Filed: Feb. 01, 2017
Latest Update: Mar. 03, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1950 HOWARD E. NEASE; NANCY NEASE, Plaintiffs – Appellees, v. FORD MOTOR COMPANY, a Delaware Corporation, Defendant – Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:13-cv-29840) Argued: September 21, 2016 Decided: February 1, 2017 Before MOTZ, TRAXLER, and AGEE, Circuit Judges. Reversed and remanded with instructio
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1950 HOWARD E. NEASE; NANCY NEASE, Plaintiffs – Appellees, v. FORD MOTOR COMPANY, a Delaware Corporation, Defendant – Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:13-cv-29840) Argued: September 21, 2016 Decided: February 1, 2017 Before MOTZ, TRAXLER, and AGEE, Circuit Judges. Reversed and remanded with instruction..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1950
HOWARD E. NEASE; NANCY NEASE,
Plaintiffs – Appellees,
v.
FORD MOTOR COMPANY, a Delaware Corporation,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:13-cv-29840)
Argued: September 21, 2016 Decided: February 1, 2017
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Reversed and remanded with instructions by published opinion.
Judge Traxler wrote the opinion, in which Judge Motz and Judge
Agee joined.
ARGUED: Jonathan D. Hacker, O’MELVENY & MYERS LLP, Washington,
D.C., for Appellant. Larry Lee Javins, II, BAILEY, JAVINS &
CARTER, L.C., Charleston, West Virginia, for Appellees. ON
BRIEF: Andrew B. Cooke, FLAHERTY, SENSABAUGH & BONASSO, PLLC,
Charleston, West Virginia; Bradley N. Garcia, O’MELVENY & MYERS
LLP, Washington, D.C., for Appellant. Tony L. O’Dell, TIANO
O’DELL, PLLC, Charleston, West Virginia, for Appellees.
TRAXLER, Circuit Judge:
Howard and Nancy Nease commenced this product liability
action against Ford Motor Company, alleging that Howard suffered
serious injuries in an accident caused by a design defect in the
speed control system of his 2001 Ford Ranger pickup truck. Over
Ford’s objection, the Neases offered the expert testimony of
Samuel Sero that the speed control cable in the 2001 Ranger is
susceptible to getting stuck or “bound” while the throttle to
which it is linked is in the open position, thus preventing the
driver from slowing down the vehicle. The Neases claim that
this is precisely what happened while Howard was driving his
2001 Ranger. A West Virginia jury awarded the Neases
$3,012,828.35 in damages. Ford made several post-trial motions,
including a motion for judgment as a matter of law under Rule
50(b) of the Federal Rules of Civil Procedure. In its motion,
Ford renewed its pre-trial argument that Sero’s testimony was
inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), and should have been excluded. In the
alternative, Ford sought a new trial on the basis that the
district court erroneously instructed the jury on strict
liability under West Virginia law and erroneously admitted
evidence of prior incidents involving Ford vehicles.
The district court denied Ford’s post-trial motions. Ford
now appeals. For the reasons that follow, we conclude that
2
Sero’s testimony should not have been admitted. And, without
any other expert testimony to establish that the 2001 Ford
Ranger was defectively designed and that there were safer
alternative designs available that a reasonably prudent
manufacturer would have adopted, the Neases cannot prove their
case under West Virginia law. Accordingly, we must reverse and
remand for entry of judgment in Ford’s favor.
I.
On November 20, 2012, Howard was driving his recently
purchased, used 2001 Ford Ranger pickup truck on U.S. Route 60
in St. Albans, West Virginia. According to Howard, he was
traveling 45-50 mph when he discovered his vehicle would not
slow down when he released the accelerator pedal. He tried to
slow the pickup truck by applying the brakes, but to no avail.
In order to avoid running into pedestrians or other cars, Howard
turned the Ranger off the road, drove over a curb, and crashed
into a brick car wash building. For about 25-30 seconds after
the pickup truck hit the brick wall, the tires reportedly
continued spinning until the engine shut down. Howard’s Ranger
had approximately 116,000 miles on it at the time of the
accident, and there is no indication in the record that the
vehicle had ever manifested problems with the accelerator,
cruise control or throttle. The Neases thereafter filed this
action against Ford Motor Company, alleging that Ford
3
defectively designed the accelerator pedal-to-throttle assembly
of the 2001 Ranger pickup truck. The complaint asserted causes
of action for strict liability, negligence, and breach of
warranty.
A.
The general design and function of the throttle control
system in the 2001 Ford Ranger is typical of any modern
passenger vehicle. The driver controls engine speed by
depressing the accelerator pedal, which is linked to the
throttle, which, in turn, regulates the amount of air flowing
into the engine. When the accelerator pedal is depressed, the
throttle opens and engine speed increases; when the accelerator
pedal is released, the throttle closes, airflow is restricted
and engine speed decreases.
In the 2001 Ford Ranger, the accelerator pedal is linked to
the throttle body by a steel accelerator cable. The accelerator
cable is attached to a lever on the throttle body; the lever
operates the throttle valve and the throttle valve controls the
engine’s air intake. As “the accelerator pedal is depressed,
the accelerator cable [which is attached to the throttle lever]
is pulled to open the throttle [valve] and increase the engine
speed.” J.A. 83. In essence, the accelerator pedal, the
accelerator cable and the throttle lever form a pulley system
that opens the throttle. As a safety feature, the throttle
4
lever is equipped with return springs that exert 7.2 pounds of
continuous force to pull the throttle closed when the driver
takes his foot off of the accelerator.
