Can an engineering expert witness offer his alternative design opinion without performing research and testing?
The court in ELAINE BENJAMIN, v. THE FOSDICK MACHINE TOOL COMPANY, No. 11-CV-00571-JJM. United States District Court, W.D. New York. April 22, 2015 dealt with the plaintiff who got her hand entangled in a spinning reamer tool attached to an upright drill press.
The expert Sevart:
Mr. Sevart applied a methodology known as “design hierarchy”, the purpose of which is to “[e]liminate all hazards, if possible, without unduly compromising function or utility of machine”, and as to “hazards [which] cannot be eliminated, provide some form of physical protection or occurred protecting the operator”. Sevart Affidavit , ¶11. He concluded that the drill press was defective because it “should have been provided with barrier guarding to prevent unintended contact with the rotating components, including the spindle and tool. This barrier could have been interlocked to allow for easy access, but prevent excess while the machine was running”.
The court found that the expert had not done sufficient research and testing and found his testimony inadmissible.
The court stated:
As I recognized in Fuller v. Summit Treestands, Inc., 2009 WL 1874058, *5 (W.D.N.Y.), adopted, 2009 WL 1874057 (W.D.N.Y. 2009), lack of testing does not necessarily preclude an expert opinion. However, “[w]hile testing is not an absolute prerequisite for an expert’s theory of . . . alternative design to be admissible in a design defect case, it is usually critical to show that an expert adhered to the same standards of intellectual rigor that are demanded in their professional work . . . . Adherence to engineering standards of intellectual rigor almost always requires testing of a hypothesis if the expert cannot point to an existing design in the marketplace.” Colon ex rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53, 76 (S.D.N.Y. 2001). See also Karnauskas v. Columbia Sussex Corp., 2012 WL 234377, *8 (S.D.N.Y. 2012); Brooks v. Outboard Marine Corp., 234 F.3d 89, 92 (2d Cir. 2000) (“The failure to test a theory . . . can justify a trial court’s exclusion of the expert’s testimony”).
Thus, if he does not himself test his hypothesis, the expert must at least be able to “identify makers of similar equipment who have already put into use the alternative design that has been proposed”. Rypkema v. Time Mfg. Co., 263 F.Supp.2d 687, 692 (S.D.N.Y. 2003); Maxwell v. Howmedica Osteonics Corp., 713 F. Supp.2d 84, 92-93 (N.D.N.Y. 2010). Mr. Sevart could not do so. While opining that “[t]he manufacturer knew or should have known of technically and economically feasible design alternatives that would have significantly reduced the risk without significantly adversely affecting the utility of the machine” (Sevart Report [105-7], p. 3), he could not identify anyone who had actually utilized the alternative design which he proposed. He admitted at his deposition [105-9] that he did not research what types of barrier guards were commercially available for upright drill presses in the 1940s (id., pp. 34, 40), and could not say when manufacturers began to use barrier guards of the type he suggested (id., p. 41). He never spoke to anyone who works with upright drill presses like the one at issue to ask them about utilizing this type of barrier guard (id., p. 47), and had not reviewed any articles concerning the use of barrier guards with upright drill presses (id., pp. 49-50).
Therefore, the “design hierarchy” methodology employed by Mr. Sevart, while perhaps sufficient to identify the nature of the problem to be addressed, does not sufficiently address its solution. See Padillas v. Stork-Gamco, Inc., 2000 WL 1470210 *3 (E.D.Pa. 2000) (“Although the . . . methodology . . . offered by Lambert appears to help an engineer, and perhaps a jury, to decide whether a guard is necessary, the methodology offers no guidance as to whether a particular proposed alternative guard is sufficient. In other words, the methodology Lambert described and utilized in his analysis and report addresses the question of when to guard, but gives no guidance as to how to guard”); Wagner v. Hesston Corp., 2005 WL 1540135, *3-4 (D.Minn. 2005), aff’d, 450 F.3d 756 (8th Cir. 2006) (rejecting an engineer’s alternate design opinion based on the “design hierarchy” where insufficient testing was performed to determine the design’s impact on operation of the machine).
The court held:
“[C]onclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” General Electric Company v. Joiner, 522 U.S. 136, 146 (1997).
For the foregoing reasons, I conclude that there is “simply too great an analytical gap” between Mr. Sevart’s opinion and the data upon which it is based. Therefore, his opinion is inadmissible to prove a design defect; and since plaintiff offers no other evidence to prove such a defect, Makino is entitled to summary judgment. Accordingly, Makino’s motion  is granted and the Amended Complaint is dismissed, on the merits. The Clerk of the Court shall take the steps necessary to close this case.