                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-24-2008

Pineda v. Ford Mtr Co
Precedential or Non-Precedential: Precedential

Docket No. 07-1191




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                                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                         No. 07-1191


                        JOSE PINEDA,

                                  Appellant,

                                 v.

                 FORD MOTOR COMPANY




         On Appeal from the Judgment of the United
                     States District Court
           for the Eastern District of Pennsylvania
                    (Civ. No. 04-cv-3359)
          Magistrate Judge: Honorable Jacob P. Hart

                   Argued: February 5, 2008

  Before: McKEE, AMBRO, Circuit Judges, and IRENAS,*
                 Senior District Judge.


   *
     Honorable Joseph E. Irenas, Senior United States
District Judge for the District of New Jersey, sitting by
designation.
                  (Filed: March 24, 2008)


Scot R. Withers, Esq. (Argued)
Lamb McErlane PC
24 East Market Street
P.O. Box 565
West Chester, PA 19381
      and
Andrew P. Motel, Esq.
Law Offices of Andrew P. Motel, LLC
330 North High Street
West Chester, PA 19380

Counsel for Appellant

C. Scott Toomey, Esq.
Tiffany M. Alexander, Esq.
Kristen E. Dennison, Esq. (Argued)
Campbell Campbell Edwards & Conroy, P.C.
690 Lee Road, Suite 300
Wayne, PA 19087

Counsel for Appellee

_____________

                   OPINION
                _____________

IRENAS, Senior United States District Judge.

      Appellant Jose Pineda is an automobile technician who

                             2
was injured when the rear liftgate glass of a 2002 Ford Explorer

shattered. He filed a products liability action against Appellee

Ford Motor Company in the United States District Court for the

Eastern District of Pennsylvania and retained an expert to

support his claims. After extensive discovery and a Daubert

hearing,1 the District Court2 ruled that Pineda’s proffered expert

witness was not qualified to testify and that his methodology



   1
      A Daubert hearing refers to a pretrial hearing where a
court determines whether a proffered expert witness’s
testimony is both relevant and reliable, and thus admissible as
evidence, pursuant to Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
   2
      On June 16, 2006, the Honorable Bruce W. Kauffman,
United States District Judge, referred this action to the
Honorable Jacob P. Hart, United States Magistrate Judge, to
conduct any and all proceedings and to order the entry of a
final judgment. The referral was made pursuant to 28 U.S.C.
§ 636(c) and Federal Rule of Civil Procedure 73 and with the
consent of all parties. Upon an appropriate referral and an
entry of judgment, “an aggrieved party may appeal directly to
the appropriate United States court of appeals from the
judgment of the magistrate judge in the same manner as an
appeal from any other judgment of a district court.” 28
U.S.C. § 636(c)(3).

                                3
was not reliable. The District Court then granted Ford’s motion

to exclude the testimony of Pineda’s expert and its motion for

summary judgment. For the reasons set forth below, we will

reverse both decisions and remand for further proceedings.

                                I.

       Pineda was employed as an automobile technician by

Murphy Lincoln-Mercury in West Chester, Pennsylvania. On

July 18, 2002, he worked to replace several components of the

rear liftgate on a 2002 Ford Explorer. Pineda initially examined

the Explorer on July 2, when the owner brought the vehicle to

the dealership for repair because the rear liftgate would not close

properly.   Pineda determined that one of the hinges that

connected the liftgate glass to the body of the Explorer was

damaged. He also knew that, in April of 2001, Ford issued a

Special Service Instruction for repair of the liftgate brackets on

2002 Explorers built between February 5 and March 30, 2001.3

The brackets connected the lift cylinders, which supported the




   3
    The vehicle Pineda inspected was built on March 12,
2001.

                                4
rear liftgate in the open position, to each side of the liftgate

glass. Pineda told the owner of the vehicle to refrain from using

the rear liftgate until it could be repaired. He then ordered

replacement lift cylinders, liftgate brackets, and liftgate hinges,

all of which were available for installation on July 18.

