St. Laurent v. Metso Minerals, et a l . CV-04-014-SM 09/13/05 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

S t . Laurent et a l .

v. Civil No. 04-cv-l4-SM Opinion No.

Metso Minerals Industries, Inc., et a l .

REPORT AND RECOMMENDATION

Plaintiffs Andre and Kathleen St. Laurent assert claims in

this action based upon alleged design defects in a rock crushing

machine and an alleged failure to warn. During discovery.

Plaintiffs disclosed John A. Wilson, Ph.D., as an expert witness.

Defendant Metso Minerals Industries, Inc. ("Metso") moves for an

order excluding Dr. Wilson's proffered opinion testimony

regarding warnings and alternative design (document no. 32). The

Plaintiffs filed an objection.

Metso presents two grounds in support of its motion. First,

Metso argues that Dr. Wilson's report violates Federal Rule of

Civil Procedure 26(a)(2)(B) by failing to disclose the data and

information that Dr. Wilson considered in reaching his opinions.

Second, Metso argues that Dr. Wilson's proffered testimony fails to satisfy the criteria for admission under Federal Rule of

Evidence 702. The Court considers these two arguments after

briefly stating the pertinent background facts.1

Background

This action arises out of a workplace accident that occurred

on March 20, 2002, during Mr. St. Laurent's employment with Pike

Industries, Inc. ("Pike"). Mr. St. Laurent inserted a metal pry

bar into the crushing cavity of a Nordberg LI 105 rock crushing

machine while attempting to clear a material jam. The machine

was running at the time. One of the machine's moving parts

forced the pry bar back towards Mr. St. Laurent striking him on

1The Court notes that Metso neither asserts that Plaintiffs' expert disclosure was untimely, nor does it challenge Dr. Wilson's qualifications to serve as an expert witness in this case. See Pis.' Objection at 8 and Pis.' Ex. 5 (Wilson D e p . at 5:10-13) (commenting on Dr. Wilson's credentials). In the curriculum vitae attached to his report. Dr. Wilson indicates that he has a B.S., M.S. and Ph.D. in mechanical engineering. See Pis.' Ex. 3. Dr. Wilson has been employed in various capacities in the Mechanical Engineering Department at the University of New Hampshire since 1964. I d . Dr. Wilson has also worked as an engineer, and has had numerous consulting assignments for industry, government, and in relation to litigation. I d . Dr. Wilson testified at his deposition that he has prior experience rendering expert opinions on several "rock crusher cases," and has previously provided expert testimony on the adequacy of warnings on large equipment. Pis.' Ex. 5 (Wilson Dep. at 37:16-18, 45:6-12). The Court finds Dr. Wilson qualified to render an expert opinion in this case.

2 the side of his head resulting in serious injuries.

Defendant Whitney & Son, Inc. ("Whitney") is a distributor

of Metso's Nordberg products, and leased the machine at issue to

Pike. See Metso's Ex. D (Baker Dep. at 20:1-21:20).Mr. St.

Laurent testified that prior to his accident, he had raised

concerns regarding the use of a metal pry bar to free jammed rock

from the crusher to a Whitney employee. Pis.' Ex. 4 (St. Laurent

Dep. at 115:17-116:13). Mr. St. Laurent further testified,

however, that he followed the training and instruction of the

Whitney employee in using the metal pry bar in the manner that he

did. Pis.' Ex. 4 (St. Laurent Dep. at 117:2-14).

In his written report. Dr. Wilson noted that "[t]he practice

of using acrowbar to free or reposition rocks while the crusher

is running violates many of the safety and operating procedures"

in the machine's instruction manual. Pis.' Ex. 3 (Wilson Report

at 2). Dr. Wilson further observed that "[t]he manual

specifically states, 'Never use a crowbar.'"

Dr. Wilson

noted, however, that "there are no posted warning labels of a

similar nature on the actual machine."

