Pineda v. Ford Mtr Co ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-24-2008
Pineda v. Ford Mtr Co
Precedential or Non-Precedential: Precedential
Docket No. 07-1191
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1191
JOSE PINEDA,
Appellant,
v.
FORD MOTOR COMPANY
On Appeal from the Judgment of the United
States District Court
for the Eastern District of Pennsylvania
(Civ. No. 04-cv-3359)
Magistrate Judge: Honorable Jacob P. Hart
Argued: February 5, 2008
Before: McKEE, AMBRO, Circuit Judges, and IRENAS,*
Senior District Judge.
*
Honorable Joseph E. Irenas, Senior United States
District Judge for the District of New Jersey, sitting by
designation.
(Filed: March 24, 2008)
Scot R. Withers, Esq. (Argued)
Lamb McErlane PC
24 East Market Street
P.O. Box 565
West Chester, PA 19381
and
Andrew P. Motel, Esq.
Law Offices of Andrew P. Motel, LLC
330 North High Street
West Chester, PA 19380
Counsel for Appellant
C. Scott Toomey, Esq.
Tiffany M. Alexander, Esq.
Kristen E. Dennison, Esq. (Argued)
Campbell Campbell Edwards & Conroy, P.C.
690 Lee Road, Suite 300
Wayne, PA 19087
Counsel for Appellee
_____________
OPINION
_____________
IRENAS, Senior United States District Judge.
Appellant Jose Pineda is an automobile technician who
2
was injured when the rear liftgate glass of a 2002 Ford Explorer
shattered. He filed a products liability action against Appellee
Ford Motor Company in the United States District Court for the
Eastern District of Pennsylvania and retained an expert to
support his claims. After extensive discovery and a Daubert
hearing,1 the District Court2 ruled that Pineda’s proffered expert
witness was not qualified to testify and that his methodology
1
A Daubert hearing refers to a pretrial hearing where a
court determines whether a proffered expert witness’s
testimony is both relevant and reliable, and thus admissible as
evidence, pursuant to Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
2
On June 16, 2006, the Honorable Bruce W. Kauffman,
United States District Judge, referred this action to the
Honorable Jacob P. Hart, United States Magistrate Judge, to
conduct any and all proceedings and to order the entry of a
final judgment. The referral was made pursuant to 28 U.S.C.
§ 636(c) and Federal Rule of Civil Procedure 73 and with the
consent of all parties. Upon an appropriate referral and an
entry of judgment, “an aggrieved party may appeal directly to
the appropriate United States court of appeals from the
judgment of the magistrate judge in the same manner as an
appeal from any other judgment of a district court.” 28
U.S.C. § 636(c)(3).
3
was not reliable. The District Court then granted Ford’s motion
to exclude the testimony of Pineda’s expert and its motion for
summary judgment. For the reasons set forth below, we will
reverse both decisions and remand for further proceedings.
I.
Pineda was employed as an automobile technician by
Murphy Lincoln-Mercury in West Chester, Pennsylvania. On
July 18, 2002, he worked to replace several components of the
rear liftgate on a 2002 Ford Explorer. Pineda initially examined
the Explorer on July 2, when the owner brought the vehicle to
the dealership for repair because the rear liftgate would not close
properly. Pineda determined that one of the hinges that
connected the liftgate glass to the body of the Explorer was
damaged. He also knew that, in April of 2001, Ford issued a
Special Service Instruction for repair of the liftgate brackets on
2002 Explorers built between February 5 and March 30, 2001.3
The brackets connected the lift cylinders, which supported the
3
The vehicle Pineda inspected was built on March 12,
2001.
4
rear liftgate in the open position, to each side of the liftgate
glass. Pineda told the owner of the vehicle to refrain from using
the rear liftgate until it could be repaired. He then ordered
replacement lift cylinders, liftgate brackets, and liftgate hinges,
all of which were available for installation on July 18.
