217 F.3d 453 (7th Cir. 2000)
JACKIE J. WEIR,    Plaintiff/Appellant,v.CROWN EQUIPMENT CORPORATION,    Defendant/Appellee.
No. 99-1100
In the  United States Court of Appeals  For the Seventh Circuit
Argued December 7, 1999Decided June 15, 2000Rehearing and Suggestion for RehearingEn Banc Denied July 18, 2000

Appeal from the United States District Court   for the Southern District of Indiana, Terre Haute Division. No. TH 95-12-C M/H--Larry J. McKinney, Judge.
Before HARLINGTON WOOD, JR., RIPPLE, and ROVNER,  Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge.


1
This is a  product liability action arising out of an  accident on September 1, 1998 in which plaintiff-  appellant Jackie J. Weir ("Ms. Weir") injured her  left foot while operating a forklift, Model R.S.  standup rider, manufactured by defendant-appellee  Crown Equipment Corporation ("Crown"). The case  was first filed in Indiana state court by Ms.  Weir, and then removed by Crown on diversity  grounds. A trial by jury resulted in a verdict  for Crown.


2
Appealing, Ms. Weir raises two issues, both  involving the exclusion by the district court of  evidence offered by her. The district court  excluded all except for a small portion of  accident reports turned over by Crown in  discovery detailing prior forklift accidents.  Also excluded was testimony by Ms. Weir's experts  to the effect that the absence of a door on the  forklift operator's compartment constituted a  design defect contributing to Ms. Weir's injury.

FACTS

3
A. The Equipment.


4
At the time of her injury, Ms. Weir was  employed as a material handler using the forklift  in a warehouse owned by a corporation not a party  to this action. It is first necessary to  understand what a standup forklift is, and what  it is designed to do.1 It is a compact  electric-powered mobile machine with an  adjustable forklift extending from one of the  sides. The forklift extension can be used to lift  warehouse materials from the floor and then to  transport them anywhere in the warehouse. The  operator stands in a compartment which has two  pedals, a power-on pedal and a brake pedal. At  trial, the brake pedal was sometimes referred to  as the "deadman brake," but in any event that  name fortunately has no relationship to this  case. The operator's right foot operates the  power-on pedal which is located toward the front  of the operator's compartment. The operator's  left foot operates the brake pedal located toward  the rear of the compartment closer to the  compartment opening which is used by the operator  for entering and exiting the compartment.


5
Other features of this forklift must be noted.  It was designed for narrow aisle  warehouse/industrial use. The forklift uses a  side-standing position for the operator,  permitting good visibility in both forward and  reverse positions by looking to the right or left  without changing body position. The entrance/exit  is an opening on the side opposite the forklift  raising and lowering mechanism. That opening is  one of the issues in this case. The other three  sides of the compartment are protected by a steel  wrap-around with a steel-cantilevered overhead  guard above the compartment to protect the  operator from any falling objects. The actual  operation of the forklift is controlled by a  multi-function control handle ("handle"), also  located within the operator's compartment, by  which the operator controls both forward and  reverse movement and speed. The handle will  automatically return to neutral when the operator  releases her grip on the handle which cuts the  power. The handle also controls the directional  movement of the forklift.


6
The two primary methods to stop the forklift  are different concepts than used for passenger  automobiles. By reversing the handle through and  past neutral in a direction opposite to what the  forklift has been traveling, the forklift  decelerates and slows to a stop. At trial this  procedure was referred to as "plugging" or  "reversing motion." The other method of stopping  is by activating the spring-levered brake pedal  on the floor of the compartment. To use this  method, the operator bends her left knee which  raises the heel of her left foot permitting the  brake to rise. This lessening of the brake  pressure shuts off the power to the traction  motor and activates the brake. Conversely, when  the operator straightens her left knee thereby  pressing the brake pedal down to the floor, the  brake pads disengage from the brake drum,  releasing the brake. The depression of the brake  pedal also restores travel power. This will be  recognized as a different system than is employed  in passenger automobiles, but operators,  including Ms. Weir, are trained in these  procedures. Part of Ms. Weir's training was  designed to teach her to keep her hands and feet  inside the compartment during movement and not to  dismount if the forklift was still in motion. At  the time of the accident, Ms. Weir had about  eleven months experience using the forklift in  question.

B.  The Accident

7
The morning of the accident after arriving for  work, Ms. Weir says she went to her forklift and  conducted a pre-operational inspection confirming  that both brake systems worked properly. Ms. Weir  then used the forklift in the performance of her  duties in the warehouse for about six hours until  around noon. That operation required the frequent  use of the braking systems, and during that use,  Ms. Weir did not discern any brake problems. Just  before lunch, Ms. Weir parked her forklift, took  a short break, and then reentered her machine.  She turned on the power and proceeded as usual  with the open exit or entrance to the front and  the forks, therefore, in a trailing position. Ms.  Weir made two right turns, cautiously coming to  a stop at the intersections before making the  turns. As she approached a third turn, Ms. Weir  again stopped to check the clearance for her  machine before turning into the aisle where the  accident was waiting to happen. No brake problems  were experienced. After going around that last  turn Ms. Weir saw another forklift parked near  the end of the aisle, which she estimated roughly  to be thirty-five to forty feet away. It was her  intention to stop and get out of her forklift and  then to walk over to, enter, and move the parked  forklift out of the way. She described the speed  of her forklift at this time as proceeding "very  slowly" or "barely moving." Ms. Weir claims she  attempted to stop her forklift, first by plugging  and then with the deadman brake, as she  approached the parked forklift, but both braking  systems failed, causing an impact with the parked  forklift. She describes it as a "collision" with  the parked forklift; however, given the speed of  her forklift as described by Ms. Weir, the  accident may be better characterized as a bump.  Ms. Weir explains her left foot injury occurred  when the two forklifts collided, pinning her left  foot between the two machines. In her complaint  Ms. Weir alleges her "left foot was caught  between the two forklifts" and she "was seriously  injured." After this accident her forklift was  immediately taken out of service. A technician  inspected and drove the forklift, testing the  braking systems at various speeds and directions.  The brakes functioned properly. Finding no  defects, Ms. Weir's forklift was restored to  service without the need for any repairs or  adjustments.


