United States Court of Appeals

Fifth Circuit



## FILED

December 15, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-60760

MICHELLE GUY,

Plaintiff-Appellant,

versus

CROWN EQUIPMENT CORPORATION; ET AL.,

Defendants,

CROWN EQUIPMENT CORPORATION,

Defendant-Appellee.

On Appeal from the United States District Court

for the Northern District of Mississippi

(3:02-CV-126-SAA)

Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For her design defect claim under the Mississippi Products

Liability Act, M ISS

. C ODE A NN

. § 11-1-63 et seq. (MPLA), Michelle Guy

challenges judgment as a matter of law awarded Crown Equipment

Corporation, fo llowing Guy’s case in chief. Guy contends the

district court reversibly erred by excluding Guy’s intended expert

witness before trial and by excluding certain evidence offe red

during Gu y’s examination of Crown’s expert, called as an adverse

witness. In addition, Guy claims she presented sufficient evidence2

during her case in chief to avoid judgment as a matter of law

against her MPLA design defect claim. AFFIRMED

.

I.

In 1999, Guy was injured at work in Mississippi while

operating an electric stand-up lift truck, mo del RR3540-45, unit

R112 (forklift), which was manufactured by Crown and was shipped to

Guy’s employer in 1995. Pursuant to the forklift’s design, the

operator enters the operator compartment at the e nd opposite the

forks and, to operate the forklift, stands facing sideways to the

forks. In that operating position, the compartment opening is to

the left; the forks, to the right. Except for the compartment

opening, which is wide enough for a person to enter sideways, the

operator compartment is enclosed by four waist-high “walls”. The

forks apparatus raises 198 inches, and there is an overhanging

“roof” that protects the operator from above. When operating the

forklift, the operator leans back against a padded back and hip

rest, which wraps around the wall the operator leans against.

When injured, Guy was operating the forklift in a “forks

following” manner (operator-compartment opening moving forward and

forks behind); the forklift hit metal rail ings on a warehouse

floor. In that operating mode, the operator-compartment opening

was moving toward the railings when the collision occurred. The

forklift’s maximum speed is six miles per hour; Guy testified she

was traveling at about half-speed when she hit the railings. The3

d istance from the operator-compartment opening to the operator’ s

left foot is approximately six inches. The impact caused Guy to

lose her balance, and her left leg came out of the operator

compartment through the opening. Guy’s left leg was crushed

between the forklift and the railings.

Guy sued Cro wn in Mississippi state court for, i nter alia

,

strict liability unde r the MPLA, claiming: the forklift was

defectively designed; and Crown failed to warn of the danger of a

left-leg injury. Crown removed the action to federal court, based

on diversity jurisdiction. The parties agreed to proceed before a

magistrate judge. See 28 U.S.C. § 636(c).

In support of her primary MPLA claim, Guy intended to present

expert te stimony through John Lohman that the forklift was

defectively designed because it lacked either an operator restraint

(similar to a seat belt) or a door for the operator-compartment

opening. Crown moved i n limine to exclude Lohman as an expert

witness, asserting his testimony was unreliable and, therefore,

inadmissible under Federal Rule of Evidence 702 (testimony by

experts) and the test provided by Daubert v. Merrell Dow

Pharmaceuticals, Inc.

, 509 U.S. 579 (1993). The district court

granted the motion, ruling, inter alia

, that Lohman had not

presented any definitive theory, opinion, or MPLA feasible design

alternative (discussed infra ) that could be tested to prove the

dangerousness vel non of Crown’s forklift.4

At trial, Guy presented only MPLA claims for design defect and

failure to warn. To do so, Guy called as an adverse witness Dan

Dunlap, Crown’s Man ager of Product Engineering (a Crown employee

since 1978). Dunlap testified that one reason the forklift was

designed without an operator-compartment door was to make it easier

for the operator to exit the forklift in “tip-over” accidents,

where the forklift falls on its side, and in “off-the-dock”

accidents, where the operator mistakenly drives the forklift off a

loading dock.

During Dunlap’s testimony, Guy offered as evidence reports,

obtained from Crown through discovery, of prior accidents involving

all models of Crown forklifts. There were approximately 2,400

reports, but only 360 concerned left-leg injuries like Guy’s. The

district court excluded non-left-leg injury reports.

