In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3981

DARLA J. BOURELLE and RHONDA WENDLING,

Plaintiffs-Appellants,

v.

CROWN EQUIPMENT CORPORATION,

Defendant-Appellee.



Appeal from the United States District Court
for the Central District of Illinois.
Nos. 95 C 2065 and 95 C 2256--Harold A. Baker, Judge.


Argued May 30, 2000--Decided July 17, 2000



  Before POSNER, Chief Judge, COFFEY and KANNE,
Circuit Judges.

  COFFEY, Circuit Judge. After Rhonda Wendling and
Darla Bourelle were injured in the course of
their employment at Sears Logistical Systems
(SLS) in Manteno, Illinois, they both filed
product liability and tort actions in the
Illinois state court system. In their complaints,
the two women alleged that the Crown Turret
Stockpicker (TSP)/1 that they were operating,
and which was manufactured and placed in the
stream of commerce by Crown Equipment
Corporation, was improperly designed. They also
alleged that Crown was negligent in its
maintenance of the TSP, as well as the
operational warnings it provided for the
forklift. Based on the diversity of the parties,
Crown removed the two cases to the United States
Federal Court for the Central District of
Illinois. After the trial judge ruled that the
plaintiffs’ expert witness, Daniel Pacheco, was
"unreliable" within the meaning of Fed. R. Evid.
702,/2 he granted summary judgment to Crown on
the plaintiffs’ product liability claim./3 We
affirm./4
I. BACKGROUND
A. The Accidents

  Because this case turns on the reliability of
the plaintiffs’ expert witness and not on the
nature nor the cause of their injuries, we need
not undertake a long discussion dealing with the
facts of the plaintiffs’ respective accidents.
Suffice it to say, Wendling was transporting
empty pallets which were stacked on the forks of
the TSP directly in front of the operator’s
compartment. As the TSP was traveling along the
wire system down a narrow warehouse aisle, a
pallet became dislodged, hit the side of the
aisle, entered the operator’s compartment, and
violently struck Wendling in her abdomen.
Bourelle was injured while operating the same TSP
that was involved in Wendling’s accident; she was
also transporting empty pallets down a narrow
warehouse aisle when a pallet entered the
operator’s compartment and struck her left knee,
necessitating surgery.

B.   The Expert

  The plaintiffs’ proposed expert, Daniel Pacheco,
is a mechanical engineer with experience
investigating lift truck accidents. He received
his B.S. degree in mechanical engineering from
the University of Massachusetts in 1964, and his
M.S. degree in management from the Graduate
School of Management in Lake Forest, Illinois, in
1974. Additionally, Pacheco has been a registered
Professional Engineer in Illinois since 1970, and
was employed for seventeen years as an engineer
for Fiat-Allis Construction Machinery Inc. of
Deerfield, Illinois, and Pettibone Corporation of
Chicago, Illinois, working on the product design
and the development of heavy vehicles and
forklift trucks. In 1982, Pacheco became a senior
engineering consultant for Polytechnic, Inc. of
Lincolnwood, Illinois. In 1989, Pacheco became
president of Polytechnic, Inc., and now
specializes in the safety analysis of
construction and industrial equipment./5

  Wishing to use Pacheco’s expertise in their
suit, Wendling and Bourelle retained Pacheco, in
November 1998, as an expert witness to perform an
engineering investigation, and prepare a report,
concerning their two accidents./6 The trial
judge described Pacheco’s investigation as
consisting of:

reading the depositions of the plaintiffs and ten
other people who had knowledge relevant to the
occurrences that are the subject of the suit. Mr.
Pacheco also reviewed Crown Equipment Corporation
manufacturing and service documents for the TSP,
Crown sales brochures, a training manual and
engineering drawings for the TSP.

On the basis of this investigation, Pacheco
opined that the TSP was defective both because it
was designed with inadequate guarding and because
it lacked an adequate warning regarding the risk
of pallets becoming dislodged and entering the
operator’s compartment./7

  Specifically, Pacheco stated that the wire mesh
guarding, covering the area between the lower bar
and the bottom of the operator’s compartment,
could be (and should have been) extended up to
the mid-bar, and that such guarding would have
prevented Bourelle’s injury. Pacheco also opined
that the "same type of structure as utilized in
the overhead guard could be placed in front of
the operator’s compartment on top of the
midrail," and that such guarding would have
prevented Wendling’s injury. In short, Pacheco
would, as Wendling and Bourelle explain in their
brief, "extend the already existing guarding."

