                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                _____________

                                 No. 97-1042
                                _____________

Michael R. Dancy,                     *
                                      *
           Appellant,                 *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Eastern District of Arkansas.
Hyster Company,                       *
                                      *
           Appellee.                  *
                                _____________

                              Submitted: June 12, 1997
                                  Filed: September 25, 1997
                               _____________

Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                        _____________

FLOYD R. GIBSON, Circuit Judge.


     Michael Dancy (“Dancy”) appeals the District Court’s1 exclusion of his expert
witness. Dancy also appeals the grant of summary judgment in favor of Hyster
Company (“Hyster”). We affirm.




     1
       The HONORABLE HENRY J. WOODS, United States District Judge for the
Eastern District of Arkansas.
I.     BACKGROUND

        Dancy began working for Union Camp Corporation in the Spring of 1994 and
was trained to operate a “lift truck.” A lift truck is a machine similar in appearance to
a forklift. Its appearance differs in that, instead of having a “fork” in front of the
machine to raise and lower heavy objects, a lift truck has a large clamp that encircles
and grips large objects. In this case, Dancy used the lift truck to lift large cylindrical
rolls of paper. On July 7, 1994, Dancy lifted two rolls of paper with the goal of placing
them on top of two other rolls stacked on the floor. He accomplished this by lifting the
bottom of two rolls that were stacked on top of each other, thereby lifting both rolls
simultaneously. See Jt. App. at 205.2 The lift truck overturned, pinning Dancy’s right
foot under the lift truck. Dancy’s right leg had to be amputated just below the knee.

       Dancy filed suit against the lift truck’s manufacturer, Hyster, alleging that the lift
truck was defective because it did not have a cage or guard around the compartment
to prevent the operator from being pinned under the lift truck. He also alleged that
Hyster was negligent for failing to place a cage or guard around the operator’s
compartment. Dancy designated Dr. Richard Forbes as his sole expert witness. The
District Court granted Hyster’s motion to strike this designation in light of Daubert v.
Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786 (1993). The District Court then
granted Hyster summary judgment, concluding Dancy could not prevail in this case
without an expert witness. Dancy has appealed both rulings.




       2
        The lift truck was capable of safely lifting 3,450 pounds. There is a dispute in
the record as to whether the combined weight of the two rolls was 2,400 pounds or
4,238 pounds. Like the District Court, we are inclined to believe the latter figure; but,
again like the District Court, we decline to reach this issue because it is not necessary
to the issues at hand.

                                            -2-
II.   DISCUSSION

      A. The Expert Witness

       Dr. Forbes is a mechanical engineer and a professor at the University of
Mississippi and was retained by Dancy in 1996. He has never designed a forklift, a lift
truck, or any other similar machine; his specialty is in the field of thermal science. At
his deposition, Dr. Forbes theorized that the lift truck should have had a guard to keep
Dancy’s leg within the lift truck’s frame. Dr. Forbes had not tested this theory in any
way, had not seen this type of device on a forklift or any other similar machine, and had
not even designed the device he suggested would have prevented Plaintiff’s injury. See
Jt. App. at 125-27; 130. Approximately one month after his deposition, Dr. Forbes
provided a supplemental report wherein he stated:

      It is my opinion that a permanently-located open-mesh guard on the right
      side of the lift would have prevented Dancy’s injury. The guard would
      be located so as to reduce the probability that the operator’s legs would
      leave the interior of the overhead guard during tipover. . . . I am confident
      that such guards can be designed which will not affect the utility of the lift
      truck and which will not add any significant cost to the machines.

Jt. App. at 19. This wording suggests that Dr. Forbes still had not designed or tested
the proposed safety device.

       “Decisions concerning the admission of expert testimony lie within the broad
discretion of the trial court, and these decisions will not be disturbed on appeal absent
an abuse of discretion.” Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 296 (8th Cir.
1996). The starting point for analyzing expert testimony is Federal Rule of Evidence
702, which provides:




                                           -3-
              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.



      Under Daubert, district courts are to perform a “gatekeeping” function and insure
that proffered expert testimony is both relevant and reliable. See Penney v. Praxair,
Inc., 116 F.3d 330, 333 (8th Cir. 1997); Peitzmeier, 97 F.3d at 296-97; Pestel v.
Vermeer Mfg. Co., 64 F.3d 382, 384 (8th Cir. 1995). “Daubert suggests that a trial
court, when assessing the reliability of expert testimony, consider (1) whether the
concept has been tested, (2) whether the concept has been subject to peer review, (3)
what the known rate of error is, and (4) whether the concept is generally accepted by
the community.” Pestel, 64 F.3d at 384. The District Court considered these factors
in this case and concluded that Dr. Forbes’s theory could be, but had not been, tested.
In fact, Dr. Forbes had not even attempted to design the device he was suggesting was
necessary to prevent the lift truck from being defective. Although he opined that the
device he envisioned would work, he had no basis for reaching this conclusion. In fact,
it appears that Dr. Forbes’s views were being altered and refined based on questions
raised during the deposition.3

      3
       For instance, Dr. Forbes testfied:

      I’ll probably do some thinking about a design after today, . . . . Again, I’m
      talking about some kind of mesh, some kind of thing you’d see commonly
      around here on highway brushhogs to protect the operator from throwing
      objects mainly but doesn’t significantly obstruct the view of the things
      that [the operator] need[s] to see.

