                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1053n.06

                                    Nos. 11-3935 and 11-4276                          FILED
                                                                                  Oct 05, 2012
                           UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


CAROL L. LAWRENCE, individually and as mother              )
and next friend on behalf of B.J. and on behalf of M.J.,   )
                                                           )
       Plaintiff-Appellant,                                )
                                                           )
v.                                                         )
                                                           )   ON APPEAL FROM THE UNITED
RAYMOND CORPORATION,                                       )   STATES DISTRICT COURT FOR
                                                           )   THE NORTHERN DISTRICT OF
       Defendant-Appellee,                                 )   OHIO
                                                           )
v.                                                         )
                                                           )
LOWE’S HOME CENTERS, INC.,                                 )
                                                           )
       Cross-Claimant-Appellant.                           )



       Before: ROGERS and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*

       KETHLEDGE, Circuit Judge. Carol Lawrence injured her foot while operating a Raymond

Corporation forklift. Lawrence filed suit against Raymond under Ohio law for defective design and

for failure to warn. Lawrence also sued Lowe’s Home Centers, Inc., for whom she was working

when she was injured. Lowe’s filed a subrogation claim against Raymond. The district court

granted Raymond summary judgment. Lawrence and Lowe’s appeal. We affirm.




       *
        The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 11-3935
Lawrence v. Raymond Corp.

                                                  I.

       On April 6, 2007, Lawrence used a Raymond forklift to move a pallet of materials off of a

truck at work. Lawrence backed the forklift away from the pallet after setting the pallet down.

While backing away, her foot somehow left the forklift’s operator compartment and was crushed

between the forklift and a support column. Lawrence does not recall how the accident occurred. The

last thing she remembers was driving away from the pallet.

       Raymond designed the forklift that Lawrence was using so that the driver has to stand up

while driving. The forklift also has an open rear entrance, which allows the user to step into and out

of the forklift. Raymond manufactures a door for the forklift’s rear entrance, but it must be

purchased separately. The door is designed to keep objects out of the operator compartment rather

than to keep them in.

       Lawrence sued Raymond for compensatory and punitive damages, alleging that the forklift

was defectively designed, and that Raymond did not adequately warn her of the forklift’s dangers.

Lawrence also sued Lowe’s, which then filed a subrogation claim against Raymond. Lawrence later

settled her claim against Lowe’s. Lowe’s subrogation claim depends entirely on Lawrence’s success

against Raymond.

       Lawrence hired Thomas Berry, a mechanical engineer, to be an expert witness. Berry opined

that all stand-up, rear-entry forklifts that lack a latching door on the operator compartment are

defectively designed. According to Berry, a latching door would have prevented Lawrence’s injury

because her leg would have remained inside the forklift.



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No. 11-3935
Lawrence v. Raymond Corp.

       Raymond filed a motion in limine to exclude Berry’s testimony. Raymond also filed a

motion for summary judgment. The district court granted both motions.

       This appeal followed.

                                                 II.

                                                 A.

                                                 1.

       Lawrence challenges the district court’s grant of summary judgment to Raymond on her

design-defect claim. We review the district court’s summary judgment decision de novo. Newell

v. Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 526 (6th Cir. 2012).

       Lawrence contends that the forklift was defective because it did not include a latching door.

To prevail, Lawrence must prove that a latching door was practical, technically feasible, and that it

would have prevented her injury. See Ohio Rev. Code § 2307.75(F); see also Francis v. Clark

Equip. Co., 993 F.2d 545, 552 (6th Cir. 1993). To make that showing here, Lawrence relies on two

pieces of evidence. First, she notes that Raymond markets a non-latching door. But she cites no

evidence to show that a non-latching door would have prevented her injury. (In fact, Lawrence

argues that only a latching door would have prevented her injury.) Second, she relies on Berry’s

testimony that a latching door is compatible with the Raymond forklift, that its benefits outweigh

its risks, and that it would have prevented her injury. But the district court excluded Berry’s

testimony as unreliable. Thus the question here is whether the district court was right to do so.




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No. 11-3935
Lawrence v. Raymond Corp.

                                                   2.

        We review for abuse of discretion a district court’s decision to exclude an expert witness.

Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012). “A district court

abuses its discretion if it bases its ruling on an erroneous view of the law or a clearly erroneous

assessment of the evidence.” Brown v. Raymond Corp., 432 F.3d 640, 647 (6th Cir. 2005).

        The admissibility of expert witness testimony is governed by Rule 702 of the Federal Rules

of Evidence, which provides that an expert witness can testify as to her opinion so long as “(1) the

testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles

and methods, and (3) the witness has applied the principles and methods reliably to the facts of the

case.” Fed. R. Evid. 702 (2010) (amended Dec. 1, 2011 for stylistic reasons only, see cmt. 2011

amends.). When considering the admissibility of an engineering expert’s testimony, district courts

have broad discretion to determine what factors to consider. See Kumho Tire Co. v. Carmichael, 526

U.S. 137, 150 (1999). A district court can also analyze more rigorously the admissibility of an

expert’s testimony if the expert’s opinion was prepared solely for litigation. Johnson v. Manitowoc

Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007) (collecting cases).

