In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1100

JACKIE J. WEIR,

Plaintiff/Appellant,

v.

CROWN EQUIPMENT CORPORATION,

Defendant/Appellee.

Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. TH 95-12-C M/H--Larry J. McKinney, Judge.

Argued December 7, 1999--Decided June 15, 2000



      Before HARLINGTON WOOD, JR., RIPPLE, and ROVNER,
Circuit Judges.

      HARLINGTON WOOD, JR., Circuit Judge. This is a
product liability action arising out of an
accident on September 1, 1998 in which plaintiff-
appellant Jackie J. Weir ("Ms. Weir") injured her
left foot while operating a forklift, Model R.S.
standup rider, manufactured by defendant-appellee
Crown Equipment Corporation ("Crown"). The case
was first filed in Indiana state court by Ms.
Weir, and then removed by Crown on diversity
grounds. A trial by jury resulted in a verdict
for Crown.

  Appealing, Ms. Weir raises two issues, both
involving the exclusion by the district court of
evidence offered by her. The district court
excluded all except for a small portion of
accident reports turned over by Crown in
discovery detailing prior forklift accidents.
Also excluded was testimony by Ms. Weir’s experts
to the effect that the absence of a door on the
forklift operator’s compartment constituted a
design defect contributing to Ms. Weir’s injury.

FACTS

      A. The Equipment
      At the time of her injury, Ms. Weir was
employed as a material handler using the forklift
in a warehouse owned by a corporation not a party
to this action. It is first necessary to
understand what a standup forklift is, and what
it is designed to do./1 It is a compact
electric-powered mobile machine with an
adjustable forklift extending from one of the
sides. The forklift extension can be used to lift
warehouse materials from the floor and then to
transport them anywhere in the warehouse. The
operator stands in a compartment which has two
pedals, a power-on pedal and a brake pedal. At
trial, the brake pedal was sometimes referred to
as the "deadman brake," but in any event that
name fortunately has no relationship to this
case. The operator’s right foot operates the
power-on pedal which is located toward the front
of the operator’s compartment. The operator’s
left foot operates the brake pedal located toward
the rear of the compartment closer to the
compartment opening which is used by the operator
for entering and exiting the compartment.

      Other features of this forklift must be noted.
It was designed for narrow aisle
warehouse/industrial use. The forklift uses a
side-standing position for the operator,
permitting good visibility in both forward and
reverse positions by looking to the right or left
without changing body position. The entrance/exit
is an opening on the side opposite the forklift
raising and lowering mechanism. That opening is
one of the issues in this case. The other three
sides of the compartment are protected by a steel
wrap-around with a steel-cantilevered overhead
guard above the compartment to protect the
operator from any falling objects. The actual
operation of the forklift is controlled by a
multi-function control handle ("handle"), also
located within the operator’s compartment, by
which the operator controls both forward and
reverse movement and speed. The handle will
automatically return to neutral when the operator
releases her grip on the handle which cuts the
power. The handle also controls the directional
movement of the forklift.

      The two primary methods to stop the forklift
are different concepts than used for passenger
automobiles. By reversing the handle through and
past neutral in a direction opposite to what the
forklift has been traveling, the forklift
decelerates and slows to a stop. At trial this
procedure was referred to as "plugging" or
"reversing motion." The other method of stopping
is by activating the spring-levered brake pedal
on the floor of the compartment. To use this
method, the operator bends her left knee which
raises the heel of her left foot permitting the
brake to rise. This lessening of the brake
pressure shuts off the power to the traction
motor and activates the brake. Conversely, when
the operator straightens her left knee thereby
pressing the brake pedal down to the floor, the
brake pads disengage from the brake drum,
releasing the brake. The depression of the brake
pedal also restores travel power. This will be
recognized as a different system than is employed
in passenger automobiles, but operators,
including Ms. Weir, are trained in these
procedures. Part of Ms. Weir’s training was
designed to teach her to keep her hands and feet
inside the compartment during movement and not to
dismount if the forklift was still in motion. At
the time of the accident, Ms. Weir had about
eleven months experience using the forklift in
question.


      B.   The Accident

      The morning of the accident after arriving for
work, Ms. Weir says she went to her forklift and
conducted a pre-operational inspection confirming
that both brake systems worked properly. Ms. Weir
then used the forklift in the performance of her
duties in the warehouse for about six hours until
around noon. That operation required the frequent
use of the braking systems, and during that use,
Ms. Weir did not discern any brake problems. Just
before lunch, Ms. Weir parked her forklift, took
a short break, and then reentered her machine.
She turned on the power and proceeded as usual
with the open exit or entrance to the front and
the forks, therefore, in a trailing position. Ms.
Weir made two right turns, cautiously coming to
a stop at the intersections before making the
turns. As she approached a third turn, Ms. Weir
again stopped to check the clearance for her
machine before turning into the aisle where the
accident was waiting to happen. No brake problems
were experienced. After going around that last
turn Ms. Weir saw another forklift parked near
the end of the aisle, which she estimated roughly
to be thirty-five to forty feet away. It was her
intention to stop and get out of her forklift and
then to walk over to, enter, and move the parked
forklift out of the way. She described the speed
of her forklift at this time as proceeding "very
slowly" or "barely moving." Ms. Weir claims she
attempted to stop her forklift, first by plugging
and then with the deadman brake, as she
approached the parked forklift, but both braking
systems failed, causing an impact with the parked
forklift. She describes it as a "collision" with
the parked forklift; however, given the speed of
her forklift as described by Ms. Weir, the
accident may be better characterized as a bump.
Ms. Weir explains her left foot injury occurred
when the two forklifts collided, pinning her left
foot between the two machines. In her complaint
Ms. Weir alleges her "left foot was caught
between the two forklifts" and she "was seriously
injured." After this accident her forklift was
immediately taken out of service. A technician
inspected and drove the forklift, testing the
braking systems at various speeds and directions.
The brakes functioned properly. Finding no
defects, Ms. Weir’s forklift was restored to
service without the need for any repairs or
adjustments.