Dr. Wilson opined

that the machine at issue should have had a visual warning "to

provide users with . . . guidance regarding proper and improper

3 procedures." Pis.' Ex. 3 (Wilson Report at 3); see also Pis.'

Ex. 5 (Wilson Dep. at 128:9-22, 135:19-23, 140:9-21) (discussing

Dr. Wilson's opinion regarding a machine-posted warning).

Dr. Wilson further observed in his report that:

There is an electric eye system which detects the level of rock within the crusher jaw cavity and temporarily stops the feed conveyor when the jaw cavity is too full. A similar electric eye system could have been employed to ensure that the crusher would not run if the cover was not properly in place over the top of the jaws. This would prevent the use of crowbars or other such implements being used in an active crusher as inserting a crowbar to move a stuck rock would be much more difficult and most likely totally ineffective with the cover closed.

Pis.' Ex. 3 (Wilson Report at 2). Dr. Wilson opined that the

machine should have had "some kind of crusher cover sensor

system," which "would have prevented the use of a crowbar while

the movable crusher jaw was active and would have prevented the

accident." I d .; see also Pis.' Ex. 5 (Wilson Dep. at 167:2-

173:14) (discussing Dr. Wilson's reference to an electric-eye

system on the crusher).

Discussion

I. Disclosure of Data or Information Considered By Expert

Federal Rule of Civil Procedure 26(a)(2)(A) provides that "a

party shall disclose to other parties the identity of any person

4 who may be used at trial to present evidence under Rules 702, 703

or 705 of the Federal Rules of Evidence." Fed. R. Civ. P.

26(a)(2)(A). Federal Rule of Civil Procedure 26(a)(2)(B)

requires that the disclosure of a witness who has been retained

to provide expert testimony be accompanied by a written report

that contains, among other things, "a complete statement of all

opinions to be expressed and the basis and reasons therefor" and

"the data or other information considered by the witness in

forming the opinions." Fed. R. Civ. P. 26(a)(2)(B). Metso

argues that Dr. Wilson's report fails to disclose the data or

other information that he considered in forming his opinions and

is therefore subject to exclusion under Federal Rule of Civil

Procedure 37(c) (1) .2 See Poulis-Minott v. Smith.

(1st Cir. 2004) (finding that the adoption of Fed. R. Civ. P.

37(c)(1) made the directives of Fed. R. Civ. P. 26(a)(2)(A)-(B)

mandatory); see also Klonoski v. Mahlab,

(1st

Cir. 1998) (finding that Fed. R. Civ. P. 37(c)(1) "clearly

2Rule 37(c)(1) provides in relevant part that: "A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Fed. R. Civ. P. 37(c)(1).

5 contemplates stricter adherence to discovery requirements, and

harsher sanctions for breaches" of the rule).

Plaintiffs respond that Dr. Wilson's written report complies

with the requirements of Rule 26(a) (2) (B) because it presents "a

detailed account of the operation and function of the Nordberg

machine based upon his personal inspection." Pis.' Objection at

5. Additionally, Plaintiffs assert that Dr. Wilson referenced

his analysis of the Nordberg instructional manual including

pertinent safety instructions and posted warning labels in his

report. I d .; see also Pis.' Ex. 3 (Wilson Report at 2-3). In

further support of their argument. Plaintiffs attached pages from

the transcript of Dr. Wilson's October 27, 2004 deposition

wherein Dr. Wilson testified that his report was based on the

instructions and warning manuals that accompanied the Nordberg

machine and his February 14, 2003 inspection of the machine at

issue. See Pis.' Ex. 5 (Wilson Dep. at 48-49).

While Dr. Wilson's report could have stated more clearly the

data and information upon which he relied, the Court finds that

the report meets the requirements of Rule 26(a)(2)(B).

Therefore, the Court finds that the exclusion of Dr. Wilson's

opinion testimony under Rule 37(c)(1) is not warranted.

