In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2656

Mark A. Smith,

Plaintiff-Appellant,

v.

Ford Motor Company,

Defendant-Appellee.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP97-1965-C-Y--Richard L. Young, Judge.


Argued February 10, 2000--Decided June 2, 2000



      Before Coffey, Flaum, and Diane P. Wood, Circuit
Judges.

      Flaum, Circuit Judge. Mark A. Smith filed suit
in Indiana state court against Ford Motor Company
("Ford") alleging that the injuries he sustained
from a car accident were the result of a
defective product designed and manufactured by
Ford. Ford removed the suit to the United States
District Court for the Southern District of
Indiana under 28 U.S.C. sec.sec. 1332 and
1441(a), and the district court dismissed Smith’s
suit with prejudice. For the reasons stated
herein, we reverse and remand.

I.   BACKGROUND

      On November 8, 1995, at approximately 2:00
a.m., Smith was involved in a one-car accident
when he fell asleep at the wheel of his Ford
Econoline 150E van and careened off the road. At
the time of the accident, Smith was traveling in
the rightmost westbound lane of Highway 50 near
Dillsboro, Indiana. After falling asleep, Smith
crossed over the left lane, across a grassy
median, and over the two eastbound lanes before
he awoke. Upon waking, Smith jerked the wheel of
the van to the right to move the van back to the
westbound lanes of traffic. Smith claims that at
this point, the steering mechanism in the van
malfunctioned and he was no longer able to
control the van. The van left the road, hit a
concrete culvert, and eventually came to rest in
a soybean field. Smith suffered several injuries
as a result of this accident. After the accident,
Smith stored the van and alleges that it has
remained in an unaltered condition.

      On November 7, 1997, Smith filed a complaint
against Ford in Indiana state court alleging that
his injuries from the 1995 accident were caused
by a defect in the power steering gearbox of the
Ford van he was driving. Ford removed the case to
the United States District Court for the Southern
District of Indiana, invoking that court’s
diversity jurisdiction.

      Smith proposed to call two experts in support
of his case. His first expert was James Cassassa,
a mechanical engineer, who formerly worked for
General Motors performing accident reconstruction
and analysis, and who currently works for Wolf
Technical Services, Inc., a private company,
performing similar work. Cassassa inspected the
Ford van in May 1996 and May 1998. As a result of
his inspections, Cassassa concluded that there
was an internal failure in the steering gearbox
of the van, that the failure had occurred while
the van was in use before it left the road, and
that the failure was not caused by the impact of
the van with anything else. Although Cassassa was
able to conclude that the steering had failed due
to a defect in the parts inside of the steering
gearbox, he was unable to determine whether the
defect was due to the design or the manufacture
of the affected parts. Cassassa outlined several
hypothetical design and manufacturing defects
that could have caused the failure.

      Smith’s second witness was Karl Muszar, a
metallurgical engineer, who worked for General
Motors for seventeen years before leaving to form
his own engineering firm. After the gearbox was
removed from Smith’s van and opened under the
supervision of a Ford technician, Muszar
inspected and tested the mechanisms inside the
gearbox. He determined that the steering had
failed due to overloading of the torsion bar and
that the specific parts were manufactured
according to Ford specifications. Like Cassassa,
Muszar concluded that the steering failure was
the result of either a manufacturing defect or a
design defect but could not determine which type
of defect had actually occurred. Muszar offered
several hypothetical explanations for the failure
and stated that in his opinion using a different
metal for the torsion bar would have been a
better choice.

      Smith’s original counsel withdrew on February 4,
1999, and Smith’s present counsel first appeared
before the district court on February 18, 1999.
On March 24, 1999, Smith’s new counsel filed a
motion to continue the jury trial, which had been
set for April 26, 1999, because he had a previous
trial already set for state court on the same
day. The district court denied this motion on
April 15, 1999, and the trial schedules were not
worked out until April 20, when the state court
judge was persuaded to reset the state trial.
Meanwhile, on March 15, Ford filed a motion to
exclude the testimony of Smith’s experts. Smith
was ordered to respond to this motion by April
19, but did not respond until April 21, when he
filed a motion for leave to file late along with
his response to Ford’s motion to exclude his
expert witnesses. The district court struck
Smith’s written response but allowed Smith to
respond to the motion in open court on April 26.