      Ms. Weir in her 1995 deposition testified that
immediately before the accident her right foot
had been on the power-on pedal on her right and
with her left foot she had released the deadman
brake to activate the brake. Again, at trial she
confirmed her belief that her right and left feet
had been in their proper positions as she had
previously stated in her deposition. However, she
added the qualification, "I didn’t look , but
yes." That she worked the brakes properly but
unsuccessfully was the original basis of her
claim that the accident was caused by the failure
of both braking systems. The qualification about
her not actually looking at her feet to see where
they were was something she would not be expected
to do either when driving a passenger car or a
forklift.

      Additional testimony raised questions about Ms.
Weir’s explanation of the accident. She testified
that when she saw the parked forklift she
intended to stop some distance away from the
parked machine, dismount her forklift, and then
walk over, enter, and move the parked forklift
out of the way. Her forklift, she says, did not
stop but kept moving slowly, very slowly, ahead
until it collided with the other machine,
resulting in her foot injury. A co-worker witness
cast some doubt on Ms. Weir’s collision theory by
testifying that after the "collision" the two
machines were not touching but were two to three
inches apart. Added to these circumstances is the
fact that Ms. Weir’s machine was lined up with
the parked machine opening to opening, which
suggests the possibility that Ms. Weir approached
the parked vehicle slowly as she said but then
deliberately stopped close enough to the other
machine to step directly from her machine into
the parked machine, but in doing so slipped and
injured her foot.

      Ms. Weir testified that when she hit the parked
forklift, her left foot must have gotten between
the two machines. She testified on direct that
she believed her left foot had been within the
compartment immediately prior to the collision,
"but she didn’t look down." Then she felt a lot
of pain in her left foot and knew her foot was
cut, but she could not recall where her left foot
was caught between the two machines, again
explaining, "I didn’t look down." Following the
accident, Ms. Weir was taken to an emergency room
where an x-ray disclosed no broken bones. Her
cuts were stitched, and she was released the same
day. No bone had been crushed as might have been
expected if her foot had been outside and caught
between the two heavy machines during a
collision.

      Ms. Weir alleged her forklift was defective and
dangerous principally for two reasons. The first
was explained in jury instructions given without
objection as follows:

[W]hen the brake pedal of the "forklift" is
raised very slightly, the electric drive motor is
disconnected and the driver is unable to stop the
rider by plugging (reversing the motor). If the
operator’s right foot is crossed over onto the
brake pedal at that point, the brake pedal will
not rise high enough for the brake to engage, but
is high enough to disconnect the drive motor.

It is the left foot, as previously explained,
which is to be used to activate the brake pedal
by the operator bending her left knee which
raises her left heel permitting the brake pedal
to rise, activating the brake and shutting off
the power. Ms. Weir’s experts hypothesized that
her right foot inadvertently crossed over to the
brake pedal. That prevented the brake from rising
high enough to engage, but, despite the cross-
over, the pedal could rise high enough to
disconnect the drive motor, disabling the
plugging feature and resulting in total brake
failure. That, it is argued, was the first defect
contributing to Ms. Weir’s injury.

      The other alleged defect concerned the absence
of a barrier on the exit/entrance opening to and
from the operator’s compartment. Ms. Weir desired
to show, through expert testimony, that had there
been a barrier on the entrance/exit it would have
prevented her injury and, furthermore, that the
use of a barrier was a cost-effective remedy. The
district court excluded all of the barrier
evidence, and an offering of proof was made by
one of Ms. Weir’s experts.

ANALYSIS

      First, we consider the district court’s
exclusion from evidence of certain Crown records,
specifically accident reports, sought to be
introduced by Ms. Weir at trial. During
discovery, Crown turned over more than 1,000
reports of accidents dealing with Crown
forklifts. These reports typically were generated
by dealers, service people, salespeople, and
owners of Crown forklifts who either experienced
or learned of accidents involving Crown forklifts
and then compiled information regarding these
accidents into reports. In a pretrial order, the
court stated that it would allow only those
reports which detailed "a failure of the brakes
to operate under the circumstances facing Wier
[sic]." When asked for clarification of this
ruling during trial, the district court stated
that it would allow into evidence those accident
reports which involved a failure both of the
plugging mechanism and of the deadman brake
together with pre- and post-accident testing
showing both brakes to be working. During the
direct examination of one of Ms. Weir’s expert
witnesses, counsel for Weir identified 162
accident reports. However, after the expert
conceded that some of those reports did not
involve both plugging and deadman brake failure,
the district court admitted only twenty-seven of
the reports into evidence.

