                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0485n.06
                                                                                       FILED
                                                                                   Aug 06, 2010
                                          No. 09-3597
                                                                              LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

BARBARA ROSE; ROBERT ROSE,

       Plaintiffs-Appellants,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
TRUCK CENTERS, INC., et al.,                         NORTHERN DISTRICT OF OHIO

       Defendant,

and                                                                 OPINION

TRW AUTOMOTIVE, U.S., LLC,

       Defendant-Appellee.
                                              /




BEFORE:        CLAY, ROGERS, and COOK, Circuit Judges.

       CLAY, Circuit Judge. Plaintiffs Barbara and Robert Rose appeal an order entered in this

products liability action by the district court granting Defendant TRW Automotive, U.S., LLC’s

motion for summary judgment based on the inadmissibility of Plaintiffs’ expert’s testimony. In

granting summary judgment, the district court concluded that Plaintiffs’ expert was not a qualified

expert under Federal Rule of Evidence 702 and that the proffered expert’s opinion was unreliable.

For the reasons set forth below, we AFFIRM the district court’s decision.
                                            No. 09-3597

                                        I. BACKGROUND

       A.      Factual Background

       Defendant TRW Automotive U.S., LLC (“TRW”) is a new and re-manufactured parts

supplier for the automotive industry, providing, inter alia, steering gears. As part of its re-

manufacturing process, Defendant uses oiled valve housing bolts to secure the valve housing to the

steering gear and the bolts are torqued to 75 to 91 foot pounds in accordance with Defendant’s

specifications for steering gears. Each steering gear is subjected to various leak tests, which it must

pass in order to be shipped. If, and only if, a re-manufactured steering gear passes the leak tests, a

serial number is stamped on the gear and the gear is shipped to Defendant’s customers.

       On May 6, 2006, Plaintiffs Robert Rose and his wife Barbara had a traffic accident as they

were traveling southbound on I-75 near Toledo, Ohio. Robert was driving the couple’s 1997

Freightliner truck as Barbara rode in the sleeper compartment. From October 2005 to December

2005, maintenance had been performed on the truck to repair damage from a previous accident that

occurred in October 2005. These repairs included replacement of the steering gear with one of

Defendant’s re-manufactured steering gears, which Truck Centers, Inc. installed in Troy, Illinois in

December 2005. After the December 2005 repairs, Plaintiffs drove the truck to their home in

Stanton, Kentucky, where it remained until the couple embarked on a series of trips in May 2006.

       Plaintiffs allege that the truck’s steering “gave out” and the truck “crashed into the median

resulting in injuries” to Barbara. (Compl. ¶ 1.) Robert Rose testified that his truck “just went where

it wanted” and was “free wheeling.” (Robert Rose Dep. 48.) He described “free wheeling” as

turning the steering wheel rapidly without any response by his truck. After the accident, the Roses’


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                                            No. 09-3597

truck was towed to the Toledo Police Department impound lot and a few days later, to a Freightliner

dealer in Toledo. The truck was subsequently towed to the Roses’ home in Stanton, Kentucky and

arrived May 13, 2006.

       Mr. Rose testified that the truck was working perfectly right up until the moment of the

accident, at which point Mr. Rose stated that the truck “free wheeled” and veered to the left. At the

time of the accident, Mr. Rose had driven the truck, without incident, some 6,000 miles since

replacement of the re-manufactured steering gear. Mr. Rose also confirmed that prior to leaving

Oakville, Ontario, Canada the morning of May 6, 2006, he inspected the truck and found no

problems with either the steering gear or the valve housing bolts.

       Plaintiffs presented Philip Smith, an ASE certified truck mechanic, as their expert. Smith

testified that he was an expert in the areas of “[t]ruck mechanical issues, electronic control modules,

driver issues, logs, hiring practices, [and] heavy hauling” and an expert in steering gears. (Smith

Dep. 164.) Smith received a diploma from Denver Auto & Diesel College, completing a steering

gears course during his training. Smith testified that in the steering gears course he learned how

steering gears operate and learned “diagnosis and overhaul and repair.” (Smith Dep. 167.) Smith

also testified that he attended one Freightliner seminar in 1986 that provided training on Defendant’s

steering gears.

       In conducting his inspection of Plaintiffs’ truck on November 10, 2006, Smith noted that the

valve housing bolts were “extremely loose” and noted the number of revolutions it took for him to




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                                              No. 09-3597

remove them.1 (Smith Report 2.) In his report, Smith concluded that “the cause of [the] accident

was the loss of power steering fluid due to . . . loose valve housing bolts.” (Smith Report 4.)