      On April 26, after empaneling the jury, the
district court conducted a hearing regarding
Ford’s motion to exclude Smith’s experts. The
district court concluded that the experts were
not qualified to testify as to design defects and
that their testimony would not be helpful to the
jury. The district court then granted Ford’s
motion to exclude both experts. Smith moved for
a continuance to acquire a design expert who
would satisfy the court, but this motion was
denied. Ford then moved to dismiss the case on
the ground that under Indiana tort law a claim
for product liability could not be proven without
experts. The district court granted this motion
and dismissed the case with prejudice. Smith now
appeals.

II.    DISCUSSION

      Smith argues that the district court erred when
it 1) excluded his expert witnesses; 2) denied
his motion for a continuance to obtain additional
experts; and 3) granted Ford’s motion to dismiss
his claims with prejudice. We address each of
these arguments in turn.

A.    Exclusion of Expert Witnesses

      Smith first argues that the district court
erred in excluding the testimony of his experts
Cassassa and Muszar on the ground that neither
witness was qualified as an expert in a relevant
field and neither witness’s testimony was
reliable or would have been helpful to the jury.
We review de novo whether the district court
applied the appropriate legal standard in making
its decision to admit or exclude expert
testimony. See Walker v. Soo Line R.R. Co., 208
F.3d 581, 590 (7th Cir. 2000); United States v.
Hall, 165 F.3d 1095, 1101 (7th Cir. 1999). We
review for abuse of discretion the district
court’s choice of factors to include within that
framework as well as its ultimate conclusions
regarding the admissibility of expert testimony.
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 152 (1999) (stating that the abuse of
discretion standard "applies as much to the trial
court’s decisions about how to determine
reliability as to its ultimate conclusion"). A
court abuses its discretion when it commits "a
serious error of judgment, such as reliance on a
forbidden factor or failure to consider an
essential factor." Powell v. AT&T Comm., Inc.,
938 F.2d 823, 825 (7th Cir. 1991).

      The admission of expert testimony is
specifically governed by Federal Rule of Evidence
702 and the principles announced in Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
Rule 702 states:

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.

The Supreme Court in Daubert interpreted this
rule to require that "the trial judge must ensure
that any and all scientific testimony or evidence
admitted is not only relevant, but reliable." 509
U.S. at 589. In other words, as a threshold
matter "a district court is required to determine
(1) whether the expert would testify to valid
scientific knowledge, and (2) whether that
testimony would assist the trier of fact with a
fact at issue." Walker, 208 F.3d at 586. When
making these determinations, the district court
functions as a "gatekeeper" whose role is "to
keep experts within their proper scope, lest
apparently scientific testimony carry more weight
with the jury than it deserves." DePaepe v.
General Motors Corp., 141 F.3d 715, 720 (7th Cir.
1998).

      In analyzing the reliability of proposed expert
testimony, the role of the court is to determine
whether the expert is qualified in the relevant
field and to examine the methodology the expert
has used in reaching his conclusions. See Kumho,
526 U.S. at 153. An expert may be qualified by
"knowledge, skill, experience, training, or
education." Fed. R. Evid. 702. While "extensive
academic and practical expertise" in an area is
certainly sufficient to qualify a potential
witness as an expert, Bryant v. City of Chicago,
200 F.3d 1092, 1098 (7th Cir. 2000), "Rule 702
specifically contemplates the admission of
testimony by experts whose knowledge is based on
experience," Walker, 208 F.3d at 591. See Kumho,
526 U.S. at 156 ("[N]o one denies that an expert
might draw a conclusion from a set of
observations based on extensive and specialized
experience."). Thus, a court should consider a
proposed expert’s full range of practical
experience as well as academic or technical
training when determining whether that expert is
qualified to render an opinion in a given area.