  The district court found that although Pacheco
was qualified to testify as an expert witness,
his testimony was unreliable under Fed. R. Evid.
702 because

[h]is opinion as to guarding has not been tested
nor has any attempt been made to prove its
feasibility. He did not prepare engineering
drawings of his proposed design and undertook no
study of strength of materials necessary to
create the guards he proposes. His knowledge and
experience with TSP’s is limited to his
examination of photographs and manufacturer’s
literature. He has never seen one in operation in
the narrow warehouse aisles for which the TSP was
designed. The court can only conclude that Mr.
Pacheco’s opinions about an unreasonably
dangerous condition in the TSP fall into the
category of subjective belief or unsupported
speculation.

  The same can be said concerning his opinion
about the absence of a warning about colliding
with obstructions in the aisle and injury from
intrusion. . . . He has not designed a warning
for the TSP operator that would seek to
ameliorate the unsafe condition he believes
exists. It’s just his opinion that common sense
would say that a warning would be appropriate.

The district court, after concluding that
Pacheco’s opinions were not supported by
sufficient scientific evidence (that is,
Pacheco’s lack of familiarity with both the
product in question and the setting in which it
was used), granted summary judgment in favor of
Crown on the product liability count.

II.   ISSUES

  On appeal, Wendling and Bourelle contend that
the trial judge abused his discretion in
excluding Pacheco’s expert testimony regarding
the allegedly defective design and labeling of
Crown’s TSP.

III. ANALYSIS
A. Standard of Review

  As the Supreme Court has stated repeatedly, we
review the district judge’s decision whether to
admit or exclude expert testimony for an abuse of
discretion. See Kumho Tire Co. v. Carmichael, 526
U.S. 137, 119 S. Ct. 1167, 1176, 143 L. Ed.2d 238
(1999); see also General Electric Co. v. Joiner,
522 U.S. 136, 118 S. Ct. 512, 515, 139 L. Ed.2d
508 (1997). We are obligated to take cognisance
of the fact that deference to the trial court’s
decision is the "hallmark" of abuse of discretion
review.

Clark v. Takata Corp., 192 F.3d 750, 756 (7th
Cir. 1999); see also Smith v. Ford Motor Co., No.
99-2656, 2000 WL 709895, at *2 (7th Cir. June 2,
2000). Furthermore, "[o]ur cases have recognized
the importance of testing in alternative design
cases," Cummins v. Lyle Industries, 93 F.3d 362,
368 (7th Cir. 1996), and "[t]he trial judge must
have considerable leeway in deciding in a
particular case how to go about determining
whether particular expert testimony is reliable."
Kumho Tire Co., 526 U.S. at 152; see also Ancho
v. Pentek Corp., 157 F.3d 512, 515 (7th Cir.
1998) ("It is well established that issues
related to expert opinion testimony are matters
of law to be determined by the trial judge."
(citations and internal quotations omitted)).

B.  The Reliability of Expert Testimony
  In the recent and well-recognized Daubert v.
Merrell Dow Pharmaceuticals Inc., 509 U.S. 579,
589 (1993), the Supreme Court held that Fed. R.
Evid. 702 imposes on the trial court the
obligation, when dealing with expert witnesses,
to ensure that scientific testimony is "not only
relevant but reliable."/8 In Kumho, the Supreme
Court clarified its decision in Daubert and held
that "this basic gatekeeping obligation" applies
to all expert testimony. 526 U.S. at 147. Thus,
the trial judge must determine whether Pacheco’s
opinion was grounded in the "methods and
procedures of science," Daubert, 509 U.S. at 590,
and whether such testimony had sufficient
"factual underpinnings," Walker v. Soo Line R.R.
Co., 208 F.3d 581, 586 (7th Cir. 2000).

  Furthermore, as the Supreme Court elaborated:

The objective of [Daubert’s gatekeeping]
requirement is to ensure the reliability and
relevancy of expert testimony. It is to make
certain that an expert, whether basing testimony
upon professional studies or personal experience,
employs in the courtroom the same level of
intellectual rigor that characterizes the
practice of an expert in the relevant field.
Kumho, 526 U.S. at 152. Also, "[i]t is axiomatic
that proffered expert testimony must be ’derived
by the scientific method[.]’" Clark, 192 F.3d at
756 (citations and internal quotations omitted).