That morning, Pineda replaced the lift cylinders and
liftgate brackets without incident. Later in the afternoon, he
began to replace the liftgate hinges. During his deposition,
Pineda described what happened next:
It was right after lunch, somewhere around 1:00,
when I finished to install the hinge on the left side
and moved to the right side. I got the book
because [there] was no information related to the
torque specs on the hinge, so I got the book,
torqued the hinge [on the glass side] to the specs
of the book, then put the nut on the body side.
When I finished torquing the nut on the body side,
I hear a click and felt like the glass was
exploding. I closed my eyes and I felt something
hit my leg.
....
I stepped back with my eyes closed, two steps. I was in so much
pain on my leg that I have to open my eyes, and I saw my calf
wide open.
Pineda filed a complaint against Ford on July 16, 2004,
in the Eastern District of Pennsylvania. The complaint alleged
that the liftgate glass and hinges on the 2002 Ford Explorer were
5
defective in design and that Ford failed to adequately warn of
the dangerous condition.4
In order to satisfy his burden of proof on the products
liability claims, Pineda retained Craig D. Clauser, P.E., as an
expert. Clauser produced a report on September 30, 2005. It
concluded that the liftgate glass shattered because its “design
was defective in that it was only marginally able to resist
fracture in its intended service and the pertinent manual and
bulletins lacked adequate instructions and warnings.” Clauser’s
report noted that “[n]o improper action by Mr. Pineda caused
this incident to occur.” 5
4
The complaint also alleged negligence and breach of
express and implied warranties. Pineda has not raised either
claim as an issue on appeal. We therefore consider any
arguments as to those claims waived. See Simmons v. City of
Philadelphia, 947 F.2d 1042, 1065-66 (3d Cir. 1991).
5
Ford claims, both in its brief to this Court and during
oral argument, that Clauser opined that Pineda’s own error
could have caused the liftgate glass to shatter because Pineda
“misaligned the glass.” This assertion not only confuses the
primary issue before us–whether the District Court erred in
excluding Clauser’s testimony–but also mischaracterizes
Clauser’s consistent position that Pineda’s injury was not
caused by his own improper action. In addition to the
statement in his report, Clauser was asked during his
deposition: “So you do believe that [Mr. Pineda] did misalign
the glass, but he did it because he didn’t have enough
instructions not to?” Clauser responded, “That’s correct.”
6
Ford deposed Clauser on March 31, 2006. He stated at
the deposition that his design defect opinion was based on his
comparison of warranty claims for 2002 and 2003 model year
Ford Explorers. Specifically, his analysis of performance
reviews based on the warranty claims led him to conclude that
2002 models had a design defect related to the liftgate glass and
hinges. His opinion was also based on third-party opinions he
found on the internet at BlueOvalNews.com.6
Clauser similarly testified during the Daubert hearing that the
reason Pineda misaligned the glass was that there were
inadequate instructions or warnings provided by Ford. We do
not render any opinion as to the accuracy or credibility of
these statements, since that would be for a jury to determine.
However, the record does not support the position that
Clauser ever opined that Pineda committed an error that could
have been the proximate cause of his injury.
But even if the record supported Ford’s assertion, the
question of whether Pineda’s own conduct caused his injury
should generally be left to the jury, if such a question is
presented to the jury at all. See Dillinger v. Caterpillar, Inc.,
959 F.2d 430, 437, 441 (3d Cir. 1992) (noting that the
Pennsylvania Supreme Court refuses to permit the
introduction of evidence of a plaintiff’s negligence in a
products liability action for purposes of establishing
comparative fault, but that some Pennsylvania lower courts
have admitted evidence of contributory negligence for a jury
to consider on the issue of causation). The question is simply
not relevant to the issue of whether Clauser was qualified to
testify and whether his methodology was reliable.
