In Carlucci v. CNH America LLC, 2012 WL 4094347 (D. Mass. Sep. 14, 2012), plaintiff was injured in a driveway paving accident when his co-worker backed over his foot while operating a skidsteer loader (a compact, highly maneuverable, four-wheel bucket loader) designed and manufactured by defendant. At the time of the accident, plaintiff was hand-grading gravel with a shovel while his co-worker operated the loader in front of him. Although the loader had a rear window in the operating cage, the co-worker testified it was difficult to see out that window if he followed the safety manual’s instructions to use a lap belt at all times.

Accordingly, the co-worker was using a visual reference point on the driveway wall to guide how far back he could go without entering plaintiff’s space when he ran over plaintiff’s foot. Plaintiff sued the loader’s manufacturer in Massachusetts Superior Court for negligence, breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute), alleging the machine was defectively designed and did not include sufficient warnings. Defendant removed the case to the United States District Court for the District of Massachusetts and, after discovery, moved to exclude the testimony of plaintiff’s expert and then for summary judgment. Plaintiff’s expert proposed to opine that the loader was defectively designed because defendant failed to include devices to increase rear visibility, and the warnings should have advised using a spotter when pedestrians were in the area. The expert proposed a number of alternative designs to reduce the risk of back-up injuries, including the addition of: (1) mirrors in the operator’s cage on both sides of the loader; (2) a rear-view camera sending a signal to a closed-circuit television inside the cabin; (3) a strobe light or back-up sensor tied to an audible alarm of increasing frequency; or (4) a rear guard or bumper.

In allowing defendant’s motions, the court found plaintiff’s expert was not qualified to opine as to the design of a skid-steer loader, and in any event, his failure to test any of his proposed alternative designs rendered his methodology unreliable. Regarding qualifications, the expert was a civil, not mechanical, engineer, and although he was a member of several professional societies and organizations and had taught courses and developed training manuals on construction safety, none of his experience involved questions of skid-steer loader design. Thus while the expert’s background demonstrated some expertise in workplace safety generally, it did not reveal any experience, let alone expertise, in the safe design of skid-steer loaders.

Even if the court had found the expert qualified, it would have excluded his testimony as unreliable. The expert did not test the feasibility of any of his several proposed alternative designs, nor did he cite any studies showing the designs would have been effective on a skid-steer loader (as opposed to other heavy construction equipment) or prevented plaintiff’s accident. Although the court stopped short of holding that alternative design testing is mandated in Massachusetts design defect cases, here the lack of such testing, coupled with other factors, meant the expert had not adequately weighed the costs and benefits of the alternative designs. Thus, because plaintiff could not meet his burden under Massachusetts law to show by expert testimony “that an alternate design was available which would reduce the risk of harm without interfering with the product’s functionality or unduly increasing its cost,” the court entered summary judgment against plaintiff’s design defect claims. Finally, the expert’s opinion about the allegedly inadequate warnings also was inadmissible, not only because it had not been described in his expert report, but because the expert’s failure to propose an alternate warning that allegedly would have been effective or appropriate in the circumstances rendered the opinion unreliable. Accordingly, the court also entered summary judgment against plaintiff’s failure-towarn claims.