       That morning, Pineda replaced the lift cylinders and

liftgate brackets without incident. Later in the afternoon, he

began to replace the liftgate hinges. During his deposition,

Pineda described what happened next:

       It was right after lunch, somewhere around 1:00,
       when I finished to install the hinge on the left side
       and moved to the right side. I got the book
       because [there] was no information related to the
       torque specs on the hinge, so I got the book,
       torqued the hinge [on the glass side] to the specs
       of the book, then put the nut on the body side.
       When I finished torquing the nut on the body side,
       I hear a click and felt like the glass was
       exploding. I closed my eyes and I felt something
       hit my leg.
....
I stepped back with my eyes closed, two steps. I was in so much
pain on my leg that I have to open my eyes, and I saw my calf
wide open.

       Pineda filed a complaint against Ford on July 16, 2004,

in the Eastern District of Pennsylvania. The complaint alleged

that the liftgate glass and hinges on the 2002 Ford Explorer were



                                5
defective in design and that Ford failed to adequately warn of

the dangerous condition.4

       In order to satisfy his burden of proof on the products

liability claims, Pineda retained Craig D. Clauser, P.E., as an

expert. Clauser produced a report on September 30, 2005. It

concluded that the liftgate glass shattered because its “design

was defective in that it was only marginally able to resist

fracture in its intended service and the pertinent manual and

bulletins lacked adequate instructions and warnings.” Clauser’s

report noted that “[n]o improper action by Mr. Pineda caused

this incident to occur.” 5


   4
     The complaint also alleged negligence and breach of
express and implied warranties. Pineda has not raised either
claim as an issue on appeal. We therefore consider any
arguments as to those claims waived. See Simmons v. City of
Philadelphia, 947 F.2d 1042, 1065-66 (3d Cir. 1991).
   5
      Ford claims, both in its brief to this Court and during
oral argument, that Clauser opined that Pineda’s own error
could have caused the liftgate glass to shatter because Pineda
“misaligned the glass.” This assertion not only confuses the
primary issue before us–whether the District Court erred in
excluding Clauser’s testimony–but also mischaracterizes
Clauser’s consistent position that Pineda’s injury was not
caused by his own improper action. In addition to the
statement in his report, Clauser was asked during his
deposition: “So you do believe that [Mr. Pineda] did misalign
the glass, but he did it because he didn’t have enough
instructions not to?” Clauser responded, “That’s correct.”

                              6
       Ford deposed Clauser on March 31, 2006. He stated at

the deposition that his design defect opinion was based on his

comparison of warranty claims for 2002 and 2003 model year

Ford Explorers.    Specifically, his analysis of performance

reviews based on the warranty claims led him to conclude that

2002 models had a design defect related to the liftgate glass and

hinges. His opinion was also based on third-party opinions he

found on the internet at BlueOvalNews.com.6


Clauser similarly testified during the Daubert hearing that the
reason Pineda misaligned the glass was that there were
inadequate instructions or warnings provided by Ford. We do
not render any opinion as to the accuracy or credibility of
these statements, since that would be for a jury to determine.
However, the record does not support the position that
Clauser ever opined that Pineda committed an error that could
have been the proximate cause of his injury.
        But even if the record supported Ford’s assertion, the
question of whether Pineda’s own conduct caused his injury
should generally be left to the jury, if such a question is
presented to the jury at all. See Dillinger v. Caterpillar, Inc.,
959 F.2d 430, 437, 441 (3d Cir. 1992) (noting that the
Pennsylvania Supreme Court refuses to permit the
introduction of evidence of a plaintiff’s negligence in a
products liability action for purposes of establishing
comparative fault, but that some Pennsylvania lower courts
have admitted evidence of contributory negligence for a jury
to consider on the issue of causation). The question is simply
not relevant to the issue of whether Clauser was qualified to
testify and whether his methodology was reliable.
   6
     BlueOvalNews.com is an independent website that
provides forums for visitors to discuss news about Ford and