6
BlueOvalNews.com is an independent website that
provides forums for visitors to discuss news about Ford and
7
As to his failure to warn opinion, Clauser testified that
the 2002 Explorer’s service manual did not provide specific,
step-by-step instructions for replacing the liftgate brackets and
hinges and reconnecting them to the liftgate glass. He further
testified that the service manual failed to warn that the need for
following such instructions was a safety issue. Clauser admitted
that, in reaching his conclusions, he did not perform any
objective testing of his own, e.g., stress analysis or other
experiments on the liftgate glass of the vehicle at issue or on
2002 Explorers generally.
After the deposition, Ford filed motions to exclude
Clauser’s testimony and for summary judgment. Alternatively,
it moved for a pretrial Daubert hearing. The bases for these
motions were that Clauser was unqualified to provide expert
testimony and that, even if he were qualified, Clauser’s
testimony was unreliable under Federal Rule of Evidence 702
and Daubert.7 The District Court granted the motion for a
developments with the company’s array of automobiles. The
website does not appear to be endorsed or supported by Ford.
7
Ford based its motion for summary judgment on the
assumption that its motion to exclude Clauser’s testimony
would be granted. Ford argued that no genuine issue of
8
Daubert hearing, which was held on September 28, 2006. Prior
to the hearing, on July 11, 2006, Clauser provided a
supplemental report, in which his opinions from the first report
remained unchanged. Nonetheless, at the start of the hearing,
Pineda voluntarily withdrew his design defect claim and
proceeded only on his failure to warn claim.
Clauser was the only witness to testify at the Daubert
hearing. Pineda’s counsel first asked Clauser to discuss his
credentials as a professional engineer with experience in
materials analysis and systems failure analysis. Clauser
admitted that he was not a warnings expert, except to the extent
that “a warning and instructions” are “solution[s] to an
engineering problem.” He also testified about Ford’s 2004
Safety Recall Instruction (the “SRI”), which described the
procedure for replacing the liftgate brackets and hinges on the
2002 Ford Explorer. Clauser stated that the SRI, unlike the
2002 service manual used by Pineda, provided adequate
warnings and proper, detailed instructions for the replacement
material fact would remain without Clauser’s testimony, and
Pineda’s products liability claims would fail as a matter of
law.
9
of the liftgate brackets and hinges.8
By Opinion and Order dated November 15, 2006, the
District Court granted Ford’s motion to exclude Clauser’s
testimony in its entirety because: (1) Clauser admitted that he
was not qualified as a warnings expert; (2) when discussing
alternative warnings, Clauser could not compare the 2002
service manual to the SRI pursuant to Federal Rule of Evidence
407; and (3) Clauser’s testimony was not based on an accepted
methodology, i.e., his testimony was unreliable. The District
Court held Ford’s motion for summary judgment in abeyance
pending Pineda’s response to the issue of whether he could
withstand summary judgment without expert testimony.
Pineda did not file the requested response by the District
Court’s imposed deadline of November 29, 2006. He sought an
8
Clauser testified that, while a warning and instructions
are low on the “safeguarding hierarchy,” they are “an
engineering tool.” He stated that the hierarchy requires an
engineer to, in order of preference, “design the defect out,
guard against it, or use instruction.” The thrust of his
testimony was that any number of instructions or warnings
could have been sufficient to adequately warn of the possible
danger to an automobile technician, and that the SRI was
sufficient and the 2002 service manual used by Pineda was
not. However, Clauser stated that he was not “put[ting]
[him]self out as an expert on exactly what the wording [of
alternative instructions or warnings] should be.”
10
extension of time until December 13, which the District Court
granted, but Pineda failed to meet that deadline as well. On
December 19, the District Court granted Ford’s motion for
summary judgment and incorporated its November 15 decision
by reference. Pineda filed a timely notice of appeal on January
18, 2007. His appeal does not challenge the District Court’s
conclusion that “in the absence of expert testimony, a jury could
not render a just and proper decision” on his failure to warn
claim. Thus, the only issue before us is whether the District
Court erred in its decision to exclude Clauser’s proffered expert
testimony.9
II.
The District Court had jurisdiction based upon the
diversity of the parties under 28 U.S.C. § 1332. We have
jurisdiction over the District Court’s final order granting Ford’s
motion for summary judgment pursuant to 28 U.S.C. § 1291.
