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The 9th Circuit's 8/97 McKendall v Crown Control opinion finding "Daubert Factors" apply to expert testimony bearing on "scientific" knowledge - not to testimony based solely upon "experience or training" since Fed.R.Evid. 702 only requires a trial court to make a preliminary finding that such proffered expert testimony is both relevant and reliable.

U.S. 9TH CIRCUIT COURT OF APPEALS
No. 95-56657

DONOVAN McKENDALL, Plaintiff-Appellant,
v.
CROWN CONTROL CORP., Defendant-Appellee.

Appeal from the U.S. Dist. Court, C.D. Cal.
David Kenyon, Dist. Judge, Presiding
D.C. No. CV-93-06961-KN

Argued and Submitted Apr. 10, 1997, Pasadena, Ca.

Before: Betty Fletcher and Harry Pregerson, Circuit Judges, and Wexler,* Dist. Judge.

OPINION by Judge Fletcher - Filed Aug. 8, 1997

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

Donovan McKendall sued Crown Control Corp., the manufacturer of a forklift for injuries incurred when a sofa fell on him while he was operating the forklift. McKendall's counsel disclosed to Crown that Martin Siegel, an experienced mechanical and metallurgical engineer, would present expert testimony supporting the assertion that a safety device was feasible and should have been on the forklift.

Crown filed a motion in limine to exclude Siegel's testimony under Fed.R. Evid. 702 ("R.702") and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 ('93), because the "proposed testimony is not based on 'scientific knowledge,' is not derived by a reliable and accepted 'scientific method,' and does not amount to 'good science.'"

In response, McKendall provided the district court with a copy of Siegel's curriculum vitae and filed a narrative setting forth Siegel's qualifications and anticipated testimony. He also included the same information in a declaration of his counsel, Norman Alshuler, that stated, in part:

* Siegel is a consulting, mechanical and metallurgical engineer . . . working in the area of product design, development and safety for over 50 years.
* In addition, he was a professor of mechanical engineering . . . for 33 years primarily in the area of design of machines and product safety.
* He has testified in product cases for over 30 years on matters dealing with machinery and safety of machinery . . . . [and] has investigated hundreds of forklift cases and is familiar with all kinds of fork lifts including the type and similar to the one involved in this case . . .
* He has inspected the forklift involved in this case and read all literature relevant thereto.
* He is expected to testify to the risks of injury inherent in the present design of the forklift in which the operator is unguarded and is exposed to be injured by moving loads and rectifying the defect due to the high risk of injury.
* He will further testify that alternative safe designs were available including the addition of a movable interlocked guard between the operator and the load which would protect the operator from moving or falling loads...

The district court granted the motion to exclude, finding Siegel's proposed expert testimony inadmissible under Daubert and R.702 stating that the proffer "fails the Daubert test because Plaintiffs make no showing that these conclusions are based on sound scientific principles." The court concluded that McKendall had only offered the expert's qualifications and unsubstantiated conclusions.

Despite a declaration by Siegel explaining his qualifications and proposed testimony in more detail, the court subsequently denied McKendall's motion for relief and motion for reconsideration, stating: "[p]laintiffs have again failed to show that the gate proposed by the expert is feasible, or that the gate would not impede the forklift's proposed uses, or that the gate would increase the overall safety of the vehicle. Conclusory assertions as to the effectiveness of the gate are not sufficient." With McKendall left with no expert witness testimony to support his action the district court granted Crown summary judgment.

McKendall appeals the district court's orders:
    1) excluding Siegel's testimony;
    2) denying relief from and reconsideration of that order; and
    3) granting summary judgment in Crown's favor.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. The applicability of Daubert is a question of law, also reviewed de novo. We review a ruling to exclude expert testimony based on R.702 under an abuse of discretion standard even though the ruling was dispositive of a summary judgment motion.

III. DISCUSSION

In its landmark decision in Daubert, the Supreme Court held that R.702, governing the admissibility of scientific expert testimony, superseded Fry v. U.S., 293 F.1013 (D.C.Cir.'23), which had required scientific testimony to be generally accepted in the relevant scientific community in order to be admissible under R.702. Daubert at 589. R.702 provides:

If scientific, technical, or other specialized knowledge will assist a 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.

When faced with a proffer of expert testimony, the district court must determine whether the expert witness is qualified and has specialized knowledge that will "assist a trier of fact to understand the evidence or to determine a fact in issue." Daubert at 591. Courts have broad discretionary powers in determining if the proposed expert is qualified by "knowledge, skill, experience, training, or education." R.702. Next, the court must decide if the proposed subject matter of the expert opinion properly concerns "scientific, technical, or other specialized knowledge under R.702. Finally, the court performs a gatekeeping function to ascertain whether the testimony is helpful to the trier of fact, i.e., whether it rests on a reliable foundation and relevant to the case's facts.

Daubert noted several factors that courts should consider in determining if proffered "scientific" expert testimony would assist a trier of fact, including whether it: (1) can be tested; (2) has been subjected to peer review; (3) has a high known or potential rate of error; and (4) has attained general acceptance within the scientific community. Daubert at 593.

Here, the district court presumed that for Siegel's testimony to be admissible, it must be based on "scientific" knowledge to which the Daubert factors would apply. The court was particularly troubled that Siegel had not built or tested the safety device he proposed. Consequently, based on R.702 and Daubert, the court concluded that the testimony wasn't reliable and thus not helpful to a trier of fact.