                                7
       As to his failure to warn opinion, Clauser testified that

the 2002 Explorer’s service manual did not provide specific,

step-by-step instructions for replacing the liftgate brackets and

hinges and reconnecting them to the liftgate glass. He further

testified that the service manual failed to warn that the need for

following such instructions was a safety issue. Clauser admitted

that, in reaching his conclusions, he did not perform any

objective testing of his own, e.g., stress analysis or other

experiments on the liftgate glass of the vehicle at issue or on

2002 Explorers generally.

       After the deposition, Ford filed motions to exclude

Clauser’s testimony and for summary judgment. Alternatively,

it moved for a pretrial Daubert hearing. The bases for these

motions were that Clauser was unqualified to provide expert

testimony and that, even if he were qualified, Clauser’s

testimony was unreliable under Federal Rule of Evidence 702

and Daubert.7 The District Court granted the motion for a


developments with the company’s array of automobiles. The
website does not appear to be endorsed or supported by Ford.
   7
    Ford based its motion for summary judgment on the
assumption that its motion to exclude Clauser’s testimony
would be granted. Ford argued that no genuine issue of

                                8
Daubert hearing, which was held on September 28, 2006. Prior

to the hearing, on July 11, 2006, Clauser provided a

supplemental report, in which his opinions from the first report

remained unchanged. Nonetheless, at the start of the hearing,

Pineda voluntarily withdrew his design defect claim and

proceeded only on his failure to warn claim.

       Clauser was the only witness to testify at the Daubert

hearing. Pineda’s counsel first asked Clauser to discuss his

credentials as a professional engineer with experience in

materials analysis and systems failure analysis.        Clauser

admitted that he was not a warnings expert, except to the extent

that “a warning and instructions” are “solution[s] to an

engineering problem.” He also testified about Ford’s 2004

Safety Recall Instruction (the “SRI”), which described the

procedure for replacing the liftgate brackets and hinges on the

2002 Ford Explorer. Clauser stated that the SRI, unlike the

2002 service manual used by Pineda, provided adequate

warnings and proper, detailed instructions for the replacement



material fact would remain without Clauser’s testimony, and
Pineda’s products liability claims would fail as a matter of
law.

                               9
of the liftgate brackets and hinges.8

       By Opinion and Order dated November 15, 2006, the

District Court granted Ford’s motion to exclude Clauser’s

testimony in its entirety because: (1) Clauser admitted that he

was not qualified as a warnings expert; (2) when discussing

alternative warnings, Clauser could not compare the 2002

service manual to the SRI pursuant to Federal Rule of Evidence

407; and (3) Clauser’s testimony was not based on an accepted

methodology, i.e., his testimony was unreliable. The District

Court held Ford’s motion for summary judgment in abeyance

pending Pineda’s response to the issue of whether he could

withstand summary judgment without expert testimony.

       Pineda did not file the requested response by the District

Court’s imposed deadline of November 29, 2006. He sought an


   8
      Clauser testified that, while a warning and instructions
are low on the “safeguarding hierarchy,” they are “an
engineering tool.” He stated that the hierarchy requires an
engineer to, in order of preference, “design the defect out,
guard against it, or use instruction.” The thrust of his
testimony was that any number of instructions or warnings
could have been sufficient to adequately warn of the possible
danger to an automobile technician, and that the SRI was
sufficient and the 2002 service manual used by Pineda was
not. However, Clauser stated that he was not “put[ting]
[him]self out as an expert on exactly what the wording [of
alternative instructions or warnings] should be.”

                               10
extension of time until December 13, which the District Court

granted, but Pineda failed to meet that deadline as well. On

December 19, the District Court granted Ford’s motion for

summary judgment and incorporated its November 15 decision

by reference. Pineda filed a timely notice of appeal on January

18, 2007. His appeal does not challenge the District Court’s

conclusion that “in the absence of expert testimony, a jury could

not render a just and proper decision” on his failure to warn

claim. Thus, the only issue before us is whether the District

Court erred in its decision to exclude Clauser’s proffered expert

testimony.9

                               II.

       The District Court had jurisdiction based upon the

diversity of the parties under 28 U.S.C. § 1332. We have

jurisdiction over the District Court’s final order granting Ford’s

motion for summary judgment pursuant to 28 U.S.C. § 1291.