8
Ms. Weir in her 1995 deposition testified that  immediately before the accident her right foot  had been on the power-on pedal on her right and  with her left foot she had released the deadman  brake to activate the brake. Again, at trial she  confirmed her belief that her right and left feet  had been in their proper positions as she had  previously stated in her deposition. However, she  added the qualification, "I didn't look , but  yes." That she worked the brakes properly but  unsuccessfully was the original basis of her  claim that the accident was caused by the failure  of both braking systems. The qualification about  her not actually looking at her feet to see where  they were was something she would not be expected  to do either when driving a passenger car or a  forklift.


9
Additional testimony raised questions about Ms.  Weir's explanation of the accident. She testified  that when she saw the parked forklift she  intended to stop some distance away from the  parked machine, dismount her forklift, and then  walk over, enter, and move the parked forklift  out of the way. Her forklift, she says, did not  stop but kept moving slowly, very slowly, ahead  until it collided with the other machine,  resulting in her foot injury. A co-worker witness  cast some doubt on Ms. Weir's collision theory by  testifying that after the "collision" the two  machines were not touching but were two to three  inches apart. Added to these circumstances is the  fact that Ms. Weir's machine was lined up with  the parked machine opening to opening, which  suggests the possibility that Ms. Weir approached  the parked vehicle slowly as she said but then  deliberately stopped close enough to the other  machine to step directly from her machine into  the parked machine, but in doing so slipped and  injured her foot.


10
Ms. Weir testified that when she hit the parked  forklift, her left foot must have gotten between  the two machines. She testified on direct that  she believed her left foot had been within the  compartment immediately prior to the collision,  "but she didn't look down." Then she felt a lot  of pain in her left foot and knew her foot was  cut, but she could not recall where her left foot  was caught between the two machines, again  explaining, "I didn't look down." Following the  accident, Ms. Weir was taken to an emergency room  where an x-ray disclosed no broken bones. Her  cuts were stitched, and she was released the same  day. No bone had been crushed as might have been  expected if her foot had been outside and caught  between the two heavy machines during a  collision.


11
Ms. Weir alleged her forklift was defective and  dangerous principally for two reasons. The first  was explained in jury instructions given without  objection as follows:


12
[W]hen the brake pedal of the "forklift" is  raised very slightly, the electric drive motor is  disconnected and the driver is unable to stop the  rider by plugging (reversing the motor). If the  operator's right foot is crossed over onto the  brake pedal at that point, the brake pedal will  not rise high enough for the brake to engage, but  is high enough to disconnect the drive motor.


13
It is the left foot, as previously explained,  which is to be used to activate the brake pedal  by the operator bending her left knee which  raises her left heel permitting the brake pedal  to rise, activating the brake and shutting off  the power. Ms. Weir's experts hypothesized that  her right foot inadvertently crossed over to the  brake pedal. That prevented the brake from rising  high enough to engage, but, despite the cross-  over, the pedal could rise high enough to  disconnect the drive motor, disabling the  plugging feature and resulting in total brake  failure. That, it is argued, was the first defect  contributing to Ms. Weir's injury.


14
The other alleged defect concerned the absence  of a barrier on the exit/entrance opening to and  from the operator's compartment. Ms. Weir desired  to show, through expert testimony, that had there  been a barrier on the entrance/exit it would have  prevented her injury and, furthermore, that the  use of a barrier was a cost-effective remedy. The  district court excluded all of the barrier  evidence, and an offering of proof was made by  one of Ms. Weir's experts.

ANALYSIS

15
First, we consider the district court's  exclusion from evidence of certain Crown records,  specifically accident reports, sought to be  introduced by Ms. Weir at trial. During  discovery, Crown turned over more than 1,000  reports of accidents dealing with Crown  forklifts. These reports typically were generated  by dealers, service people, salespeople, and  owners of Crown forklifts who either experienced  or learned of accidents involving Crown forklifts  and then compiled information regarding these  accidents into reports. In a pretrial order, the  court stated that it would allow only those  reports which detailed "a failure of the brakes  to operate under the circumstances facing Wier  [sic]." When asked for clarification of this  ruling during trial, the district court stated  that it would allow into evidence those accident  reports which involved a failure both of the  plugging mechanism and of the deadman brake  together with pre- and post-accident testing  showing both brakes to be working. During the  direct examination of one of Ms. Weir's expert  witnesses, counsel for Weir identified 162  accident reports. However, after the expert  conceded that some of those reports did not  involve both plugging and deadman brake failure,  the district court admitted only twenty-seven of  the reports into evidence.