Smith’s report stated that “[w]ith the bolts coming loose, the pressurized [power steering] fluid

would quickly escape leaving the driver without the benefit of power steering” and that “with the

valve housing bolts in their loosened condition, Mr. Rose would have [had] to turn the steering

wheel approximately 225 degrees before the tractor[-trailer] would [have] beg[un] to respond to his

steering inputs.” (Smith Report 4.)

        Smith testified that the accident was likely caused by a defective re-manufactured steering

gear. In particular, Smith testified that: (1) Defendant failed to properly torque the valve housing

bolts that seal the steering gear; (2) the bolts became loose as a result of road vibrations; (3) the truck

lost power steering fluid as a result of the bolts becoming loose; and (4) Robert Rose began

“freewheeling” and lost control of the truck, causing the accident.

        B.      Procedural History

        On October 17, 2007, Plaintiffs filed individual federal diversity actions against Truck

Centers, Inc., Freightliner, LLC, and TRW Automotive U.S., LLC, alleging negligence, strict

liability, and statutory liability against each party and requesting punitive damages with respect to

each party. The cases were consolidated. Truck Centers, Inc. and Freightliner, LLC both filed

motions for summary judgment, which were granted without opposition.




        1
        Plaintiffs produced a photograph dated July 8, 2006 showing that at least one of the valve
housing bolts was, at the time the photograph was taken, completely separated from the steering
gear. However, when Smith conducted his inspection, the bolts were threaded into the steering gear.

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                                             No. 09-3597

        Defendant subsequently moved for summary judgment on January 5, 2009, arguing that

Smith’s opinions regarding the cause of the accident constituted inadmissible evidence and that

because Smith’s opinions were the only evidence Plaintiffs had to support their case, Plaintiffs could

neither meet their burden of proof nor satisfy the requirements for a prima facie case of products

liability. The district court held a hearing on Defendant’s motion for summary judgment at which

Plaintiffs conceded that without Smith’s testimony, summary judgment would be appropriate in this

case.

        On April 24, 2009, the district court granted Defendant’s motion for summary judgment,

concluding that Smith was not qualified as an expert under Federal Rule of Evidence 702 and that

Smith’s opinion was inadmissible under Rule 702 because it was unreliable. On May 13, 2009,

Barbara Rose filed a motion for relief from judgment, arguing that “a jury could still reasonably

conclude that the steering gear was defective without expert testimony.” (Pl.’s Mot. for Relief from

J. Pursuant to Fed. R. Civ. P. 60(b) 3.) The next day, Plaintiffs filed a notice of appeal of the district

court’s April 24, 2009 order granting summary judgment in favor of Defendant. On June 17, 2009,

the district court denied Barbara Rose’s motion for relief from judgment.

                                          II. DISCUSSION

        A.      Standard of Review

        This Court reviews de novo a district court’s grant or denial of summary judgment. Seaway

Food Town, Inc. v. Med. Mut. of Ohio, 347 F.3d 610, 616 (6th Cir. 2003). Summary judgment

should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits




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                                              No. 09-3597

show that there is no genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c).

        The burden is initially upon the moving party to show that there does not remain in dispute

any genuine issue of material fact. Gen. Motors Corp. v. Lanard Toys, Inc., 468 F.3d 405, 412 (6th

Cir. 2006). The moving party may satisfy this burden by pointing out to the district court that there

is no evidence underlying the non-moving party’s case. Id. Once the moving party supports its

motion for summary judgment, the opposing party must go beyond the contents of its pleadings to

set forth specific facts indicating the existence of a genuine issue to be litigated. Fed. R. Civ. P.

56(e). When a court thereafter reviews the record, it is to draw all inferences in the light most

favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). Ultimately, the proper inquiry is whether the state of the evidence is such that a

reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986).

        This Court reviews a district court’s decision to admit or exclude evidence for an abuse of

discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Hardyman v. Norfolk & W.

Ry. Co., 243 F.3d 255, 258 (6th Cir. 2001). “A district court abuses its discretion if it bases its ruling

on an erroneous view of the law or a clearly erroneous assessment of the evidence.” Ky. Speedway,

LLC v. Nat’l Assoc. of Stock Car Auto Racing, Inc., 588 F.3d 908, 915 (6th Cir. 2009) (quoting

Brown v. Raymond Corp., 432 F.3d 640, 647 (6th Cir. 2005)) (citation and internal quotation marks

omitted). We will only reverse for an abuse of discretion where we are left with “the definite and

firm conviction that the district court made a clear error of judgment in its conclusion.” Gaeth v.