      "Evidence which is not relevant is not
admissible." Fed. R. Evid. 402. However, even
relevant evidence may be excluded based on "the
danger of unfair prejudice, confusion of issues,
or misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence." Fed. R.
Evid. 403. "Evidence of other accidents in
products liability cases is relevant to show
notice to the defendant of the danger, to show
existence of the danger, and to show the cause of
the accident." Nachtsheim v. Beech Aircraft
Corp., 847 F.2d 1261, 1268 (7th Cir. 1988); see
also Ross v. Black & Decker, Inc., 977 F.2d 1178,
1185 (7th Cir. 1992). "However, before such
evidence will be admitted, the proponent must
show that the other accidents occurred under
substantially similar circumstances." Nachtsheim,
847 F.2d at 1268 (emphasis in original). We
review a district court’s decision to admit such
evidence for abuse of discretion. Ross, 977 F.2d
at 1185. In the present case, the accident
reports were intended to show that the type of
Crown forklift in question was dangerous based on
a showing that these forklifts suffered from a
design defect which resulted in brake failures
such as that which allegedly caused Ms. Weir’s
injury.

      In Nachtsheim, this court explained its view of
substantial similarity as well as can be said:

The foundational requirement that the proponent
of similar accidents evidence must establish
substantial similarity before the evidence will
be admitted is especially important in cases such
as this where the evidence is proffered to show
the existence of a dangerous condition or
causation. The rationale for this rule is simple.
In such cases, the jury is invited to infer from
the presence of other accidents (1) that a
dangerous condition existed (2) which caused the
accident. As the circumstances and conditions of
the other accidents become less similar to the
accident under consideration, the probative force
of such evidence decreases. At the same time, the
danger that the evidence will be unfairly
prejudicial remains. The jury might infer from
evidence of the prior accident alone that ultra-
hazardous conditions existed . . . and were the
cause of the later accident without those issues
ever having been proved. In addition, the costs--
in terms of time, distraction and, possibly,
prejudice-- resulting from such evidence also may
weigh against admissibility.

Nachtsheim, 847 F.2d at 1268-69 (internal
quotations and citations omitted).

      While Ms. Weir argues that the district court
misapplied the substantial similarity test by
adding additional criteria beyond mere brake
failure, we disagree. Ms. Weir’s theory of the
case, developed through the testimony of her
experts, was that the forklift was unreasonably
dangerous based on a design defect which resulted
in brake failure in cases of cross-over as
described above. One of Ms. Weir’s experts,
Daniel Pacheco, was a consulting engineer with
experience in the design of forklifts and the
investigation of forklift accidents. Ms. Weir
sought to show by Pacheco’s testimony that when
the deadman brake pedal operated by the left foot
is raised only slightly the electric drive motor
is disconnected, disabling the plugging feature,
and, yet, the deadman brake does not engage to
stop the machine. Pacheco and another of Ms.
Weir’s experts, Dr. William Ovens, observed that
the malfunction of the deadman brake resulting
from a slight elevation of the brake could be
caused by the operator’s right foot being
"inadvertently" crossed over onto the left brake
pedal which, as previously noted, is intended for
the operator’s left foot, not the right./2 The
testimony of Ms. Weir herself is that she gave
the machine a brake test before she used the
machine and had no braking problems during its
morning use, none until she claims the brakes
failed as she approached the parked forklift.
After the accident, the machine was taken out of
service for testing, and the brake systems
functioned properly. There was no mechanical
misfunction detected or broken parts discovered.
Given these facts, the district court did not
abuse its discretion in limiting the accident
reports admitted to those involving a failure
both of the plugging mechanism and of the deadman
brake together with pre- and post-accident
testing showing both brakes to be working.

      In its order on Ms. Weir’s motion for a new
trial, the district court gave Fed. R. Evid. 802
as an additional basis for its exclusion of the
accident reports. As the district court noted,
the accident reports were of all kinds and were
not created exclusively by Crown but rather
collected from a variety of sources. The reports
were not uniform and contained different levels
of detail. These reports were viewed by the trial
judge as out-of-court statements by declarants
who were not present to testify about the truth
of their reports. There was an obvious hearsay
problem under Fed. R. Evid. 802, and, therefore,
the reports would not be admissible unless
covered by an exception under Fed. R. Evid. 803.
In her brief on appeal, Ms. Weir asserts that the
reports were not excludable under Fed. R. Evid.
802 because they "are expressly excepted by Rule
803(6)." Merely asserting that the reports were
a "report" of "events, conditions, opinions, or
diagnosis, made at the time or near the time" by
"a person with knowledge" and kept in the course
of a regularly conducted business activity and
that it was "the regular practice of that
business activity to make the report" is
insufficient to satisfy Fed. R. Evid. 803(6). As
we mentioned, these reports were collected by
Crown from a myriad of sources and in a variety
of circumstances. The district court personally
examined the reports and found many to be vague,
incomplete, and otherwise confusing. The district
court resolved the dilemma by admitting twenty-
seven of the reports which were of occurrences
substantially similar to the Weir accident. To
have dumped all of these hearsay accident reports
about various brake problems on the jury would
have caused untold juror confusion and possible
prejudice. The accident reports that were
admitted as being substantially similar to her
accident were adequate to make Ms. Weir’s point.

      The one issue which remains to be discussed
concerns the evidence involving the absence of a
door on the open side of the operator’s
compartment. Ms. Weir attempted to show, through
expert testimony, that a barrier of some sort
across the open side of the forklift could and
would have prevented her injury and was a cost-
effective remedy. Under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993),
the district judge has "the task of ensuring that
an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand."