In addition to the accelerator pedal-to-throttle assembly,
another means by which the driver of a 2001 Ranger can open the
throttle is the cruise control system. This system is operated
by a “speed control actuator and [a] speed control cable.” J.A.
85. The cruise control system incorporates an electric motor
that operates a steel cable—the speed control cable—to open and
close the throttle. The speed control cable and the accelerator
cable are attached to the same throttle lever/pulley system that
operates the throttle valve. When the speed control actuator
receives input from the cruise control switch on the steering
column, the motor manipulates the speed control cable to pull
the throttle lever independently of the main accelerator cable.
The throttle control design takes into account that both
cables are attached to the same throttle lever/pulley-system.
In order to prevent significant stress to the speed control
cable that could potentially occur when the cruise control is
not engaged and the throttle lever is being controlled by the
accelerator pedal and cable, Ford incorporated a “‘lost motion’
configuration” for the speed control cable assembly. J.A. 85.
In this design, the steel speed control cable runs from the
motor in the speed control actuator through a plastic “guide
5
tube,” and is attached to the throttle lever by a plastic
“connector.” Id. The connector and the guide tube move with
the throttle lever when it is being operated by the accelerator
cable. The speed control cable itself stays stationary while
the guide tube moves up and down the cable and in and out of a
stationary plastic casing tube, called a “casing cap,” which is
attached to the motor.
Id. The gap between the moving guide
tube and the stationary casing cap is approximately 0.04 inches.
B.
Following the accident, plaintiffs hired Samuel Sero, an
electrical engineer, to examine the engine and the throttle
assembly in Howard’s 2001 Ford Ranger. Sero approached his
examination with the view that in failure-to-decelerate cases,
the issue is often one of “mechanical binding” and that a post-
accident investigation should “look at the accelerator cable,
[to] see if there’s anything on it that bound up and prevented
it from closing the throttle when the accelerator pedal was
released, looking for . . . any kind of grime, grit, or anything
that could bind that one.” J.A. 613. 1 Sero indicated that a
post-accident investigation should therefore look for the
1Contaminants that typically build up on automobile engine
parts over time include carbon, substances accumulating from
“vapors off of gasoline, brake fluid, hydraulic fluids, battery
acids, steel, copper, aluminum, [and] magnesium,” J.A. 644, as
well as the dirt and grime that washes up into the engine from
the surface of the road.
6
presence of contaminants and particles that could lodge between
the speed control guide tube and the casing cap and create a
“wedging effect.” J.A. 628. Sero used a borescope to inspect
the speed control assembly.
A borescope is essentially a fiber-optic tube equipped with
a light that a mechanic or an engineer can insert into an
inaccessible area of the engine and view a given component
without having to disassemble the engine. When he examined the
speed control cable in the Neases’ pickup, Sero did not find any
materials wedged between the guide tube and the cap. In fact,
he noted that the speed control cable moved freely.
Nevertheless, Sero concluded that contaminants had entered and
built up in the casing cap over time, causing the guide tube to
stick and, therefore, the throttle plate to remain open. Sero
testified that he was able to identify “a lot of contaminant . .
. deposited” in the casing cap, J.A. 636, and “along the guide
tube,” J.A. 631. Sero also noticed “gouges or striations” on
the guide tube. J.A. 645. From this observation, Sero believed
that there had been “a rough, abrasive material between the . .
. interior of the [casing] cap tube and the surface of the guide
tube,” indicative of binding. J.A. 645. Sero surmised that
sufficient debris had accumulated to create the “wedging effect”
needed to keep the throttle open after the accelerator pedal was
released. However, Sero had no way of knowing precisely how
7
much contaminant was present in the casing cap or whether it was
enough to lodge in the 0.04 inch-gap between the cap and the
guide tube such that the throttle would be stuck in the open
position. The borescope is simply a viewing tool; it does not
afford a means for determining the amount of the contaminant
that can be seen with the device.
To bolster his opinion, Sero pointed to a document Ford had
prepared in 1987 identifying potential risks Ford engineers
should consider addressing in the design of particular vehicles
in the future. This document is called a Failure Mode and
Effects Analysis (“FMEA”). According to Ford’s “Potential
Failure Mode and Effects Analysis” Handbook, “[a]n FMEA can be
described as a systemized group of activities intended to: (a)
recognize and evaluate the potential failure of a
product/process and its effects, (b) identify actions which
could eliminate or reduce the chance of the potential failure
occurring, and (c) document the process.” J.A. 968. The
primary purposes of an FMEA include “identify[ing] potential
failure modes and rat[ing] the severity of their effects” and
“help[ing] engineers focus on eliminating product and process
concerns and help[ing] prevent problems from occurring.” Id.
An FMEA “is meant to be a ‘before-the-event’ action, not an
‘after-the-fact’ exercise.”
Id.