Along this line, Guy attempted to question Dunlap about a

sur vey showing K-Mart employees preferred using forklifts with

operator-compartment doors. K-Mart had purchased Crown forklifts,

similar to the one on which Guy was injured, but with such doors.

The district court excluded these surveys.

Following Guy’s case in chief, Crown moved for judgment as a

matter of law, under F ED

. R. C IV

. P . 50(a)(1), contending Guy did

not present sufficient evidence for a reasonable jury to decide in

her favor under the MPLA on eithe r the failure to warn or design

defect claims. The motion was granted.5 II.

The MPLA’s substantive provisions became effective on 1 July

1994 and apply to all actions filed after that date. S ee M ISS

. C ODE

A NN

. § 11-1-63 note (1993); Clark v. Brass Eagle, Inc.

, 866 So.2d

456, 460 (Miss. 2004). The injured party must prove, by a

preponderance of the evidence, that, when the product left the

manufacturer: “[t]he product was defective”; that defect “rendered

the product unr easonably dangerous”; and that “condition ...

proximately caused the” injury. S ee M ISS

. C ODE A NN

. § 11-1-63(a).

A defect that renders a product unreasonably dangerous can result

from several situations. In general, the product: (1) “deviated

in a material way from the manufacturer’s specifications”; (2) did

not “contain adequate warnings or instructions”; (3) “was designed

in a defective manner”; or (4) “breached an express warranty”.

M ISS

. C ODE A NN

. § 11-1-63(a)(i) . Here, Guy presents only a design

defect claim.

For a design defect to render a product unreasonably

dangerous, the injured party must show that, when the product left

the manufacturer’s control: (1) the manufacturer knew, or should

have known, about the danger that caused the injury; (2) “[t]he

product failed to function as expected”; and (3) “there existed a

feasible design alternative t hat would have to a reasona ble

probability prevented th e harm”. M I SS

. C ODE A NN

. § 11-1-63(f)

(emphasis added). “ A feasible design alternative i s a design that6

would have to a reasonable probability prevented the harm without

impairing the utility, usefulness, practicality or desirability of

the product to users or consumers.” M I SS

. C ODE A NN

. § 11-1-63(f)(ii)

(emphasis added).

A.

The three contested evidentiary rulings are reviewed only for

abuse of discretion. E .g.

, Southern Pacific Transp. Co. v.

Chabert

, 973 F.2d 441, 448 (5th Cir. 1992), cert. denied

, 507 U.S.

987 (1993). Of course, for reversible error, the ruling must

affect a substantial right. F E D

. R. C IV

. P. 61 (harmless err or);

F ED

. R. E VID

. 103(a), (d) (ru lings on evidence); e .g.

, Jones v.

Benefit Trust Life Ins. Co. , 800 F.2d 1397, 1400 (5th Cir. 1986).

1.

The district court ruled that Guy’s expert witness, Lohman,

did not satisfy F ED

. R. E VID

. 702 and Daubert

. Because a district

court has broad discretion in deciding the admissibility vel non of

expert testimony, we will not find error unless the ruling is

manifestly erroneous

. G eneral Electric Co. v . Joiner , 522 U.S.

136, 141-42 (1993); see also, e.g., Watkins v. Telsmith , 121 F.3d

984, 989 (5th Cir. 1997); Eiland v. Westinghouse Electric

, 58 F.3d

176, 180 (5th Cir. 1995). “Manifest error” is one that “is plain

and indisputable, and that amounts to a complete disregard of the

controlling law”. Venegas-Hernandez v. Sonolux Records , 370 F.3d

183, 195 (1st Cir. 2004) (citing B LACK ’ S L AW D ICTIONARY 563 (7th ed.7

1999)); see also Andreiu v. Ashcroft , 253 F.3d 477, 490 (9th Cir.

2001) (Beezer, J., concurring); LaCombe v. A-T-O, In c. , 679 F.2d

431

, 435 (5th Ci r. 1982) (manifest error where district court

employed wrong standard in excluding a witness); Bank One, Texas,

N.A. v. F.D.I.C.

, 16 F. Supp. 2d 698, 713 (N .D. Tex. 1998) (“a

manifest error is an obvious mistake or departure from the truth”)

(internal quotation omitted).