      Before Ms. Weir’s experts testified at trial,
there was a detailed discussion on the record
regarding the admissibility of the expert
testimony. During this discussion, the court
stated that any evidence relating to a barrier
across the open side of the forklift was
irrelevant and inadmissible because the evidence
in the case was that Ms. Weir’s foot was outside
of the running lines of the machine before the
collision and that it was not outside the machine
because of the impact as claimed. The court
expressly noted, given Ms. Weir’s testimony that
her foot was pinned between the machines, it
would have been "impossible" for her foot to have
been forced outside the operator’s compartment by
the impact and then pinned between the machines;
thus a possible door was irrelevant./3 At this
point, counsel for Ms. Weir highlighted the
distinction between the two alternative design
theories that had been proposed relating to the
barrier issue. The first alternative design
involved a door across the open side of the
operator’s compartment. Counsel noted that Crown
had sold over 300 of these doors for standup
forklifts and that these doors had been in actual
use in the field. He informed the court that
Pacheco had studied accident reports from these
door-equipped forklifts which showed that none
had been involved in collisions resulting in
lower limb injury. The second alternative design
was a wedge-shaped barrier which Ms. Weir’s
experts developed.

      During the discussion at trial, counsel for Ms.
Weir drew the court’s attention to the fact that
its order on Crown’s motion in limine did not
expressly address admissibility of the first
alternative design theory which, as previously
noted, involved doors that were in actual
production and use. The court reaffirmed its
belief that any barrier evidence was irrelevant
given the facts of the case and excluded any
expert testimony on the issue. Ms. Weir then
presented an offer of proof in which Pacheco
testified about both the doors and the wedge.
Pacheco testified that, based on the information
he had reviewed, none of the forklifts equipped
with actual doors "encountered a collision
accident that resulted in a lower limb injury."
While Pacheco did not specifically identify the
source of the information he reviewed, it appears
that this opinion was based for the most part on
information contained in Crown accident report
forms. Pacheco also stated that he had recently
reviewed approximately twenty accident reports
that had never been submitted to Crown, but
rather had been compiled by K-Mart, a Crown
customer, relating to accidents involving door-
equipped forklifts. The judge did not say so, but
these reports were no doubt subject to the same
disabilities as the other reports collected from
a variety of sources.

      Following Pacheco’s trial testimony, Ms. Weir
once again asked the court to reconsider its
ruling prohibiting testimony on the barrier
issue. The court declined, stating that Ms. Weir
testified that "she voluntarily put her foot
outside the compartment." Following a recess, the
court corrected itself, stating "I don’t think
there is anywhere in there where Mrs. Weir said
she voluntarily put her foot outside the thing,"
but again declined to change its ruling for other
reasons already stated.

      Ms. Weir concedes that the evidence relating to
the second alternative design, the wedge, was
properly excluded because it had not been
thoroughly tested. However, Ms. Weir argues that
the district court erred in excluding Pacheco’s
testimony regarding the doors. Once again, our
review is for abuse of discretion. Kumho Tire
Co., Ltd. v. Carmichael, 119 S.Ct. 1167, 1176
(1999).

      In reviewing the door issue it must be noted
that one of Ms. Weir’s experts, Dr. Ovens, stated
in a deposition that he did not think that a door
was a good idea. Some of the prior factual review
is applicable to this issue as well. Ms. Weir
testified on direct examination that, to the best
of her knowledge, her left foot was inside the
truck as the collision began, but noted that she
did not look down. On cross-examination, Ms. Weir
testified as follows:

Q: And at the time of the impact your foot, or
at least part of your foot, was outside the
compartment?

A: I never looked down, sir, I don’t know. My
foot was caught between the two trucks. If that
is what you are getting at, yes.

Ms. Weir testified that there was no swerving,
acceleration, bumping, or rough floor to traverse
immediately before the collision which could have
forced her foot outside of the operator’s
compartment. In fact, she had no explanation of
how her foot got out of the compartment. Ms. Weir
admitted that as a part of her training, she was
instructed to keep her feet inside the operator’s
compartment when the forklift was in operation
and that, up to this point, she had never had a
problem doing so. Additionally, Pacheco testified
that in his opinion nothing occurred to force Ms.
Weir’s left foot outside the operator compartment
and stated that he believed "her left foot,
because she thought she had applied the brake,
inadvertently got outside of the compartment."

      In view of the fact Ms. Weir’s machine was
moving "very slowly" and there were no claimed
steering problems, yet the openings of the two
machines were lined up and the machines were only
a few inches apart, it was possible for the jury
to view the evidence as suggesting Ms. Weir
intended to take her machine close enough to the
other to be able to step into the parked machine
from her forklift and move it more quickly and
conveniently than if she had parked her forklift,
dismounted, and then walked over to and climbed
into the parked machine. If that interpretation
was possible under the evidence, it was Ms.
Weir’s disregard of the rules and her own
negligence in stepping from one machine to the
other which caused her injury, not the absence of
a barrier.

      Indiana courts apply a "doctrine of
crashworthiness" under which a manufacturer may
be held liable for injuries sustained in an
accident where a manufacturing or design defect,
although not the cause of the accident, caused or
enhanced a plaintiff’s injuries. Miller v. Todd,
551 N.E.2d 1139, 1140 (Ind. 1990).