      A court’s reliability analysis does not end
with its conclusion that an expert is qualified
to testify about a given matter. Even "[a]
supremely qualified expert cannot waltz into the
courtroom and render opinions unless those
opinions are based upon some recognized
scientific method." Clark v. Takata Corp., 192
F.3d 750, 759 n.5 (7th Cir. 1999). However, we
emphasize that the court’s gatekeeping function
focuses on an examination of the expert’s
methodology. The soundness of the factual
underpinnings of the expert’s analysis and the
correctness of the expert’s conclusions based on
that analysis are factual matters to be
determined by the trier of fact, or, where
appropriate, on summary judgment. See Daubert,
509 U.S. at 595 ("The focus, of course, must be
solely on principles and methodology, not on the
conclusions that they generate."); Walker, 208
F.3d at 587 (stating that when addressing whether
expert testimony is reliable the district court
should not consider the "factual underpinnings"
of the testimony but should determine whether
"[i]t was appropriate for [the expert] to rely on
the test that he administered and upon the
sources of information which he employed").

      When analyzing the relevance of proposed
testimony, the district court must consider
whether the testimony will assist the trier of
fact with its analysis of any of the issues
involved in the case. The expert need not have an
opinion on the ultimate question to be resolved
by the trier of fact in order to satisfy this
requirement. See Walker, 208 F.3d at 587. In
addition, "[e]xperts are allowed to posit
alternate models to explain their conclusion."
Id. at 589. Where an expert’s hypothetical
explanation of the possible or probable causes of
an event would aid the jury in its deliberations,
that testimony satisfies Daubert’s relevancy
requirement. Id. at 589-90. However, we caution
that these hypothetical alternatives must
themselves have "analytically sound bases" so
that they are more than mere "speculation" by the
expert. See DePaepe, 141 F.3d at 720. The
question of whether the expert is credible or
whether his or her theories are correct given the
circumstances of a particular case is a factual
one that is left for the jury to determine after
opposing counsel has been provided the
opportunity to cross-examine the expert regarding
his conclusions and the facts on which they are
based. Walker, 208 F.3d at 589-90. It is not the
trial court’s role to decide whether an expert’s
opinion is correct. The trial court is limited to
determining whether expert testimony is pertinent
to an issue in the case and whether the
methodology underlying that testimony is sound.
See Kumho, 526 U.S. at 159 (Scalia, J.,
concurring) (stating that the trial court’s
function under Daubert is to exercise its
discretion "to choose among reasonable means of
excluding expertise that is fausse and science
that is junky").

      The Daubert standard applies to all expert
testimony, whether it relates to areas of
traditional scientific competence or whether it
is founded on engineering principles or other
technical or specialized expertise. See Kumho,
526 U.S. at 141. In Daubert, the Supreme Court
outlined four factors that may be pertinent to
the district court’s analysis of expert
testimony. Those traditional factors are: 1)
"whether [the expert’s theory] can be (and has
been) tested"; 2) "whether the theory or
technique has been subjected to peer review and
publication"; 3) "the known or potential rate of
error"; and 4) "general acceptance" among the
relevant scientific community. Daubert, 509 U.S.
at 593-94. However, as the Supreme Court has
repeatedly emphasized, the Rule 702 test is a
flexible one, and no single factor is either
required in the analysis or dispositive as to its
outcome. See Kumho, 526 U.S. at 141 ("[T]he test
of reliability is ’flexible,’ and Daubert’s list
of specific factors neither necessarily nor
exclusively applies to all experts or in every
case."); Daubert, 509 U.S. at 594 ("The inquiry
envisioned by Rule 702 is, we emphasize, a
flexible one."). The trial court must use the
criteria relevant to a particular kind of
expertise in a specific case to "make certain
that an expert, whether basing testimony upon
professional studies or personal experience,
employs in the courtroom the same level of
intellectual rigor that characterizes the
practice of an expert in the relevant field."
Kumho, 526 U.S. at 152.