McKendall does not contend that Siegel's testimony would withstand application of the Daubert factors. Rather, he argues that the district court erred in applying the Daubert factors to the testimony since it wasn't based on "scientific" knowledge but based instead on experience as a engineer who investigated hundreds of forklift accidents. He argues that Siegel has "technical, or other specialized knowledge" described in R.702, and to which the Daubert's "scientific knowledge" factors don't apply. Thus, he proposes that the testimony should have been admitted under R.702, as Siegel demonstrated through experience, training, and education his familiarity with forklifts, and argues this knowledge would have assisted the trier of fact understand the evidence and determine facts at issue, consistent with R.702.

We agree that the court erred in applying the Daubert factors, which are relevant only to testimony bearing on "scientific" knowledge, to Siegel's testimony. This Circuit has recognized that Daubert is confined to the evaluation of "scientific" expert testimony. See Cordoba, 104 F.3d at 230 ("In order to qualify as scientific knowledge, an inference or assertion must be derived from the scientific method. Expert testified on the basis of specialized knowledge, not scientific knowledge.") This reading is also supported by Daubert itself, that "[r]ule 702 also applies to'technical, or other specialized knowledge.' Our discussion is limited to the scientific context because that is the nature of the expertise offered here." Daubert at 590 n.8. [fn.1]

Although we have not previously confronted this issue in the context of a products liability case, the Tenth Circuit faced a situation similar to this case in Compton v. Subaru, 82 F.3d 1513 (10th Cir.), involving a plaintiff's products liability action against the manufacturer of an automobile alleging that the vehicle was defectively designed because there was excessive intrusion of the roof into the passenger compartment during rollover. Id. at 1516. The plaintiff's expert was a mechanical engineer who proffered testimony that the car was defectively designed because it permitted excessive roof crush. Id. Like Siegel here, the Compton expert examined the allegedly defective product and read relevant literature but did not provide a model or test his proposed design. Id. at 1516.

The district court allowed the expert to testify, relying in part on Daubert, for its rationale. The 10th Circuit, on appeal, upheld the testimony's admission but concluded that Daubert didn't apply to it, noting that using "the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training. ... In such cases, R.702 merely requires the trial court to make a preliminary finding that proffered expert testimony is both relevant and reliable while taking into account '[t]he inquiry envisioned by R.702 is ... a flexible one.'" Id. at 1518. In language particularly relevant here, the Compton court affirmed the district court's reasoning that the expert's testimony was "facially helpful and relevant," and thus admissible under R.702, concluding:

In sum, we do not believe Daubert completely changes our traditional analysis under R.702. Instead, Daubert sets out additional factors the trial court should consider under R.702 if an expert witness offers testimony based upon a particular methodology or technique.
. . .
[I]t is unnecessary to reach the question whether Daubert mandates a further inquiry into[the expert's] "scientific, technical, or other specialized knowledge" under R.702 because we find his testimony was not based on any particular methodology or technique. Rather, [the expert] reached his expert conclusions by drawing upon general engineering principles and his twenty-two years of experience as an automotive engineer. Id. at 1519.

Similarly, we conclude that Siegel's testimony, based on his engineering experience and his having investigated hundreds of fork lift cases over the past thirty years, that a safety device is feasible, is both "facially helpful and relevant" and seemingly reliable. See id. Crown will have every opportunity on cross-examination to point out that Siegel has not created or tested the safety device which he suggests would have prevented the accident. [fn.2] The district court erred in excluding Siegel's testimony based on Daubert.[fn.3]

Since we conclude that Siegel's testimony should have been admitted, we reverse the district court's grant of summary judgment to Crown. Siegel's expert testimony creates a genuine issue of material fact sufficient to defeat a summary judgment motion.

Reversed and Remanded.

FOOTNOTES

* Hon. Leonard D. Wexler, Senior U.S. Dist. Judge for the E. Dist. of N.Y., sitting by designation.

1. Our Circuit has made what seem to be conflicting pronouncements as to whether Daubert applies to all expert testimony or only to scientific knowledge. Compare Cordoba at 230 ("Daubert applies only to the admission of scientific testimony.") with Southland Sod v. Stover, 108 F.3d 1134 (9th Cir.'97) ("Daubert's holding applies to all expert testimony, not just testimony based on novel scientific methods."). The pronouncements are dicta except those in Cordoba holding that Daubert is inapplicable in determining whether expert testimony regarding the modus operandi of narcotics traffickers is admissible. Cordoba at 230. Cordoba, in stating that Daubert only applies to the admissibility of "scientific" testimony, is correct, at least in a narrow sense. However, if one views Daubert in a broader context, it is giving strong advice to district courts: in ruling on admissibility, trial judges are the gatekeepers and should pay particular attention to the reliability of the expert and his or her testimony. See Daubert at 590. In that sense, Daubert applies to all expert testimony.

2. Cf. Southland Sod ("Unlike novel scientific theories, a jury should be able to determine whether asserted technical deficiencies undermine a survey's probative value.") Likewise, a jury should be able to determine the weight to be accorded Siegel's testimony concerning a proposed safety device.

3. We note that had the district court excluded Siegel's testimony based only on R.702, and not mentioned Daubert, we would still conclude that the court abused its discretion in excluding his testimony. However, because the court's ruling was based in part on an incorrect application of Daubert, the court committed an error of law upon which we base our ruling.

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