16
"Evidence which is not relevant is not  admissible." Fed. R. Evid. 402. However, even  relevant evidence may be excluded based on "the  danger of unfair prejudice, confusion of issues,  or misleading the jury, or by considerations of  undue delay, waste of time, or needless  presentation of cumulative evidence." Fed. R.  Evid. 403. "Evidence of other accidents in  products liability cases is relevant to show  notice to the defendant of the danger, to show  existence of the danger, and to show the cause of  the accident." Nachtsheim v. Beech Aircraft  Corp., 847 F.2d 1261, 1268 (7th Cir. 1988); see  also Ross v. Black & Decker, Inc., 977 F.2d 1178,  1185 (7th Cir. 1992). "However, before such  evidence will be admitted, the proponent must  show that the other accidents occurred under  substantially similar circumstances." Nachtsheim,  847 F.2d at 1268 (emphasis in original). We  review a district court's decision to admit such  evidence for abuse of discretion. Ross, 977 F.2d  at 1185. In the present case, the accident  reports were intended to show that the type of  Crown forklift in question was dangerous based on  a showing that these forklifts suffered from a  design defect which resulted in brake failures  such as that which allegedly caused Ms. Weir's  injury.


17
In Nachtsheim, this court explained its view of  substantial similarity as well as can be said:


18
The foundational requirement that the proponent  of similar accidents evidence must establish  substantial similarity before the evidence will  be admitted is especially important in cases such  as this where the evidence is proffered to show  the existence of a dangerous condition or  causation. The rationale for this rule is simple.  In such cases, the jury is invited to infer from  the presence of other accidents (1) that a  dangerous condition existed (2) which caused the  accident. As the circumstances and conditions of  the other accidents become less similar to the  accident under consideration, the probative force  of such evidence decreases. At the same time, the  danger that the evidence will be unfairly  prejudicial remains. The jury might infer from  evidence of the prior accident alone that ultra-  hazardous conditions existed . . . and were the  cause of the later accident without those issues  ever having been proved. In addition, the costs--  in terms of time, distraction and, possibly,  prejudice-- resulting from such evidence also may  weigh against admissibility.


19
Nachtsheim, 847 F.2d at 1268-69 (internal  quotations and citations omitted).


20
While Ms. Weir argues that the district court  misapplied the substantial similarity test by  adding additional criteria beyond mere brake  failure, we disagree. Ms. Weir's theory of the  case, developed through the testimony of her  experts, was that the forklift was unreasonably  dangerous based on a design defect which resulted  in brake failure in cases of cross-over as  described above. One of Ms. Weir's experts,  Daniel Pacheco, was a consulting engineer with  experience in the design of forklifts and the  investigation of forklift accidents. Ms. Weir  sought to show by Pacheco's testimony that when  the deadman brake pedal operated by the left foot  is raised only slightly the electric drive motor  is disconnected, disabling the plugging feature,  and, yet, the deadman brake does not engage to  stop the machine. Pacheco and another of Ms.  Weir's experts, Dr. William Ovens, observed that  the malfunction of the deadman brake resulting  from a slight elevation of the brake could be  caused by the operator's right foot being  "inadvertently" crossed over onto the left brake  pedal which, as previously noted, is intended for  the operator's left foot, not the right.2 The  testimony of Ms. Weir herself is that she gave  the machine a brake test before she used the  machine and had no braking problems during its  morning use, none until she claims the brakes  failed as she approached the parked forklift.  After the accident, the machine was taken out of  service for testing, and the brake systems  functioned properly. There was no mechanical  misfunction detected or broken parts discovered.  Given these facts, the district court did not  abuse its discretion in limiting the accident  reports admitted to those involving a failure  both of the plugging mechanism and of the deadman  brake together with pre- and post-accident  testing showing both brakes to be working.


21
In its order on Ms. Weir's motion for a new  trial, the district court gave Fed. R. Evid. 802  as an additional basis for its exclusion of the  accident reports. As the district court noted,  the accident reports were of all kinds and were  not created exclusively by Crown but rather  collected from a variety of sources. The reports  were not uniform and contained different levels  of detail. These reports were viewed by the trial  judge as out-of-court statements by declarants  who were not present to testify about the truth  of their reports. There was an obvious hearsay  problem under Fed. R. Evid. 802, and, therefore,  the reports would not be admissible unless  covered by an exception under Fed. R. Evid. 803.  In her brief on appeal, Ms. Weir asserts that the  reports were not excludable under Fed. R. Evid.  802 because they "are expressly excepted by Rule  803(6)." Merely asserting that the reports were  a "report" of "events, conditions, opinions, or  diagnosis, made at the time or near the time" by  "a person with knowledge" and kept in the course  of a regularly conducted business activity and  that it was "the regular practice of that  business activity to make the report" is  insufficient to satisfy Fed. R. Evid. 803(6). As  we mentioned, these reports were collected by  Crown from a myriad of sources and in a variety  of circumstances. The district court personally  examined the reports and found many to be vague,  incomplete, and otherwise confusing. The district  court resolved the dilemma by admitting twenty-  seven of the reports which were of occurrences  substantially similar to the Weir accident. To  have dumped all of these hearsay accident reports  about various brake problems on the jury would  have caused untold juror confusion and possible  prejudice. The accident reports that were  admitted as being substantially similar to her  accident were adequate to make Ms. Weir's point.


