When product liability cases are based on the claim that a product was defectively designed, plaintiffs typically offer proof that a better design would have produced a safer product. In Quilez-Velar v. Ox Bodies Inc., the Court of Appeals for the First Circuit was asked to decide whether an expert witness should be permitted to testify about an allegedly safer alternative design when the expert had not tested that design. The Court affirmed the decision of the federal District Court of Puerto Rico to permit the expert testimony.
Facts of the Case
Maribel Quilez-Bonelli was driving a Jeep Liberty on a highway overpass in the City of San Juan, Puerto Rico. Maribel struck the rear of a truck that was either stopped or moving very slowly. The truck was owned by the Municipality of San Juan and was operated by San Juan employees.
Since heavy trucks are made to ride higher off the ground than cars, a car that rear-ends a truck may roll under the truck. When that happens, the top of the car is usually destroyed, resulting in fatal injuries to the driver and passengers.
Maribel’s Jeep traveled under the truck. The truck body hit Maribel in the head. She died from her injuries.
Wrongful Death Lawsuit
Most commercial trucks are required to have rear underride guards. An underride guard hangs down from the back of the truck. Its purpose is to keep a car from passing beneath the truck in the event of a rear-end collision. The San Juan truck had a rear underride guard that was manufactured by Ox Bodies, Inc., but the underride guard failed to prevent the Jeep from rolling under the truck.
Maribel’s husband and other family members sued the Municipality of San Juan and certain other defendants in a Puerto Rico court. They eventually sued Ox Bodies in federal court. They alleged that the rear underride guard attached to the back of San Juan’s truck was defectively designed.
A trial was held in the federal case. The judge instructed the jury that if the product’s design caused Maribel’s death, the burden was on Ox Bodies to prove that the benefits of the design outweighed its risks. The judge also instructed the jury that it could consider the feasibility of alternative designs in making that decision.
The jury found Ox Bodies liable and awarded Maribel’s family $1.2 million in wrongful death damages. The jury found that Ox Bodies was 20% at fault for the accident and that the San Juan employees were 80% at fault. The jury assigned no negligence to Maribel.
Ox Bodies appealed. Among other grounds, Ox Bodies contended that the trial judge should not have allowed Maribel’s expert witness to testify about an alternative design that could have made the underride guard safer.
Before the trial, Ox Bodies filed a Daubert motion to exclude the testimony of Perry Ponder, a mechanical engineer who testified as an expert witness for Maribel’s family. Ponder has professional experience designing, testing, and teaching about underride guards.
According to Ox Bodies, Ponder’s report included no scientific analysis or calculations to support his opinion that an alternative design would have produced a safer underride guard. Ox Bodies also complained that Ponder did not actually construct and test the design that he believed to be safer.
The trial court did not hold a Daubert hearing because Ox Bodies did not ask for one. Instead, Ox Bodies relied on Ponder’s deposition testimony and expert report. The court ruled that Ox Bodies failed to demonstrate that Ponder needed to conduct additional calculations or testing in order to reach an opinion about the comparative safety of an alternative design. The court therefore denied the motion to exclude Ponder’s testimony.
Ponder’s Trial Testimony
At trial, Ponder testified that the underride guard’s design was defective because it left 16 inches on both sides of the truck’s rear end with no protection and because the underride guard was not sufficiently braced against potential impacts. He also opined that the crash protection built into the Jeep was rendered ineffective because the Jeep went under the truck instead of being stopped by the underride guard.
Ponder testified that a guard that covered the entire width of the back end, supported by diagonal bracing and a vertical support, would have been a safer design. On cross-examination, Ponder testified that he did not build or crash test his proposed alternative design. He acknowledged that his design had never been adopted by manufacturers of tilt or dump beds. Ox Bodies renewed their objections to Ponder’s testimony based on those admissions, but the trial court decided that the jury would be allowed to consider Ponder’s expert testimony.
On appeal, Ox Bodies argued that Ponder should not have been allowed to testify about the alternative design because he did not test it before offering his opinion that it represented a safer alternative. Ox Bodies contended that his testimony was unreliable because it was not based on adequate data.
The Court of Appeals concluded that Ox Bodies’ argument was based on “a profound misunderstanding of Daubert.” While testing is “one of the most common and useful reliability guideposts,” the First Circuit has never required an expert to build and test an alternative product design before concluding that the design is safer.
Ponder based his conclusion on information from several sources, including crash test data and studies of underride guard deigns. Ponder testified that the information was transferable to underride guards for any kind of vehicle. He also based his conclusions on stress calculations and photogrammetry analysis. Ponder explained why he rejected Ox Bodies’ claim that the calculations performed by its own expert were necessary to determine the superiority of the alternative design.
Following First Circuit precedent, the Court held that juries should ordinarily decide whether to believe expert testimony that is arguably “shaky.” Ox Bodies had ample opportunity to cross-examine Ponder and it presented its own expert testimony. Whether Ponder’s testimony was worthy of belief was for the jury to decide.
Courts that take a less liberal view of Daubert might disagree with the First Circuit’s reasoning. It is important to understand, however, that the gatekeeping role belongs to the trial judge, while an appellate court plays a more limited role when it reviews the trial court’s decision. Since the trial judge applied Daubert to the facts in a reasonable way, the Court of Appeals did not disturb the court’s ruling.