Any design defect not causing the accident would
not subject the manufacturer to liability for the
entire damage, but the manufacturer should be
liable for that portion of the damage or injury
caused by the defective design over and above the
damage or injury that probably would have
occurred as a result of the impact or collision
absent the defective design.

Id. at 1142 (quoting Larsen v. General Motors
Corp., 391 F.2d 495, 503 (8th Cir. 1968)). A
product is not considered to be defective under
a crashworthiness analysis merely because the
product failed and caused injury. Instead, a
finding of defectiveness is based on the
conclusion "that the product failed to provide
the consumer with reasonable protection under the
circumstances surrounding a particular accident."
Id. at 1143. Therefore, "a claimant should be
able to demonstrate that a feasible, safer, more
practicable product design would have afforded
better protection." Id.

      There was no evidence that the circumstances
surrounding the accident caused Ms. Weir’s foot
to leave the operator’s compartment. Both of Ms.
Weir’s experts testified that her injury could
have been avoided if she would have stayed within
the compartment. It is clear that the operator’s
compartment, even without a door, provided
reasonable protection under the circumstances of
Ms. Weir’s accident. It should be remembered that
Ms. Weir first was sure her feet were inside the
operator’s compartment and in their proper places
on the pedals at the time of impact. She later
qualified that by saying that she did not
actually look at her feet. However, during her
cross-examination, Ms. Weir claimed she did not
know where her foot was at the time of impact
because she did not look down, but then stated
that her foot was outside of the operator’s
compartment because it got caught between the
machines. Ms. Weir’s own testimony was one of the
weaknesses of her case, and she had the burden of
proof. The district court’s exclusion ruling
could serve to keep the jury from being confused
and misled, and possibly from reaching an
unjustified sympathy verdict for plaintiff. Any
alleged design defect which had nothing to do
with plaintiff’s injury is irrelevant. The
district court did not abuse its discretion in
excluding this evidence as lacking sufficient
foundation.

Affirmed.

FOOTNOTES

/1 See Appendix for an illustration of a forklift
substantially similar to the one Ms. Weir was
operating.

/2 Neither expert interviewed Ms. Weir concerning
the placement of her feet before formulating the
cross-over theory. Ms. Weir’s testimony both in
her deposition and at trial was that her right
and left feet had been in their proper positions
immediately prior to the accident.

/3 The court stated that, given the evidence
presented, the notion that Ms. Weir’s foot was
thrown outside the operator’s compartment by the
impact did not carry any "credibility." When
considered in context, it is clear that the
district court was not engaging in improper
credibility determinations but rather holding
that the evidence presented did not support such
a theory. In fact, immediately prior to making
this determination, the district judge recognized
in his analysis of the admissibility of the
cross-over evidence that the credibility of Ms.
Weir’s testimony was an issue for the jury,
adding that if it were up to him he would have to
find that Ms. Weir was "simply not credible."



     RIPPLE, Circuit Judge, dissenting. I respectfully
cannot accept all of the majority’s analysis. In
my view, the district court improperly rejected
Pacheco’s testimony about the need for a door on
the rider. Accordingly, I would reverse and
remand for a new trial.

      I agree with the majority’s analysis about the
district court’s exclusion of certain accident
reports. The district court has broad discretion
to decide which accident reports are relevant.
"Even when substantial identity of the
circumstances is proven, the admissibility of
such evidence lies within the discretion of the
trial judge." Nachtsheim v. Beech Aircraft Co.,
847 F.2d 1261, 1269 (7th Cir. 1988). As the
majority correctly notes, the reports admitted
were sufficient for Ms. Weir to make her point.

      The district court’s decision to exclude Daniel
Pacheco’s proposed testimony about the need for
a door on the rider cannot, however, be sustained
even under the deferential review that we accord
to trial court determinations about the
admissibility of evidence./1 The court excluded
that part of Pacheco’s testimony because it found
that it was inadmissible under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93
(1993). In examining the correctness of that
determination, we must first place the district
court’s ruling in context and then examine the
criteria of Daubert.

A.

      As the majority observes, Indiana courts
recognize the doctrine of crashworthiness. See
Indiana Code Ann. sec. 33-1-1.5-1 et seq. (West
1996) (product liability); Miller v. Todd, 551
N.E.2d 1139, 1142 (Ind. 1990); see also Whitted
v. General Motors Corp., 58 F.3d 1200, 1205-06
(7th Cir. 1995). The Indiana Supreme Court has
summarized the doctrine as follows:

Any design defect not causing the accident would
not subject the manufacturer to liability for the
entire damage, but the manufacturer should be
liable for that portion of the damage or injury
caused by the defective design over and above the
damage or injury that probably would have
occurred as a result of the impact or collision
absent the defective design.

Miller, 551 N.E.2d at 1142 (citation omitted).
Thus, even if Ms. Weir’s cross-over theory was
rejected by the jury, Ms. Weir could recover from
Crown if she succeeded in showing that the rider
was not crashworthy.