Jt. App. at 135. This demonstrates that (1) Dr. Forbes had not seriously considered a

                                            -4-
      Dancy attempts to avoid the effects of Daubert by contending that it does not
apply unless the expert’s testimony will rely on scientific principles or methods. We
have expressly rejected this argument. See Peitzmeier, 97 F.3d at 297. Dancy also
contends that Dr. Forbes’s testimony should have been admitted based on his
explanation that a device similar to the one he envisioned had been used on bobcats and
front-end loaders. The District Court concluded that there are significant differences
between these two pieces of lifting equipment and lift trucks: differences that prevent
the automatic assumption that what works on one will work on another. Dancy has
presented no argument demonstrating the District Court’s conclusion in this regard was
incorrect, and our review of the record reveals no basis for reaching a different
conclusion.


      We conclude that the District Court was justified in questioning the reliability
and usefulness of Dr. Forbes’s testimony. Disallowing his testimony did not constitute
an abuse of discretion.




particular design and, more importantly, (2) Dr. Forbes had not seriously considered
the effect his envisioned safety device would have on the effective and safe operation
of the lift truck.

      Although Dr. Forbes seemed to have addressed these concerns in his
supplemental report, careful reading reveals that Dr. Forbes simply expressed his
confidence that an effective device could be created without interfering with the
operation of a lift truck; in short, he simply “assumed away” any problems.

                                          -5-
      B. Summary Judgment


      We review the District Court’s grant of summary judgment de novo, applying
the same standard as applied by the District Court. A moving party is entitled to
summary judgment on a claim only if there is a showing that "there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c); see generally Williams v. City of St. Louis, 783 F.2d
114, 115 (8th Cir. 1986).       "[W]hile the materiality determination rests on the
substantive law, it is the substantive law's identification of which facts are critical and
which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); see also Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.
1992). In applying this standard, the Court must view the evidence in the light most
favorable to the non-moving party, giving that party the benefit of all inferences that
may be reasonably drawn from the evidence. See Matsushita Electric Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th
Cir. 1984), cert. denied, 470 U.S. 1057 (1985). However, a party opposing a motion
for summary judgment "may not rest upon the mere allegations or denials of the . . .
pleading[s], but . . . by affidavits or as otherwise provided in [Rule 56], must set forth
specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).


      The District Court concluded that, without the aid of expert testimony, there was
no evidence demonstrating (1) the existence of a defect in the product or (2) negligence
by Hyster. We consider these issues separately, keeping in mind that Arkansas law
controls the substance of these two causes of action.



                                           -6-
             1. Strict Liability


      “Generally speaking, there are three varieties of product defects: manufacturing
defects, design defects, and inadequate warnings.” West v. Searle & Co., 806 S.W.2d
608, 610 (Ark. 1991). Plaintiff has alleged a cause of action based on the existence of
a design defect and, faced with the unavailability of expert testimony, contends that
expert testimony was not needed to establish the existence of a defect.


      Arkansas law does not require expert testimony in all product liability cases.
“Strictly speaking, since proof of negligence is not an issue, res ipsa loquitur has no
application to strict liability; but the inferences which are the core of the doctrine
remain, and are no less applicable.” Higgins v. General Motors Corp., 699 S.W.2d
741, 743 (Ark. 1985). Consequently, “[p]roof of a specific defect is not required when
common experience teaches the accident would not have occurred in the absence of a
defect.” Id.; see also Lakeview Country Club, Inc. v. Superior Products, 926 S.W.2d
428, 431 (Ark. 1996); Williams v. Smart Chevrolet Co., 730 S.W.2d 479, 482 (Ark.
1987). However, “[t]he mere fact of an accident, standing alone, does not make out
a case that the product is defective.” Higgins, 699 S.W.2d at 743. Consideration of
this issue also requires examination of the extent to which the plaintiff has negated
other possible causes for the accident. See Williams, 730 S.W.2d at 482-83; Higgins,
699 S.W.2d at 743.