“Under the ‘merger rule,’ prior interlocutory orders [such as the
9
Because we find that the District Court erred in
excluding Clauser’s testimony, the District Court’s grant of
summary judgment in favor of Ford was necessarily erroneous
since that decision was based entirely on the absence of expert
testimony on behalf of Pineda.
11
order excluding the testimony of Clauser] merge with the final
judgment in a case, and the interlocutory orders (to the extent
that they affect the final judgment) may be reviewed on appeal
from the final order.” In re Westinghouse Sec. Litig., 90 F.3d
696, 706 (3d Cir. 1996).
We apply an abuse-of-discretion standard when
reviewing a District Court’s decision to admit or exclude expert
testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152 (1999); see also In re TMI Litig., 193 F.3d 613, 666 (3d Cir.
1999). “An abuse of discretion arises when the District Court’s
decision rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.”
TMI, 193 F.3d at 666 (internal quotation marks omitted). We
will not interfere with the district court’s decision “unless there
is a definite and firm conviction that the court below committed
a clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors.” Id. (internal quotation marks
omitted). To the extent that the District Court’s decision
involved a legal interpretation of the Federal Rules of Evidence,
our review is plenary. See id.
12
III.
Under the Federal Rules of Evidence, a trial judge acts as
a “gatekeeper” to ensure that “any and all expert testimony or
evidence is not only relevant, but also reliable.” Kannankeril v.
Terminix Int’l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (citing
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993)). The Rules of Evidence embody a strong preference for
admitting any evidence that may assist the trier of fact. Id.; see
also Fed. R. Evid. 401 (defining “relevant evidence,” all of
which is generally admissible, to mean “evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence” (emphases
added)). “Rule 702, which governs the admissibility of expert
testimony, has a liberal policy of admissibility.” 10 Kannankeril,
10
Rule 702, which was amended on April 17, 2000, in
response to Daubert, provides:
If scientific, technical, or other specialized
knowledge will assist the 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, if (1) the testimony is
13
128 F.3d at 806.
Rule 702 has three major requirements: (1) the proffered
witness must be an expert, i.e., must be qualified; (2) the expert
must testify about matters requiring scientific, technical or
specialized knowledge; and (3) the expert’s testimony must
assist the trier of fact. Id. (citing In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 741-42 (3d Cir. 1994)). We have interpreted
the second requirement to mean that “‘an expert’s testimony is
admissible so long as the process or technique the expert used
in formulating the opinion is reliable.’” Id. (quoting Paoli, 35
F.3d at 742).
The District Court found that Clauser failed to meet the
first requirement of Rule 702 because he was not qualified as an
expert on warnings. It also found that Clauser did not satisfy the
second requirement because his methodology was not reliable.
When the District Court considered whether Clauser’s
based upon sufficient facts or data, (2) the
testimony is the product of reliable principles
and methods, and (3) the witness has applied the
principles and methods reliably to the facts of
the case.
Fed. R. Evid. 702.
14
methodology was reliable, it ruled that he could not compare the
2002 service manual to the SRI pursuant to Federal Rule of
Evidence 407.
We will first address the District Court’s finding that
Clauser was not qualified as an expert. Then we will discuss the
District Court’s legal interpretation of the Federal Rules of
Evidence. Finally, we will address the District Court’s finding
that Clauser’s methodology was not reliable.
A. Qualification
In its November 15 Opinion and Order, the District Court
stated, “Clauser has freely admitted that he is not qualified as a
warnings expert, and that he does not purport to be one.”
Primarily on this basis the District Court found that Clauser was
not qualified as an expert as required by Rule 702. Without
more, we disagree with such a finding.
Qualification requires “that the witness possess
specialized expertise.” Schneider ex rel. Estate of Schneider v.
Fried, 320 F.3d 396, 404 (3d Cir. 2003). We have interpreted
Rule 702's qualification requirement liberally. See id.; see also
Paoli, 35 F.3d at 741. We have held that a “broad range of
15
knowledge, skills, and training qualify an expert.” Paoli, 35
F.3d at 741.