  In this case, the plaintiffs’ expert surmised
and claimed that an alternative design should
have been implemented for the TSP, and if it had,
neither of the plaintiffs would have been
injured. However, when questioned by Crown’s
counsel, Pacheco admitted that he had not done
any scientific testing to support his alternative
design theory. In his deposition, Pacheco stated:

Q. Have you done any type of engineering testing
to verify if your alternative design that you
just described for us would eliminate the hazards
that you claim exist?

A. I haven’t done any testing, no. . . .

Q. Have you attempted to replicate the application
of the TSP with this alternative design that you
advocate? Have you done any studies to show that
you could perform these applications with a
barrier guard in front as you just described?

A. I haven’t done any studies./9

Also in his deposition, Pacheco admitted that he
has not prepared "detailed design or
calculations," performed "an economic feasibility
study," prepared "preliminary design drawings,"
or performed "any risk utility type testing." The
district judge stated that without such work or
testing, "[t]he court can only conclude that Mr.
Pacheco’s opinions about an unreasonably
dangerous condition in the TSP fall into the
category of subjective belief or unsupported
speculation."/10 Cf. Clark, 192 F.3d at 759
("Where the proffered expert offers nothing more
than a ’bottom line’ conclusion, he does not
assist the trier of fact." (citing Rosen v.
Ciba-Geigy Corp., 78 F.3d 316, 318-19 (7th Cir.
1996))).

  On appeal, Wendling and Bourelle contend that
the district judge "failed to be flexible" in
determining the reliability of Pacheco’s opinion.
They argue that "[a]lthough Pacheco may not have
satisfied the specific factors delineated in
Daubert, he did meet enough reliability factors
to render his opinion admissible." That is,
although Wendling and Bourelle concede that
Pacheco has failed to perform any studies or
testing of his proposed design and further
acknowledge that their proposed expert never
observed the TSP forklift in question (much less
saw a loaded TSP operate in the narrow aisles of
a warehouse), they contend that "[t]he necessity
for testing is diminished" because "Pacheco is
relying on the testing already performed by
Crown."/11

  However, the appellants ignore the fact that
Pacheco never: 1) saw or inspected the vehicle
itself (only pictures and videotape); 2) never
observed the vehicle loaded and operating within
the narrow confines of the warehouse; 3) prepared
any drawings in relation to his alternative
design theory; 4) conducted any computer
analysis; 5) submitted his alternative design
theories to the American National Standards
Institute (ANSI), despite the fact that he was
aware of the organization; nor 6) had any
recognized scientific approval of his alternative
design theories. Furthermore, as the appellants
admit, Pacheco did not satisfy the specific
factors delineated in Daubert. And, although
courts should be flexible in their application of
Daubert, there is no requirement that judges
apply only those criteria that the plaintiffs
believe are important. See Ancho, 157 F.3d at
515./12

  In this case, the trial judge focused on the
lack of testing performed by the plaintiffs’
expert and concluded that without such testing,
Pacheco’s opinions were nothing more than
speculation and were thus unreliable. Recognizing
that "[t]he trial judge must have considerable
leeway in deciding in a particular case how to go
about determining whether particular expert
testimony is reliable," Kumho Tire Co., 526 U.S.
at 152, and that testing is important in
alternative design cases such as this, see
Cummins, 93 F.3d at 368, we are of the opinion
that the judge did not abuse his discretion in
excluding Pacheco’s testimony as unreliable. This
conclusion is bolstered by the fact that
Pacheco’s opinion is also unreliable under the
other factors delineated in Daubert: no lab or
organization has tested his theories; no other
manufacturer incorporates his proposed design;
and he has not seen any industry studies
regarding accident experience with the TSP. See
generally General Electric Co. v. Joiner, 522
U.S. 136, 146 (1997) ("[N]othing in either
Daubert or the Federal Rules of Evidence requires
a district court to admit opinion evidence which
is connected to existing data only by the ipse
dixit of the expert. A court may conclude that
there is simply too great an analytical gap
between the data and the opinion proffered.").

C. Pacheco’s Expert Opinion Regarding a Warning
for the TSP
  As stated above, Pacheco also opined that the
warning labels on the TSP were inadequate because
they failed to provide an adequate warning
regarding the risk of pallets becoming dislodged
and entering the operator’s compartment./13
Specifically, in his December 1, 1998 report,
Pacheco stated that this warning was inadequate
and that "Crown failed to adequately warn of the
hazards and warn of necessary operational steps
to be taken which would enable users to avoid the
hazard."