      In this case, the district court excluded both
of plaintiff’s proposed experts because it
concluded that neither witness 1) qualified as an
expert in the design or manufacture of power
steering gear boxes; 2) had submitted his work
for peer review; or 3) had an opinion as to
whether there was a design or manufacturing
defect in the steering mechanism. In other words,
the district court excluded Muszar and Cassassa
because it concluded that they were not qualified
as experts in a relevant field, their conclusions
were unreliable, and their opinions would not be
helpful to the jury.

      We conclude that the district court properly
applied the Daubert framework to the proposed
expert testimony by considering whether that
testimony is reliable and relevant to an issue in
the case. We now consider whether the district
court abused its discretion in either the
conclusion it reached to exclude the proposed
testimony or the choice of factors it used to
reach that conclusion.

      Plaintiff’s proposed expert Muszar is a
metallurgical engineer with a bachelor’s degree
and over forty years of practical experience in
that field. For seventeen of those years, Muszar
worked as an engineer for General Motors.
Plaintiff’s proposed expert Cassassa has a
bachelor’s degree in mechanical engineering and
over ten years of experience in the field of
automobile accident reconstruction and automobile
mechanical failure analysis. Two of those years
were spent performing accident analysis for
General Motors and five were spent performing
similar work for a major insurance company. The
district court concluded that neither Muszar nor
Cassassa is an expert in the field of automotive
design or manufacturing. The district court then
stated that it believed Muszar is an expert in
the field of metallurgical engineering and did
not express an opinion on whether Cassassa had
expertise in another field./1

      We agree with the district court that Muszar
and Cassassa are not qualified as automotive
engineers. However, we disagree with the district
court’s subsequent conclusion that because these
engineers are not qualified in the field of
automotive design or manufacture, their expertise
cannot be relevant to the present case. As we
discuss below, expert testimony need only be
relevant to evaluating a factual matter in the
case. That testimony need not relate directly to
the ultimate issue that is to be resolved by the
trier of fact. See Walker, 208 F.3d at 587. Thus,
the district court erred in concluding that
Muszar and Cassassa were not qualified as experts
in a relevant field solely because their
expertise related to an area other than the one
concerning the ultimate issue to be decided by
the trier of fact.

      The district court also concluded that the
methodologies employed by Muszar and Cassassa
were unreliable because they had not been "peer
reviewed." However, as noted above, no single
factor among the traditional Daubert list is
conclusive in determining whether the methodology
relied on by a proposed expert is reliable. As
the Supreme Court stated, "[t]he fact of
publication (or lack thereof) in a peer reviewed
journal . . . will be a relevant, though not
dispositive, consideration." Daubert, 509 U.S. at
594 (emphasis added). In Kumho, the Court made
clear that the reliability test under Rule 702 is
an individualized test whose relevant factors
will depend on the type of expertise at issue in
a given case. See Kumho, 526 U.S. at 150 (stating
that in some cases "the relevant reliability
concerns may focus upon personal knowledge or
experience. . . . [T]here are many different
kinds of experts, and many different kinds of
expertise.") (citations omitted). While the
district court noted that neither expert had had
his work published in a peer reviewed journal,
the district court did not indicate whether
publication is typical for the type of
methodology these experts purported to employ.
The district court merely recited the failure of
the experts to publish and concluded that their
testimony was unreliable. However, as noted
above, lack of peer review will rarely, if ever,
be the single dispositive factor that determines
the reliability of expert testimony. Without a
further explanation of the connection between
lack of publication and reliability in this case,
we cannot determine the extent to which this
factor bears on the reliability of the
methodologies used by plaintiff’s proposed
experts. For example, if Muszar was merely
applying well-established engineering techniques
to the particular materials at issue in this
case, then his failure to submit those techniques
to peer review establishes nothing about their
reliability. Similarly, if Cassassa’s accident
reconstruction methodology is based on his
extensive practical experience in this area,
rather than novel methodology subject to
publication, his failure to publish does not cast
doubt on the reliability of his analytical
technique. However, other factors not considered
by the district court, such as the general
acceptance of the techniques in the relevant
engineering and accident analysis communities or
the extent of the experts’ practical experience
performing those techniques, may bear on the
reliability of the proposed evidence. On the
record before us, we conclude that the district
court erred by relying on a single, potentially
irrelevant, criterion to determine that
plaintiff’s proposed experts based their
conclusions on methodologies that are not
sufficiently reliable to satisfy the requirements
of Rule 702.

