                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0850n.06

                                            No. 10-1555


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                     FILED
ANDREW J. ISTVAN, Personal Representative
of the Estate of Andrew Jason Istvan, Deceased,                                 Dec 16, 2011
                                                                          LEONARD GREEN, Clerk
       Plaintiff,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
HONDA MOTOR COMPANY, LTD..;                            EASTERN DISTRICT OF MICHIGAN
HONDA R&D COMPANY LIMITED;
AMERICAN HONDA MOTOR CO., INC.; and
AMERICAN HONDA INCORPORATED,

       Defendants.

                                                /




BEFORE:        MERRITT, CLAY, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. In this diversity case governed by 28 U.S.C. § 1332, plaintiff

Andrew J. Istvan, personal representative of his son’s estate, appeals an order granting summary

judgment in favor of the defendants (collectively “Honda”) on Istvan’s negligent manufacture and

breach of warranty claims. Because Istvan failed to create a genuine issue of material fact on several

elements of his claims, we AFFIRM.

                                    STATEMENT OF FACTS
                                             No. 10-1555

        Samir Raval bought a 2002 Honda CBR954RR motorcycle in May 2002. Roughly one year

later, Raval sold it to the decedent, Andrew Jason Istvan. Shortly after Istvan’s purchase, a Michigan

service technician completed a product update on Istvan’s CBR954RR, which included new steering

bearings aimed at improving the motorcycle’s steering balance.

        At roughly 9:00 p.m. on June 11, 2005, the decedent and his friend, Jonathan O’Neill, were

riding their motorcycles southbound on Brigden Road in Sarnia, Ontario, Canada. At some point,

the decedent’s front tire began wobbling. O’Neill, who was riding a head of the decedent and on the

right side of the same lane, slowed his motorcycle and watched the decedent pull his bike to the right

side of the road. The decedent’s motorcycle then rode into a ditch adjacent to the road and flipped

end-over-end several times. The decedent was thrown from the motorcycle and suffered fatal

injuries.

        In a police report prepared shortly after the crash, O’Neill said he saw the front tire begin to

wobble while he was looking in his rear view mirror. O’Neill signed the police statement, but the

body of the statement was not written in O’Neill’s handwriting. In a second statement he gave to

police five days later, O’Neill said that he saw the decedent’s front tire begin to wobble when he

looked into his mirror and then back over his shoulder. O’Neill testified identically in his deposition.

O’Neill also discounted the possibility that the decedent rode his motorcycle hazardously leading up

to the accident. Having ridden with the decedent four or five times before, O’Neill testified that he

never saw the decedent do a “wheelie” or an “endo” or otherwise take any serious risks.1



        1
        An “endo” refers to a maneuver in which a rider abruptly brakes his motorcycle and lifts up
the back wheel, in order to balance on his front wheel.

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                                             No. 10-1555

        Istvan offered Pedro Gregorio as an expert to testify that the CBR954RR was not reasonably

safe and that an alternative design was feasible. Gregorio obtained a master’s degree in mechanical

engineering from the University of Michigan in 1991, with a focus on automotive engineering, and

has worked as a freelance writer for a magazine entitled Midwest Motorcyclist since 2000. In his

deposition, Gregorio theorized that the CBR954RR’s “steering geometry” made the motorcycle

vulnerable to “steering oscillations,” which in turn could cause an operator to lose control of his

motorcycle. Gregorio also suggested that the installation of a steering damper would have reduced

the tendency of the CBR954RR’s steering system to oscillate. A steering damper is a device, akin

to a shock absorber installed on an automobile, designed to prevent a motorcycle’s front wheel from

oscillating left or right when traveling over unstable road conditions.

        The district court decided that Gregorio’s testimony was unreliable under Federal Rule of

Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and

concluded that Istvan failed to raise a genuine issue of fact regarding the essential elements of defect,

alternative design, and causation. The district court entered summary judgment and Istvan timely

appealed.

                                            DISCUSSION

I.      Exclusion of Plaintiff’s Expert Witness

        A.      Legal Framework




                                                   3
                                            No. 10-1555

       Istvan challenges the district court’s decision to exclude Gregorio’s testimony.2 We review

a district court’s decision to exclude expert testimony 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 its ruling stems from “an erroneous view of

the law or a clearly erroneous assessment of the evidence.” Ky. Speedway, LLC v. Nat’l Ass’n of

Stock Car Auto Racing, Inc., 588 F.3d 908, 915 (6th Cir. 2009) (internal quotation marks and citation

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

firm conviction that [the district court] committed a clear error of judgment in its conclusion.” In

re Scrap Metal Litig., 527 F.3d 517, 528 (6th Cir. 2008) (internal quotation marks and citation

omitted).