6 II. Whether Dr. Wilson's Proffered Testimony Meets the Requirements of Fed. R. Evid. 702

As additional grounds for excluding Dr. Wilson's proffered

testimony, Metso argues that Dr. Wilson's testimony fails to

satisfy the criteria for admission under Federal Rule of Evidence

702. The rule provides that:

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. Metso argues that Dr. Wilson's testimony was

not based upon sufficient facts and data, and that his opinions

are not the product of reliable principles and methods.

Therefore, Metso argues, the Dr. Wilson's proffered testimony

must be excluded under Rule 702. The Court considers Metso's

arguments under Rule 702 next.

A. Whether the Daubert Factors Apply

In Daubert v. Merrell Dow Pharms.. Inc..

(1993), the Supreme Court held that the Federal Rules of

Evidence, "assign to the trial judge the task of ensuring that an

7 expert's testimony both rests on a reliable foundation and is

relevant to the task at hand." The Daubert Court identified four

factors that trial courts might find useful in determining the

reliability of scientific expert testimony: (1) whether the

theory or technique can be or has been tested; (2) whether the

theory or technique has been subjected to peer review; (3) the

known or potential rate of error and the existence of standards

controlling the technique's operation; and (4) whether the theory

or technique has been generally accepted in the relevant

scientific community.

. The inquiry under

Rule 702 is flexible. I d . at 594. The factors identified in

Daubert were not intended to be used as a definitive checklist or

test. I d . at 593.

Plaintiffs argue that Dr. Wilson's extensive education and

training as a university professor, mechanical engineer and an

engineering consultant over a period of thirty years demonstrates

that he has specialized knowledge in the field of engineering.

Citing the Supreme Court's statement in Daubert that its

discussion "was limited to the scientific context," see

n.8. Plaintiffs argue that Dr. Wilson's specialized

knowledge as a thirty year career engineer and consultant alone satisfies the criteria of Rule 702. See Pis.' Objection at 9.

Plaintiffs' argument was considered and rejected in Kumho

Tire Co. v. Carmichael.

(1999) . Kumho Tire was a

case that focused on the admissibility of testimony by a tire

failure analyst with a master's degree in mechanical engineering,

ten years experience at a tire manufacturer and experience

testifying as a tire failure consultant in other tort cases.

. In its decision, the Supreme Court found that the

language of Rule 702 "makes no relevant distinction between

■'scientific' knowledge and ■'technical' or 'other specialized'

knowledge."

. Rather, "the Rule applies its

reliability standard to all 'scientific,' 'technical,' or 'other

specialized' matters within its scope."

The Court noted

that Daubert referred only to "scientific" testimony because that

was the nature of the expertise at issue in the case.

The Kumho Tire Court found that where expert testimony is

challenged under Rule 702, and "such testimony's factual basis,

data, principles, methods, or their application are called

sufficiently into question, . . . the trial judge must determine

whether the testimony has 'a reliable basis in the knowledge and

experience of [the relevant] discipline.'" I d . at 149. The

9 trial court may consider one or more of the factors identified in

Daubert in making this determination "where they are reasonable

measures of the reliability of expert testimony." I d . at 152.

The list of Daubert factors, however, "neither necessarily nor

exclusively applies to all experts or in every case." I d . at

141. The trial court has "the same kind of latitude in deciding

how to test an expert's reliability . . . as it enjoys when it

decides whether or not that expert's relevant testimony is

reliable." I d . at 152 (emphasis in original).

In its motion to exclude, Metso argues that Dr. Wilson's

opinions regarding warnings that allegedly should have been

provided are unreliable because they are divorced from scientific

methodology. Metso similarly argues that Dr. Wilson's

alternative design opinions are unreliable because they are not

grounded in scientific methodology and amount to no more than an

undeveloped concept. The Court finds that Metso has sufficiently

called the reliability of Dr. Wilson's opinions into question to

require the Court to apply a Daubert-type reliability inquiry to

determine whether Dr. Wilson's proffered expert testimony

satisfies the requirements for admissibility under Rule 702. Dr.

Wilson's qualifications to render an expert opinion, by itself.

