In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1955

Balkar Dhillon,

Plaintiff-Appellant,

v.

Crown Controls Corporation, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 4428--George W. Lindberg, Judge.

Argued January 25, 2001--Decided October 23, 2001


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

  Diane P. Wood, Circuit Judge. The
standards for the admission of expert
testimony established in Daubert v.
Merrill Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), are not extremely rigid.
Yet they are not toothless, as this case
shows. The Daubert requirements ensure
that expert testimony is based on
reliable knowledge and methodology. When,
as in this case, an expert has not
engaged in any type of testing of his
offered "alternative design," it is not
an abuse of discretion for the district
court to refuse to allow such testimony.
Accordingly, we affirm the district
court’s exclusion of the plaintiff’s
expert testimony and the dismissal of the
plaintiff’s complaint.

I

  As an employee in the shipping
department at Tandy Rank Video (Tandy),
Balkar Dhillon operated a stand-up
forklift truck. The truck had been
designed, manufactured, and distributed
by defendant Crown Controls Corp.
(Crown); defendant Crown Credit Company
leased it to Tandy. The truck model Tandy
had was designed to be operated from a
side-stance, stand-up position, at a
maximum speed of six miles per hour. The
operator compartment is fully enclosed
with the exception of a rear opening used
to get on and off the truck. From the
side-stance position, the operator is
able to observe both the forward and the
reverse direction of travel; the forks
are to the operator’s right and the
opening in the compartment is to the
operator’s left. The truck’s braking
method operates in a way opposite of the
traditional vehicle break--when the brake
is depressed, the forklift will move;
when the brake pedal is up, the brake is
activated and the truck will not move.

  On February 24, 1990, Dhillon was
operating the forklift truck in reverse
at about two miles per hour, heading for
a telephone affixed to an I-beam so that
he could respond to a page. For some
reason, Dhillon allowed the forklift to
get too close to the beam; fearing a
collision, he attempted to shift the
truck into the forward gear rather than
apply the brake. When he shifted gears,
the truck jerked, causing his left leg to
slip out of the operator’s compartment
and become pinned between the beam and
the truck. Dhillon suffered severe and
permanent injury to his leg and sued
Crown in strict liability and negligence.

  In his suit, Dhillon did not argue that
there were any defects particular to the
forklift he had been using; after the
accident, the truck was used and
inspected and found to be in proper
working order. Instead, he claimed that
the design of the truck was defective
because the truck did not have a rear
door (rather than just the opening) on
the operator’s compartment that would
have prevented his leg from falling off
the truck. Additionally, Dhillon
complained about the truck’s braking
systems, the operator’s controls, and the
inadequacy of the instructions and
warnings.

  The district court had removal
jurisdiction based on diversity of
citizenship between Dhillon (an Illinois
citizen) and the defendants, which were
all incorporated and with their principal
places of business in Ohio; the amount of
alleged lost wages alone exceeded
$100,000. Prior to trial, the plaintiff
sought the admission of evidence to be
provided by two expert witnesses, John B.
Sevart, a mechanical engineer, and Dr.
Gerald Harris, a biomechanical engineer.
Both would have testified about an
alternative design--an operator’s
compartment with a rear door--and would
have opined that Crown’s failure to equip
the truck with a rear door was the
proximate cause of Dhillon’s injuries and
that adding a rear door would not have
increased any risks to the operator.
Sevart also would have stated that Crown
was negligent in failing to provide
appropriate warnings and instructions as
to the availability of a rear door.
Harris was prepared to add that a rear
door would have prevented Dhillon’s
injury. Dhillon had no expert who would
have addressed the design of the braking
system or the operator’s controls. The
court, after applying Daubert, concluded
that neither Sevart’s nor Harris’s
testimony was entitled to pass through
the evidentiary "gateway" that case
establishes. Finding that without this
expert testimony Dhillon could not
possibly prevail, the court granted
summary judgment for the defendants on
March 13, 2000, and dismissed the suit.

II

  We review de novo whether the district
court’s grant of summary judgment was
proper. That is the case only when there
is no genuine issue of material fact (or,
as we sometimes put it, the record
reveals that no reasonable jury could
find for the moving party), and the
moving party is entitled to judgment as a
matter of law. See Karazanos v. Navistar
Int’l Transp. Corp., 948 F.2d 332, 335
(7th Cir. 1991). Because Dhillon does not
dispute the district court’s conclusion
that, without the proffered expert
testimony, he could not prevail, we only
review the district court’s exclusion of
the expert testimony.