8
Sero testified that the 1987 FMEA “directly addresse[d] the
fact [that] dirt, grease or ice has formed between cable and
cable sheath” and therefore demonstrated that “Ford [was] well
aware of the problem of binding in the lost motion device/cruise
cable.” J.A. 52. Sero asserted therefore that the 1987 FMEA
proved the speed control assembly in the 2001 Ford Ranger was
susceptible to binding. Sero was apparently unaware, however,
that the 1987 FMEA did not even apply to the 2001 Ford Ranger.
The 1987 FMEA “dealt with a vacuum-actuated speed control
system” that was not present in the 2001 Ranger. J.A. 1260.
Based on his borescope exam and the 1987 FMEA, Sero opined
that the 2001 Ford Ranger’s design was not reasonably safe and
that there were several alternative designs that Ford could have
utilized in the design of the speed control assembly:
It is my opinion, . . . within a reasonable
degree of engineering certainty that . . .
1. Mr. Nease’s 2001 Ranger experienced a failure
to decelerate by reason of the binding of the lost
motion portion of the cruise . . . cable while the
throttle was substantially open;
2. The cable design employed by Ford in the
subject 2001 Ranger permits dirt, grease and grime to
enter the conduit through which the cable passes and
is known to cause sticking or binding of the cable;
3. The subject cable is defectively designed;
4. The binding of the cable . . . was caused by
particles of dirt and/or debris typically found under
the hood of motor vehicles;
9
5. The open-throttle condition . . . almost
immediately deplete[d] the vacuum assist to the
brakes;
6. The open-throttle condition, accompanied by
loss of vacuum assist, required the application of
brake pedal forces beyond the physical capabilities of
Mr. Nease;
7. The binding of the defectively-designed cable
was the proximate cause of the crash of the Nease
vehicle;
8. Safer, feasible alternative designs were
available and known to Ford Motor Company at the time
the 2001 Ranger was manufactured.
J.A. 53-54.
Prior to trial, Ford moved to exclude Sero’s opinions under
Daubert on the grounds that Sero’s opinions were not based on
any reliable methodology and that Sero had not established
through testing or other means, such as scientific literature,
that the binding of the speed control assembly could actually
occur. See Daubert, 509 U.S. at 597 (explaining that the
district court must “ensur[e] that an expert’s testimony . . .
rests on a reliable foundation” (emphasis added)). Ford also
argued that Sero, as an electrical engineer, was unqualified to
render an expert opinion on matters of automotive design. The
district court denied Ford’s motion to exclude Sero’s testimony,
concluding that Sero was sufficiently qualified by means of his
experience “design[ing] and operat[ing] . . . mechanical systems
in a variety of settings.” J.A. 525. The court also determined
10
that in arriving at his opinion, Sero employed “standard
engineering methodology to conduct his physical inspection and
reach his opinions.” Id. This methodology included “physically
inspecting the vehicle’s parts, understanding how they are
designed to operate, observing evidence of whether some material
interfered with the operation of the cable, and opining how that
could and did occur here.”
Id. at 526.
The case proceeded to trial and Sero offered his opinions.
Ford attacked Sero’s opinions on cross examination and offered
its own expert testimony. Sero acknowledged that when he
performed his inspection of the speed control cable in the
Neases’ Ranger, he did not find any materials actually wedged
between the guide tube and cap, and he noted that the speed
control cable moved freely. Sero further admitted that he had
never actually found a bound speed cable assembly in any vehicle
that he had inspected.
In contrast to Sero’s professed inability to determine how
much debris was present in the casing cap (because the borescope
does not provide a way to determine the scale of the
contaminants), Ford’s experts performed tests on the Neases’
vehicle and were able to quantify the size of the contaminants
found on the Ranger’s guide tube. Dr. Steven MacLean, an expert
in the field of mechanical engineering, used a scanning electron
microscope to determine that “the thickest region . . . [found]
11
on Mr. Nease’s guide tube . . . was approximately 50 microns in
thickness,” J.A. 2438. For perspective, Dr. MacLean explained
that a piece of paper is about 60 microns thick, making it 10
microns thicker than the contaminants found on the guide tube in
the speed control assembly. Either one is far smaller than the
.04 inch gap between the casing cap and guide tube. And, with
respect to the gouge marks Sero noticed during the borescope
exam that he believed were indicative of binding, Dr. MacLean
testified that his analysis indicated that these marks “are from
the manufacturing process, the molding process of these parts,”
not “a binding event.” J.A. 2419.
Sero agreed that he had never conducted any testing to
determine whether enough debris could accumulate in the casing
cap during normal operation to resist the 7.2 pounds of force
exerted by the return spring and to cause the throttle to stick
open. Sero simply relied upon his observations during the
borescope exam, which was videotaped. At trial, however, Sero
was unable to distinguish between the video of the Nease
borescope and a borescope exam for a previous case in which Sero
had testified that the speed control cable did not bind. He
could not tell the borescope of the cable that he said did bind
from the borescope of the cable that he said did not bind. In
other words, he could not tell one from the other.