R ule 702, amended post- Daubert in 2000, provides that a

witness “qualified as an expert

... may testify

... in the form of

an opinion

... if (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”. Amended Rule 702

reflects the Supreme Court’s decisions in Daubert and its progeny

emphasizing the district courts’ broa d latitude in weighing the

reliability of expert testimony for admissibility. E .g., Daubert

,

509 U.S. at 591; Kumho Tire Co. v. Carmichael , 526 U.S. 137, 142

(1999). K uhmo Tire clarified that the Rule 702/ D aubert analysis

applies to all proposed expert testimony, including nonscientific

“technical analysis” and other “specialized knowledge”. 526 U.S.

at 141.

It goes without saying that Daubert clarified a district

court’s gate-keeping function: the court must ensure the expert

uses reliable methods to reach his opinions; and those opinions8

must be relevant to the facts of the case. The Supreme Court

listed several non-exclusive factors to guide courts in their

screening function: whether the proposed evidence or theory “can

be (and has been) tested”; whether it “has been subjected to peer

review and publication”; whether it has been evaluated in the light

of “potential rate[s] of error”; and whether the theory has been

accepted in the “relevant scientific community”. D aubert

, 509 U.S.

at 593-94.

The Daubert factors rem ain relevant to the determination of

the reliability of expert testimon y under Rule 702, as amended.

Se e F E D

. R. E VID

. 702 advisory committee’s note (2000 Amendment).

The 2000 amendments to Rule 702 also reflect the Supreme Court’s

determination that the reliability analysis must remain flexible:

not every Daubert factor will be applicable in every situation; and

a court has discretion to consider other factors it deems relevant.

Kumho Tire

, 526 U.S. at 151. Although the D aubert analysis is

applied to ensure expert witnesses h ave employed reliable

principles and methods in reaching their conclusions, the test does

not judge the expert conclusions themselves. D aubert

, 509 U.S. at

594-95.

To assist in proving a design defect rendered the forklift

unreasonably dangerous, Lohman intended to opine that a feasible

design alternative existed for the RR model forklift tha t could

have prevented Guy’s injuries. Toward that end, Lohman submitted9

a preliminary report on 2 January 2003, reconstructing Guy’s

accident and suggesting alternatives that could have prevented the

injury; was deposed on 30 April 2003; submitted a supplemental

report on 9 May 2003; and was again deposed on 25 June 2003. Trial

was set for, and began, on 18 August 2003. On 16 July 2003,

approximately a month before trial, the district cour t granted

Crown’s motion to exclude Lohman’s testimony.

Lohman’s January report opined: the forklift was unreasonably

dangerous because it did not have a mechanism to restrain the

operator to the operator compartment; and either an operatorcompartment closure (metal or textile door) or an operator body

restrai nt could have prevented Guy’s injuries. That report,

however, did not state which design alternative Lohman preferred;

did not refer to specific designs Crown could adopt as

alternatives; did not estimate the cost to Crown of either design;

and did not state whether the design alternatives would satisfy the

standard for a MPLA feasible design alternative

— whether they

would impair the usefulness, utility desirability, or practicality

of the forklift.

In his 30 April deposition, Lohman stated he preferred an

operator restraint device, as opposed to a door, as a safer design

for the forklift; discussed the idea of a metal bar enc losure as

another design alternative; admit ted he had neither designed nor

tested any of his suggestions; and stated that his sketch for a10

metal bar across the operator compartment opening was a “conceptual

drawing”, rather than a precise design or prototype.

Lohman’s 9 May supplementa l report again recommended an

operator restraint device, similar to a seatbelt, as the “most

effective means of retention of an operator of this type of

forklift”. To illustrate examples of a possible operator

restraining device, he attached print-outs from an Internet site

selling airline seatbelt expanders. He also stated Crown’s design

process for the forklift was inadequate because Crown had not

tested the feasibility of a restraint device.

That supplemental report discussed the economic feasibility of

including a restraining device on the forklift and again suggested

a door as a second-choice design alternative. Concerning a door,

Lohman discussed, for the first time, operato r-compartment doors

already manufactured by Crown (for use by Ford on their Crown RR

model forklifts) as a feasible design alternative; concluded doors

must be safe and economically feasible because Crown already

manufactured them; and stated, without further discussion, that a

door would not impair the utility, usef ulness, desirability, or

practicality of the forklift.