  The same reliability requirements that apply to
alternative design apply to alternative warnings.
See Cummins, 93 F.3d at 367. Just as Pacheco
failed to test his proposed guarding
requirements, Pacheco also failed to test (or
even to draft) an alternative warning for the
TSP. At his deposition, Pacheco testified:

A. I think there needs to be a specific warning to
the operator about this particular hazard.

Q. The hazard of pallets possibly entering the
compartment?

A. Yes.

Q. And what kind of warning would you provide to
so satisfy your belief one ought to be provided?

A. You mean the language of a warning?

Q. Yes, yes.

A. I haven’t created the language for a warning,
so I would have to do that.

Q. So you haven’t done that task?

A. That’s right.

* * *

A. You’re not going to get the answer because I
told you I have not drafted a warning. But that
is the subject of the warning, is [sic] the
hazard.

Q. You can’t, as you’re sitting here today, give
me the gist of the warning, the language that you
would employ?

A. Correct.

Thus, like his proposed design, Pacheco’s failure
to even draft a proposed alternative warning for
the TSP’s operation manual renders his opinion
regarding the alleged inadequacy of Crown’s
existing warning concerning the risk of pallets
entering the TSP operator’s compartment to be
unreliable. See, e.g., Jaurequi v. Carter Mfg.
Co., Inc., 173 F.3d 1076, 1084 (8th Cir. 1999)
(Excluding expert testimony that "warnings were
deficient in placement, design, orientation, and
content" as unreliable because "[n]either
[expert] had created or even designed a warning
device which would have been more appropriate,
much less tested its effectiveness.").

  The district judge’s decision to prevent
[Pacheco] from testifying, far from being an
abuse of discretion, see General Electric Co. v.
Joiner, 522 U.S. 136 (1997), was absolutely
correct. Many times we have emphasized that
experts’ work is admissible only to the extent it
is reasoned, uses the methods of the discipline,
and is founded on data. Talking off the cuff--
deploying neither data nor analysis--is not
acceptable methodology. See, e.g., McMahon v.
Bunn-O-Matic Corp., 150 F.3d 651, 657-58 (7th
Cir. 1998); Mid-State Fertilizer Co. v. Exchange
National Bank, 877 F.2d 1333, 1339 (7th Cir.
1989).

Lang v. Kohl’s Food Stores, Inc., No. 99-3377,
2000 WL 804608, at *2 (7th Cir. June 22, 2000).
The fact that Pacheco never even drafted a
proposed warning renders his opinion akin to
"talking off the cuff" and not acceptable
methodology. Accordingly, we conclude that the
district judge did not abuse his discretion in
excluding, as unreliable, Pacheco’s opinion
regarding a warning for the TSP.
The decision of the district court is

AFFIRMED.



/1 According to the district court,

[a] TSP is a forklift truck designed to move full
pallets in and out of warehouse racks and also
for order picking partial loads. The turret on
the TSP allows the operator to work either side
of a narrow warehouse aisle without turning the
truck around. The TSPs in this case were operated
in the warehouse aisle on an electronic wire
guidance system. The operator controls the speed
and direction of the TSP’s movement but not the
steering. That is controlled by the wire. The TSP
is a "man-up" forklift, i.e. the operator’s cab
elevates so that she is in close proximity to the
work being performed.

/2 Fed. R. Evid. 702 states: "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."

/3 Rather than proceed with their negligence claim
in the district court, Wendling and Bourelle
voluntarily dismissed the negligence count
without prejudice, and filed a notice of appeal
from the district court’s order granting summary
judgment for Crown on the product liability
count. In an order dated November 24, 1999, this
court expressed concern that the parties’
stipulation to dismiss the negligence count
without prejudice "manufactured a final judgment"
and did not make the district court’s summary
judgment order final and appealable within the
meaning of 28 U.S.C. sec. 1291. Subsequently, the
parties stipulated to dismiss the negligence
count with prejudice, and this appeal was allowed
to proceed.

/4 We note that this court recently decided another
case involving Crown and Pacheco, see Weir v.
Crown Equipment Corp., No. 99-1100, 2000 WL
769244 (7th Cir. June 15, 2000), however these
cases were not consolidated because they involved
different types of forklifts and arose in
different states.

/5 In 1993, Pacheco co-authored a paper, Risk
Analysis of Forklift Drivers.