This liberal policy of admissibility extends to the
substantive as well as the formal qualifications of experts. Id.11
“[I]t is an abuse of discretion to exclude testimony simply
because the trial court does not deem the proposed expert to be
the best qualified or because the proposed expert does not have
the specialization that the court considers most appropriate.”
Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir.
1996) (accepting more general qualifications in holding that a
treating physician did not have to practice a particular specialty
in order to testify concerning certain matters).
After Pineda withdrew his design defect claim, the
District Court determined that the only permissible expert was
11
Paoli, a post-Daubert case, relied on two pre-Daubert
cases in support of this conclusion. See Hammond v. Int’l
Harvester Co., 691 F.2d 646, 652-53 (3d Cir. 1982)
(permitting an engineer with only sales experience in
automotive and agricultural equipment, who also taught high
school automobile repair, to testify in products liability action
involving tractors); Knight v. Otis Elevator Co., 596 F.2d 84,
87-88 (3d Cir. 1979) (holding that an expert could testify that
unguarded elevator buttons constituted a design defect despite
expert’s lack of specific background in design and
manufacture of elevators).
16
a “warnings expert.” The Court found that Clauser was not
qualified to testify by primarily relying on Clauser’s own
statement at the Daubert hearing that he did not offer himself as
a warnings expert.
Looking beyond this single statement, we find that
Clauser’s formal qualifications are unassailable. He received a
Bachelor of Science and a Master of Science in Metallurgical
Engineering and Material Science, and he spent considerable
time studying fracture mechanics and modeling materials such
as glass. Upon graduation, Clauser worked at Westinghouse
Electric in its materials engineering lab and then Phoenix Steel
Corporation as the manager of quality control. He eventually
joined Consulting Engineers in 1986, where he has consulted
with the legal profession on over two hundred cases involving
the failure of glass or other ceramics. Given Clauser’s extensive
formal qualifications, particularly in relation to glass, it appears
that the District Court was not satisfied with his substantive
qualifications since he was not a warnings expert. We now turn
to that inquiry.
Pineda proffered Clauser as an expert to establish two
17
points. First, Clauser testified that a specific, step-by-step
procedure was required in order to reduce the likelihood that the
rear liftgate glass would fail when replacing the liftgate brackets
and hinges on a 2002 Ford Explorer. More specifically, he
opined that such a procedure should have been embodied in an
instruction in the 2002 Explorer’s service manual but was not.
Clauser testified during the Daubert hearing that, while he was
not proposing what the instruction’s precise language should be,
he was asserting that a proper instruction was a solution to an
engineering problem under the safeguarding hierarchy. To meet
Rule 702's liberal qualification requirement, Clauser did not
need to be substantively qualified in the design of automobile
rear liftgates or the drafting of service manual instructions.
Clauser’s expertise in the stresses and other forces that might
cause a material such as glass to fail was more than sufficient to
satisfy Rule 702's substantive qualification requirement.
Additionally, Clauser was proffered to establish that the
2002 service manual should have contained an explicit warning
that following the necessary step-by-step instruction was a
safety issue. Again, as an engineer, Clauser did not purport to
18
opine on how the warning should be worded or how it should
appear in order to effectively convey its message to an
automobile technician. He only testified that neglecting to
follow the steps of an instruction when replacing the 2002
Explorer’s liftgate brackets and hinges might result in failure of
the liftgate glass, and that a warning was necessary to alert a
technician to the potential problem.12 Clauser was substantively
qualified to testify on this point because a proper warning is also
a solution to an engineering problem.
Therefore, we hold that Clauser should have been
qualified as an expert even though he may not have been the
“best qualified” expert or did not have the “specialization” that
the District Court deemed necessary.