      In a crashworthiness case, the plaintiff must
show that the injury caused by the product was "a
natural and probable consequence which was, or
should have been, reasonably foreseen or
anticipated in light of the attendant
circumstances." Marshall v. Clark Equip. Co., 680
N.E.2d 1102, 1108 (Ind. Ct. App. 1997). Ms. Weir
could have recovered from Crown if Crown should
have anticipated that the absence of a door on
the rider would lead to the type of injury she
suffered. Crown may defend, however, by showing
that Ms. Weir misused the product in an
unforeseeable manner. See id. Thus, even if Crown
is correct that Ms. Weir intentionally had placed
her foot outside the rider, the critical inquiry
for purposes of determining whether the rider is
crashworthy is whether Ms. Weir’s misuse was
reasonably foreseeable.

       The Indiana Court of Appeals’ decision in
Marshall is instructive. In that case, the
plaintiff was injured while backing up a
forklift. See 680 N.E.2d at 1103-04. The
plaintiff argued that the forklift’s design was
defective because it did not include a rear door.
See id. at 1108. The defendants presented a
misuse defense, arguing that the plaintiff had
improperly operated the forklift with his foot
outside the driver’s compartment. See id. The
court found that the jury was required to
determine "whether Marshall’s misuse of the
forklift was reasonably foreseeable." Id. "The
foreseeability of an intervening misuse is
usually a question for the jury." Underly v.
Advance Mach. Co., 605 N.E.2d 1186, 1189 (Ind.
Ct. App. 1993); see also Montgomery Ward & Co. v.
Gregg, 554 N.E.2d 1145, 1156 (Ind. Ct. App.
1990).

      The district court acknowledged Ms. Weir’s
crashworthiness theory in a pretrial order on
Crown’s motion in limine to exclude portions of
Pacheco’s testimony. The court stated, "’Design
defect’ cases frequently arise in the context of
an enhanced injury to the plaintiff caused by the
absence of an alleged safety feature or
alternative design that would have prevented the
injury." R.208 at 2. The court later connected
the doctrine to Pacheco’s proffered testimony,
stating that the lack of a barrier over the
doorway "falls in the category of ’injury
enhancing’ defects." Id. at 4. It then noted that
plaintiffs in an enhanced injury case must
demonstrate, through a "risk-utility" test, that
there was a more cost effective alternative
design available. Id.

      At trial the district court made plain that it
did not think Ms. Weir could proceed with her
crashworthiness claim:

Let me just mention this. I thought I made it
fairly clear that the crash worthiness
circumstance, or any problem with the crash
worthiness was not really what we were going to
do. Any part of the design that you would have
thought aggravated the injury was out because you
have got to build something, you have to test it,
you have to go through all the activities to be
sure that your theory is correct. I think that is
clear from the case law. I’m not making this
stuff up. So I don’t anticipate entertaining
evidence about that.

R.213 at 344-45. It appears from this statement,
read in isolation, that the district court’s
basis for dismissing Ms. Weir’s crashworthiness
claim was that she had not constructed an
alternate model. Such a ruling surely would have
been inappropriate on this record. When the
alternate model discussed by an expert is in
regular commercial production, the expert cannot
be faulted for not building his own prototype,
but instead is allowed to evaluate data relating
to the existing models./2 After trial, however,
the district court explicitly stated that it had
not based its ruling at trial on the fact that
Ms. Weir’s experts had not constructed a model of
their own. Indeed, when Ms. Weir moved for a new
trial, the district court explained that its
basis for dismissing the crashworthiness claim
was the fact that Ms. Weir had offered no
cost/benefit analysis to demonstrate that a door
should have been added to the rider.

      This circuit has acknowledged that, in order to
demonstrate a defect under Indiana law, a
plaintiff must perform a cost/benefit analysis.
See Pries v. Honda Motor Co., 31 F.3d 543, 545
(7th Cir. 1994) ("To demonstrate a defect, the
plaintiff must compare the costs and benefits of
alternative designs."). Pacheco presented such an
analysis in his offer of proof. He testified that
the cost of the doors would be only a small
percentage of the total cost of the forklift. He
stated that accidents involving riders caused
lower limb injuries./3 He testified further that
he had read numerous reports of crashes involving
riders with doors, and in none of them had the
operator suffered an injury to their lower
extremities. Pacheco compared the costs of riders
with and without doors, and also compared the
accident benefits of each. In fact, counsel
specifically asked Pacheco if the benefits of
doors on riders outweighed their costs, and
Pacheco answered yes.

      Because of this proffered testimony, it was
incorrect, unless the requirements of Daubert
were not met, for the district court to conclude
that the plaintiff had offered no cost/benefit
analysis. We have stated that plaintiffs must
offer a more cost-effective design, and Ms. Weir
has fulfilled that obligation. See Anderson v.
P.A. Radocy & Sons, Inc., 67 F.3d 619, 625 n.5
(7th Cir. 1995). Crown argues that Pacheco is
wrong, and that riders with doors were not more
cost-effective than those without; indeed,
another of Ms. Weir’s own experts, Dr. William
Ovens, testified that adding a door would create
numerous problems with the rider. However, there
was evidence in the record from which a
reasonable juror could have concluded that a
rider with a door was more cost-effective than
one without. It was for the trier of fact to
evaluate this testimony.

B.