In his second (final) deposition (25 June), Lohman reiterated

his preference for restraining devices as a design alternative;

noted Toyota manufactured a stand-up forklift equipped with a

restraining device; stated Crown could use a similar design in its11

forklifts; and stated that his research on this design alternative

consisted of reading Toyota’s website the day before being deposed.

Neither Crown nor the district court judge questioned Lohman’s

expert qualifications; but, in an extremely detailed and wellreasoned opinion, the court decided Loh man’s opinions about both

the restraining d evice and the door were untested and unreliable

and thus failed the Daub ert analysis. The district court

disapproved of the approach Lohman used to reach his purported

conclusions, finding he relied on unscientific conceptual sketches

and broad ideas. It also disapproved of Lohman’s failure to test

any of his designs.

The district court did not exclude Lohman solely on his

failure to test. The court also found: as close to the August

trial as his 30 April deposition, Lohman had not reached any

concrete conclusions a bout the b est design alternative; although

Lohman professed to prefer a restraining system to a door, he never

specified which design he planned to support at trial, and,

therefore, defendants did not have sufficient opportunity, before

trial, to prepare a reply to his proposed opinions; and Lohman

presented conceptual suggestions, instead of specifically

formulated opinions. The district court ruled that these

deficiencies, coupled with the lack of testing, rendered Lohman’s

expert opinion unreliable.

a.12

In his reports and depositions, Lohman consistently advocated

a restraining device as a feasible design alternative; but he never

presented a specific design. Although he eventually suggested

Crown could adopt a restraining device similar to Toyota’s, he

never submitted a complete “end product”. “[T]he proper

methodology for proposi ng alternative designs includes more than

just conceptualizing possibilities”. W atkins

, 121 F.3d at 992. A s

Guy conceded at oral argument here

, the district court acted within

its broad discretion when it decided Lohman’s conce ptual

suggestions about a restraining device as a feasible design

alternative did not rise to the level of an admissible expert

opinion.

b.

Regarding Crown’s having manufactured, tested, and sold

forklifts with operator-compartmen t doors , Guy contends: Lohman

was qualified to examine Crown’s tests and designs and testify

about their feasibility, inclu ding safety; Lohman supported the

door as a feasible design a lternative; and the district court

abused its discretion when it did not consider Lohman’s suggestion

to adopt Crown’s pre-existing door design as a feasible design

alternative.13 i.

The district court did not fail to consider Lohman’s

qualifications to review Crown’s door design and tests. Instead,

the court noted that Crown’s tests on a forklift with a door were

only in “off-the-dock” or “tip-over” scenarios, not left-leg-injury

scenarios, as was Guy’s. Therefore, Lohman had reviewed only tests

that did not concern left-leg injuries

.

The district court did not base its decision on Lohman’s

inability to test the door design. Instead, its decision was based

on Lohman’s inability, so close to trial, to definitively offer a

specific feasible design alternative. It was not until his 9 May

(second) report that Lohman mentioned, as a feasible design

alternative, the door already manufactured by Crown for Ford. Even

then, he used equivocal language, showing he had not closely

studied this design. For example, although Lohman estimated the

per-forklift cost of the door, he only concluded cursorily, in the

language of the MPLA, that the door would not impair the forklift’s

utility, usefulness, practi cality or desirability. The district

court did not commit manifest error in ruling inadmissible Lohman’s

proposed testimony concerning a door as a feasible design

alternative.

2.

For Guy’s case in chief, during the adverse witness testimony

by Crown’s earlier-referenced exper t, Dunlap, Guy offered in14

evidence 2400 reports produced by Crown concerning accidents

involving its forklifts. Guy did so in the presence of the jury.

Upon Crown’s objecting, a bench conference was held. Guy

maintained all of the reports formed the basis for Dunlap’s expert

opinions. Crown responded that the reports were inadmissible

hearsay and irrelevant. The district court sustained Crown’s

objection in part, admitting only reports concerning le f t-leg

injuries like the one Guy suffered. In so doing, the court stated:

“I don’t want theatrics in this courtr oom. So let’s talk about

what the facts really are, and let’s don’t be throwing box after

box[,] with the jury thinking every single one of [the accident

reports] is an accident just like Ms. Guy’s”. Later, after

additional testimony, the c ourt ruled the non-left-leg accident

reports were not relevant.