12
With regard to the FMEA process that was so central to
Sero’s opinion, Ford presented evidence that potential failure
modes identified in the FMEA had not occurred during actual
vehicle operation. For example, Dr. MacLean explained that a
FMEA is a common “engineering tool,” J.A. 2475, used before
marketing a new product to the public to “proactively try to
determine what are all of the possible failure modes for that
particular new design.” Id. According to MacLean, an FMEA is
not a record of existing problems but rather “a forward-looking
tool for . . . a new product.” J.A. 2481. When an FMEA is
performed, the manufacturer “bring[s] in design engineers,
analysis engineers, manufacturing engineers, people from all
different disciplines, and . . . [the group tries] to come up
with a very comprehensive and exhaustive list of failure modes.
. . . [and seek to determine] how likely it is to occur, and
what does my system do to possibly detect it and prevent it from
happening.” J.A. 2475. Similarly, Karl Stopschinski, a
registered professional engineer and member of the Society of
Automotive Engineers, testified that the FMEA process is akin to
a “brainstorming session” to “identify any potential failure
modes.” J.A. 2157 (emphasis added). Additionally, Ford’s
engineering experts indicated that the 1987 FMEA on which Sero
relied did not even apply to the Neases’ 2001 Ranger pickup
truck. Rather, James Engle, a design analysis engineer,
13
indicated that it is the 2004 FMEA that applies to the 2001
Ranger because it was “originated in February of ’97 and carried
forward.” J.A. 1265.
Finally, Sero testified that several alternative speed
control cable designs were available at the time and that Ford
could have made the 2001 Ranger safer by incorporating one of
these designs. He admitted, however, that he had not tested any
of these alternative designs to determine whether any of them
would have prevented the accident in question. In Sero’s
opinion, testing of the alternative designs he identified was
unnecessary because the designs had been in use in other
vehicles for years and were therefore “proven commodit[ies].”
J.A. 717.
The district court instructed the jury that on plaintiffs’
strict liability claim, plaintiffs had to prove that the design
of the 2001 Ford Ranger was not “reasonably safe for its
intended use.” J.A. 1922. Although the court explained that
the “plaintiffs are only entitled to a reasonably safe product,
not to an absolutely safe product,” the court then instructed,
over Ford’s objection, that “[i]f a product can be made safer
and the danger may be reduced by an alternative design at not
substantial increase in price, then the manufacturer has a duty
to adopt such a design.” Id. During closing argument,
14
plaintiffs’ counsel highlighted the safer alternative design
instruction:
. . . If a product can be made safer and the
danger reduced by an alternative design or device at
no substantial increase in cost, then the manufacturer
has a duty to adopt such design. All that means is if
you find that one of the other designs was safer and
it wasn’t going to cost very much . . . [t]hen you can
find that Ford breached its duty.
J.A. 1960.
The jury returned a verdict for the Neases on the strict
liability count and awarded damages of $3,012,828.35. The jury
returned defense verdicts on the negligence and breach of
warranty counts.
After trial Ford filed a Renewed Motion for Judgment as a
Matter of Law pursuant to Rule 50(b). First, Ford argued that
“there was insufficient evidence to support the jury’s verdict
for strict liability because the claim was dependent upon the
testimony of Plaintiffs’ expert . . . Sero.” J.A. 3477. And,
Ford argued, as it had prior to trial, that Sero’s testimony
should not have been admitted because Sero was unqualified to
testify as an expert and that Sero’s opinions should have been
excluded under Daubert. Specifically, Ford argued that “Sero
never demonstrated unidirectional binding of Mr. Nease’s speed
control cable, he did not attempt to simulate his theory, he did
not conduct any tests that a foreign substance could withstand
the seven-pound spring pressure, [and] he did not demonstrate
15
alternative designs were equally or more safe.” J.A. 3478. The
district court denied the Rule 50 motion, concluding that Sero’s
methodology was reliable because he used the FMEA methodology
used by Ford and that the borescope examination was “consistent
and trustworthy and what historically [was] used in failure to
decelerate cases.” J.A. 3479.
Alternatively, Ford moved for a new trial pursuant to Rule
59(a)(1)(A), arguing that the verdict should be set aside
because the district court issued an improper “duty to adopt”
jury instruction as to safer alternative designs. Ford also
contended that the district court erroneously admitted evidence
of other incidents involving Ford vehicles with an allegedly
defective speed control assembly unit. The district court
denied the motion for a new trial on both grounds. The court
did not expressly reject Ford’s position that the “duty to
adopt” instruction was incorrect under West Virginia law.
Instead, the district court concluded that even if the jury
instruction was erroneous, it was harmless because the jury
found that the product was defective and not reasonably safe,
and thus the jury did not need to reach the question of the duty
to adopt a safer alternative design. Additionally, the district
court noted that the jury instructions were otherwise correct
and informed the jury that the Neases were not entitled to an
absolutely safe product. Finally, the district court ruled that
16
even if the admission of evidence regarding other incidents was
erroneous, it was harmless in view of court’s limiting
instruction to the jury that it “only consider the alleged other
incidents for the limited purpose of determining whether Ford
had notice of the defect” and not “as evidence that the 2001
Ford Ranger was defective.” J.A. 3486.