      Having determined that Ms. Weir should have
been allowed to present her crashworthiness
argument to the jury, I now consider whether
Pacheco’s testimony should have been admitted to
support that argument. I focus here only on that
portion of Pacheco’s testimony in which he
testified that the addition of a door to the
rider would have helped prevent Ms. Weir’s
injury./4

       To be admissible as expert testimony, Pacheco’s
testimony must be based upon valid scientific
knowledge that would assist the trier of fact
with a matter at issue. See Daubert, 509 U.S. at
592-93; Walker v. Soo Line R.R. Co., 208 F.3d
581, 586 (7th Cir. 2000). Although Pacheco’s
qualifications are not at issue in this case, a
district court may reject a proffered expert as
unqualified. See United States v. Vitek Supply
Corp., 144 F.3d 476, 486 (7th Cir. 1998). Even if
an expert is qualified, he need not be allowed to
testify on all subjects. This court has warned
about the dangers of allowing qualified experts
to offer opinions that do not rely on proper
methodologies and are therefore speculative. See
Cummins v. Lyle Indus., 93 F.3d 363, 368 (7th
Cir. 1996); Rosen v. Ciba-Geigy Corp., 78 F.3d
316, 318 (7th Cir. 1996). Further, a district
court may conclude that the testimony would not
assist the trier of fact with a matter at issue,
essentially a relevancy determination. See United
States v. Shay, 57 F.3d 126, 132-33 (1st Cir.
1995).

1.

      As an initial matter, it is not clear that the
district court ever applied the Daubert standards
to this portion of Pacheco’s proffered testimony.
This court has reversed district court decisions
that do not show a proper consideration of the
Daubert factors. See United States v. Hall, 165
F.3d 1095, 1102 (7th Cir. 1999) (describing
earlier proceedings in that case). Here, the
court properly evaluated another portion of
Pacheco’s proffered testimony, his proposed self-
designed alternate design. The court’s order does
not, however, discuss the subject of Pacheco’s
study of accident reports involving forklifts
with compartment doors. There is no point in the
record at which the district court specifically
considers the scientific value of this proffered
testimony.

      Of course, a district court’s ruling is not
defective simply because it failed to recite the
Daubert standards. See Walker, 208 F.3d at 590.
Our focus must be on whether the district court
has applied the principles of Daubert to the
proffered testimony at issue. See Walker, 208
F.3d at 590; Hall, 165 F.3d at 1102. Here, the
district court, although properly rejecting other
parts of Pacheco’s testimony, simply did not
discuss specifically the proffered testimony at
issue.

2.

      In the absence of any explanation from the
district court, its ruling is unknown. However,
assuming that it considered under Daubert this
portion of Pacheco’s proposed testimony, it would
have determined whether Pacheco’s methodology was
scientifically valid and whether that testimony
would have assisted the trier of fact with a
matter at issue. In the following discussion,
therefore, I shall assume, arguendo, that the
district court would have concluded that
Pacheco’s testimony failed both prongs of the
Daubert analysis. Neither conclusion can be
sustained even under our deferential review of
such questions.

      In the district court’s evaluation of the
admissibility of expert testimony, "the focus .
. . must be solely on the principles and
methodology, not on the conclusions they
generate." Cummins, 93 F.3d at 370 (quoting
Daubert, 509 U.S. at 595). In his offer of proof,
Pacheco testified that he has studied the
protection afforded by doors that previously have
been available on forklifts. He claimed to have
reviewed accident reports of forklifts involving
doors and found no such accidents that caused an
injury to the lower extremities. Further, from
those records he determined that injuries were
frequent on riders without doors.

      Pacheco relied on data from accident reports to
determine that more injuries occurred in crashes
involving riders without doors than in crashes
involving riders with doors. Review of reports
and records is an appropriate method for experts
to learn the data about which they plan to
testify. See Walker, 208 F.3d at 591. For
testimony based on reports to be admissible, the
reports themselves must be reliable sources of
information. Federal Rule of Evidence 703 demands
that experts obtaining data from reports use only
reports reasonably relied on by experts in the
field. See Fed. R. Evid. 703; United States v.
Gardner, No. 99-2193, 2000 WL 528331, at *5 (7th
Cir. May 3, 2000). There does not appear to be
any dispute that these accident reports are
reasonably relied upon for the purpose of
obtaining data about rider accidents. First, most
of the reports were prepared by Crown itself for
the purpose of compiling safety histories of its
products./5 Second, when considering Ms. Weir’s
cross-over theory, the district court admitted
numerous accident reports into evidence, as
discussed in the majority opinion. Although Crown
objected that some of these accident reports were
irrelevant to the cross-over theory, it has not
argued that these reports were unreliable. These
reports fulfill the mandate of Rule 703 as
materials reasonably relied upon by experts in
the field.

      Crown focuses on the fact that Pacheco did not
cite any articles supporting his position or
address contrary authority stating that doors are
unnecessary on forklifts. In a Daubert analysis,
it helps to have cited articles; it is not,
however, required. The fact that professional
organizations disagree with Pacheco about the
need for doors--another point raised by Crown--
is a proper subject for cross-examination, and
Crown could have countered Pacheco’s testimony
with experts of its own. That concern goes to the
weight of Pacheco’s testimony, not its
admissibility.

3.