“Under the ‘merger rule,’ prior interlocutory orders [such as the



   9
      Because we find that the District Court erred in
excluding Clauser’s testimony, the District Court’s grant of
summary judgment in favor of Ford was necessarily erroneous
since that decision was based entirely on the absence of expert
testimony on behalf of Pineda.

                               11
order excluding the testimony of Clauser] merge with the final

judgment in a case, and the interlocutory orders (to the extent

that they affect the final judgment) may be reviewed on appeal

from the final order.” In re Westinghouse Sec. Litig., 90 F.3d

696, 706 (3d Cir. 1996).

       We apply an abuse-of-discretion standard              when

reviewing a District Court’s decision to admit or exclude expert

testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,

152 (1999); see also In re TMI Litig., 193 F.3d 613, 666 (3d Cir.

1999). “An abuse of discretion arises when the District Court’s

decision rests upon a clearly erroneous finding of fact, an errant

conclusion of law or an improper application of law to fact.”

TMI, 193 F.3d at 666 (internal quotation marks omitted). We

will not interfere with the district court’s decision “unless there

is a definite and firm conviction that the court below committed

a clear error of judgment in the conclusion it reached upon a

weighing of the relevant factors.” Id. (internal quotation marks

omitted).   To the extent that the District Court’s decision

involved a legal interpretation of the Federal Rules of Evidence,

our review is plenary. See id.



                                 12
                               III.

        Under the Federal Rules of Evidence, a trial judge acts as

a “gatekeeper” to ensure that “any and all expert testimony or

evidence is not only relevant, but also reliable.” Kannankeril v.

Terminix Int’l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (citing

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589

(1993)). The Rules of Evidence embody a strong preference for

admitting any evidence that may assist the trier of fact. Id.; see

also Fed. R. Evid. 401 (defining “relevant evidence,” all of

which is generally admissible, to mean “evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence” (emphases

added)). “Rule 702, which governs the admissibility of expert

testimony, has a liberal policy of admissibility.” 10 Kannankeril,


   10
     Rule 702, which was amended on April 17, 2000, in
response to Daubert, provides:

        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, if (1) the testimony is

                                13
128 F.3d at 806.

       Rule 702 has three major requirements: (1) the proffered

witness must be an expert, i.e., must be qualified; (2) the expert

must testify about matters requiring scientific, technical or

specialized knowledge; and (3) the expert’s testimony must

assist the trier of fact. Id. (citing In re Paoli R.R. Yard PCB

Litig., 35 F.3d 717, 741-42 (3d Cir. 1994)). We have interpreted

the second requirement to mean that “‘an expert’s testimony is

admissible so long as the process or technique the expert used

in formulating the opinion is reliable.’” Id. (quoting Paoli, 35

F.3d at 742).

       The District Court found that Clauser failed to meet the

first requirement of Rule 702 because he was not qualified as an

expert on warnings. It also found that Clauser did not satisfy the

second requirement because his methodology was not reliable.

When the District Court considered whether Clauser’s



       based upon sufficient facts or data, (2) the
       testimony is the product of reliable principles
       and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of
       the case.

Fed. R. Evid. 702.

                               14
methodology was reliable, it ruled that he could not compare the

2002 service manual to the SRI pursuant to Federal Rule of

Evidence 407.

       We will first address the District Court’s finding that

Clauser was not qualified as an expert. Then we will discuss the

District Court’s legal interpretation of the Federal Rules of

Evidence. Finally, we will address the District Court’s finding

that Clauser’s methodology was not reliable.

A.     Qualification

       In its November 15 Opinion and Order, the District Court

stated, “Clauser has freely admitted that he is not qualified as a

warnings expert, and that he does not purport to be one.”

Primarily on this basis the District Court found that Clauser was

not qualified as an expert as required by Rule 702. Without

more, we disagree with such a finding.

       Qualification   requires     “that   the   witness   possess

specialized expertise.” Schneider ex rel. Estate of Schneider v.

Fried, 320 F.3d 396, 404 (3d Cir. 2003). We have interpreted

Rule 702's qualification requirement liberally. See id.; see also

Paoli, 35 F.3d at 741. We have held that a “broad range of



                               15
knowledge, skills, and training qualify an expert.” Paoli, 35

F.3d at 741.