Ford appeals, arguing that the district court incorrectly
admitted Sero’s expert testimony in contravention of the
requirement that such testimony be reliable under Daubert and
its progeny; that the district court’s erroneous “duty to adopt”
jury instruction was not harmless in view of the fact that it
was the only instruction that counsel for Nease highlighted in
his closing argument to the jury; and that the erroneous
admission of other incident evidence was not rendered harmless
by the district court’s limiting instruction because the
limiting instruction did not apply to the other incidents at
issue. To resolve this appeal, we need only address Ford’s
Daubert argument.
II.
Ford contends that the district court erroneously denied
its motion to exclude Sero’s opinion that Ford’s design of the
speed control assembly in the 2001 Ford Ranger was defective and
that Ford could have used a different design that would have
prevented Nease’s accident. We review the district court's
17
application of Daubert for abuse of discretion. See Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 260 (4th Cir.
2005). “If the district court makes an error of law in deciding
an evidentiary question, that error is by definition an abuse of
discretion.”
Id. (internal quotation marks omitted). A
district court likewise abuses its discretion in deciding a
Daubert challenge if its conclusion “rests upon a clearly
erroneous factual finding.” Bryte ex rel. Bryte v. American
Household, Inc.,
429 F.3d 469, 475 (4th Cir. 2005).
A. Daubert’s Applicability
We first must visit the question of whether Daubert even
applies under these circumstances. The Neases insist that it
does not. We disagree; Daubert clearly applies here.
In Daubert, the Supreme Court addressed an evidentiary
issue that had long divided federal courts—whether the
admissibility of expert scientific testimony was governed by the
“general acceptance” test established in Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), 2 or the later-adopted standards set
forth in Federal Rule of Evidence 702,
see 509 U.S. at 586–87 &
n.5. Daubert held that the Federal Rules of Evidence superseded
Frye and that the admissibility of scientific evidence no longer
2
Under Frye, expert scientific testimony was admitted only
if the expert opinion was based on principles that were
“generally accept[ed]” in “the particular field in which it
belongs.” 293 F. at 1014.
18
was limited to knowledge or evidence “generally accepted” as
reliable in the relevant scientific community. See 509 U.S. at
588–89.
Thus, Daubert made clear that the governing standard for
evaluating proposed expert testimony was set forth in Rule 702,
which at the time provided: “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.” Daubert, 509 U.S. at 588. Implicit in
the text of Rule 702, the Daubert Court concluded, is a district
court’s gatekeeping responsibility to “ensur[e] that an expert’s
testimony both rests on a reliable foundation and is relevant to
the task at hand.”
Id. at 597 (emphasis added).
Relevant evidence, of course, is evidence that helps “the
trier of fact to understand the evidence or to determine a fact
in issue.” Id. at 591 (internal question marks omitted). To be
relevant under Daubert, the proposed expert testimony must have
“a valid scientific connection to the pertinent inquiry as a
precondition to admissibility.”
Id. at 592.
With respect to reliability, the district court must ensure
that the proffered expert opinion is “based on scientific,
technical, or other specialized knowledge and not on belief or
19
speculation, and inferences must be derived using scientific or
other valid methods.” Oglesby v. Gen. Motors Corp., 190 F.3d
244, 250 (4th Cir. 1999). Daubert offered a number of
guideposts to help a district court determine if expert
testimony is sufficiently reliable to be admissible. First, “a
key question to be answered in determining whether a theory or
technique is scientific knowledge that will assist the trier of
fact will be whether it can be (and has been)
tested.” 509 U.S.
at 593. A second question to be considered by a district court
is “whether the theory or technique has been subjected to peer
review and publication.”
Id. Publication regarding the theory
bears upon peer review; “[t]he fact of publication (or lack
thereof) in a peer reviewed journal will be a relevant, though
not dispositive, consideration in assessing the scientific
validity of a particular technique or methodology on which an
opinion is premised.”
Id. at 594. Third, “in the case of a
particular scientific technique, the court ordinarily should
consider the known or potential rate of error.”
Id. Fourth,
despite the displacement of Frye, “‘general acceptance’” is
nonetheless relevant to the reliability inquiry.
Id.
“Widespread acceptance can be an important factor in ruling
particular evidence admissible, and a known technique which has
been able to attract only minimal support with the community may
properly be viewed with skepticism.”
Id. (citation and internal
20
quotation marks omitted). Daubert’s list of relevant
considerations is not exhaustive; indeed, the Court has
cautioned that this “list of specific factors neither
necessarily nor exclusively applies to all experts or in every
case,” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999),
and that a trial court has “broad latitude” to determine whether
these factors are “reasonable measures of reliability in a
particular case,”
id. at 153.
The Neases contend that we can affirm because the district
court was not obliged to perform its Daubert gatekeeping
function in the first place: “Because the Daubert test for
assessing the validity of scientific evidence applies only to
novel scientific testimony, it does not apply in the expert
field of engineering.” Brief of Appellees at 29. This
bifurcated argument is dead wrong on both counts.
First, Daubert itself makes clear that its application is
not limited to newfangled scientific theory, explaining that “we
do not read the requirements of Rule 702 to apply specially or
exclusively to unconventional evidence.” Daubert, 509 U.S. at
592 n.11. The Court recognized the common-sense premise that
“well-established propositions are less likely to be challenged
than those that are novel,”
id., but clearly never suggested
that longstanding theories are immune to a Daubert analysis.