      Finally, the district court concluded that
neither Muszar’s nor Cassassa’s testimony would
be helpful to the jury because neither expert
could conclusively determine whether a design or
manufacturing defect caused the failure in the
steering gearbox to occur./2 As noted above, in
order for an expert’s testimony to qualify as
"relevant" under Rule 702 it must assist the jury
in determining any fact at issue in the case.
Although under Rule 704(a) an expert may testify
to the ultimate issue in a case, the expert’s
testimony need not relate to the ultimate issue
in order to be relevant under Rule 702. See
Walker, 208 F.3d at 587. In this case, Muszar
proposed to testify concerning the method by
which the parts within the steering gearbox were
manufactured and the manner in which those parts
failed. Muszar would also have testified that in
his opinion there were superior materials Ford
could have used in designing some of those parts.
Cassassa’s proposed testimony related to the
manner in which the accident occurred, the cause
of the accident, whether the steering had in fact
failed, and the timing of the failure in relation
to the other events during the accident. Cassassa
also proposed to render an opinion as to some
possible causes for the steering failure. All of
this proposed testimony relates to facts at issue
in this case. The district court may have been
correct that none of plaintiff’s proposed expert
testimony bears directly on the ultimate issue of
whether a design or manufacturing defect caused
plaintiff’s accident. However, under Rule 702,
expert testimony need only be relevant to an
issue in the case; it need not relate directly to
the ultimate issue. We conclude that the district
court erred when it determined that because
plaintiff’s proposed expert testimony would not
assist the trier of fact with resolving the
ultimate issue in the case it failed Rule 702’s
relevancy requirement./3

      Because the district court erroneously
determined that neither Muszar nor Cassassa were
qualified as experts in a relevant field and that
their proposed testimony was not relevant to any
fact at issue in this case and because district
court failed to consider more than the single
factor of peer review in analyzing the
reliability of these experts’ proposed testimony,
we conclude that the district court abused its
discretion when it excluded plaintiff’s proposed
experts./4

B.   Continuance

      Plaintiff next argues that the district court
erred when it declined his request for a
continuance to find new experts after excluding
his experts on the day of trial. Because we have
concluded that the district court erred in its
application of Rule 702 to plaintiff’s experts,
we need not reach this issue at this time. We
note briefly that a district court has broad
discretion in determining when to grant a
continuance. See Morris v. Slappy, 461 U.S. 1, 11
(1983); Brooks v. United States, 64 F.3d 251, 256
(7th Cir. 1995). However, where a trial court’s
own action causes the need for a continuance and
that court then denies the continuance, resulting
in prejudice to a party, courts have generally
found an abuse of discretion. See Fowler v.
Jones, 899 F.2d 1088, 1095-96 (11th Cir. 1990);
Fenner v. Dependable Trucking Co., Inc., 716 F.2d
598, 602 (9th Cir. 1983).

