The United States Court of Appeals for the First Circuit recently held that an expert offering opinions on safer alternative design in a product liability matter does not need to perform hands on testing of the alternative design to ensure his testimony is sufficiently reliable. In Berardo A. Quilez-Velar v. Ox Bodies, Inc., ___ F. 3d ____ (1st Cir. 2016) 2016 WL 2621133, Plaintiff brought a claim for strict product liability against a dump bed manufacturer and claimed the underride guard on the back of its dump bed was negligently designed and manufactured.
At trial, the court allowed Plaintiff’s mechanical engineering expert to testify that there were safer alternatives to Ox Bodies’ underride guard, although Plaintiff’s expert conceded that he did not crash-test his proposed alternative design and that none of his rear underride guard designs had ever been adopted by any tilt or dump bed manufacturers.
Following a 12 day trial, the jury returned a verdict finding Ox Bodies strictly liable for defective design. Plaintiffs appealed the ruling on other grounds and Ox Bodies cross-appealed claiming the trial court erred in admitting Plaintiff’s expert’s testimony over Ox Bodies’ Daubert challenge.
Although the Court of Appeals acknowledged testing is one of the most common and useful reliability guideposts for a court when contemplating evidence, it held that the First Circuit “has never adopted a rule that an expert himself must have tested an alternative design, much less by building one.” Therein the Court relied on the holding in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999), that the Daubert factors do not constitute a definitive checklist or test, as well as other cases that declined to hold that testing is a requirement or the sole, dispositive factor under Daubert. See Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 431-33 (6th Cir. 2007); Wagner v. Hesston Corp., 450 F.3d 756 760 n.8 (8th Cir. 2006); Watkins v. Telsmith, Inc., 121 F.3d 984, 990 (5th Cir. 1997).