21
Second, the Supreme Court made clear more than 17 years ago
in Kumho Tire that Daubert was not limited to the testimony of
scientists but also applied “to testimony based on ‘technical’
and ‘other specialized’ knowledge.” 526 U.S. at 141. Despite
having cited Kumho Tire in their brief, the Neases are
apparently unaware that the very issue there involved the
application of Daubert to the testimony of a mechanical
engineer. See
id. at 141 (“This case requires us to decide how
Daubert applies to the testimony of engineers and other experts
who are not scientists.” (emphasis added)). The Kumho Court
concluded that Rule 702 “applies to all expert testimony” as its
“language makes no relevant distinction between ‘scientific’
knowledge and ‘technical’ or ‘other specialized’ knowledge. It
makes clear that any such knowledge might become the subject of
expert testimony.”
Id. at 147. The Kumho Court affirmed the
district court’s application of Daubert and decision to exclude
the engineering expert’s testimony as unreliable. See
id. at
158. 3 And, finally, if Kumho were not enough, this court has
also sanctioned the application of Daubert to assess the
reliability of expert engineering testimony. See Oglesby, 190
3
In so holding, the Supreme Court rejected the Eleventh
Circuit’s view that engineering testimony “[fell] outside the
scope of Daubert, [and] that the district court erred as a
matter of law by applying Daubert in this case,” Kumho Tire, 526
U.S. at 146, which is precisely the same argument the Neases
make
here.
22
F.3d at 250-51 (affirming district court’s application of
Daubert principles to testimony of a mechanical engineer and
concluding that the district court did not abuse its discretion
in excluding the engineer’s opinion as unreliable).
Accordingly, we conclude that Daubert most certainly
applies to Sero’s testimony. We now turn to consider whether,
under Daubert, the district court properly admitted Sero’s
testimony.
B. The District Court’s Application of Daubert to Sero’s
Opinions
As we already explained, Rule 702 imposes a special
gatekeeping obligation on the trial judge to ensure that an
opinion offered by an expert is reliable. And although a trial
judge has broad discretion “to determine reliability in light of
the particular facts and circumstances of the particular case,”
Kumho, 526 U.S. at 158, such discretion does not include the
decision “to abandon the gatekeeping function,”
id. at 158–59
(Scalia, J., concurring).
In ruling on Ford’s motion in limine to exclude Sero’s
testimony as unreliable under Daubert, the district court simply
dismissed “[e]very argument raised by [Ford]” as “go[ing] to the
weight, not admissibility, of [Sero’s] testimony.” J.A. 526.
The court did not use Daubert’s guideposts or any other factors
to assess the reliability of Sero’s testimony, and the court did
23
not make any reliability findings. Indeed, the district court
referred neither to Rule 702 nor to Daubert. We are forced to
conclude that the court abandoned its gatekeeping function with
respect to Ford’s motion in limine.
In denying Ford’s post-trial Rule 50(b) motion for judgment
as a matter of law (which renewed Ford’s argument that Sero’s
opinion should have been excluded under Daubert), the district
court again “[found] that Ford’s arguments go to the weight the
jury should afford Mr. Sero’s testimony, not its admissibility.”
J.A. 3481. Although the district court this time cited Daubert
and stated that, according to Sero, “the methodology he employed
is consistent and trustworthy and what historically is used in
failure to decelerate cases,” J.A. 3479, the court repeatedly
emphasized that Ford effectively raised its objections to Sero’s
opinion through cross-examination. For the district court to
conclude that Ford’s reliability arguments simply “go to the
weight the jury should afford Mr. Sero’s testimony” is to
delegate the court’s gatekeeping responsibility to the jury.
“The main purpose of Daubert exclusion is to protect juries from
being swayed by dubious scientific testimony.” In re Zurn Pex
Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011).
The district court’s “gatekeeping function” under Daubert
ensures that expert evidence is sufficiently relevant and
reliable when it is submitted to the jury. Rather than ensure
24
the reliability of the evidence on the front end, the district
court effectively let the jury make this determination after
listening to Ford’s cross examination of Sero.
In sum, the district court did not perform its gatekeeping
duties with respect to Sero’s testimony. The fact that an
expert witness was “subject to a thorough and extensive
examination” does not ensure the reliability of the expert’s
testimony; such testimony must still be assessed before it is
presented to the jury. McClain v. Metabolife Int’l, Inc., 401
F.3d 1233, 1238 (11th Cir. 2005). Thus, we are of the opinion
that the district court abused its discretion here “by failing
to act as a gatekeeper.” Id.; see
Kumho, 526 U.S. at 158–59
(Scalia, J. concurring) (“[T]rial-court discretion in choosing
the manner of testing expert reliability . . . is not discretion
to abandon the gatekeeping function . . . [or] to perform the
function inadequately.”).
C. Sero’s testimony should have been excluded under Daubert
1. Sero’s testimony that the speed control assembly was not
reasonably safe because it was susceptible to binding
“[A] plaintiff may not prevail in a products liability case
by relying on the opinion of an expert unsupported by any
evidence such as test data or relevant literature in the field.”