        This liberal policy of admissibility extends to the

substantive as well as the formal qualifications of experts. Id.11

“[I]t is an abuse of discretion to exclude testimony simply

because the trial court does not deem the proposed expert to be

the best qualified or because the proposed expert does not have

the specialization that the court considers most appropriate.”

Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir.

1996) (accepting more general qualifications in holding that a

treating physician did not have to practice a particular specialty

in order to testify concerning certain matters).

        After Pineda withdrew his design defect claim, the

District Court determined that the only permissible expert was



   11
      Paoli, a post-Daubert case, relied on two pre-Daubert
cases in support of this conclusion. See Hammond v. Int’l
Harvester Co., 691 F.2d 646, 652-53 (3d Cir. 1982)
(permitting an engineer with only sales experience in
automotive and agricultural equipment, who also taught high
school automobile repair, to testify in products liability action
involving tractors); Knight v. Otis Elevator Co., 596 F.2d 84,
87-88 (3d Cir. 1979) (holding that an expert could testify that
unguarded elevator buttons constituted a design defect despite
expert’s lack of specific background in design and
manufacture of elevators).

                               16
a “warnings expert.” The Court found that Clauser was not

qualified to testify by primarily relying on Clauser’s own

statement at the Daubert hearing that he did not offer himself as

a warnings expert.

       Looking beyond this single statement, we find that

Clauser’s formal qualifications are unassailable. He received a

Bachelor of Science and a Master of Science in Metallurgical

Engineering and Material Science, and he spent considerable

time studying fracture mechanics and modeling materials such

as glass. Upon graduation, Clauser worked at Westinghouse

Electric in its materials engineering lab and then Phoenix Steel

Corporation as the manager of quality control. He eventually

joined Consulting Engineers in 1986, where he has consulted

with the legal profession on over two hundred cases involving

the failure of glass or other ceramics. Given Clauser’s extensive

formal qualifications, particularly in relation to glass, it appears

that the District Court was not satisfied with his substantive

qualifications since he was not a warnings expert. We now turn

to that inquiry.

       Pineda proffered Clauser as an expert to establish two



                                17
points.     First, Clauser testified that a specific, step-by-step

procedure was required in order to reduce the likelihood that the

rear liftgate glass would fail when replacing the liftgate brackets

and hinges on a 2002 Ford Explorer. More specifically, he

opined that such a procedure should have been embodied in an

instruction in the 2002 Explorer’s service manual but was not.

Clauser testified during the Daubert hearing that, while he was

not proposing what the instruction’s precise language should be,

he was asserting that a proper instruction was a solution to an

engineering problem under the safeguarding hierarchy. To meet

Rule 702's liberal qualification requirement, Clauser did not

need to be substantively qualified in the design of automobile

rear liftgates or the drafting of service manual instructions.

Clauser’s expertise in the stresses and other forces that might

cause a material such as glass to fail was more than sufficient to

satisfy Rule 702's substantive qualification requirement.

          Additionally, Clauser was proffered to establish that the

2002 service manual should have contained an explicit warning

that following the necessary step-by-step instruction was a

safety issue. Again, as an engineer, Clauser did not purport to



                                 18
opine on how the warning should be worded or how it should

appear in order to effectively convey its message to an

automobile technician. He only testified that neglecting to

follow the steps of an instruction when replacing the 2002

Explorer’s liftgate brackets and hinges might result in failure of

the liftgate glass, and that a warning was necessary to alert a

technician to the potential problem.12 Clauser was substantively

qualified to testify on this point because a proper warning is also

a solution to an engineering problem.

          Therefore, we hold that Clauser should have been

qualified as an expert even though he may not have been the

“best qualified” expert or did not have the “specialization” that

the District Court deemed necessary.