   Under Federal Rule of Evidence 702 and
the principles of Daubert, a district
court judge is to act as a "gatekeeper"
for expert testimony, only admitting such
testimony after receiving satisfactory
evidence of its reliability. 509 U.S. at
589. We note that the district court’s
ruling was made prior to the April 17,
2000, amendment to Rule 702, which took
effect on December 1, 2000. That
amendment was designed to "affirm[ ] the
trial court’s role as gatekeeper and pro
vide[ ] some general standards that the
trial court must use to assess the
reliability and helpfulness of proffered
expert testimony." Fed. R. Evid. 702,
advisory committee’s note, 2000
amendments. Because the district court
evaluated the evidence under the then-
prevailing Daubert framework, and because
we see nothing in Dhillon’s case that
would be affected by the amendment, we
too look principally to the pre-amendment
cases./1 Under Daubert, the court is to
determine (1) whether the expert will
testify to valid scientific or other
expert knowledge based on sound
methodology and (2) whether the testimony
will assist the trier of fact with a fact
at issue. 509 U.S. at 592. Even prior to
the amended rule, the Supreme Court had
established that expert testimony that is
more technical than scientific is
governed by the same criteria as the
admission of scientific expert testimony.
Kumho Tire Co. v. Carmichael, 526 U.S.
137, 141 (1999). Neither party disputes
that the district court judge properly
applied the Daubert framework. We
therefore review the decision to exclude
Dhillon’s proffered expert testimony only
for abuse of discretion, asking whether
the judge has relied on a forbidden
factor or failed to consider an essential
factor. See General Electric Co. v.
Joiner, 522 U.S. 136, 139 (1997); Smith
v. Ford Motor Co., 215 F.3d 713, 717 (7th
Cir. 2000).

  With regard to the first tier of
analysis, Daubert offers a non-exclusive
list of factors to aid judges in
determining whether particular expert
opinion is grounded in reliable
scientific methodology. Among the factors
articulated are: (1) whether the
proffered theory can be and has been
tested; (2) whether the theory has been
subjected to peer review; (3) whether the
theory has been evaluated in light of
potential rates of error; and (4) whether
the theory has been accepted in the
relevant scientific community. Daubert,
509 U.S. at 593-94.

   We could identify a number of problems
with the testimony these witnesses were
prepared to offer, but the most glaring
among them is the lack of testing, or
more generally the failure to take any
steps that would show professional rigor
in the assessment of the alternative
designs (or, as the amended rule puts it,
that the testimony is "the product of
reliable principles and methods").
Although both experts wanted to assert
that the truck design was defective
because it did not include a rear door,
neither expert has actually designed a
model of a forklift truck with a rear
door. Nor has either performed any tests
of such a model to see if it is both
economically feasible and just as safe or
safer than the model without the door. In
alternative design cases, we have
consistently recognized the importance of
testing the alternative design. See
Bourelle v. Crown Equip. Corp., 220 F.3d
532, 535-38 (7th Cir. 2000); Cummins v.
Lyle Industries, 93 F.3d 362, 368 (7th
Cir. 1996). In deciding whether an
alternative design is appropriate, an
expert needs to look at a number of
considerations: "the degree to which the
alternative design is compatible with
existing systems . . .; the relative
efficiency of the two designs; the short-
and long-term maintenance costs
associated with the alternative design;
the ability of the purchaser to service
and to maintain the alternative designs;
the relative cost of installing the two
designs; and the effect, if any, that the
alternative design would have on the
price of the machine." Cummins, 93 F.3d
at 369. Many of these considerations are
product- and manufacturer-specific and
cannot be reliably determined without
testing. Id. This case illustrates why
these questions are crucial. In some
environments, the record suggests that
the presence of a rear door could
exacerbate injuries to the operator by
slowing an escape from a forklift tipping
over or falling off of a dock.

  It turns out that Sevart (at least) did
conduct tests in 1991 and 1997 of
forklift trucks with and without rear
doors, but that does not improve
Dhillon’s case. These tests were not put
before the court, they were not otherwise
made part of the record, they were
performed after Sevart had already formed
his opinion, and they were performed on a
differently designed truck with a
different operator’s position.
Furthermore, Sevart did not explain how
these past tests had led to his
conclusions about the need for a rear
door. Without a more detailed explanation
of these tests and Sevart’s methodology,
a court cannot possibly assess the tests’
reliability, and the defendant cannot
attempt to duplicate the results. Of
course, hands-on testing is not an
absolute prerequisite to the admission of
expert testimony, but the theory here
easily lends itself to testing and
substantiation by this method, such that
conclusions based only on personal
opinion and experience do not suffice.
See Cummins, 93 F.3d at 369.

