The United States Court of Appeals for the First Circuit recently held that an expert offering opinions on a proposed safer alternative design in a product liability matter does not need to perform any testing of the alternative design to ensure his testimony is sufficiently reliable. In Berardo A. Quilez-Velar v. Ox Bodies, Inc., the plaintiff brought a claim for strict product liability against a dump bed manufacturer, OX Bodies, and claimed the underride guard on the back of its dump bed was negligently designed and manufactured.

At trial, the court allowed the plaintiff’s mechanical engineering expert to testify that there were safer alternatives to the Ox Bodies underride guard, although the expert conceded that he did not crash-test his proposed alternative design and that none of his rear underride guard designs had ever been adopted by any tilt or dump bed manufacturers in the marketplace.

Following a 12-day trial, the jury returned a plaintiff’s verdict finding Ox Bodies strictly liable for defective design. The plaintiff appealed the ruling on other grounds and Ox Bodies cross-appealed, claiming the trial court erred in admitting the plaintiff’s expert’s testimony over Ox Bodies’ Daubert challenge.

Although the Court of Appeals acknowledged that testing is one of the most common and useful reliability guideposts for a court when contemplating evidence, it held that the First Circuit “has never adopted a rule that an expert himself must have tested an alternative design, much less by building one.” Therein the Court relied on the holding in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999), that the Daubert factors do not constitute a definitive checklist or test, as well as other cases that declined to hold that testing is a requirement or the sole, dispositive factor under Daubert. See Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 431-33 (6th Cir. 2007); Wagner v. Hesston Corp., 450 F.3d 756 760 n.8 (8th Cir. 2006); Watkins v. Telsmith, Inc., 121 F.3d 984, 990 (5th Cir. 1997).

Points Well-Taken in the Decision

The First Circuit noted that the defendants at trial failed to establish during voir dire of the plaintiff’s expert that “these specific tests must have been carried out to provide a foundation for [the plaintiff’s expert’s] opinion.” It is imperative to establish the relevance of testing to the theory offered by the expert, prior to challenging the fact the expert failed to test the theory.

This decision is consistent with the notion that an expert’s failure to test her theory is a “non-dispositive factor.” Testing has never been an absolute prerequisite, and although it is considered one of the “most common and useful reliability guideposts for a district court” when it is considering a challenge of an expert’s methodology, there are other factors to consider. From the defendant’s perspective, this means they must do more than show the plaintiff’s expert failed to test his theory.