22
The one issue which remains to be discussed  concerns the evidence involving the absence of a  door on the open side of the operator's  compartment. Ms. Weir attempted to show, through  expert testimony, that a barrier of some sort  across the open side of the forklift could and  would have prevented her injury and was a cost-  effective remedy. Under Daubert v. Merrell Dow  Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993),  the district judge has "the task of ensuring that  an expert's testimony both rests on a reliable  foundation and is relevant to the task at hand."


23
Before Ms. Weir's experts testified at trial,  there was a detailed discussion on the record  regarding the admissibility of the expert  testimony. During this discussion, the court  stated that any evidence relating to a barrier  across the open side of the forklift was  irrelevant and inadmissible because the evidence  in the case was that Ms. Weir's foot was outside  of the running lines of the machine before the  collision and that it was not outside the machine  because of the impact as claimed. The court  expressly noted, given Ms. Weir's testimony that  her foot was pinned between the machines, it  would have been "impossible" for her foot to have  been forced outside the operator's compartment by  the impact and then pinned between the machines;  thus a possible door was irrelevant.3 At this  point, counsel for Ms. Weir highlighted the  distinction between the two alternative design  theories that had been proposed relating to the  barrier issue. The first alternative design  involved a door across the open side of the  operator's compartment. Counsel noted that Crown  had sold over 300 of these doors for standup  forklifts and that these doors had been in actual  use in the field. He informed the court that  Pacheco had studied accident reports from these  door-equipped forklifts which showed that none  had been involved in collisions resulting in  lower limb injury. The second alternative design  was a wedge-shaped barrier which Ms. Weir's  experts developed.


24
During the discussion at trial, counsel for Ms.  Weir drew the court's attention to the fact that  its order on Crown's motion in limine did not  expressly address admissibility of the first  alternative design theory which, as previously  noted, involved doors that were in actual  production and use. The court reaffirmed its  belief that any barrier evidence was irrelevant  given the facts of the case and excluded any  expert testimony on the issue. Ms. Weir then  presented an offer of proof in which Pacheco  testified about both the doors and the wedge.  Pacheco testified that, based on the information  he had reviewed, none of the forklifts equipped  with actual doors "encountered a collision  accident that resulted in a lower limb injury."  While Pacheco did not specifically identify the source of the information he reviewed, it appears  that this opinion was based for the most part on  information contained in Crown accident report  forms. Pacheco also stated that he had recently  reviewed approximately twenty accident reports  that had never been submitted to Crown, but  rather had been compiled by K-Mart, a Crown  customer, relating to accidents involving door-  equipped forklifts. The judge did not say so, but  these reports were no doubt subject to the same  disabilities as the other reports collected from  a variety of sources.


25
Following Pacheco's trial testimony, Ms. Weir  once again asked the court to reconsider its  ruling prohibiting testimony on the barrier  issue. The court declined, stating that Ms. Weir  testified that "she voluntarily put her foot  outside the compartment." Following a recess, the  court corrected itself, stating "I don't think  there is anywhere in there where Mrs. Weir said  she voluntarily put her foot outside the thing,"  but again declined to change its ruling for other  reasons already stated.


26
Ms. Weir concedes that the evidence relating to  the second alternative design, the wedge, was  properly excluded because it had not been  thoroughly tested. However, Ms. Weir argues that  the district court erred in excluding Pacheco's  testimony regarding the doors. Once again, our  review is for abuse of discretion. Kumho Tire  Co., Ltd. v. Carmichael, 119 S.Ct. 1167, 1176  (1999).


27
In reviewing the door issue it must be noted  that one of Ms. Weir's experts, Dr. Ovens, stated  in a deposition that he did not think that a door  was a good idea. Some of the prior factual review  is applicable to this issue as well. Ms. Weir  testified on direct examination that, to the best  of her knowledge, her left foot was inside the  truck as the collision began, but noted that she  did not look down. On cross-examination, Ms. Weir  testified as follows:


28
Q:  And at the time of the impact your foot, or  at least part of your foot, was outside the  compartment?


29
A:  I never looked down, sir, I don't know. My  foot was caught between the two trucks. If that  is what you are getting at, yes.


30
Ms. Weir testified that there was no swerving,  acceleration, bumping, or rough floor to traverse  immediately before the collision which could have  forced her foot outside of the operator's  compartment. In fact, she had no explanation of  how her foot got out of the compartment. Ms. Weir  admitted that as a part of her training, she was  instructed to keep her feet inside the operator's  compartment when the forklift was in operation  and that, up to this point, she had never had a  problem doing so. Additionally, Pacheco testified  that in his opinion nothing occurred to force Ms.  Weir's left foot outside the operator compartment  and stated that he believed "her left foot,  because she thought she had applied the brake,  inadvertently got outside of the compartment."


31
In view of the fact Ms. Weir's machine was  moving "very slowly" and there were no claimed  steering problems, yet the openings of the two  machines were lined up and the machines were only  a few inches apart, it was possible for the jury  to view the evidence as suggesting Ms. Weir  intended to take her machine close enough to the  other to be able to step into the parked machine  from her forklift and move it more quickly and  conveniently than if she had parked her forklift,  dismounted, and then walked over to and climbed  into the parked machine. If that interpretation  was possible under the evidence, it was Ms.  Weir's disregard of the rules and her own  negligence in stepping from one machine to the  other which caused her injury, not the absence of  a barrier.