Guy contends the district court abused its discretion when it

ref used to admit all of the reports, even though she admits on

appeal some concerned non-relevant “slip and fall” accidents. She

asserts all of those reports, not just those concerning left-leg

injuries, formed the basis of Dun lap’s expert testimony that an

operator-compartment door would hav e caused more harm than good.

Guy contends this reliance makes all the reports relevant. Crown

responds the district court properly excluded the accident reports,

other than for left-leg injuries, because those excluded were more

preju dicial than probative. S ee F ED

. R. E VID

. 403. Crown also15

maintains Guy’s substantial rights were not affected by those that

were excluded because 360 were admitted.

a.

Federal Rule of Evidence 103(a)(2) (offer of proof) provides

error may not be based on evidence being excluded unless “the

substance of the evidence was made known to the court by offer or

was apparent from the context within which questions were asked”.

Guy did not make a formal offer of proof when Crown objected to the

accident report s. Pursuant to Rule 103(a)(2), although a formal

offer is not necessarily required in order for exclusion to be

reviewed, “the proponent of excluded evidence must show in some

fashion the substance of his proposed [evidence]”. United States

v. Winkle , 587 F.2d 705, 710 (5th Cir. 1979).

When the district court asked if all the reports were related

to forklifts without doors, Crown responde d that the reports

concerned all types of accidents, including sli p and fall,

involving all models of their forklifts. The court next asked:

“How many accidents do we have relating to door versus no door, or

leg injuries on an RR [model]?” Guy responded, explaining all of

the reports concerned injuries sustained in forklifts with o ut

doors. In conjunction with Guy’s maintaining all of the reports

formed the basis for Dunlap’s expert opinion, this was a

sufficient, although scant, offer of proof.16 b.

The district court did not abuse its discretion in excluding

all but the 360 accident reports for left-leg injuries incurred by

operators of forklifts without doors. For starters, the court

noted, and criticized, the “theatrics” employed by Guy in offering

the evidence

– bringing boxes of accident reports into the

courtroom, in the presence of the jury. Obviously, this was

prejudicia l. S ee F ED

. R. C IV

. P. 103(c) (should not suggest

inadmissible evidence to jury); F ED

. R. E VID

. 403.

Moreover, the district court did not abuse its discretion in

deciding more than 2000 accident reports were not relevant,

especially becaus e some of them did not concern injury while

operating a Crown forklift. This was especially true in the light

of the scant offer of proof by Guy. These some 2000 reports were

globally offered by Guy , some were clearly inadmissible, and the

d istrict court was not bound on its own initiative to go through

all 2000 of them, one by one, to determine which, if any, might be

relevant. The non-lef t-leg injury reports (approximately 2000 in

number) were also unfairly prejudicial, would confuse the issues,

and would mislead the jury, among other things. S ee F ED

. R. E VID

.

403.

3.

Finally, Guy contends the district court abused its discretion

by not permitting Crown’s expert, Dunlap, to answer questions about17

surveys o f K-Mart employees regarding the past use of operatorcompartment doors on Crown’s forklifts. Guy does not contend the

surveys were admissi ble (they were n ot offered in evidence).

Instead, she claims: Dunlap had personal knowledge of the relevant

underlying facts disclosed in those surveys; therefore, he should

have been permitted to testify about his claimed participation in,

and knowledge gained from, the dealings with K-Mart.

In response, Crown claims: neither Dunlap nor Crown performed

the K-Mart surveys; and any personal knowledge Dunlap may have had

concerning the underlying facts resulted only from his reading the

surveys. Therefore, Crown contends: any statements by Dunlap

regarding the conte nts of those surveys would have constituted

hearsay within hearsay; and both levels of hearsay had to satisfy

exceptions to the hearsay rule. F E D

. R. E VID

. 805; see, e.g.

, Rock

v. Huffco Gas & Oil Co., Inc. , 922 F.2d 272, 280 (5th Cir. 1991).