B. Federal Rules of Evidence 407 and 703
12
The wording or comprehensibility of the warning or
step-by-step instruction are not issues before us because the
foundation of Pineda’s claim is that no warning or instruction
existed at all. If, however, Pineda claimed that an existing
warning or instruction was ineffective, misleading, or
otherwise defective, a true “warnings expert” might be
required. Such an expert could be expected to testify as to the
syntax, color, size, placement, clarity, or numerous other
factors, related to an existing warning or instruction. See,
e.g., Pavlik v. Lane Ltd./Tobacco Exps. Int’l, 135 F.3d 876,
886-87 (3d Cir. 1998). But this case does not present a
situation where a warnings expert might be necessary.
19
At the Daubert hearing, Clauser addressed the issue of
alternative instructions and warnings for the safe replacement of
the rear liftgate brackets and hinges on 2002 Ford Explorers.
Without opining on the precise language, he asserted that the
SRI issued by Ford in 2004 was an appropriate alternative to the
2002 service manual language. In its November 15 Opinion and
Order, the District Court summarily ruled that Federal Rule of
Evidence 407 13 precluded such a comparison.
13
Rule 407 provides:
When, after an injury or harm allegedly caused
by an event, measures are taken that, if taken
previously, would have made the injury or harm
less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect
in a product’s design, or a need for a warning
or instruction. This rule does not require the
exclusion of evidence of subsequent measures
when offered for another purpose, such as
proving ownership, control, or feasibility of
precautionary measures, if controverted, or
impeachment.
Fed. R. Evid. 407 (emphases added). The Rule rests on two
grounds. First, it “rejects the suggested inference that fault is
admitted when remedial measures are taken subsequent to an
injury.” Kelly v. Crown Equip. Co., 970 F.2d 1273, 1276 (3d
Cir. 1992) (internal quotation marks omitted). Second, “Rule
407 is supported by public policy which encourages
manufacturers to make improvements for greater safety.” Id.
We note that there is a possible exception to Rule 407
20
Pineda argues that he only sought to admit the SRI as an
example of effective language for an alternative instruction and
warning, and not to prove Ford’s “culpable conduct” or the
“need for a warning or instruction.” According to Pineda, any
concern of unfair prejudice can be addressed by either a limiting
instruction from the District Court or by admitting the language
of the SRI without attributing it to Ford. Ford counters that a
plain reading of Rule 407 supports the District Court’s ruling.
We hold that the Court erred because it focused exclusively on
Rule 407 and failed to consider Rule 703, which governs the
bases of opinion testimony by experts. That rule provides:
The facts or data in the particular case upon which
an expert bases an opinion or inference may be
those perceived by or made known to the expert at
or before the hearing. If of a type reasonably
relied upon by experts in the particular field in
forming opinions or inferences upon the subject,
for remedial action mandated by superior governmental
authority, such as a regulatory agency, because the policy goal
of encouraging voluntary improvements for greater public
safety would not necessarily be furthered by the exclusion of
such evidence. See O’Dell v. Hercules, Inc., 904 F.2d 1194,
1204 (8th Cir. 1990); Nexen Petroleum U.S.A., Inc. v. Sea
Mar Div. of Pool Well Servs. Co., No. 06-3043, 2007 WL
2874805, at *5 (E.D. La. Sept. 26, 2007) (citing Rozier v.
Ford Motor Co., 573 F.2d 1332, 1343 (5th Cir. 1978)).
However, the record before us gives no indication of what
prompted Ford to issue the SRI in 2004.
21
the facts or data need not be admissible in
evidence in order for the opinion or inference to
be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by
the proponent of the opinion or inference unless
the court determines that their probative value in
assisting the jury to evaluate the expert’s opinion
substantially outweighs their prejudicial effect.
Fed. R. Evid. 703.
The District Court and the parties conflate the separate
issues of whether the SRI itself can be admitted into evidence
and whether Clauser’s opinion can be admitted if it is based on
a consideration of the SRI. Rule 703 is clear that the SRI does
not need to be admissible evidence in order for Clauser’s
opinion that the 2002 service manual lacked adequate
instructions and warnings to be admitted.14 The Rule’s only
14
Rule 703, as amended on April 17, 2000, permits
otherwise inadmissible evidence to be disclosed to the jury if
the trial court determines that the probative value in assisting
the jury substantially outweighs the prejudicial effect.