B.        Federal Rules of Evidence 407 and 703


     12
       The wording or comprehensibility of the warning or
step-by-step instruction are not issues before us because the
foundation of Pineda’s claim is that no warning or instruction
existed at all. If, however, Pineda claimed that an existing
warning or instruction was ineffective, misleading, or
otherwise defective, a true “warnings expert” might be
required. Such an expert could be expected to testify as to the
syntax, color, size, placement, clarity, or numerous other
factors, related to an existing warning or instruction. See,
e.g., Pavlik v. Lane Ltd./Tobacco Exps. Int’l, 135 F.3d 876,
886-87 (3d Cir. 1998). But this case does not present a
situation where a warnings expert might be necessary.

                                19
        At the Daubert hearing, Clauser addressed the issue of

alternative instructions and warnings for the safe replacement of

the rear liftgate brackets and hinges on 2002 Ford Explorers.

Without opining on the precise language, he asserted that the

SRI issued by Ford in 2004 was an appropriate alternative to the

2002 service manual language. In its November 15 Opinion and

Order, the District Court summarily ruled that Federal Rule of

Evidence 407 13 precluded such a comparison.


   13
        Rule 407 provides:

        When, after an injury or harm allegedly caused
        by an event, measures are taken that, if taken
        previously, would have made the injury or harm
        less likely to occur, evidence of the subsequent
        measures is not admissible to prove negligence,
        culpable conduct, a defect in a product, a defect
        in a product’s design, or a need for a warning
        or instruction. This rule does not require the
        exclusion of evidence of subsequent measures
        when offered for another purpose, such as
        proving ownership, control, or feasibility of
        precautionary measures, if controverted, or
        impeachment.

Fed. R. Evid. 407 (emphases added). The Rule rests on two
grounds. First, it “rejects the suggested inference that fault is
admitted when remedial measures are taken subsequent to an
injury.” Kelly v. Crown Equip. Co., 970 F.2d 1273, 1276 (3d
Cir. 1992) (internal quotation marks omitted). Second, “Rule
407 is supported by public policy which encourages
manufacturers to make improvements for greater safety.” Id.
       We note that there is a possible exception to Rule 407

                               20
       Pineda argues that he only sought to admit the SRI as an

example of effective language for an alternative instruction and

warning, and not to prove Ford’s “culpable conduct” or the

“need for a warning or instruction.” According to Pineda, any

concern of unfair prejudice can be addressed by either a limiting

instruction from the District Court or by admitting the language

of the SRI without attributing it to Ford. Ford counters that a

plain reading of Rule 407 supports the District Court’s ruling.

We hold that the Court erred because it focused exclusively on

Rule 407 and failed to consider Rule 703, which governs the

bases of opinion testimony by experts. That rule provides:

       The facts or data in the particular case upon which
       an expert bases an opinion or inference may be
       those perceived by or made known to the expert at
       or before the hearing. If of a type reasonably
       relied upon by experts in the particular field in
       forming opinions or inferences upon the subject,


for remedial action mandated by superior governmental
authority, such as a regulatory agency, because the policy goal
of encouraging voluntary improvements for greater public
safety would not necessarily be furthered by the exclusion of
such evidence. See O’Dell v. Hercules, Inc., 904 F.2d 1194,
1204 (8th Cir. 1990); Nexen Petroleum U.S.A., Inc. v. Sea
Mar Div. of Pool Well Servs. Co., No. 06-3043, 2007 WL
2874805, at *5 (E.D. La. Sept. 26, 2007) (citing Rozier v.
Ford Motor Co., 573 F.2d 1332, 1343 (5th Cir. 1978)).
However, the record before us gives no indication of what
prompted Ford to issue the SRI in 2004.

                               21
        the facts or data need not be admissible in
        evidence in order for the opinion or inference to
        be admitted. Facts or data that are otherwise
        inadmissible shall not be disclosed to the jury by
        the proponent of the opinion or inference unless
        the court determines that their probative value in
        assisting the jury to evaluate the expert’s opinion
        substantially outweighs their prejudicial effect.

Fed. R. Evid. 703.