      In this case, the district court did not rule
on the admissibility of plaintiff’s expert
testimony until the day of trial. It is unclear
from the record whether plaintiff’s late filing
of his response to defendant’s motion to exclude
his experts prompted the court’s delay in ruling
on that motion. However, we note that in cases
such as this one that rely heavily on expert
testimony, a district court should set a
discovery and trial schedule that realistically
provides both sides with an adequate opportunity
to introduce necessary evidence. The application
of Rule 702 to proposed expert testimony can
often be an uncertain process and is best
conducted in such a manner that litigants have a
reasonable opportunity to locate experts who meet
the rule’s requirements.

C.   Dismissal

      Smith finally argues that the district court
erred in summarily dismissing his claims with
prejudice after excluding his experts. We note
that the district court’s order dismissing
plaintiff’s action does not cite any standard or
rule under which that dismissal was made. We can
only presume, given the stage of the proceedings
at which this action was taken, that the district
court intended its order to constitute a grant of
summary judgment for the defendant. See Fed. R.
Civ. P. 12(b) (stating that where a court
purports to dismiss a case under 12(b)(6) but
considers matters outside of the complaint, the
dismissal must be converted to one on summary
judgment). However, the instant order contains
only the conclusion that the court had struck
plaintiff’s experts and does not contain any
supporting reasoning. In addition, the court did
not provide the plaintiff with the opportunity to
submit a written response to defendant’s motion.
See Fed. R. Civ. P. 12(b), 56(c).
      We glean from the district court’s oral
discussion of this issue that it concluded that
plaintiff could not establish as a matter of law
a claim for relief under Indiana product
liability law if he did not have experts to
testify on his behalf. Because we have concluded
that the district court abused its discretion in
the manner in which it excluded plaintiff’s
experts, we also conclude that the district court
erred in dismissing plaintiff’s case on that
basis. However, it does not necessarily follow
that, even if the proposed expert testimony is
admitted, plaintiff has supplied sufficient
support for his claim to survive summary
judgment. We note that ordinarily dismissals on
summary judgment are accompanied by a written
analysis of the district court’s reasons for
dismissing the case. Because this textual
exposition of the district court’s reasoning is
absent here, we cannot determine whether the
district court would have been justified in
granting summary judgment to the defendant even
if plaintiff’s expert testimony had not been
excluded. We therefore remand this case to the
district court for its reconsideration of this
issue.


III.   CONCLUSION

      For the reasons stated herein, we Reverse the
district court’s dismissal of plaintiff’s case
and Remand this case for further proceedings
consistent with this opinion.

/1 The district court stated that it found Cassassa
was not an expert in "failure analysis." However,
from the context in which this statement was
made, we interpret this statement as another
means of stating that Cassassa was not qualified
as an automotive engineer. The district court did
not discuss Cassassa’s qualifications in the
field of accident reconstruction.

/2 We note that the district court appears to have
misconstrued the experts’ testimony in this case.
Both experts testified that in their opinion the
failure in the steering gearbox was caused either
by a manufacturing or a design defect. Although
neither expert was able to determine which type
of defect was the actual cause of the accident,
both experts testified that in their opinion some
type of defect did exist.

/3 We note that it would be appropriate for a
district court to apply Rule 702’s requirements
to individual pieces of proposed testimony, so
that if the district court found a particular
part of that testimony irrelevant or unreliable,
it could exclude that portion of the testimony
without striking the proposed evidence in its
entirety.

/4 We wish to emphasize that our ruling is limited
to assessing the district court’s application of
Rule 702 to plaintiff’s proposed expert
testimony. We do not express an opinion on
whether that testimony should have been admitted.
It is possible that after a proper application of
the Daubert/Kumho test the district court will
still conclude that the proposed testimony, or a
portion thereof, is inadmissible under Rule 702.
It is also possible that the district court may
find that the evidence should be excluded under
a different evidentiary rule. Furthermore, the
district court may conclude that plaintiff’s
expert testimony passes all of the evidentiary
requirements and is admissible but that, even
with that testimony, plaintiff fails to make out
a case that survives summary judgment.