        Here, the district court examined Berry’s testimony more closely because it concluded that

Berry’s opinion was the result of his litigation work on other cases. The district court concluded that

Berry’s testimony was unreliable because it had not been tested and was not at all accepted in the

relevant scientific community. See generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 593–94 (1993).



                                                  -4-
No. 11-3935
Lawrence v. Raymond Corp.

        Lawrence argues that Berry’s opinion was not prepared solely for litigation. A proposed

expert’s opinion is not prepared solely for litigation when the expert is “testify[ing] about matters

growing naturally and directly out of research [he] ha[s] conducted independent of litigation.”

Johnson, 484 F.3d at 325. Here, Berry testified that his knowledge of and experience with forklift

operation and design is almost all the result of his work as a consultant in forklift-accident cases.

Berry formed his opinion regarding the need for latching doors in 1990 after he tried to put one on

a forklift. At the time, Berry was working for an engineering firm that consulted on forklift-accident

litigation. Berry’s testimony demonstrates that he conducts very little non-litigation-related research.

The district court’s conclusion that Berry was a “quintessential expert for hire” was not clearly

erroneous.

        Lawrence next argues that Berry’s opinion was reliable. She first contends that Berry

adequately tested his latching-door theory. In forklift design-defect cases, an expert must test a

proposed alternative design and be able to speak to the design’s comparative benefits and risks. See

Newell Rubbermaid, 676 F.3d at 527–28. Here, Berry only tested his latching-door design once. But

that test was on a different manufacturer’s straddle-type fore-aft forklift (in which the operator can

either face forwards or backwards).          The Raymond forklift Lawrence was using was a

counterbalanced, side-stance forklift (in which the operator faces sideways). The test Berry

conducted therefore did not address the “product- and manufacturer-specific” issues with his

alternative design, such as whether the latching-door design is compatible with the Raymond forklift;

the impact a latching door would have on maintaining a Raymond forklift; or what effect, if any, a

latching door would have on the forklift’s price. See Id. at 528; see also Dhillon v. Crown Controls

                                                  -5-
No. 11-3935
Lawrence v. Raymond Corp.

Corp., 269 F.3d 865, 870 (7th Cir. 2001) (listing the factors an expert should consider when deciding

whether an alternative design is possible).

        Moreover, Berry’s test did not demonstrate his design’s comparative benefits and risks. The

purpose of the test was to disprove the generally accepted view that latching doors are more

dangerous because they delay an operator’s exit during the two most common type of forklift

accidents—tip-over and off-the-dock. During the test, Berry remained in the operator compartment

of a forklift while it was tipped 90 degrees onto a concrete floor. According to Berry, his lack of

injury demonstrated that when a forklift tips over, an operator is safest within the forklift, making

the increased exit time caused by a latching door irrelevant. But Berry did not perform an off-the-

dock test. And he conceded that tests showed that the presence of a latching door actually creates

a safety hazard by increasing the amount of time it takes for an operator to exit the forklift. We agree

with the district court that Berry’s theory regarding latching doors was insufficiently tested.

        Finally, Lawrence argues that the district court erred by excluding Berry’s testimony on the

ground that his conclusion was not generally accepted. Lawrence contends the court should have

instead considered whether the methodology Berry used was generally accepted. But the district

court correctly found that, far from being generally accepted, Berry’s theory is almost universally

rejected by the relevant scientific community. That finding was well supported: The American

National Standards Institute almost unanimously rejected a proposal to require latching doors on

stand-up forklifts. (Berry was the only member who voted in favor of the proposal, which had been

submitted by Berry’s boss.) And not a single forklift manufacturer markets stand-up, rear-entry

forklifts with latching doors.

                                                  -6-
No. 11-3935
Lawrence v. Raymond Corp.

       The district court did not abuse its discretion when it excluded Berry’s testimony as

unreliable. And without Berry’s testimony, Lawrence cannot survive summary judgment on her

design-defect claim.

                                                  B.

       Lawrence argues that the district court should not have granted Raymond summary judgment

on her failure-to-warn claim. To prevail under Ohio law, Lawrence had to prove, among other

things, that Raymond had a duty to warn her. Freas v. Prater Constr. Corp., 573 N.E.2d 27, 31

(Ohio 1991). A manufacturer has a duty to warn if it “knew or, in the exercise of reasonable care,

should have known about [the] risk” that allegedly caused the plaintiff’s injury, so long as that risk

was not “open and obvious . . . or . . . a matter of common knowledge.” Crislip v. TCH Liquidating

Co., 556 N.E.2d 1177, 1182 (Ohio 1990). Here, the district court found that the risk identified by

Lawrence—“crush injuries to the left foot or ankle”—was an obvious danger.

       Lawrence contends that the district court misidentified the risk about which Raymond had

a duty to warn. According to Lawrence, she was injured because the forklift “jarred” her. She

implies that this risk was not obvious and that Raymond therefore had a duty to warn her about it.

       Lawrence points to no evidence, however, that the relevant risk here was that the forklift

would jar her out of the operator compartment. And she concedes she cannot remember what

happened during the accident, and merely assumes she must have been jarred. Lawrence did not

present to the district court evidence creating a genuine issue that her injury was caused by a risk of

“jarring.” That defeats her failure-to-warn claim.

       The district court’s judgment is affirmed.

                                                 -7-