                                                    6
                                            No. 09-3597

Hartford Life Ins. Co., 538 F.3d 524, 528 (6th Cir. 2008) (quoting Moon v. Unum Provident Corp.,

461 F.3d 639, 643 (6th Cir. 2006)) (internal quotation marks omitted).

       B.      Analysis

       In order to establish the elements of a product liability claim under Ohio law, a plaintiff must

show that “(1) there was a defect in the product manufactured and sold by the defendant, (2) the

defect existed at the time the product left the defendant’s control, and (3) the defect was the direct

and proximate cause of the plaintiff’s injuries or losses.”2 Donegal Mut. Ins. v. White Consol. Indus.,

Inc., 852 N.E.2d 215, 220 (Ohio Ct. App. 2006) (citing State Farm Fire & Cas. Co v. Chrysler

Corp., 523 N.E.2d 489, 493 (Ohio 1988)). Defendant contends that Plaintiffs are unable to establish

any of the three elements because Plaintiffs’ expert testimony is inadmissible.

       Under Federal Rule of Evidence 702, “[i]f 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”

if the witness’ testimony is “based upon sufficient facts or data, . . . is the product of reliable

principles and methods, and . . . the witness has applied the principles and methods reliably to the

facts of the case.” Rule 702 was amended in 2000 in response to Daubert v. Merrill Dow



       2
         Neither party disputes that Ohio law applies since the accident occurred in Toledo, Ohio.
In Ohio, a “product liability claim” describes a civil claim seeking to recover compensatory damages
from a manufacturer or supplier for death, physical injury, emotional distress, or physical property
damage (other than the product in question) arising from: (1) “[t]he design, formulation, production,
construction, creation, assembly, rebuilding, testing, or marketing of that product”; (2) “[a]ny
warning or instruction, or lack of warning or instruction, associated with that product”; or (3) “[a]ny
failure of that product to conform to any relevant representation or warranty.” Ohio Rev. Code §
2307.71(A)(13).

                                                  7
                                             No. 09-3597

Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137

(1999).

          “In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers

to exclude unreliable expert testimony, and the Court in Kumho clarified that this gatekeeper

function applies to all expert testimony, not just testimony based in science.” Fed. R. Evid. 702

advisory committee’s notes. Daubert attempts to strike a balance between liberal admissibility for

relevant evidence and the need to exclude misleading “junk science.” Best v. Lowe’s Home Ctrs.,

Inc., 563 F.3d 171, 176-77 (6th Cir. 2009) (internal quotation marks omitted). An expert must

utilize in the courtroom the “same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Id. at 177.

          Determining the admissibility of expert testimony pursuant to Rule 702 entails a flexible

inquiry. Daubert, 509 U.S. at 594. As a gatekeeper, the trial judge has discretion in determining

whether a proposed expert’s testimony is admissible based on whether the testimony is both relevant

and reliable. Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429 (6th Cir. 2007); see

Daubert, 509 U.S. at 589 (“[U]nder the Rules [of Evidence] the trial judge must ensure that any and

all scientific testimony or evidence admitted is not only relevant, but reliable.”) “In short, under

Daubert and its progeny, a party proffering expert testimony must show by a preponderance of proof

that the expert whose testimony is being offered is qualified and will testify to scientific knowledge

that will assist the trier of fact in understanding and disposing of relevant issues.” Sigler v. Am.

Honda Motor Co., 532 F.3d 469, 478 (6th Cir. 2008) (citing Pride v. BIC Corp., 218 F.3d 566, 578

(6th Cir. 2000)) (internal quotation marks omitted).


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                                            No. 09-3597

                  1.   Smith’s Qualifications

       In order to qualify as an expert under Rule 702, a witness must establish his or her expertise

by reference to “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Although

this requirement is typically treated liberally, a witness is not an expert simply because he claims to

be. Pride, 218 F.3d at 577. “The issue with regard to expert testimony is not the qualifications of

a witness in the abstract, but whether those qualifications provide a foundation for a witness to

answer a specific question.” Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994). In Berry,

the Court delineated by analogy the kinds of testimony witnesses are qualified to give based upon

their expertise—scientific or technical:

       The distinction between scientific and non-scientific expert testimony is a critical
       one. By way of illustration, if one wanted to explain to a jury how a bumblebee is
       able to fly, an aeronautical engineer might be a helpful witness. Since flight
       principles have some universality, the expert could apply general principles to the
       case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still
       would be qualified to testify, as long as he was familiar with its component parts.

