By Blaire M. Henley

Design defect cases require particular attention to expert witness testimony. To prevail, the plaintiff must show that another design could have prevented the injury. Pries v. Honda Motor Co., Ltd., 31 F.3d 543, 546 (7th Cir. 1994). Such testimony will most often be outside the understanding of lay persons and require an expert. It is not enough, however, for an expert in a design defect case to testify that an alternative design exists. The expert must, in most cases, show that she has tested the alternative design. Further, the expert must offer an opinion that the implementation of the alternative design was cost-effective. Given the importance of expert testimony to a plaintiff’s success in design defect cases, defendants should carefully consider whether plaintiff’s expert’s opinions are vulnerable to attack under Rule 702 generally and specifically for failure to offer an opinion (1) that an alternative design exists, (2) that it has been tested and (3) that it has been found cost-effective.

In applying the federal Daubert standard in design defect cases, the 7th Circuit has underscored the importance of testing the alternative design. Winters v. Fru-Con, Inc., 498 F.3d 734 (7th Cir. 2007). The Winters court noted that testing of the alternative design can assist the expert in evaluating six factors: the alternative design’s “compatibility with existing systems”; the efficiency of the alternative design compared to the original; the impact of the alternative design on maintenance costs; whether the prospective purchaser could “service and maintain the alternative design”; the installation costs of the alternative design; and “change in cost to the machine.” While often important, however, testing the alternative design is not “an absolute prerequisite” to the admissibility of the expert’s testimony. Id. For instance, testing might not be required if the plaintiff can show that the expert “adhered to the ‘standards of intellectual rigor that are demanded’” in her work. Id. Essentially, the plaintiff must show that the expert tested the alternative design or show that the expert used another “method of research to compensate” for the lack of testing. Id. If the opinion is one that lends itself to verification through testing, however, then an expert’s failure to test is significant and may be grounds for barring the testimony. See Rogers v. Ford Motor Co., 952 F. Supp. 606, 615 (N.D. Ind. 1997).

An Indiana state products liability case made two trips to the Court of Appeals, both opinions resulting in discussion of experts: Lytle v. Ford Motor Co., 696 N.E.2d 465, 470 (Ind. Ct. App. 1998), and Lytle v. Ford Motor Co., 814 N.E.2d 301 (Ind. Ct. App. 2004). In the 1998 decision, the Court of Appeals affirmed the trial court’s decision to exclude an expert’s testimony on inadvertent release of a seatbelt. The Court of Appeals decision was based, in part, on the expert’s failure to test his theories. The court also affirmed the exclusion of two other experts because the tests used by the experts were unreliable, failed to directly relate to the facts at issue in the accident, and their test results were directly contradicted by reliable studies offered by the defendant.

On remand after the 1998 decision, Lytle still had experts left, one being Thomas Horton. The trial court, however, then excluded Horton’s testimony as well, resulting in the 2004 appeal. The trial court excluded Horton’s testimony because he failed to engage in appropriate testing. Lytle had offered Horton as an expert on the issue of inadvertent release of a seatbelt. On appeal, Lytle argued that Horton’s opinions on “the design defect and alternatives … are proven not by testing, but from skilled observation, common sense, knowledge and experience.” The court rejected these contentions, explaining that “[t]he possibility that an inadvertent unlatch occurred in this accident depends on a similar convergence of all of the variables addressed above: a particular direction of movement and rotation of the belt assemblies, coupled with the proper force and webbing load, all for the appropriate duration” and noted that, “given the evidence in this record, we cannot see how the convergence of all of these variables at a precise moment in time can simply be ‘observed.’” Lytle, 814 N.E.2d at 312. Further, while other portions of Horton’s opinions could be formed through mere observation, a layperson could make those same observations. As Horton’s testimony would not aid the fact-finder, the trial court properly excluded it. Id. at 312-13.

Judge Michael Kanne once succinctly explained why proof of an alternative design, without proof of the cost-effectiveness of the design, fails. If evidence of an alternative design alone were sufficient, “the bare fact of a Volvo would render every KIA defective.” Bourne v. Gilman, Inc., 452 F. 3d 632, 638 (7th Cir. 2006); see also Westchester Fire Insurance v. American Wood Fibers, Inc., 2006 WL 3147710 at *5 (N.D. Ind. 2006). Thus, the expert must support her opinion with evidence that a “cost-benefit formula demanded adopting the alternative design.” Bourne, 452 F.3d at 638. As Indiana imposes a negligence, rather than a strict liability, standard on design defect claims, the claims are “subject to the understanding that negligence means failure to take precautions that are less expensive than the net costs of accidents.” McMahon v. Bunn-o-matic Corp., 150 F. 3d 651, 657 (7th Cir. 1998); TRW Vehicle Safety Systems, Inc. v. Moore, 936 N.E.2d 201, 208 (Ind. 2010).

Another pair of Indiana cases provides insight on the requirement of testimony on the cost-effectiveness of the alternative design. See Ford Motor Co. v. Moore, 905 N.E.2d 418 (Ind. Ct. App. 2009), and TRW Vehicle Safety Systems, Inc. v. Moore, 936 N.E.2d 201 (Ind. 2010). Moore, who was wearing his seat belt, was involved in a rollover accident and died after being ejected through the sunroof of his Ford Explorer. At trial, the jury awarded damages of $25 million. On appeal, Ford and TRW challenged plaintiff’s experts, Steven Meyer and Dr. Steve Batzer. Meyer testified that the seatbelt was defective because it allowed slack to develop and permitted Moore to escape the seatbelt and to be ejected through the sunroof. Batzer testified that the sunroof was defective because the brackets should have been stronger so as to prevent the sunroof glass from detaching.

The Court of Appeals held Meyer’s and Batzer’s opinions were insufficient to support a verdict in Moore’s favor. It concluded that Meyer failed to show that the alternative design could have been implemented and that Batzer failed to test the alternative design or to provide testimony on the cost-effectiveness of the alternative design. The Indiana Supreme Court disagreed. It characterized Ford’s challenge to the verdict as a charge that plaintiff failed to show that Ford breached the applicable standard of care. The court explained that, while the plaintiff was required to show Ford breached the standard of care, she was not required to provide “an opinion witness’s declaration” of such a breach. Meyer’s testimony that Ford should have used an alternative design and that Ford did use the alternative design in Europe constituted “probative evidence” on the issue of reasonable care and could support an inference of design negligence. Further, the court held that Batzer’s testimony was sufficient to support a claim of defective design as to the sunroof since Batzer testified that Ford was aware of the dangers of rollovers, that the sunroof detached when brackets failed and that an alternative design was “technologically and economically feasible.”

These cases provide guidance on the areas on which an expert must opine in design defect cases and the types of testimony that the appellate courts have found sufficient and insufficient. Counsel should pay heed to these guidelines at all stages of the litigation – from the selection of the experts to the preparation of one’s own experts and the challenge of opposing experts. As these cases demonstrate, the sufficiency of expert testimony may be the difference between a positive and negative outcome for the client.•

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Blaire Henley is an associate in the Indianapolis firm of Wooden & McLaughlin and a member of the DTCI Products Liability Section. This article is an abridgment of her upcoming presentation at the DTCI Annual Conference Nov. 17-18. She thanks Kip S. M. McDonald for his assistance with this article. The opinions expressed in this article are those of the author.