       Istvan’s six claims are species of Michigan’s two most prominent products liability causes

of action, negligent manufacture and breach of warranty. In a case like this one, in which a plaintiff

alleges the same party both manufactured and sold the accused product, the elements of negligent

manufacture and breach of warranty are “for all intents and purposes, identical.” Hollister v. Dayton

Hudson Corp., 201 F.3d 731, 736–37 (6th Cir. 2000); see Prentis v. Yale Mfg. Co., 365 N.W.2d 176,

186–87 (Mich. 1984). Istvan was required to demonstrate (1) that the product was not reasonably

safe when it left the control of the manufacturer, and (2) that “a practical and technically feasible

alternative production practice was available that would have prevented the harm without

significantly impairing the usefulness or desirability of the product.” Hollister, 201 F.3d at 738;


       2
        Istvan also offered Dror Kopernik as an expert to testify to the CBR954RR’s defective
condition. The trial court excluded Kopernik’s testimony as unreliable, a decision Istvan does not
challenge on appeal.

                                                  4
                                            No. 10-1555

Croskey v. BMW of North America, Inc., 532 F.3d 511, 516 (6th Cir. 2008) (citing Mich. Comp.

Laws § 600.2946(2)).

        Michigan law requires the trier of fact to engage in a “risk-utility balancing test” in order to

decide whether a product was defective. Id. The purpose of the risk-utility test lies in allowing the

“jury to balance the magnitude of the risk versus the feasibility of other design alternatives, or

otherwise to weigh the ‘unreasonableness’ of risks arising from the [design chosen].” Miller v.

Ingersoll-Rand Co., 148 F. App’x 420, 423 (6th Cir. 2005) (citing Siminski v. Klein Tools, Inc., 840

F.2d 356, 358 (6th Cir. 1988)). Under the risk-utility test, the plaintiff must offer evidence

demonstrating:

        (1)      that the severity of the injury was foreseeable by the manufacturer;
        (2)      that the likelihood of the occurrence of the injury was foreseeable by the
                 manufacturer at the time of distribution of the product;
        (3)      that there was a reasonable alternative design available;
        (4)      that the alternative available design was practicable;
        (5)      that the available and practicable reasonable alternative design would have
                 reduced the foreseeable risk of harm posed by the defendant’s product; and
        (6)      that the omission of the available and practicable reasonable alternative
                 design rendered the defendant’s product not reasonably safe.

Croskey, 532 F.3d at 516 (internal quotations and citations omitted). An alternative design is

practical and feasible only if the technical knowledge “relating to production of the product” was

“developed, available, and capable of use in the production of the product and was economically

feasible” at the time the product in question was manufactured. Mich. Comp. Laws § 600.2946(2).

Either direct or circumstantial evidence suffices to support the risk-utility showings required to prove

a design defect. Croskey, 532 F.3d at 516.




                                                   5
                                            No. 10-1555

       A plaintiff may offer proof of the risk-utility factors by way of expert testimony. Id.;

Lawrenchuk v. Riverside Arena, Inc., 542 N.W.2d 612, 614–15 (Mich. Ct. App. 1995). Expert

testimony offered to this effect must satisfy Federal Rule of Evidence 702 and Daubert. Daubert

requires trial judges to act “as gatekeepers to exclude unreliable evidence.” Fed. R. Evid. 702

advisory committee’s note. A trial court must be satisfied that a proffered expert is qualified to

testify on the technical subject matter at issue and his technical analysis is sufficiently reliable to

assist the trier of fact in disposing of the relevant issues. Sigler v. Am. Honda Motor Co., 532 F.3d

469, 478 (6th Cir. 2008). To this end, while not limiting the admission of relevant evidence, the trial

court must ensure that an expert uses in the courtroom the “same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.” Best v. Lowe’s Home Ctrs., Inc., 563

F.3d 171, 177 (6th Cir. 2009) (quoting Kumho Tire Co., 526 U.S. at 152). A trial court’s assessment

of an expert’s testimony is limited “solely [to] principles and methodology,” so “the conclusions they

generate” should not affect the court’s conclusion. Daubert, 509 U.S. at 594–95.