Oglesby, 190 F.3d at 249 (internal quotation marks omitted). “A
reliable expert opinion must [not] be based . . . on belief or
25
speculation.” Id. at 250. One especially important factor for
guiding a court in its reliability determination is whether a
given theory has been tested. According to Daubert, “a key
question to be answered in determining whether a theory or
technique is scientific knowledge that will assist the trier of
fact will be whether it can be (and has been)
tested.” 509 U.S.
at 593.
Sero’s opinion had three critical components: that the
speed control assembly in the 2001 Ford Ranger was vulnerable to
binding because the design allowed for contaminant to lodge
between the speed control guide tube and the casing cap; that
such binding in fact occurred while Howard was driving his 2001
Ranger, resulting in the accident; and that there were safer
alternative speed control assembly designs available to Ford for
use in the 2001 Ranger.
Testing was of critical importance in this case as Sero
conceded that the speed control cable in the Neases’ Ranger was
not bound or wedged; the cable “moved freely” when Sero
performed a post-accident inspection of the Neases’ Ranger.
J.A. 676. In fact, Sero admitted he has never seen any vehicle
with “post-crash binding.” J.A. 679. Sero, however, conducted
no testing whatsoever to arrive at his opinion. Specifically,
he has never tested a 2001 Ford Ranger to determine whether it
is actually possible for enough debris to accumulate in the
26
casing cap during normal operation to resist the 7.2 pounds of
force exerted by the return springs to pull the throttle closed.
Sero conceded that he never ran any tests to confirm his theory:
Q. Now, as I understand it, . . . you have not
demonstrated your unidirectional binding theory on Mr.
Nease’s speed control cable, have you?
A. No, I have not.
Q. You have not even attempted to simulate your speed
control binding theory on Mr. Nease’s speed control
cable, have you?
A. No.
Q. You have not demonstrated your unidirectional
binding theory [using] another 2001 Ford Ranger, have
you?
A. No.
Q. You have not even attempted to simulate your speed
control malfunction theory with an exemplar 2001 Ford
Ranger, have you?
A. No, I have not.
J.A. 678.
Sero’s failure to test his hypothesis renders his opinions
on the cause of Howard’s accident unreliable. Although Sero’s
theory is plausible and “may even be right[,] . . . it is no
more than a hypothesis, and it thus is not knowledge, nor is it
based upon sufficient facts or data or the product of reliable
principles and methods applied reliably to the facts of the
case.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 670 (6th Cir.
2010) (internal quotation marks and alterations omitted).
27
Generally, scientific methodology involves “generating
hypotheses and testing them to see if they can be falsified.”
Daubert, 509 U.S. at 593. Sero presented a hypothesis only—he
failed to validate it with testing.
Daubert is a flexible test and no single factor, even
testing, is dispositive. But Daubert’s other reliability
markers likewise suggest that Sero’s testimony should not have
been admitted under Rule 702. Sero has not published or
otherwise subjected his theory to peer review. Actually, it
would hardly be possible to solicit peer review since Sero
conducted no tests and used no “methodology” for reaching his
opinions other than merely observing dirt on the speed control
assembly components. And, for this same reason, we cannot
assess the potential rate of error of Sero’s methodology—he did
not employ a particular methodology to reach his conclusions.
Daubert also suggests that district courts, in performing
their gatekeeping functions, consider whether and to what extent
an expert’s theory has been accepted within the relevant
scientific or engineering community. See Daubert, 509 U.S. at
593-94. Despite their contention that Daubert does not apply,
the Neases nonetheless suggest that the internal FMEA performed
by Ford in 1987, which Sero relied upon to support his opinion,
is widely accepted by engineers—Ford’s own engineers in this
case—as a method for identifying design defects. The FMEA
28
relied upon by Sero, however, does not establish that Sero’s
theory is widely accepted in the relevant engineering community.
To begin with, the 1987 FMEA does not even apply to the
2001 Ranger; rather, the 2004 FMEA, which originated in 1997,
applied to the 2001 Ranger at issue here. In other words, Sero
rests his theory on an FMEA produced for different designs. The
1987 FMEA, therefore, lacks a “valid scientific connection to
the pertinent inquiry,” Daubert, 509 U.S. at 592, and is not
“relevant to the task at hand,”
id. at 597.
Moreover, to the extent Nease claims the FMEA performed by
Ford in 1987 proves that the speed cable is susceptible to
binding, he misconstrues the nature of the FMEA process. FMEA
is part of the design process itself; design engineers follow
this method well before the design is complete to “identify
potential failure modes and rate the severity of their effects”
and “help engineers focus on eliminating product and process
concerns and help prevent problems from occurring.” J.A. 968.
As Ford engineer James Engle explained, “[t]he purpose [of] the
FMEA is to analyze the [current] design . . . [and] give[] the
engineer information beforehand . . . to let the engineer know
areas where he needs to focus.” J.A. 1279. It is a
“brainstorming session” performed on the front end of the design
process to “identify any potential failure modes.” J.A. 2157.