      Initially, we note that this res ipsa loquitur-like doctrine is ill-suited to cases
involving defective design for failure to include a safety device. Higgins, Lakeview,
and Williams all involved products that did not work in the manner intended; that is,

                                          -7-
they involved manufacturing defects. Higgins involved a car that accelerated without
warning, Lakeview involved paint that peeled, and Williams involved a car door that
unexpectedly opened while the car was moving. In this case, Plaintiff does not contend
that the lift truck malfunctioned in any way; he contends the lift truck was not designed
properly because it lacked a safety device. Lay jurors would tend to understand
products that do not work; they are not likely to possess “common understanding”
about how products are designed.          We cannot expect lay jurors to possess
understanding about whether the mesh guard envisioned by Dr. Forbes would be
capable of withstanding the force involved in a fall and be effective in protecting
Plaintiff from the injury he received. We cannot expect a lay juror to know whether
such a device would increase the risk associated with the vision impairment discussed
by Dr. Forbes. We cannot expect a lay juror to know whether the mesh guard itself
would cause more injuries than it creates by, for instance, breaking and puncturing the
lift truck’s operator.4 Although Dancy does not have the burden of proving that his
“alternative safer design was available and feasible in terms of cost, practicality and
technological possibility,” French v. Grove Mfg. Co., 656 F.2d 295, 297 (8th Cir.
1981), he still has the burden of proving the existence of a defect by showing that a
safer alternative design actually exists. He cannot carry this burden without proving
that his proposed design will actually work, and we believe the answer to this question
is beyond the ken of lay jurors.



      4
       These points cannot be dismissed as mere speculation on the Court’s part;
indeed, to do so demonstrates the hazard involved. These are matters the jury is
required by law to consider in determining whether a defect exists, and without
evidence on the point the jury would be doing nothing more than speculating -- which,
of course, cannot be allowed.

                                          -8-
       Dancy has also failed to negate other causes for his injuries. A jury may believe
his testimony that the combined weight of the two rolls did not exceed the lift-truck’s
specifications. However, there is also evidence that it was not safe to be lifting two
rolls of any weight in the manner in which Dancy was lifting the two rolls in July 1994.
Nothing in the record negates this as a cause of Dancy’s injuries.


       We also find support for our conclusion in the outcomes of the three Arkansas
Supreme Court decisions referenced above. In Higgins, the court declared that it
“could not say that when a car moves suddenly, even swiftly, into an intersection
common experience tells us it would not have happened absent a defect” and went on
to conclude that the plaintiff failed to “adequately negate[] any cause of the accident
due to driver error or control.” 699 S.W.2d at 743. In Williams, the court declared
that it could not hold “that when a car door suddenly flies open while the car is
traveling on a gravel road at 10 miles per hour common experience tells us that it could
not have happened absent a defect.” 730 S.W.2d at 483. The court further held that
the plaintiff failed to negate causation due to driver error, even though she testified “she
is positive she shut and locked the door and that she was driving slowly and the road
was straight.” Id. Finally, in Lakeview, the Arkansas Supreme Court agreed with the
trial court that there were numerous reasons why paint would peel, including “misuse
and improper application.” 926 S.W.2d at 431. After requiring expert testimony in
these cases, it seems obvious that the Arkansas Supreme Court would require expert
testimony in this case.




                                            -9-
             2. Negligence


      Negligence requires proof that an ordinarily prudent person in the same situation
will foresee an appreciable risk of harm to others, causing him or her to act in a more
careful manner. E.g., Mason v. Jackson, 914 S.W.2d 728, 730 (Ark. 1996). Much of
what we said with respect to Dancy’s product liability claim applies to his negligence
claim: absent expert testimony, there is no basis for the jury to evaluate the actions of
an ordinarily prudent person in the same situation as Hyster. Cf. Skinner v. R.J. Griffin
& Co., 855 S.W.2d 913, 915 (Ark. 1993).5 Our conclusion is buttressed by the lack


      5
      The pertinent quote from Skinner involved Defendant’s arguments regarding
comparative fault:

      [T]he defendant asks us to hold that . . . “[i]t takes no expert to
      demonstrate that any decent protective eyewear would have prevented the
      string from striking appellant's eye, in which event, no such injury could
      have possibly occurred.” We cannot so hold because here the jury had
      no basis, except for pure guesswork, to find that safety goggles would
      have totally prevented the injury or to what degree they would have
      reduced the injury. . . . Further, assuming goggles were available and
      practical to wear, the proof did not show whether they would have
      prevented the string or the stake from entering from the side of the
      glasses; what the tensile strength of such glasses was; whether the
      whipping force of the string and stake, if coming from the front, would
      have broken or shattered the glasses; to what extent, if any, the glasses
      would have reduced or eliminated the injury if they had only slowed the
      string whipping from the side; or to what extent, if any, the glasses would
      have reduced the injury if they had not shattered or broken if the force
      was from the front. Thus, a causal connection between the failure to wear
      some unspecified type of goggles and the injury to plaintiff's eye was not
      established beyond mere conjecture and speculation.


                                          -10-
of any evidence suggesting Hyster’s lift trucks had a history of or propensity toward
tipping over and causing injuries similar to those sustained by Dancy.


III.   CONCLUSION


       For the foregoing reasons, the District Court’s order barring Dr. Forbes’s
testimony and its subsequent entry of summary judgment in favor of Hyster Company
is affirmed.


       A true copy.


               Attest:


                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




855 S.W.2d at 915. This conclusion is reinforced by the fact that there is no evidence
in the record that Hyster’s lift trucks had a history of or propensity toward overturning
and pinning their operators beneath them. In this case, there is no evidence in the
record that will permit the jury to do anything other than speculate in the manner
described and prohibited in Skinner.

                                          -11-