       B.      Analysis

       Istvan offered Gregorio’s testimony to prove a defect in the CBR954RR’s design and the

feasibility of an alternative design. Gregorio’s report and testimony, however, suffer from several

defects. The most glaring problem with Gregorio’s testimony is its lack of evidentiary support.

Gregorio opined that the CBR954RR was designed with a “specific steering geometry that made it

more sensitive to steering oscillations.” When counsel pressed Gregorio to offer reasons for his

opinion grounded in engineering science, Gregorio demurred and explained that he relied on his

“general knowledge of motorcycle design” and his racing experience for support. Only in general


                                                  6
                                           No. 10-1555

terms did Gregorio opine that increasing the rake and trail of the CBR954RR would have decreased

the likelihood of steering oscillation, but he further pointed out that this adjustment “always

increases stability.”3

        Gregorio missed an opportunity to support his opinion, because he examined neither the

accident vehicle nor the extensive records Honda produced of the tests it performed on the 2002

CBR954RR in formulating his opinion. He performed no tests on the CBR954RR, and he was

unaware of any other engineers who had. In fact, he had only operated the CBR954RR once, and

he was unsure whether the motorcycle he rode was fitted with a steering damper. Therefore,

Gregorio was unqualified to render any opinion on how the installation of a steering damper affected

the CBR954RR’s performance.

        Instead, Gregorio relied on his experience of operating motorcycles for enjoyment and his

observation that most other motorcycles released in the 2002 model year were fitted with steering

dampers. He opined that steering oscillations could occur on a motorcycle not fitted with a steering

damper at a speed of roughly seventy miles per hour. In support of this opinion, Gregorio cited an

episode in which a 1994 Honda motorcycle he was riding began to wobble. He later explained that

the motorcycle wobbled only after he installed a trunk on the bike. Given his insubstantial basis of

information, Gregorio could not explain with technical detail how a steering damper would have




        3
         The “rake” is the angle, measured from a ninety-degree vertical line, of the forks that form
the motorcycle’s steering axis. The “trail” is the distance on the ground created by the intersection
of two lines—the first running vertically from the front wheel axle, and the second running from the
angle of the forks.

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                                            No. 10-1555

improved the CBR954RR’s performance. The support for Gregorio’s opinion was merely anecdotal,

which is plainly not befitting of an expert’s opinion.

       Perhaps as a result of his shallow well of knowledge on the subject, Gregorio even

equivocated about the value of a steering damper. Noting that a steering damper would lead to a

“trade-off between stability and ease of steering,” Gregorio implied that the installation of a steering

damper remained within the manufacturer’s discretion. He further conceded that a steering damper

would be of little help if steering oscillations occurred on a motorcycle traveling well over seventy

miles an hour. All told, even Gregorio’s unsupported opinion provided no more than feeble support

for the contention that a steering damper would have remedied any defect in the CBR954RR’s

performance.

III.   Summary Judgment and Plaintiff’s Motion for Leave to Supplement Opposition

       Largely on the basis of the deficiencies in Gregorio’s testimony, the district court granted

summary judgment in favor of Honda. We review this decision de novo. Wimbush v. Wyeth, 619

F.3d 632, 636 (6th Cir. 2010). A moving party is entitled to summary judgment if the pleadings, the

discovery and the disclosure materials on file, and any affidavits “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(a). There exists no genuine issue of fact where the record “taken as a whole could not

lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). In considering a summary judgment motion, all inferences

to be drawn from the facts must be viewed in the light most favorable to the non-moving party. Id.

The opposing party must present more than a “scintilla” of evidence; the evidence must be such that


                                                   8
                                                  No. 10-1555

a reasonable jury could find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

          The remaining evidence Istvan produced could not have led a rational trier of fact to conclude

that the CBR954RR’s design was defective. Dror Kopernik, Istvan’s second expert, refused to opine

on whether the motorcycle was defective, stating that he lacked information sufficient to make such

a judgment. Honda’s expert, Kris Kubly, found that the rear swing arm in the decedent’s motorcycle

was loose and claimed that the collision caused the looseness. For his part, Kopernik declined to

opine on another cause for the looseness. Istvan offered a March 2002 review of the CBR954RR

published in a magazine entitled Motorcyclist. The article’s author suggests that the CBR954RR

might benefit from a steering damper, but only if the rider plans to operate the motorcycle at a speed

considerably higher than the speed at which Istvan contends the decedent was riding before the

crash.4 The Motorcyclist review is, at best, mildly probative of the likelihood that the CBR954RR

was defectively designed, and the article falls well short of the evidence Istvan needed to

demonstrate that the motorcycle was not reasonably safe when it left Honda’s control. Hollister, 201

F.3d at 738.