10 does not meet the requirements of the rule. See Bourelle v.

Crown Equip. Corp.,

, 537 n.ll (7th Cir. 2000). The

Court considers whether Dr. Wilson's opinions are based on

sufficient facts and data, and are the product of reliable

principles and methods next.

B. Reliability Inquiry

Although the Court has not found any First Circuit decision

that is directly on point, numerous other federal appellate

courts have considered the admissibility of expert testimony

under Federal Rule of Evidence 702 in alternative design and

failure to warn cases. In Watkins v. Telsmith, Inc..

(5th Cir. 1997), the plaintiff alleged that a portable

conveyor that fell on the decedent had an unreasonably dangerous

design. Plaintiff's theory was that the use of only one wire

rope to support the conveyor arm made the product unreasonably

dangerous. I d . at 986. Plaintiff's expert opined that

alternative designs were feasible.

The district court

excluded the testimony of the proffered witness because the

testimony "lacked the requisite indicia of reliability to derive

from ■'scientific, technical, or other specialized knowledge.'"

.

11 The Fifth Circuit noted three specific deficiencies in the

proffered testimony.

"First, the proper methodology for

proposing alternative designs includes more than just

conceptualizing possibilities."

The court noted in this

regard that testing of the proposed design, while not a necessity

in every case, is important.

The proffered witness in

Watkins had not performed any testing of his proposed

alternatives. Second, the witness did not investigate designs of

other conveyors then on the market or available in the same year

as the conveyor at issue.

Third, the witness "did not even

make any drawings, or perform any calculations that would allow a

trier of fact to infer that his theory that the conveyor design

was defective and that alternative designs would have prevented

the accident without sacrificing utility were supported by valid

engineering principles."

The Fifth Circuit held that the

district court did not err in concluding that the witness'

proffered testimony was unreliable because he "made his

assessment of unreasonable dangerousness and proposed his

alternative designs 'without . . . any scientific approach to the

proposition at all.'" I d . at 992-993.

In Jaureaui v. Carter Mfg. Co..

(8th

12 Cir. 1999), the plaintiff alleged that design and warning defects

associated with a corn harvesting machine proximately caused

severe injuries to his legs, which resulted in the plaintiff

having his legs amputated. The plaintiff proffered an expert who

opined that the machine should have been equipped with "larger

and more prominent warnings," and that the machine should have

incorporated "awareness barriers." I d . at 1080. The plaintiff

also proffered a second expert who was prepared to testify that

machine was defective "because the original warning signs were

too small, too far from the point of danger, and oriented at an

angle which made them difficult to read."

The Eighth Circuit found that the district court was correct

in excluding the proffered testimony of plaintiff's witnesses

because the first witness had neither constructed, drawn, or

tested his proposed alternative device, nor had he shown that any

other manufacturer incorporated his proposed device into the corn

harvesting machine at issue or any other similar farm machinery.

I d . at 1084. The court found that the expert's opinion was based

merely on speculation.

The court further found that

although both of plaintiff's experts opined that the warnings on

the corn harvesting machine were deficient, neither witness had

13 created, designed or tested a warning device that would be more

effective, or suggested other manufacturers of farm machinery who

were using similar warnings.

In Bourelle v. Crown Equip. Corp.,

(7th

Cir. 2000), the plaintiffs alleged that they were injured at work

by the defendant's improperly designed forklift. They further

alleged that the defendant failed to provide adequate operational

warnings for the forklift.

In support of their claims, the

plaintiffs proposed to offer a mechanical engineer with

experience investigating lift truck accidents as an expert

witness. I d . at 534. The district court found that expert's

proposed testimony was unreliable under Rule 702 because it was

not supported by sufficient scientific evidence. I d . at 535.

The Seventh Circuit affirmed. I d . at 539.

The court noted that "the plaintiffs' expert surmised and

claimed that an alternative design should have been implemented

for the [forklift], and if it had, neither of the plaintiffs

would have been injured." I d . at 536. The expert admitted when

questioned by defendant's counsel, however, "that he had not done

any scientific testing to support his alternative design theory."

