition of a general acceptance inquiry indicates that the so-called Frye test remains a meaningful, but no longer the predominant, factor in the modern Rule 702 calculus. See Daubert, 113 S . C t . at 2797; accord Grimes,

n .

4 See Daubert, 113 S . C t . 2796-97; Grimes,

4 . The

criteria are flexible and their application will vary with the

facts of a given case. E.g,, Daubert, 113 S . C t . at 2797.

Finally, the Supreme Court has indicated that although Rule 702

governs the admissibility of all expert testimony, the relevance

of the Daubert factors is diminished to some extent in cases

where the expert opinion at issue involves "well-established" --

as opposed to "novel" -- propositions and theories. See 113 S .

C t . at 2796 n . 1 1 ; see also Officer v . Teledyne Republic/Sprague,

0 8 , 410 (D. Mass. 1994) ("While Daubert's

principles have valuable application in determining the

admissibility of controversial and novel scientific hypotheses,

they have less use in fields like design engineering where

"general acceptance" is the norm, not the exception"); Lappe v .

American Honda Motor Co., Inc.,

2 2 , 228 (N.D.N.Y.

1994) (finding Daubert inapplicable where proffered opinion was

based on "facts, an investigation, and traditional

mechanical/technical expertise," where "supported by rational

explanations which reasonable men might accept," and where "none

of [the expert's] methods strike the court as novel or extreme"),

aff'd, ___ F.3d ___ (Table),

(2d Cir. April 1 1 ,

1. 5 1996).

Royce Union, which does not challenge Allen's qualifications

or the relevancy of his testimony, asserts that the proffered

opinions lack the degree of reliability required by Daubert. See

Royce Union's Memorandum of Law in Support of Motion in Limine

("Royce Union's Memorandum") at 4 . Specifically, Royce Union

dismisses the opinions concerning the alleged defective design of

the nut and lock washer as subjective conclusions which have

neither been substantiated by actual testing nor otherwise

verified. See id. at 6-7. Royce Union further argues that

Allen's anticipated testimony concerning the bicycle's lack of a

safer alternative design, i.e., the use of a positive-torque nut,

is inadmissible because it is not supported by evidence that the

alternative design is feasible. See id. at 7-8.

The plaintiff responds, inter alia, that Daubert's

individual testing requirement is inapplicable because Allen's

expert opinion rests on "elementary principles of physics and

mechanical engineering," that the function of free-turning nuts

on bicycles is commonly understood in the field, and that use of

a positive-torque nut does not constitute an "untested design

concept" because such use is common in bicycle break assemblies.

See Plaintiff's Memorandum of Law in Opposition to Motion in

Limine ("Plaintiff's Memorandum") at 2-4.

6 The court finds that, based on the plaintiff's proffer and

the absence of evidence to the contrary, Allen's testimony

satisfies the reliability requirement of Rule 702.

The plaintiff's proffer concerning the mechanical function

and inadequacies of the nut and lockwasher present on the bicycle

indicates that Allen's opinions on these matters are based on

established engineering principles which are generally accepted

by those familiar with bicycle maintenance: My awareness of the insufficiency of a split lockwasher to secure the bicycle brake caliper in question is based on elementary scientific principles and scientific law, namely that if two objects are not in contact, no force can be transmitted mechanically between them.

Plaintiff's Objection, Attachment B ("Allen Affidavit") at ¶ 3 .

The court notes that the proffer ventures beyond conclusory statements of general acceptance of design deficiency by

explaining in some detail how fundamental engineering principles

operate to render the relevant hardware inadequate: The lockwasher in question has only one tooth. If this tooth is not bearing against a mating surface, the lockwasher tooth can not prevent the lockwasher and mating parts from rotating. The slotted hole and curved surface of the fender bracket under the lockwasher created a high probability that the tooth of the lockwasher would not contact the fender bracket, thereby eliminating any effectiveness of the lockwasher other than as an ordinary, non-locking washer.

In the case of a bicycle brake, two factors operate to

7 unscrew the nut: the downward slope of the threaded end of the bolt, which puts gravity to work directing the rotation of the nut when vibration reduces its friction against the bolt; and the tension on the bolt when the brake is applied, which also directs the nut toward the end of the bolt. No new scientific experimentation is needed to show that force acts in the direction in which it is applied. Id. at ¶¶ 4 , 5 ; see also id. at ¶ 8 ("Mechanical wear is a

phenomenon so well-known to science as to require no new

experiment to demonstrate i t . A bicycle brake bolt assembly is

particularly vulnerable to wear of this type because the bolt is

cyclically stressed in shear and rotation and not only in

tension").