And, in this case, because it is “conceivable” that “grime or
29
some sort of debris [could] enter[] into the cable and caus[e]
sticking,” Ford naturally listed the potential binding of the
speed control cable “in a brainstorming session of [potential]
failure modes.” J.A. 2157. But Ford included numerous
“mitigating” features in its final design, such as an engine
cover, aimed at eliminating potential problems identified in the
FMEA. J.A. 2157. Ford also placed the throttle “high up on the
engine” to mitigate the intake of “[b]igger and heavier
particles [which] take more force to be . . . moved up . . . to
the top of the engine.” J.A. 2157-58. Additionally, the
components of the speed control assembly were made of nylon that
had a slippery quality and “a very low coefficient of friction.”
J.A. 2433.
In sum, the FMEA relied upon by Sero cannot be viewed as
having established that the binding of the speed control cable
was a recurring design problem in the 2001 Ranger. And it
cannot be used as a proxy for the testing that Sero failed to
do. Ford’s FMEA process merely identifies conceivable design
failures; it does not produce them via testing.
2. Sero’s testimony that there were safer alternative designs
that Ford could have used in the 2001 Ranger
To establish strict liability under West Virginia law, the
plaintiff must show that the “product is defective in the sense
that it is not reasonably safe for its intended use.”
30
Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666, 683 (W.
Va. 1979). “The standard of reasonable safeness is determined .
. . by what a reasonably prudent manufacturer’s standards should
have been at the time the product was made.”
Id.
Significantly, the West Virginia Supreme Court explained that
the determination of what a “reasonably prudent manufacturer’s
standards should have been at the time” requires a consideration
of “the general state of the art of the manufacturing process,
including design.”
Id. (emphasis added).
Ford argues that West Virginia law, as articulated by the
Morningstar court, therefore requires a products liability
plaintiff to prove that a reasonably prudent manufacturer would
have adopted a safer design during the relevant time period.
The Neases disagree, relying on a couple of district court
opinions that suggest the West Virginia Supreme Court “has not
stated one way or the other whether a design defect claim
requires proof of a safer alternative design of the allegedly
defective product.” Mullins v. Ethicon, Inc., 117 F. Supp. 3d
810, 821 (S.D.W. Va. 2015) (internal quotation marks omitted);
Keffer v. Wyeth,
791 F. Supp. 2d 539, 547 (S.D.W. Va. 2011).
While it is true that West Virginia law on the matter is
not crystal clear, we agree with Ford that Morningstar “can only
be read to require the production of evidence on reasonable
alternative design, to gauge what ‘should have been.’”
31
Restatement (Third) of Torts: Products Liability § 2, Reporter’s
Note (1998). Although Morningstar does not use the phrase
“alternative design,” a plaintiff in a design case, for all
practical purposes, must identify an alternative design in order
to establish the “state of the art.” See Church v. V.R. Wesson,
385 S.E.2d 393, 396 (W. Va. 1989) (holding plaintiff in a
defective design case failed to establish a prima facie case
because plaintiff’s expert identified an alternative design that
was not feasible at the time of manufacture and thus failed to
prove that defendant’s design was not “state of the art”).
Sero testified that safer, proven design alternatives
existed during the relevant time period that would have
prevented Howard’s accident. One preferable alternative,
according to Sero, incorporates a “nipple wipe” to clean
contaminants off the cable as it moves. Another alternative
identified by Sero utilizes a “boot” which blocks debris and
grime from accumulating on the cable. And, a third alternative
design that Sero believed would have prevented Howard’s accident
simply had a larger gap between the guide tube and the casing
cap. Sero pointed out that Ford had been using all of these
alternative design features for many years by the time the 2001
Ranger was produced.
Sero, however, performed no tests or studies to determine
whether, in fact, these older, long-standing designs were
32
involved in fewer binding incidents. According to Sero, such
tests were unnecessary because designs such as the nipple wipe
had been in use for 50 years and therefore were “proven
elements.” J.A. 669. Similarly, he offered no data from any
other studies or accident records to prove that the older
designs were less likely to bind than the one incorporated in
the Neases’ 2001 Ranger. Sero instead simply proclaimed without
any support that the alternative designs he identified were
safer than the design of the speed control cable assembly in the
2001 Ranger.
This testimony should have been excluded as it was
“unsupported by any evidence such as test data or relevant
literature in the field.” Oglesby, 190 F.3d at 249 (internal
question marks omitted). The fact that the alternatives have
generally been in use for decades is wholly insufficient to
prove that such designs were safer with respect to the alleged
binding incident and that reasonably prudent manufacturers would
have adopted them. 4
4To the extent that the Neases argue that testing or other
comparative analysis of Sero’s alternative designs was
unnecessary because they were not novel designs, their argument
relies upon the same flawed understanding of Daubert that we
have already rejected.
33
III.
Without Sero’s testimony, the Neases cannot prove that the
design of the speed control assembly in the 2001 Ford Ranger
renders the vehicle “not reasonably safe for its intended use.”
Morningstar, 253 S.E.2d at 683. Accordingly, we reverse the
district court’s denial of Ford’s post-trial motion for judgment
as a matter of law and remand the case to the district court for
entry of judgment in Ford’s favor. And, because the granting of
judgment as a matter of law effectively ends this litigation, we
need not reach Ford’s challenges to the jury instruction and the
admission of prior incidents evidence.
REVERSED AND REMANDED WITH INSTRUCTIONS
34