The expert further admitted that he had not prepared any

14 "detailed design or calculations," performed "an economic

feasibility study," prepared "preliminary drawings," or preformed

"any risk utility type testing." I d . at 537. After recognizing

the importance of testing in alternative design cases, the

Seventh Circuit found that the district court did not abuse its

discretion in concluding that the expert's opinions were nothing

more than unreliable speculation. I d . at 538; see also Clark v.

Takata Corp.,

(7th Cir. 1999) ("Where the

proffered expert offers nothing more than a 'bottom line'

conclusion, he does not assist the trier of fact.").

With regard to the expert's opinion regarding an alleged

failure to warn, the court held that the same reliability

requirements apply to suggested warnings that apply to suggested

alternative designs. I d . at 538 (citing Cummins v. Lyle Indus.,

(7th Cir. 1996)). The court noted that the

expert failed to draft or test an alternative warning for use

with the machine at issue in the case.

The court found that

the experts "failure to even draft a proposed alternative warning

for the TSP's operation manual renders his opinion regarding the

alleged inadequacy of Crown's existing warning concerning the

risk of pallets entering the TSP operator's compartment to be

15 unreliable." I d . at 539 (citing Jaureaui,

).

The court further found that "[t]he fact that [the proffered

expert] never even drafted a proposed warning renders his opinion

akin to ■'talking off the cuff' and not acceptable methodology."

Bourelle.

.

The Seventh Circuit again affirmed a district court's

exclusion of proposed expert testimony in an alternative design

case based on the expert's failure to engage in any type of

testing in Dhillon v. Crown Controls Corp..

(7th

Cir. 2001). The Dhillon Court noted that:

We could identify a number of problems with the testimony these witnesses were prepared to offer, but the most glaring among them is the lack of testing, or more generally the failure to take any steps that would show professional rigor in the assessment of the alternative designs (or, as the amended rule puts it, that the testimony is "the product of reliable principles and methods").

I d . at 869.

In Zaremba v. General Motors Corp..

(2d

Cir. 2004), the Second Circuit affirmed a district court's

decision to exclude proffered expert testimony where the

plaintiff's expert proposed to testify concerning a safer

alternative design for a car involved in a one-car rollover

accident. The district court found that the plaintiffs had not

16 met their burden under Federal Rule of Evidence 702 because their

proposed expert witness, an engineer, had not done any of the

following: (1) examined or tested the car involved in the

accident; (2) offered any measurements or calculations to support

his theory of how the accident happened; (3) made a drawing or

model of his hypothetical alternative design; (4) conducted any

tests of his design; (5) offered calculations in support of the

safety of his design; (6) subjected his alternative design to

peer review and evaluation; (7) presented any evidence that other

designers or manufacturers in the relevant design community

accepted the untested propositions underlying his opinions.

.

In affirming the district court's decision, the Second

Circuit noted that the plaintiffs had not satisfied any of the

four factors identified in Daubert with regard to the proffered

expert's testimony about a safer alterative design. I d . at 358.

The court went on to state that:

It is not enough for Phillips to testify reliably that his hypothetical alternative design would, in some respects, have better performance than the Trans Am involved in the accident; to provide relevant testimony, Phillips must also establish that his hypothetical design would have resulted in greater safety in the rollover accident at issue. Though he is apparently willing to testify to this, Daubert and Rule

17 702 require that this testimony be reliable. In the absence of drawings, models, calculations, or tests, it was not manifest error for the District Court to find that Phillips's testimony was insufficiently reliable.

I d . at 359.

Notwithstanding the holdings in the foregoing cases.

Plaintiffs argue that the majority of courts do not require an

expert to either draft a proposed warning or to create and test a

prototype alternative design in order to find the expert's

testimony admissible. The authorities that Plaintiffs rely upon

for support, however, have no persuasive force. To the extent

that it is applicable here, the decision in United States v.