Significantly, Allen has testified that the failure of

bicycle brakes secured by hardware like that of the defendant's

design has been noted in technical bicycling literature, see id.

at ¶ 6 (citing 1992 Bicycling magazine article by D r . David

Gordon Wilson), and is consistent with his own observations as

"bicyclist, bicycle mechanic, researcher and writer about bicycling," id. at ¶ 7 . Accordingly, the court finds that

Allen's opinion with respect to the bicycle brake design is based

on generally accepted engineering and bicycle maintenance

principles and has been subjected to at least some peer review

and publication.

The plaintiff's proffer also addresses the feasibility of

the positive-torque locknut design as a safer alternative to the

8 hardware securing her bicycle's brakes: [N]o lockwasher of any type provides any security whatever against a nut's unscrewing once it has loosened. A positive-torque locking nut, on the other hand, provides this security by actively gripping the bolt onto which it is threaded. As the name "positive- torque locking nut" indicates, considerable torque must be applied to turn i t . It can not progressively unthread itself due to ordinary mechanical vibration or other forces. Id. at ¶ 5 . Again, the court attaches significance to the fact

that the plaintiff's proffer explains why, under basic

engineering principles, the positive-torque design is preferable

to the lock washer actually used on the bicycle.

With respect to his theory that the brake assembly would not

have failed if equipped with a safer mechanism, Allen has

testified that use of the positive-torque locknut to secure

bicycle brakes is "widespread." Id. at ¶ 9. The actual use of

the design by the bicycling industry renders irrelevant Royce

Union's contention that "federal courts cannot [admit an] opinion

concerning the feasibility of alternative designs absent evidence that the design alternative has been tested and proven

effective." Royce Union's Memorandum at 7-8 (citing Deimer v .

Cincinnati Sub-Zero Products, Inc.,

(7th Cir. 1995);

Buckman v . Bombardier Corp.,

(E.D.N.C. 1995);

Stanczyk v . Black & Decker, Inc.,

(N.D. Ill.

9 1993)). 2 In the opinion of the court, a design which is in

current commercial use is presumptively effective and, as such,

cannot be dismissed as an untested and novel theory simply

because the expert did not also identify a testing procedure

which validates the effectiveness. Accordingly, the court finds

that Allen's theory of a safer alternative design is based on generally accepted engineering principals which have actually

been incorporated into conventional bicycle design.

The court denies Royce Union's motion and will permit Allen

to offer his expert opinions with respect to the allegedly

deficient design of the plaintiff's bicycle. Of course, the

defendants are entitled to cross-examine the witness thoroughly

on his testimony, including the deficiencies identified in Royce

2 Royce Union's case authority on this point is inapposite. For example, in Stanczyk, the district court relied on Daubert to preclude the plaintiff's expert from offering an opinion that the defendant's product would have been safer if equipped with a saw guard of different design.

. The court reasoned that the alternative design theory lacked an adequate basis because, unlike the positive-torque locknut, it was not used on other commercially available saws, was not recognized by peer review and publication, and was not supported by evidence that it actually worked. See

Likewise, there is no indication that the alternative design theory excluded in Buckman was ever applied through practical application in a product similar to the one at issue. See

. Finally, the Deimer decision is of minimal relevance because it does not indicate whether the excluded alternative power cord design was ever used in similar products and, in any event, the Seventh Circuit affirmed the trial court's evidentiary rulings under a highly deferential, "manifestly erroneous," standard. See

.

10 Union's motion. See Pacamor Bearings,

("the

full burden of exploration of the facts and assumptions

underlying [expert testimony falls] squarely on the shoulders of

apposing counsel's cross-examination") (quoting Newell Puerto

Rico, Ltd. v . Rubbermaid, Inc.,

5 , 20 (1st Cir. 1994)).

Moreover, litigants are always entitled to request, by

contemporaneous oral or written motion, that the court strike a

given expert's testimony to the extent it lacks a proper

foundation. See id. (quoting United States v . Sepulveda,

(1st Cir. 1993)).

Conclusion

Royce Union's motion in limine (document n o . 72) is denied.

SO ORDERED.

Joseph A . DiClerico, J r . Chief Judge June 1 1 , 1996

cc: Paul A . Rinden, Esquire Edward M . Kaplan, Esquire Thomas B.S. Quarles, Esquire

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