32
Indiana courts apply a "doctrine of  crashworthiness" under which a manufacturer may  be held liable for injuries sustained in an  accident where a manufacturing or design defect,  although not the cause of the accident, caused or  enhanced a plaintiff's injuries. Miller v. Todd,  551 N.E.2d 1139, 1140 (Ind. 1990).


33
Any design defect not causing the accident would  not subject the manufacturer to liability for the  entire damage, but the manufacturer should be  liable for that portion of the damage or injury  caused by the defective design over and above the  damage or injury that probably would have  occurred as a result of the impact or collision  absent the defective design.


34
Id. at 1142 (quoting Larsen v. General Motors  Corp., 391 F.2d 495, 503 (8th Cir. 1968)). A  product is not considered to be defective under  a crashworthiness analysis merely because the  product failed and caused injury. Instead, a  finding of defectiveness is based on the  conclusion "that the product failed to provide  the consumer with reasonable protection under the  circumstances surrounding a particular accident."  Id. at 1143. Therefore, "a claimant should be  able to demonstrate that a feasible, safer, more  practicable product design would have afforded  better protection." Id.


35
There was no evidence that the circumstances  surrounding the accident caused Ms. Weir's foot  to leave the operator's compartment. Both of Ms.  Weir's experts testified that her injury could  have been avoided if she would have stayed within  the compartment. It is clear that the operator's  compartment, even without a door, provided  reasonable protection under the circumstances of  Ms. Weir's accident. It should be remembered that  Ms. Weir first was sure her feet were inside the  operator's compartment and in their proper places  on the pedals at the time of impact. She later  qualified that by saying that she did not  actually look at her feet. However, during her  cross-examination, Ms. Weir claimed she did not  know where her foot was at the time of impact  because she did not look down, but then stated  that her foot was outside of the operator's  compartment because it got caught between the  machines. Ms. Weir's own testimony was one of the  weaknesses of her case, and she had the burden of  proof. The district court's exclusion ruling  could serve to keep the jury from being confused  and misled, and possibly from reaching an  unjustified sympathy verdict for plaintiff. Any  alleged design defect which had nothing to do  with plaintiff's injury is irrelevant. The  district court did not abuse its discretion in  excluding this evidence as lacking sufficient  foundation.


36
Affirmed.



Notes:


1
 See Appendix for an illustration of a forklift  substantially similar to the one Ms. Weir was  operating.


2
 Neither expert interviewed Ms. Weir concerning  the placement of her feet before formulating the  cross-over theory. Ms. Weir's testimony both in  her deposition and at trial was that her right  and left feet had been in their proper positions  immediately prior to the accident.


3
 The court stated that, given the evidence  presented, the notion that Ms. Weir's foot was  thrown outside the operator's compartment by the  impact did not carry any "credibility." When  considered in context, it is clear that the  district court was not engaging in improper  credibility determinations but rather holding  that the evidence presented did not support such  a theory. In fact, immediately prior to making  this determination, the district judge recognized  in his analysis of the admissibility of the  cross-over evidence that the credibility of Ms.  Weir's testimony was an issue for the jury,  adding that if it were up to him he would have to  find that Ms. Weir was "simply not credible."



37
RIPPLE, Circuit Judge, dissenting.


38
I respectfully  cannot accept all of the majority's analysis. In  my view, the district court improperly rejected  Pacheco's testimony about the need for a door on  the rider. Accordingly, I would reverse and  remand for a new trial.


39
I agree with the majority's analysis about the  district court's exclusion of certain accident  reports. The district court has broad discretion  to decide which accident reports are relevant.  "Even when substantial identity of the  circumstances is proven, the admissibility of  such evidence lies within the discretion of the  trial judge." Nachtsheim v. Beech Aircraft Co.,  847 F.2d 1261, 1269 (7th Cir. 1988). As the  majority correctly notes, the reports admitted  were sufficient for Ms. Weir to make her point.


40
The district court's decision to exclude Daniel  Pacheco's proposed testimony about the need for  a door on the rider cannot, however, be sustained  even under the deferential review that we accord  to trial court determinations about the  admissibility of evidence1. The court excluded  that part of Pacheco's testimony because it found  that it was inadmissible under Daubert v. Merrell  Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93  (1993). In examining the correctness of that  determination, we must first place the district  court's ruling in context and then examine the  criteria of Daubert.

A.

41
As the majority observes, Indiana courts  recognize the doctrine of crashworthiness. See  Indiana Code Ann. sec. 33-1-1.5-1 et seq. (West  1996) (product liability); Miller v. Todd, 551  N.E.2d 1139, 1142 (Ind. 1990); see also Whitted  v. General Motors Corp., 58 F.3d 1200, 1205-06  (7th Cir. 1995). The Indiana Supreme Court has  summarized the doctrine as follows:


42
Any design defect not causing the accident would  not subject the manufacturer to liability for the  entire damage, but the manufacturer should be  liable for that portion of the damage or injury  caused by the defective design over and above the  damage or injury that probably would have  occurred as a result of the impact or collision  absent the defective design.


43
Miller, 551 N.E.2d at 1142 (citation omitted).  Thus, even if Ms. Weir's cross-over theory was  rejected by the jury, Ms. Weir could recover from  Crown if she succeeded in showing that the rider  was not crashworthy.