        The District Court and the parties conflate the separate

issues of whether the SRI itself can be admitted into evidence

and whether Clauser’s opinion can be admitted if it is based on

a consideration of the SRI. Rule 703 is clear that the SRI does

not need to be admissible evidence in order for Clauser’s

opinion that the 2002 service manual lacked adequate

instructions and warnings to be admitted.14 The Rule’s only


   14
       Rule 703, as amended on April 17, 2000, permits
otherwise inadmissible evidence to be disclosed to the jury if
the trial court determines that the probative value in assisting
the jury substantially outweighs the prejudicial effect.
However, the Rule’s balancing test clearly establishes a
presumption against disclosure to the jury of otherwise
inadmissible evidence. See Fed. R. Evid. 703 advisory
committee’s notes (2000 Amendments). While we express no
opinion as to whether the SRI should be admitted into
evidence, the advisory committee’s notes implicitly endorse
the possible solution proposed by Pineda with regard to a
limiting instruction: “If the otherwise inadmissible
information is admitted under this balancing test, the trial
judge must give a limiting instruction upon request, informing
the jury that the underlying information must not be used for

                                22
requirement is that the data be “of a type reasonably relied upon

by experts in the particular field in forming opinions or

inferences upon the subject.” We find that it is reasonable for

an engineer to rely upon a warning and alternative safety

instruction subsequently issued by a manufacturer in forming an

opinion that an earlier service manual fails to provide adequate

instructions and warnings to automobile technicians. Thus,

despite Rule 407's general exclusion of subsequent remedial

measure evidence, we hold that Rule 703 permits Clauser to

base his opinion on a consideration of the SRI.

C.     Reliability

       As we recognized earlier, pursuant to the second



substantive purposes.” Id.
       However, Rule 703's presumption against the
disclosure of otherwise inadmissible evidence is only
applicable when the evidence is offered by the proponent of
the expert. Id. If Ford elects to cross-examine Clauser on the
bases of his opinion, which would include the SRI, it would
become part of the record for the jury to consider. See Fed. R.
Evid. 705 (“The expert may in any event be required to
disclose the underlying facts or data [supporting his opinion]
on cross-examination.”); see also Stecyk v. Bell Helicopter
Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002) (“Rule 705,
together with Rule 703, places the burden of exploring the
facts and assumptions underlying the testimony of an expert
witness on opposing counsel during cross-examination.”).


                               23
requirement of Rule 702, “an expert’s testimony is admissible

so long as the process or technique the expert used in

formulating the opinion is reliable.” Paoli, 35 F.3d at 742

(citing Daubert, 509 U.S. at 589). While a litigant has to make

more than a prima facie showing that his expert’s methodology

is reliable, we have cautioned that “[t]he evidentiary

requirement of reliability is lower than the merits standard of

correctness.” Id. at 744; see also TMI, 193 F.3d at 665 (stating

that “the standard for determining reliability is not that high,

even given the evidentiary gauntlet facing the proponent of

expert testimony under Rule 702" (internal quotation marks and

citation omitted)); Kannankeril, 128 F.3d at 806 (“Admissibility

decisions focus on the expert’s methods and reasoning;

credibility decisions arise after admissibility has been

determined.”).

       A trial court should consider several factors in evaluating

whether a particular methodology is reliable. These factors,

enunciated in Daubert and this Court’s decision in United States

v. Downing, 753 F.2d 1224 (3d Cir. 1985), may include: (1)

whether a method consists of a testable hypothesis; (2) whether



                               24
the method has been subject to peer review; (3) the known or

potential rate of error; (4) the existence and maintenance of

standards controlling the technique’s operation; (5) whether the

method is generally accepted; (6) the relationship of the

technique to methods which have been established to be reliable;

(7) the qualifications of the expert witness testifying based on

the methodology; and (8) the non-judicial uses to which the

method has been put. Paoli, 35 F.3d at 742 n.8.

       The factors drawn from Daubert and Downing, however,

“are neither exhaustive nor applicable in every case.”

Kannankeril, 128 F.3d at 806-07; see also Kumho Tire, 526 U.S.

at 151 (noting that Daubert itself “made clear that its list of

factors was meant to be helpful, not definitive”); Milanowicz v.