However, the Rule’s balancing test clearly establishes a
presumption against disclosure to the jury of otherwise
inadmissible evidence. See Fed. R. Evid. 703 advisory
committee’s notes (2000 Amendments). While we express no
opinion as to whether the SRI should be admitted into
evidence, the advisory committee’s notes implicitly endorse
the possible solution proposed by Pineda with regard to a
limiting instruction: “If the otherwise inadmissible
information is admitted under this balancing test, the trial
judge must give a limiting instruction upon request, informing
the jury that the underlying information must not be used for
22
requirement is that the data be “of a type reasonably relied upon
by experts in the particular field in forming opinions or
inferences upon the subject.” We find that it is reasonable for
an engineer to rely upon a warning and alternative safety
instruction subsequently issued by a manufacturer in forming an
opinion that an earlier service manual fails to provide adequate
instructions and warnings to automobile technicians. Thus,
despite Rule 407's general exclusion of subsequent remedial
measure evidence, we hold that Rule 703 permits Clauser to
base his opinion on a consideration of the SRI.
C. Reliability
As we recognized earlier, pursuant to the second
substantive purposes.” Id.
However, Rule 703's presumption against the
disclosure of otherwise inadmissible evidence is only
applicable when the evidence is offered by the proponent of
the expert. Id. If Ford elects to cross-examine Clauser on the
bases of his opinion, which would include the SRI, it would
become part of the record for the jury to consider. See Fed. R.
Evid. 705 (“The expert may in any event be required to
disclose the underlying facts or data [supporting his opinion]
on cross-examination.”); see also Stecyk v. Bell Helicopter
Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002) (“Rule 705,
together with Rule 703, places the burden of exploring the
facts and assumptions underlying the testimony of an expert
witness on opposing counsel during cross-examination.”).
23
requirement of Rule 702, “an expert’s testimony is admissible
so long as the process or technique the expert used in
formulating the opinion is reliable.” Paoli, 35 F.3d at 742
(citing Daubert, 509 U.S. at 589). While a litigant has to make
more than a prima facie showing that his expert’s methodology
is reliable, we have cautioned that “[t]he evidentiary
requirement of reliability is lower than the merits standard of
correctness.” Id. at 744; see also TMI, 193 F.3d at 665 (stating
that “the standard for determining reliability is not that high,
even given the evidentiary gauntlet facing the proponent of
expert testimony under Rule 702" (internal quotation marks and
citation omitted)); Kannankeril, 128 F.3d at 806 (“Admissibility
decisions focus on the expert’s methods and reasoning;
credibility decisions arise after admissibility has been
determined.”).
A trial court should consider several factors in evaluating
whether a particular methodology is reliable. These factors,
enunciated in Daubert and this Court’s decision in United States
v. Downing, 753 F.2d 1224 (3d Cir. 1985), may include: (1)
whether a method consists of a testable hypothesis; (2) whether
24
the method has been subject to peer review; (3) the known or
potential rate of error; (4) the existence and maintenance of
standards controlling the technique’s operation; (5) whether the
method is generally accepted; (6) the relationship of the
technique to methods which have been established to be reliable;
(7) the qualifications of the expert witness testifying based on
the methodology; and (8) the non-judicial uses to which the
method has been put. Paoli, 35 F.3d at 742 n.8.
The factors drawn from Daubert and Downing, however,
“are neither exhaustive nor applicable in every case.”
Kannankeril, 128 F.3d at 806-07; see also Kumho Tire, 526 U.S.
at 151 (noting that Daubert itself “made clear that its list of
factors was meant to be helpful, not definitive”); Milanowicz v.