/6 At oral argument counsel for Wendling and
Bourelle explained that a previously retained
expert became ill, and that Pacheco was a last
minute substitute.

/7 Pacheco stated his opinion on three separate
occasions: 1) in an engineering investigation
report dated December 1, 1998; 2) in his
deposition taken January 7, 1999; and 3) in an
affidavit dated September 24, 1999.

/8 Daubert set forth the familiar nonexhaustive list
of four factors that are helpful in gauging the
reliability of expert testimony: 1) whether the
theory is scientific knowledge that will assist
the trier of fact and can be tested; 2) whether
the theory has been subjected to peer review or
publication; 3) the known or potential rate of
error and the existence of standards controlling
the technique’s operation; and 4) the extent to
which the methodology or technique employed by
the expert is generally accepted in the
scientific community. See Daubert, 509 U.S. at
593-94. However,

[b]ecause the Daubert Court "emphasized that it
did ’not presume to set out a definitive
checklist or test,’ and that the district judge’s
inquiry should be ’flexible,’" United States v.
Vitek Supply Corp., 144 F.3d 476, 485 (7th Cir.
1998) (citation omitted), there is no requirement
that the district judge consider each one of
these "guideposts" when making an admissibility
ruling under Fed. R. Evid. 702.

Ancho, 157 F.3d at 515.

/9 In his December 1, 1998 report, Pacheco
recognized that "[i]n the stockpiling operation,
the standing operator has a need to access racks
outside the periphery of the truck and place
loads onto the pallets in front of the operator’s
compartment without interference by fixed barrier
guards between the compartment and the forks."
(Emphasis added).

/10 The judge did not impose testing as an absolute
requirement. Pacheco’s opinion is not reliable on
any of the other Daubert factors. In his
deposition, Pacheco admitted: that no lab or
organization has tested his theories, that no
other manufacturer incorporates his proposed
design, and that he has not reviewed any industry
studies regarding accident experience with the
TSP.

/11 Wendling and Bourelle also contend that Pacheco’s
experience "is an important factor in determining
the reliability of his opinions regarding the
necessity of guarding on the TSP . . . [and] the
District Court should have given it more weight."
But this argument is misconceived because it
fails to take into account the fact that this
court treats the reliability of an expert’s
opinion in a particular case separately from his
or her overall qualifications. See Clark, 192
F.3d at 759 n.5 (7th Cir. 1999)
("[Q]ualifications alone do not suffice. A
supremely qualified expert cannot waltz into the
courtroom and render opinions unless those
opinions are reliable and relevant under the test
set forth by the Supreme Court in Daubert.");
Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th
Cir. 1998) ("It is true that Dr. Nelson has
impressive credentials. . . . But the fact is
that he did no testing on these products . . . .
And we have sanctioned the exclusion of
speculation offered by persons with credentials
as impressive as those of Dr. Nelson."); Minasian
v. Standard Chartered Bank PLC, 109 F.3d 1212,
1216 (7th Cir. 1997) (Warning that "judges not be
deceived by the assertions of experts who offer
credentials rather than analysis.").

/12 As we stated in Clark, 192 F.3d at 759,
[g]iven the state of the record, including the
absence of any stated methodology, it is
difficult for this Court to evaluate the
scientific technique used by Dr. Lafferty in
formulating his opinions. Thus, we sympathize
with the trial judge’s inability "to determine
[if the] methods are consistent with the
generally accepted method for gathering and
evaluating evidence in the field of biomechanics
and mechanical engineering as applied to occupant
dynamics and restraint system efficacy in motor
vehicle accidents." Dr. Lafferty’s second
opinion, that a properly functioning lap belt
would have prevented Clark from moving upward
four inches and striking the roof of the vehicle,
lacked reliance on any ’stated methodology’ or
the scientific method.

See also Ancho, 157 F.3d at 517 ("There is
nothing in the record that would cause us to
believe that Lobodzinski presented any
architectural designs or materials to illustrate
his proposals. Furthermore, as previously stated,
the judge pointed out that Lobodzinski had failed
to observe the transfer car in operation, much
less visit the accident scene, nor had
Lobodzinski ever observed any similar conveyor
system.").

/13 The TSP operator’s manual, which both Wendling
and Bourelle admitted reading while training to
operate the TSP, states: "All clearances must be
checked before traveling due to various load
lengths, widths, and/or misalignment which will
affect load clearance."