  With regard to the inadequate
warning/instructions claim, the same
requirements apply. Sevart has not
designed or suggested to the court an
alternative warning that would have been
appropriate or tested its effectiveness.
See Bourelle, 220 F.3d at 539 ("The fact
that [the expert witness] never even
drafted a proposed warning renders his
opinion akin to ’talking off the cuff’
and not accepted methodology.").

  Of course, Daubert is a flexible test
and no single factor, even testing, is
dispositive. See Kumho Tire, 526 U.S. at
151-52; Smith, 215 F.3d at 719. But there
is no evidence that the experts’
testimony satisfies the other Daubert
guideposts used to examine reliability of
the methodology. Neither Sevart nor
Harris has provided any evidence that the
rear door proposal has been favorably
subject to peer review or generally
accepted in the relevant communities. The
plaintiff could not point to even one
forklift manufacturer that has installed
rear doors for general application or
even one regulatory body or standards
organization that requires or recommends
a rear door on forklift stand-up trucks.
To the contrary, the record shows that
Sevart has twice tried to persuade the
professionals on the American National
Standards Institute committee to require
a rear door; the committee has twice
rejected the idea.

  For the second tier of the analysis, the
Supreme Court has directed the courts to
consider whether the testimony assists
the trier of fact in understanding the
evidence or determining a fact in issue.
Daubert, 509 U.S. at 591-92. This second
tier analysis is fatal to the testimony
of Dr. Harris regarding his
"biomechanical" testimony that a leg can
fall through an opening and a leg cannot
fall out through a closed door. In his
brief, plaintiff’s counsel stated that
"[p]lain ordinary common sense tells us
if one is standing straight and there is
a sudden jerking movement, one’s body
will tend to fall one way or another
depending upon the direction of the
motion. Going one step further in
plaintiff’s case it is clear that because
there was no door on the left side his
leg went out; if there was a door the
left leg would have stayed in. It’s that
simple. It really shouldn’t take a rocket
scientist to figure this one out." We
agree that such an idea is based on
common sense. This means, however, that
the district court was well within bounds
to conclude that expert testimony on the
effect of a rear door to keep an
operator’s legs in the compartment was
inadmissible. "[A]n expert . . . must
testify to something more than what is
’obvious to the layperson’ in order to be
of any particular assistance to the
jury." Ancho v. Pentek Corp., 157 F.3d
512, 519 (7th Cir. 1998). Of course, the
jury could have been assisted by
testimony on whether a rear door would be
economically feasible or safe in the case
of a tip-over. But, as we explained
above, neither Sevart nor Harris had per
formed the proper analyses to allow them
to provide such testimony.

  This is not the first time that we have
encountered a fork- lift accident in
which the principal theory focused on the
design of the lift. In Bourelle, 220 F.3d
532, a product liability case, the
plaintiff’s expert claimed that an
alternative design (a larger wire cage
surrounding the operator) and an
alternative warning should have been
implemented. We upheld the district
court’s determination that the testimony
was not admissible under Daubert. Like
the experts here, the expert in Bourelle
admitted that: (1) he had not prepared a
model of his alternative design nor a
proposed warning; (2) he had not done any
testing of the alternative design or
warning to show that they were both safer
and economically feasible; (3) no lab or
organization had tested his designs; (4)
no manufacturer had incorporated the pro
posed designs; and (5) no organization
had approved of his theories. Id. at 537-
38. Although Dhillon’s case was pending
before June 2000, when Bourelle was
decided, Bourelle appeared a good six
months before oral argument in this case,
and it would be hard to have a closer
precedent to follow. We do so here and
AFFIRM the district court’s dismissal of
the plaintiff’s complaint on summary
judgment grounds.

FOOTNOTE

/1 The amended rule allows the district court, after
assessing the expert’s qualifications, to admit
expert testimony if "(1) the testimony is based
upon sufficient facts or data, (2) the testimony
is the product of reliable principles and meth-
ods, and (3) the witness has applied the princi-
ples and methods reliably to the facts of the
case." Fed. R. Evid. 702.