44
In a crashworthiness case, the plaintiff must  show that the injury caused by the product was "a  natural and probable consequence which was, or  should have been, reasonably foreseen or  anticipated in light of the attendant  circumstances." Marshall v. Clark Equip. Co., 680  N.E.2d 1102, 1108 (Ind. Ct. App. 1997). Ms. Weir  could have recovered from Crown if Crown should  have anticipated that the absence of a door on  the rider would lead to the type of injury she  suffered. Crown may defend, however, by showing  that Ms. Weir misused the product in an  unforeseeable manner. See id. Thus, even if Crown  is correct that Ms. Weir intentionally had placed  her foot outside the rider, the critical inquiry  for purposes of determining whether the rider is  crashworthy is whether Ms. Weir's misuse was  reasonably foreseeable.


45
The Indiana Court of Appeals' decision in  Marshall is instructive. In that case, the  plaintiff was injured while backing up a  forklift. See 680 N.E.2d at 1103-04. The  plaintiff argued that the forklift's design was  defective because it did not include a rear door.  See id. at 1108. The defendants presented a  misuse defense, arguing that the plaintiff had  improperly operated the forklift with his foot  outside the driver's compartment. See id. The  court found that the jury was required to  determine "whether Marshall's misuse of the  forklift was reasonably foreseeable." Id. "The  foreseeability of an intervening misuse is  usually a question for the jury." Underly v.  Advance Mach. Co., 605 N.E.2d 1186, 1189 (Ind.  Ct. App. 1993); see also Montgomery Ward & Co. v.  Gregg, 554 N.E.2d 1145, 1156 (Ind. Ct. App.  1990).


46
The district court acknowledged Ms. Weir's  crashworthiness theory in a pretrial order on  Crown's motion in limine to exclude portions of  Pacheco's testimony. The court stated, "'Design  defect' cases frequently arise in the context of  an enhanced injury to the plaintiff caused by the  absence of an alleged safety feature or  alternative design that would have prevented the  injury." R.208 at 2. The court later connected  the doctrine to Pacheco's proffered testimony,  stating that the lack of a barrier over the  doorway "falls in the category of 'injury  enhancing' defects." Id. at 4. It then noted that  plaintiffs in an enhanced injury case must  demonstrate, through a "risk-utility" test, that  there was a more cost effective alternative  design available. Id.


47
At trial the district court made plain that it  did not think Ms. Weir could proceed with her  crashworthiness claim:


48
Let me just mention this. I thought I made it  fairly clear that the crash worthiness  circumstance, or any problem with the crash  worthiness was not really what we were going to  do. Any part of the design that you would have  thought aggravated the injury was out because you  have got to build something, you have to test it,  you have to go through all the activities to be  sure that your theory is correct. I think that is  clear from the case law. I'm not making this  stuff up. So I don't anticipate entertaining  evidence about that.


49
R.213 at 344-45. It appears from this statement,  read in isolation, that the district court's  basis for dismissing Ms. Weir's crashworthiness  claim was that she had not constructed an  alternate model. Such a ruling surely would have  been inappropriate on this record. When the  alternate model discussed by an expert is in  regular commercial production, the expert cannot  be faulted for not building his own prototype,  but instead is allowed to evaluate data relating  to the existing models2. After trial, however,  the district court explicitly stated that it had  not based its ruling at trial on the fact that  Ms. Weir's experts had not constructed a model of  their own. Indeed, when Ms. Weir moved for a new  trial, the district court explained that its  basis for dismissing the crashworthiness claim  was the fact that Ms. Weir had offered no  cost/benefit analysis to demonstrate that a door  should have been added to the rider.


50
This circuit has acknowledged that, in order to  demonstrate a defect under Indiana law, a  plaintiff must perform a cost/benefit analysis.  See Pries v. Honda Motor Co., 31 F.3d 543, 545  (7th Cir. 1994) ("To demonstrate a defect, the  plaintiff must compare the costs and benefits of  alternative designs."). Pacheco presented such an  analysis in his offer of proof. He testified that  the cost of the doors would be only a small  percentage of the total cost of the forklift. He  stated that accidents involving riders caused  lower limb injuries3. He testified further that  he had read numerous reports of crashes involving  riders with doors, and in none of them had the  operator suffered an injury to their lower  extremities. Pacheco compared the costs of riders  with and without doors, and also compared the  accident benefits of each. In fact, counsel  specifically asked Pacheco if the benefits of  doors on riders outweighed their costs, and  Pacheco answered yes.


51
Because of this proffered testimony, it was  incorrect, unless the requirements of Daubert  were not met, for the district court to conclude  that the plaintiff had offered no cost/benefit  analysis. We have stated that plaintiffs must  offer a more cost-effective design, and Ms. Weir  has fulfilled that obligation. See Anderson v.  P.A. Radocy & Sons, Inc., 67 F.3d 619, 625 n.5  (7th Cir. 1995). Crown argues that Pacheco is  wrong, and that riders with doors were not more  cost-effective than those without; indeed,  another of Ms. Weir's own experts, Dr. William  Ovens, testified that adding a door would create  numerous problems with the rider. However, there  was evidence in the record from which a  reasonable juror could have concluded that a  rider with a door was more cost-effective than  one without. It was for the trier of fact to  evaluate this testimony.

B.

52
Having determined that Ms. Weir should have  been allowed to present hercrashworthiness  argument to the jury, I now consider whether  Pacheco's testimony should have been admitted to  support that argument. I focus here only on that  portion of Pacheco's testimony in which he  testified that the addition of a door to the  rider would have helped prevent Ms. Weir's  injury4.


