ILNews

DTCI: Alternative designs

Back to TopCommentsE-mailPrintBookmark and Share

dtci-henley-blaire-mug.jpgBy 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.•

____________

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

ADVERTISEMENT