          4
              In pertinent part, the article explained that:

          [h]ard on the gas out of one particular uphill, second-gear left-hander, the CBR
          would crest the brown and give a violent snap-snap-snap of its bars every
          lap—unless I hauled myself forward to keep more weight over the front wheel. (One
          or two riders felt the bike needed a steering damper, but [Honda designer Tadao]
          Baba thinks it’s fine without one unless you’re racing, and I’m inclined to agree.)

Motorcyclist Article 35–36, Pl.’s Resp. to Mot. for Sum. J. Ex. 3, Dist. Ct. R. 44.

                                                         9
                                            No. 10-1555

       Without any expert opinion to support any elements of his claims, Istvan attempted to rely

on Honda’s expert, Osamu Kikuchi. Several months after the parties finished briefing and arguing

Honda’s motion for summary judgment, Istvan requested leave to supplement his opposition to

Honda’s motion with material from Kikuchi’s deposition testimony. Istvan’s motion for leave failed

to detail the testimony Kikuchi provided and specify how that testimony would influence the court’s

judgment, leaving the court to speculate about what a supplemental response would add to its

decision making. Lacking information to evaluate the persuasiveness of the evidence Istvan sought

to put in front of the court, the motion was denied.

       Istvan first contends that Federal Rule of Civil Procedure 15(d) required the district court to

grant him leave to amend his opposition to Honda’s motion for summary judgment. Rule 15(d)

applies only to pleadings, and, even with respect to pleadings, it leaves the decision to grant a party

leave to amend within the district court’s discretion. Leisure Caviar, LLC v. U.S. Fish and Wildlife

Serv., 616 F.3d 612, 615 (6th Cir. 2010).

       Istvan also argues that Eastern District of Michigan Local Rule 7.1(g) required the district

court to grant him leave to supplement his brief in response to Honda’s motion for summary

judgment. We disagree. Rule 7.1(g) allows a party to move for permission to file “additional

affidavits or other documents in support or opposition” and states that the court “may” grant the

motion. E.D. Mich. LR 7.1(g) (formerly Local Rule 7.1(f)). District courts in the Eastern District

of Michigan have construed Rule 7.1(g) to allow themselves discretion in deciding whether to accept

supplemental evidence. See Midwest Guaranty Bank v. Guaranty Bank, 270 F. Supp. 2d 900, 918

(E.D. Mich. 2003); Anderson v. City of Monroe, Case No. 05-CV-70255, 2006 WL 2077596, at *5


                                                  10
                                           No. 10-1555

(E.D. Mich. July 24, 2006). This construction of Rule 7.1(g) does not conflict with the Federal

Rules. Construing the rule to allow a court discretion in deciding a request to expand the record is

consistent with a trial court’s power to “manage its docket,”which we have traditionally permitted

district courts “broad discretion” in doing. ACLU v. McCreray Cty., 607 F.3d 439, 451 (6th Cir.

2010). Under the circumstances present here, the district court did not abuse that discretion by

denying Istvan leave to argue that Kikuchi’s deposition supported his opposition to summary

judgment.

       Istvan believes that the denial of the motion to supplement was unfair, but we disagree. The

district court permitted the parties nine months for discovery, during which Istvan had ample time

to prepare his own expert witnesses. In response to Honda’s assertion that no genuine issue of fact

remained for the court’s adjudication on the elements of Istvan’s negligence and warranty claims,

it was incumbent on Istvan to provide the court with “specific facts showing that there [was] a

genuine issue for trial.” Matsushita Elec. Indus. Co., 476 U.S. at 587. Only when it appeared the

district court might exclude Istvan’s own expert pursuant to Daubert did Istvan seek to rely on

Kikuchi’s testimony. Since the denial of Istvan’s motion for leave did not deprive him of the

opportunity to oppose Honda’s motion, and because Istvan was afforded ample opportunity to

identify his own expert witnesses, the district court did not abuse its discretion in denying Istvan

leave to supplement his opposition.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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