       On the other hand, if one wanted to prove that bumblebees always take off into the
       wind, a beekeeper with no scientific training at all would be an acceptable expert
       witness if a proper foundation were laid for his conclusions. The foundation would
       not relate to his formal training, but to his firsthand observations. In other words, the
       beekeeper does not know any more about flight principles than the jurors, but he has
       seen a lot more bumblebees than they have.

Id. at 1349-50.

       Smith testified that he was an expert in the areas of “[t]ruck mechanical issues, electronic

control modules, driver issues, logs, hiring practices, [and] heavy hauling” and an expert in steering

gears. (Smith Dep. 164.) Defendant argues that Smith’s education and experience do not provide

him with the requisite qualifications to offer opinion on product defect or causation. Plaintiffs


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                                            No. 09-3597

counter that the absence of a proffered expert’s qualifications “almost always bears on the weight

that the jury should assign to the [expert’s] testimony and not on the admissibility of the testimony

itself.” (Appellants’ Br. 10.)

       The district court concluded that Smith’s testimony exceeded the scope of his expertise.

Specifically, the court pointed to Smith’s opinion regarding the cause of the accident and Smith’s

conclusion that the steering gear was defective. The district court found that Smith lacked the formal

education, training, and experience to offer an opinion regarding whether the steering gear was

defective and concluded that Smith failed to demonstrate that he possessed any more knowledge

about mechanical engineering principles than an average juror.

       However, as this Court has stated, “Rule 702 should be broadly interpreted on the basis of

whether the use of expert testimony will assist the trier of fact.” Davis v. Combustion Eng’g, Inc.,

742 F.2d 916, 919 (6th Cir. 1984). The record in this case shows that Smith was qualified as an

expert since his testimony would certainly assist the trier of fact in understanding the evidence.

Smith’s experiences as a mechanic give him specialized knowledge in the areas of truck mechanics

and steering gears and, in his deposition testimony, enabled Smith to thoroughly discuss the process

of torquing the steering gear bolts and how a misstep in that process could affect the integrity of the

steering gear and possibly result in an automobile accident. Accordingly, we conclude that Smith

was qualified as an expert, at least for some purposes, pursuant to Rule 702.




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                                            No. 09-3597

       Contrary to the district court’s conclusion, this Court’s opinion in Sigler v. American Honda

Motor Co., 532 F.3d 469 (6th Cir. 2008), does not alter our conclusion.3 In Sigler, the plaintiff’s

expert provided opinion, via a report and a sworn declaration, regarding the speed at which the

vehicle involved in the accident likely struck a tree and the possible cause for the failure of the

vehicle’s airbag to deploy. The trial court in Sigler granted Defendant’s motion in limine excluding

Plaintiff’s proffered expert, a mechanic with twenty-six years’ experience repairing and diagnosing

automobile problems.

       This Court upheld the exclusion of the expert’s testimony in Sigler because the issue of the

car’s speed at the time of the accident involved accident reconstruction, an area in which the expert

had no training. The Court noted that the mechanic was an expert with regard to analyzing an

automobile after an accident, but concluded that he lacked the expertise to render opinion about an

airbag defect without physically examining the vehicle, which he had failed to do. This case is

distinguishable from Sigler because here, Plaintiffs’ expert did physically examine the alleged faulty

product. Despite Smith’s qualifications, however, we conclude that the district court did not abuse

its discretion in excluding Smith’s opinion because, as explained below, Smith’s opinion was

unreliable.




       3
        The district court also relied on Elswick v. v. Nichols, 144 F. Supp. 2d 758 (E.D. Ky. 2001),
a medical malpractice case, in support of its conclusion regarding Smith’s qualifications. However,
in Elswick, the plaintiff’s expert admitted that causation was outside her area of expertise, 144 F.
Supp. 2d at 767, whereas here, Smith has made no such admission.

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                                            No. 09-3597

                2.      Reliability

        Federal Rule of Evidence 702 requires an expert witness to testify as to “scientific, technical,

or other specialized knowledge.” As the Supreme Court in Daubert noted, this requirement

establishes a standard of “evidentiary reliability” or “trustworthiness.” 509 U.S. at 590 n.9. District

courts must determine whether “the principles and methodology underlying the [proffered expert’s]

testimony itself are valid.” Pride, 218 F.3d at 577.