The Raymond Corp., 148 F. Supp. 2d 525, 536 (D.N.J. 2001)
(reconfiguring Daubert for application to “technical” or “other
specialized” subjects such as engineering and identifying several
factors for trial courts to consider in evaluating reliability,
including relevant literature, evidence of industry practice, and
product design and accident history). “The inquiry envisioned
by Rule 702 is . . . a flexible one.” Daubert, 509 U.S. at 594.
25
Here, the District Court focused its analysis extensively
on “indicia of reliability specific to warnings and instructions.”
The Court determined that Clauser’s opinion that the 2002
service manual failed to provide adequate instructions and
warnings was based on nothing more than his “generalized
experience.” In particular, it criticized Clauser for declining to
offer proposed alternative language for a warning, for failing to
test the effectiveness of a possible alternative warning, and for
failing to compare the language of the 2002 service manual with
the language provided by other automobile manufacturers.15
The District Court also held that Clauser could not adequately
testify as to whether the service manual’s lack of instructions
actually caused Pineda’s injury because Clauser did not test the
2002 Ford Explorer at issue or any other 2002 Explorers.
The District Court’s inquiry of the reliability of Clauser’s
methodology did not demonstrate the appropriate level of
flexibility required by Rule 702 and our past precedent. First,
the District Court focused too narrowly on Clauser’s failure
15
It was in relation to this last point that the District Court
held that Rule 407 precluded Clauser from comparing the
language of the 2002 service manual with the SRI issued by
Ford in 2004.
26
either to offer proposed alternative language for a warning or to
test the effectiveness of alternative warnings. Pineda proffered
Clauser as an engineering expert who understood the stresses
and forces that might cause glass to fail. Clauser’s specialized,
rather than generalized, experience in this area allowed him to
recognize that exerting a force on one area of the rear liftgate
glass before exerting a force on another area of the glass could
lead to its shattering. Clauser did not have to develop or test
alternative warnings to render an opinion that the 2002 service
manual did not provide adequate, step-by-step instructions to
account for the different stresses that might be exerted when an
automobile technician replaces the rear liftgate brackets and
hinges, or that the lack of instructions was a safety issue for the
technician.
In addition, as we discussed above, Rule 703 permits
Clauser to base his opinion on a comparison of the 2002 service
manual language with the language of the SRI, regardless of
whether Rule 407 might render the SRI inadmissible in
evidence. As a result, Clauser did not have to compare the
language of the 2002 service manual with the language provided
27
by other manufacturers in order to render a reliable opinion that
Ford’s service manual failed to provide adequate instructions or
warnings.16
Finally, the District Court erred in holding that Clauser
failed to establish a causal link between the alleged defect in the
service manual language and Pineda’s injury. It relied on cases
that found such a connection lacking in situations where cause
was far more attenuated. For example, one case excluded an
expert’s testimony because the expert could not address any
defect in the design of a computer keyboard or any causal
association between the keyboard and plaintiffs’ wrist injuries.
See Allen v. IBM, No. 94-264-LON, 1997 U.S. Dist. LEXIS
8016 (D. Del. May 19, 1997). The issue in Allen was not
whether a lack of an instruction or warning caused injuries, but
rather whether the product itself caused injuries. Here, there can
be no doubt that the shattered liftgate glass caused Pineda’s
injuries. Clauser has opined that the instructions and warnings
in the 2002 service manual were inadequate and that an
16
We note, however, that Clauser’s opinion would
probably be more reliable if he consulted the service manuals
of other manufacturers and compared their language to Ford’s
2002 service manual.
28
automobile technician with thorough repair instructions and an
adequate safety warning would not have been injured as a result
of the rear liftgate glass shattering. See Pavlik, 135 F.3d at 886
(noting the general presumption that an individual will read and
heed any warnings attached to a product). Any dispute between
the parties about the strength of the evidence in this case should
be resolved by the jury.
IV.
Accordingly, for the reasons set forth above, we will
reverse the District Court’s decisions excluding Clauser’s
proffered expert testimony and granting summary judgment in
favor of Ford. We remand for further proceedings consistent
with this opinion.
29