The Raymond Corp., 148 F. Supp. 2d 525, 536 (D.N.J. 2001)

(reconfiguring Daubert for application to “technical” or “other

specialized” subjects such as engineering and identifying several

factors for trial courts to consider in evaluating reliability,

including relevant literature, evidence of industry practice, and

product design and accident history). “The inquiry envisioned

by Rule 702 is . . . a flexible one.” Daubert, 509 U.S. at 594.



                               25
        Here, the District Court focused its analysis extensively

on “indicia of reliability specific to warnings and instructions.”

The Court determined that Clauser’s opinion that the 2002

service manual failed to provide adequate instructions and

warnings was based on nothing more than his “generalized

experience.” In particular, it criticized Clauser for declining to

offer proposed alternative language for a warning, for failing to

test the effectiveness of a possible alternative warning, and for

failing to compare the language of the 2002 service manual with

the language provided by other automobile manufacturers.15

The District Court also held that Clauser could not adequately

testify as to whether the service manual’s lack of instructions

actually caused Pineda’s injury because Clauser did not test the

2002 Ford Explorer at issue or any other 2002 Explorers.

        The District Court’s inquiry of the reliability of Clauser’s

methodology did not demonstrate the appropriate level of

flexibility required by Rule 702 and our past precedent. First,

the District Court focused too narrowly on Clauser’s failure


   15
      It was in relation to this last point that the District Court
held that Rule 407 precluded Clauser from comparing the
language of the 2002 service manual with the SRI issued by
Ford in 2004.

                                 26
either to offer proposed alternative language for a warning or to

test the effectiveness of alternative warnings. Pineda proffered

Clauser as an engineering expert who understood the stresses

and forces that might cause glass to fail. Clauser’s specialized,

rather than generalized, experience in this area allowed him to

recognize that exerting a force on one area of the rear liftgate

glass before exerting a force on another area of the glass could

lead to its shattering. Clauser did not have to develop or test

alternative warnings to render an opinion that the 2002 service

manual did not provide adequate, step-by-step instructions to

account for the different stresses that might be exerted when an

automobile technician replaces the rear liftgate brackets and

hinges, or that the lack of instructions was a safety issue for the

technician.

       In addition, as we discussed above, Rule 703 permits

Clauser to base his opinion on a comparison of the 2002 service

manual language with the language of the SRI, regardless of

whether Rule 407 might render the SRI inadmissible in

evidence. As a result, Clauser did not have to compare the

language of the 2002 service manual with the language provided



                                27
by other manufacturers in order to render a reliable opinion that

Ford’s service manual failed to provide adequate instructions or

warnings.16

        Finally, the District Court erred in holding that Clauser

failed to establish a causal link between the alleged defect in the

service manual language and Pineda’s injury. It relied on cases

that found such a connection lacking in situations where cause

was far more attenuated. For example, one case excluded an

expert’s testimony because the expert could not address any

defect in the design of a computer keyboard or any causal

association between the keyboard and plaintiffs’ wrist injuries.

See Allen v. IBM, No. 94-264-LON, 1997 U.S. Dist. LEXIS

8016 (D. Del. May 19, 1997). The issue in Allen was not

whether a lack of an instruction or warning caused injuries, but

rather whether the product itself caused injuries. Here, there can

be no doubt that the shattered liftgate glass caused Pineda’s

injuries. Clauser has opined that the instructions and warnings

in the 2002 service manual were inadequate and that an


   16
      We note, however, that Clauser’s opinion would
probably be more reliable if he consulted the service manuals
of other manufacturers and compared their language to Ford’s
2002 service manual.

                                28
automobile technician with thorough repair instructions and an

adequate safety warning would not have been injured as a result

of the rear liftgate glass shattering. See Pavlik, 135 F.3d at 886

(noting the general presumption that an individual will read and

heed any warnings attached to a product). Any dispute between

the parties about the strength of the evidence in this case should

be resolved by the jury.

                               IV.

       Accordingly, for the reasons set forth above, we will

reverse the District Court’s decisions excluding Clauser’s

proffered expert testimony and granting summary judgment in

favor of Ford. We remand for further proceedings consistent

with this opinion.




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