Sinclair.

(7th Cir. 1996), has been superceded

by the Seventh Circuit's decisions in Bourelle and Dhillon.

discussed supra. Likewise, the decision in Belec v. Havssen Mfg.

C o ..

(8th Cir. 1997), was not followed by the Eight

Circuit when it decided Jaureaui. also discussed supra. And, the

Ninth Circuit has expressly acknowledged that its decision in

McKendall v. Crown Control Corp..

(9th Cir. 1997),

has been overruled. See United States v. Hankev.

(9th Cir. 2000); White v. Ford Motor Co..

(9th

C i r . 2002).

The Court finds that Dr. Wilson's proffered testimony in the

18 instant case is beset by many of the same problems that led to

the exclusion of expert testimony in Watkins, Jaurequi, Bourelle,

Dhillon and Zaremba. There is no evidence that Dr. Wilson's

proffered testimony meets any of the Daubert factors (testing,

peer review, potential error rate or standards, and general

acceptance). Significantly, Dr. Wilson did not create any

prototypes of his alternative design, or do any testing to

support his alternative design theory, which is perhaps the most

Daubert important factor. See Daubert,

("a key

question to be answered in determining whether a theory or

technique is scientific knowledge that will assist the trier of

fact will be whether it can be (and has been) tested."); see also

Cummins,

(discussing the importance of testing in

alternative design cases); Watkins,

(same). Nor

did Dr. Wilson rely upon any engineering drawings or sketches,

industry standards, or peer review. And while Dr. Wilson

testified that he has previously had rock crusher cases, he did

not cite any evidence that any other manufacturer had

incorporated his suggested alternative design. Similarly, Dr.

Wilson did not draft or test any proposed warnings for the

Nordberg machine or demonstrate any other indicia of reliability.

19 The Court is cognizant that the reliability inquiry under

Rule 702 is flexible. See Kumho Tire,

. Still,

the Supreme Court has cautioned that "nothing in either Daubert

or the Federal Rules of Evidence requires a district court to

admit opinion evidence which is connected to existing data only

by the ipse dixit of the expert." General Elec. Co. v. Joiner,

(1997). The trial court must ensure that the

expert's testimony, whether it is based upon professional studies

or personal experience, "employs in the courtroom the same level

of intellectual rigor that characterizes the practice of an

expert in the relevant field." Kumho Tire.

. In

this case, the Court can neither find that Dr. Wilson's opinions

are based upon sufficient facts and data, nor that those opinions

are the product of reliable principles and methods as required

under Federal Rule of Evidence 702.

The Plaintiffs assert that "Dr. Wilson applied sound

engineering principles and methods in deriving his opinions."

Pis.' Objection at 8. However, there are no stated principles or

methodology referenced either in Dr. Wilson's report or in the

Plaintiffs' memorandum of law. Plaintiffs' failure to

demonstrate that Dr. Wilson's proffered testimony satisfies

20 either the Daubert factors, or any other set of reasonable

reliability criteria, supports a finding that the requirements of

Rule 702 have not been satisfied. See Kumho Tire.

. Therefore, the Court finds that the portion of Dr. Wilson's

testimony that provides opinions on warnings and an alternative

design for the machine at issue should be excluded.

Conclusion

For the reasons set forth above, the Court recommends that

Metso's Motion to Exclude Certain Testimony of Plaintiffs' Expert

John A. Wilson, Ph.D. (document no. 32) be granted.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court's order. See Unauthorized Practice of

Law Comm, v. Gordon.

(1st Cir. 1992); United

States v. Valencia-Copete,

(1st Cir. 1986).

James R. Muirhead United States Magistrate Judge

Date: September 13, 2005

cc: Christopher J. Poulin, Esq. James P. Bassett, Esq.

21 Raymond D. Jamieson, Esq. Thomas N. Harrington, Esq. Lawrence S. Smith, Esq. Todd J. Hathaway, Esq.

22