53
To be admissible as expert testimony, Pacheco's  testimony must be based upon valid scientific  knowledge that would assist the trier of fact  with a matter at issue. See Daubert, 509 U.S. at  592-93; Walker v. Soo Line R.R. Co., 208 F.3d  581, 586 (7th Cir. 2000). Although Pacheco's  qualifications are not at issue in this case, a  district court may reject a proffered expert as  unqualified. See United States v. Vitek Supply  Corp., 144 F.3d 476, 486 (7th Cir. 1998). Even if  an expert is qualified, he need not be allowed to  testify on all subjects. This court has warned  about the dangers of allowing qualified experts  to offer opinions that do not rely on proper  methodologies and are therefore speculative. See  Cummins v. Lyle Indus., 93 F.3d 363, 368 (7th  Cir. 1996); Rosen v. Ciba-Geigy Corp., 78 F.3d  316, 318 (7th Cir. 1996). Further, a district  court may conclude that the testimony would not  assist the trier of fact with a matter at issue,  essentially a relevancy determination. See United  States v. Shay, 57 F.3d 126, 132-33 (1st Cir.  1995).

1.

54
As an initial matter, it is not clear that the  district court ever applied the Daubert standards  to this portion of Pacheco's proffered testimony.  This court has reversed district court decisions  that do not show a proper consideration of the  Daubert factors. See United States v. Hall, 165  F.3d 1095, 1102 (7th Cir. 1999) (describing  earlier proceedings in that case). Here, the  court properly evaluated another portion of  Pacheco's proffered testimony, his proposed self-  designed alternate design. The court's order does  not, however, discuss the subject of Pacheco's  study of accident reports involving forklifts  with compartment doors. There is no point in the  record at which the district court specifically  considers the scientific value of this proffered  testimony.


55
Of course, a district court's ruling is not  defective simply because it failed to recite the  Daubert standards. See Walker, 208 F.3d at 590.  Our focus must be on whether the district court  has applied the principles of Daubert to the  proffered testimony at issue. See Walker, 208  F.3d at 590; Hall, 165 F.3d at 1102. Here, the  district court, although properly rejecting other  parts of Pacheco's testimony, simply did not  discuss specifically the proffered testimony at  issue.

2.

56
In the absence of any explanation from the  district court, its ruling is unknown. However,  assuming that it considered under Daubert this  portion of Pacheco's proposed testimony, it would  have determined whether Pacheco's methodology was  scientifically valid and whether that testimony  would have assisted the trier of fact with a  matter at issue. In the following discussion,  therefore, I shall assume, arguendo, that the  district court would have concluded that  Pacheco's testimony failed both prongs of the  Daubert analysis. Neither conclusion can be  sustained even under our deferential review of  such questions.


57
In the district court's evaluation of the  admissibility of expert testimony, "the focus .  . . must be solely on the principles and  methodology, not on the conclusions they  generate." Cummins, 93 F.3d at 370 (quoting  Daubert, 509 U.S. at 595). In his offer of proof,  Pacheco testified that he has studied the  protection afforded by doors that previously have  been available on forklifts. He claimed to have  reviewed accident reports of forklifts involving  doors and found no such accidents that caused an  injury to the lowerextremities. Further, from  those records he determined that injuries were  frequent on riders without doors.


58
Pacheco relied on data from accident reports to  determine that more injuries occurred in crashes  involving riders without doors than in crashes  involving riders with doors. Review of reports  and records is an appropriate method for experts  to learn the data about which they plan to  testify. See Walker, 208 F.3d at 591. For  testimony based on reports to be admissible, the  reports themselves must be reliable sources of  information. Federal Rule of Evidence 703 demands  that experts obtaining data from reports use only  reports reasonably relied on by experts in the  field. See Fed. R. Evid. 703; United States v.  Gardner, 211 F.3d 1049, 1053-54 (7th  Cir. May 3, 2000). There does not appear to be  any dispute that these accident reports are  reasonably relied upon for the purpose of  obtaining data about rider accidents. First, most  of the reports were prepared by Crown itself for  the purpose of compiling safety histories of its  products5. Second, when considering Ms. Weir's  cross-over theory, the district court admitted  numerous accident reports into evidence, as  discussed in the majority opinion. Although Crown  objected that some of these accident reports were  irrelevant to the cross-over theory, it has not  argued that these reports were unreliable. These  reports fulfill the mandate of Rule 703 as  materials reasonably relied upon by experts in  the field.


59
Crown focuses on the fact that Pacheco did not  cite any articles supporting his position or  address contrary authority stating that doors are  unnecessary on forklifts. In a Daubert analysis,  it helps to have cited articles; it is not,  however, required. The fact that professional  organizations disagree with Pacheco about the  need for doors--another point raised by Crown--  is a proper subject for cross-examination, and  Crown could have countered Pacheco's testimony  with experts of its own. That concern goes to the  weight of Pacheco's testimony, not its  admissibility.

3.