      Even though Pacheco’s testimony was based on
appropriate scientific methodology, the district
court properly could have rejected it if it would
not assist the trier of fact with a matter at
issue in the case. As discussed above, the
district court erred in concluding that the
crashworthiness of the rider was not a matter at
issue in the case. However, had the district
court allowed the crashworthiness theory to
proceed, the existence of a more cost-effective
and crashworthy alternate design would have been
a matter at issue. Establishing the viability of
an alternate design is necessary to show
proximate cause. See Marshall, 680 N.E.2d at
1108. In this regard, Pacheco’s testimony would
have helped Ms. Weir to show that a more cost-
effective alternative design would have been more
crashworthy: he testified that a forklift with a
door could have prevented Ms. Weir’s injury and
that it would have only taken a minimal expense
to improve dramatically the rider’s safety./6
Had the jury been allowed to consider the
crashworthiness issue, Pacheco’s testimony would
have assisted the jury to decide whether a rider
with a door would have been more cost-effective
and more crashworthy.

      The admissibility of Pacheco’s testimony is not
affected by the fact that he did not testify
about the foreseeability of any misuse by Ms.
Weir. In a crashworthiness case, unforeseeable
misuse is an affirmative defense. See Marshall,
680 N.E.2d at 1108; Montgomery Ward, 554 N.E.2d
at 1151-52. The existence of a superior alternate
design was an essential element of Ms. Weir’s
claim; when the district court prevented her from
pursuing that argument, it eliminated the need
for Crown to raise any affirmative defenses.
Further, had Crown raised the defense of
unforeseeable misuse, it would have had the
burden of proving that Ms. Weir’s misuse was not
foreseeable. When an affirmative defense is
raised the burden is on the defendant to
establish its elements. See Schleibaum v. K-Mart
Corp., 153 F.3d 496, 501 (7th Cir. 1998); Get-N-
Go, Inc. v. Markins, 544 N.E.2d 484, 486 (Ind.
1989). Because the district court never allowed
the unforeseeable misuse defense to be raised,
and because, even if the defense had been raised,
Ms. Weir would have been under no obligation to
enter testimony on the subject, the fact that
Pacheco did not discuss the foreseeability of any
misuse does not affect our consideration of
whether Pacheco’s testimony would have assisted
the trier of fact with a matter at issue.

      Crown argues that Pacheco’s testimony was
properly rejected because he argued that, even
with a door, the rider would have been defective
because it did not include a ridge between foot
pedals. The testimony about a ridge, however, was
directed toward showing how Crown could have
prevented a brake failure; his testimony about
compartment doors was directed toward showing how
Crown could minimize the potential for injury in
the event of a brake failure. Whether Pacheco
thought that the rider would still be defective
if a door was added was immaterial; what was
important was his scientifically-grounded
testimony that the addition of a door would
reduce the chance of injury to lower extremities
in the event of a crash.

      The majority’s conclusion that Pacheco’s
testimony was properly excluded rests in part on
the fact that the district court was attempting
to minimize confusion over Ms. Weir’s
contradictory statements about the position of
her feet. It is true that Ms. Weir’s own
testimony on the subject of the position of her
feet at the time of the crash was inconsistent.
However, even if we indulge in the assumption
most favorable to Crown--that Ms. Weir
intentionally placed her foot outside the running
lines of the rider--Pacheco’s testimony about the
need for a door on the rider was still relevant
because a jury could have concluded that Crown’s
design caused an enhancement to Ms. Weir’s injury
and awarded her partial recovery under Indiana’s
crashworthiness doctrine. This would not be "an
unjustified sympathy verdict," as the majority
characterizes it, but would instead be exactly
the sort of recovery the crashworthiness doctrine
was intended to facilitate. Therefore, this
design defect was not irrelevant to Ms. Weir’s
injury.

      Pacheco’s opinion on the need for doors on the
forklift was grounded in proper research
methodologies and should have been admitted. From
this testimony, a reasonable jury could have
inferred that, even if the forklift’s brakes
failed, Ms. Weir’s injury could have been
prevented by Crown. I would remand the case for
a new trial at which this portion of Pacheco’s
testimony would be admitted.

FOOTNOTES

/1 Pacheco also at one point offered testimony about
an elaborate design change, and on appeal Ms.
Weir concedes that the district court correctly
excluded that testimony.

/2 In design defect cases, courts have frequently
noted the testimony of experts comparing
allegedly defective products to safer designs
already in existence. See Chaulk v. Volkswagen of
America, 808 F.2d 639, 642-43 (7th Cir. 1986);
accord Violette v. Smith & Nephew Dyonics, Inc.,
62 F.3d 8, 13 (1st Cir. 1995); Miles v. Olin
Corp., 922 F.2d 1221, 1227 (5th Cir. 1991);
Johnson v. Colt Indus. Operating Corp., 797 F.2d
1530, 1535 (10th Cir. 1986); Martin v. Michelin
N. Am., 92 F. Supp. 2d 745, 752 (E.D. Tenn. 2000)
(memorandum); Bush v. Michelin Tire Corp., 963 F.
Supp. 1436, 1446 (W.D. Ky. 1996) (memorandum).

/3 Pacheco was allowed to testify at trial about the
dangers of riding forklifts. Pacheco testified
that forklift accidents occur at "a fairly high
frequency," and that when one occurs there is "a
very great chance that the injury will be very
serious." R.218 at 613.

/4 See note 1, supra.

/5 Some of the accident reports relied upon by
Pacheco in evaluating injuries on forklifts with
doors came from K-Mart, a Crown customer.

/6 Pacheco’s testimony about the need for a door was
relevant only to a crashworthiness claim; there
is no argument that the absence of a door caused
Ms. Weir’s rider to collide with the parked
rider.


APPENDIX