        As the district court correctly noted, the reliability inquiry focuses “solely on the principles

and methodology, not on the conclusions they generate.” Daubert, 509 U.S. at 594-95. Expert

testimony may not be based on mere speculation, McLean v. 988011 Ontario, Ltd., 224 F.3d 797,

800-01 (6th Cir. 2000), and assumptions must be supported by evidence in the record. See Sigler,

532 F.3d at 481-82. An expert’s conclusions regarding causation must have an established factual

basis and cannot be premised on mere suppositions. McLean, 224 F.3d at 801. “[M]ere ‘weaknesses

in the factual basis of an expert witness’ opinion . . . bear on the weight of the evidence rather than

on its admissibility.’” Id. (quoting United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir.

1993)) (alteration in original).

        The Court in Daubert set out several factors to be considered in determining whether a

proffered expert’s testimony is reliable: the testability of the expert’s hypotheses, whether the

expert’s methodology has been subjected to peer review and publication, the known or potential rate

of error with respect to the expert’s methodology, and whether the methodology is generally accepted

in the scientific community. Daubert, 509 U.S. at 593-94.




                                                  12
                                            No. 09-3597

       In this case, Smith admitted that he engaged in no testing to replicate his theory of what

occurred during the accident. He also could not identify any tests by another person demonstrating

how the bolts would suddenly loosen in the manner he describes after thousands of miles of normal

operation. Smith admitted that he knew of no other instance where the bolts on a steering gear came

loose in the manner commensurate with his theory. Moreover, vibration is a critical component of

Smith’s theory, yet he conducted no testing to determine the vibration level of Plaintiffs’ truck or

similar trucks.

       Smith first inspected the steering gear at Plaintiffs’ home in November 2006, six months after

the accident. According to Smith, upon inspecting the steering gear, “the four valve housing bolts

were extremely loose to the point that 3 of the bolts required slightly more than one turn to

completely remove them and the fourth bolt took approximately two and one-half turns to remove

it.” (Smith’s Report 2.) Smith obtained an exemplar of Defendant’s re-manufactured steering gear

and loosened the valve housing bolts to the same degree as Plaintiffs’ steering gear, eventually

concluding that the steering wheel would have to be rotated 225 degrees before the tractor-trailer’s

front tires would begin to move.

       Accordingly, Smith’s conclusions in his report are based on the assumption that on the day

he inspected the steering gear, the bolts were at the precise degree of looseness that they were at the

time of the accident. However, as the district court correctly noted, a photograph of the steering gear

taken in July 2006 indicates that the position of the bolts was altered between the time of the

accident and Smith’s examination. Specifically, the photograph shows that at least one of the bolts

was completely separated from the steering gear and not even partially fastened as it was in


                                                  13
                                            No. 09-3597

November 2006 at the time of Smith’s inspection. Plaintiffs contend that the district court failed to

understand that the bolts “were ‘actually worse’ or more loose” in the photograph than when Smith

inspected the truck. (Appellants’ Br. 24.) Consequently, argue Plaintiffs, the photograph does not

detract from Smith’s opinion that the loose bolts caused Plaintiffs’ loss of steering capabilities.

       We disagree. First, we note that determining the weight that should be afforded to Smith’s

testimony is a function that clearly belongs in the realm of the trier of fact. However, where, as in

this case, evidence has been altered, such evidence cannot reliably support the expert’s conclusion.

Smith testified that based on the photograph, he had no way of knowing whether the bolts were in

the same position when he inspected them as they were at the time of the accident. Smith also

acknowledged that his opinion that the alleged defective steering gear caused Plaintiffs’ accident

was based on his assumption that the bolts had the same degree of tightness that they had at the time

of the accident. Smith further stated that at the time of his inspection, he was unaware that the

positions of the bolts when he inspected them differed from their position at the time of the accident.

Consequently, because Smith’s assumption regarding the degree of tightness of the bolts on the

steering gear is not only unsupported, but contradicted by evidence in the record, his conclusions

regarding the steering gear’s alleged defect and the causation of the accident are unreliable. See

Sigler, 532 F.3d at 481-82. Therefore, by excluding the expert’s testimony, the district court

properly exercised its gatekeeping function under Daubert and Kumho. See 509 U.S. at 592-93 and

526 U.S. at 147.

       Because the evidence underlying Smith’s conclusion regarding defect and causation had been

altered prior to his inspection and evaluation, the district court did not abuse its discretion in


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                                            No. 09-3597

excluding Plaintiffs’ expert’s testimony. Accordingly, since the only evidence proffered by Plaintiffs

regarding product defect and causation is Smith’s unreliable—and thus inadmissible—testimony,

we conclude that the district court properly granted summary judgment in favor of Defendant.

                                       III. CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s grant of summary judgment

for Defendant.




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