60
Even though Pacheco's testimony was based on  appropriate scientific methodology, the district  court properly could have rejected it if it would  not assist the trier of fact with a matter at  issue in the case. As discussed above, the  district court erred in concluding that the  crashworthiness of the rider was not a matter at  issue in the case. However, had the district  court allowed the crashworthiness theory to  proceed, the existence of a more cost-effective  and crashworthy alternate design would have been  a matter at issue. Establishing the viability of  an alternate design is necessary to show  proximate cause. See Marshall, 680 N.E.2d at  1108. In this regard, Pacheco's testimony would  have helped Ms. Weir to show that a more cost-  effective alternative design would have been more  crashworthy: he testified that a forklift with a  door could have prevented Ms. Weir's injury and  that it would have only taken a minimal expense  to improve dramatically the rider's safety6. Had the jury been allowed to consider the  crashworthiness issue, Pacheco's testimony would  have assisted the jury to decide whether a rider  with a door would have been more cost-effective  and more crashworthy.


61
The admissibility of Pacheco's testimony is not  affected by the fact that he did not testify  about the foreseeability of any misuse by Ms.  Weir. In a crashworthiness case, unforeseeable  misuse is an affirmative defense. See Marshall,  680 N.E.2d at 1108; Montgomery Ward, 554 N.E.2d  at 1151-52. The existence of a superior alternate  design was an essential element of Ms. Weir's  claim; when the district court prevented her from  pursuing that argument, it eliminated the need  for Crown to raise any affirmative defenses.  Further, had Crown raised the defense of  unforeseeable misuse, it would have had the  burden of proving that Ms. Weir's misuse was not  foreseeable. When an affirmative defense is  raised the burden is on the defendant to  establish its elements. See Schleibaum v. K-Mart  Corp., 153 F.3d 496, 501 (7th Cir. 1998); Get-N-  Go, Inc. v. Markins, 544 N.E.2d 484, 486 (Ind.  1989). Because the district court never allowed  the unforeseeable misuse defense to be raised,  and because, even if the defense had been raised,  Ms. Weir would have been under no obligation to  enter testimony on the subject, the fact that  Pacheco did not discuss the foreseeability of any  misuse does not affect our consideration of  whether Pacheco's testimony would have assisted  the trier of fact with a matter at issue.


62
Crown argues that Pacheco's testimony was  properly rejected because he argued that, even  with a door, the rider would have been defective  because it did not include a ridge between foot  pedals. The testimony about a ridge, however, was  directed toward showing how Crown could have  prevented a brake failure; his testimony about  compartment doors was directed toward showing how  Crown could minimize the potential for injury in  the event of a brake failure. Whether Pacheco  thought that the rider would still be defective  if a door was added was immaterial; what was  important was his scientifically-grounded  testimony that the addition of a door would  reduce the chance of injury to lower extremities  in the event of a crash.


63
The majority's conclusion that Pacheco's  testimony was properly excluded rests in part on  the fact that the district court was attempting  to minimize confusion over Ms. Weir's  contradictory statements about the position of  her feet. It is true that Ms. Weir's own  testimony on the subject of the position of her  feet at the time of the crash was inconsistent.  However, even if we indulge in the assumption  most favorable to Crown--that Ms. Weir  intentionally placed her foot outside the running  lines of the rider--Pacheco's testimony about the  need for a door on the rider was still relevant  because a jury could have concluded that Crown's  design caused an enhancement to Ms. Weir's injury  and awarded her partial recovery under Indiana's  crashworthiness doctrine. This would not be "an  unjustified sympathy verdict," as the majority  characterizes it, but would instead be exactly  the sort of recovery the crashworthiness doctrine  was intended to facilitate. Therefore, this  design defect was not irrelevant to Ms. Weir's  injury.


64
Pacheco's opinion on the need for doors on the  forklift was grounded in proper research  methodologies and should have been admitted. From  this testimony, a reasonable jury could have  inferred that, even if the forklift's brakes  failed, Ms. Weir's injury could have been  prevented by Crown. I would remand the case for  a new trial at which this portion of Pacheco's  testimony would be admitted. [Tabular or Graphical Material Omitted]



Notes:


1
 Pacheco also at one point offered testimony about  an elaborate design change, and on appeal Ms.  Weir concedes that the district court correctly  excluded that testimony.


2
 In design defect cases, courts have frequently  noted the testimony of experts comparing  allegedly defective products to safer designs  already in existence. See Chaulk v. Volkswagen of  America, 808 F.2d 639, 642-43 (7th Cir. 1986);  accord Violette v. Smith & Nephew Dyonics, Inc.,  62 F.3d 8, 13 (1st Cir. 1995); Miles v. Olin  Corp., 922 F.2d 1221, 1227 (5th Cir. 1991);  Johnson v. Colt Indus. Operating Corp., 797 F.2d  1530, 1535 (10th Cir. 1986); Martin v. Michelin  N. Am., 92 F. Supp. 2d 745, 752 (E.D. Tenn. 2000)  (memorandum); Bush v. Michelin Tire Corp., 963 F.  Supp. 1436, 1446 (W.D. Ky. 1996) (memorandum).


3
 Pacheco was allowed to testify at trial about the  dangers of riding forklifts. Pacheco testified  that forklift accidents occur at "a fairly high  frequency," and that when one occurs there is "a  very great chance that the injury will be very  serious." R.218 at 613.


4
 See note 1, supra.


5
 Some of the accident reports relied upon by  Pacheco in evaluating injuries on forklifts with  doors came from K-Mart, a Crown customer.


6
 Pacheco's testimony about the need for a door was  relevant only to a crashworthiness claim; there  is no argument that the absence of a door caused  Ms. Weir's rider to collide with the parked  rider.