Hearsay is “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered to prove the

truth of the matter asserted”. F E D

. R. E VID

. 801(c). Such evidence

is generally inadmissable unless it falls within an exception

stated by the Federal Rules of Evidence. F ED

. R. E VID

. 802.

Guy does not contend that Dunlap’s desired testimony regarding

his claimed knowledge of the surveys falls under any exception.

Instead, Guy contends she should have been allowed to question

Dunlap about his claimed personal inv olvement and resulting18

knowledge concerning the K-Mart surveys. The comments about Dunlap

and Crown’s participation vel non in the surveys were made,

however, by counsel durin g the bench conference; no evidence was

cited. Along this line, Guy never attempted to question Dunlap

about any personal involvement in the surveys.

Instead, prior to Crown’s objection interrupting and e nding

t he question, Guy asked: “[I]sn’t it true that when a survey of

the various K-Mart factories was done, most of the factories came

back and said that th ey wanted to keep the doors despite Crown’s

att empt” (at this point, Crown’s objection terminated the

incomplete question). This question called for a hearsay response

concerning the surveys’ contents. At the sidebar, when the court

ruled the question called f or inadmissible hearsay, Guy did not

state why the desired testimony fell within an exception. Instead,

Guy questioned the ruling, asking: “Even though Mr. Dunlap was

involved with the process?” Because Guy made no attempt to show

Dunlap’s desired testimony fell within an exception to the hearsay

rule, the district court did not abuse its discretion in excluding

it.

B.

The judgment as a matter of law, awarded Crown at the close of

Guy’s case in chief, is reviewed de novo

. E.g., Hidden Oaks Ltd.

v. City of Austin , 138 F.3d 1036, 1042 (5th Cir. 1998). In doing

so, “all reasonable inferences [are made] in the light most19

favorable to the non-moving party”. Id. Such judgment is proper

when “a p arty has been fully heard on an issue and there is no

legally sufficient evidentiary basis for a reasonable jury to find

for that party on that issue”. R eeves v. Sanderson Plumbing

Prods.

, 530 U.S. 133, 149 (2000) (quoting F ED

. R. C IV

. P. 50(a)(1)).

(Prior to trial, after the court excluded Guy’s expert witness,

Crown moved for judgment, asserting expert testimony is required to

prove a MPLA claim. In denying the motion, the district court

declined to rule on the necessity vel non of expert testimony for

a MPLA claim. Following Guy’s case in chief, Crown re-urged this

point as a basis for judgment as a matter of law, but the district

court again declined to base judgment on it. Crown’s contention

that a MPLA claim may not be proved without expert tes timony is

discussed infra .)

Again, to succeed on her MPLA design defect claim, Guy was

required to prove, by a preponderance of the evidence, that, when

the forklift left Crown’s control in 1995: (1) Crown “knew, or

should have known, about the danger that caused the damage for

which recovery is sought”; (2) the forklift “failed to function as

expected”; and (3) “there existed a feasible desi gn alternative

that would have to a reasonable probability prevented the harm” in

1999. M I SS

. C ODE A NN

. § 11 -1-63(f). Crown does not contest its

knowledge of the danger of left-leg crush injuries with this model* Pursuant to the MPLA’s plain language, our court has held

that, for design defect claims, the MPLA “unambiguously precludes

recovery against the manufacturer on the basis of design defect

unless the product failed to function as expected”. A ustin v.

Will-Burt Co.

, 361 F.3d 862, 872 (5th Cir. 2004). A t trial

, in

moving for judgment as a matter of law, Crown contended, unlike

here

, that there was no evidence to p rove the forklift failed to

function as expected. The district court disagreed, stating:

The law requires ... the plaintiff prove that

as a result of the design defect, the subject

forklift failed to function as expected.

[Y]ou do expect a forklift to function without

injuring its operator. So, in that sense, the

plaintiffs perhaps have made that element of

proof.

(Emphasis added.)

20 forklift. Nor does Crown contend that the forklift functioned as

expected

. *

The only design alternative Guy presented at trial was an

operator-compartment door. Therefore, pursuant to our d e novo

review and Rule 50(a)(1), we must determine whether Guy presented

legally sufficient evidence for a reasonable jury to find that the

door was a s atisfactory MPLA feasible design alternative. As

discussed, for the operator-compartment door to satisfy that

standard, Guy was required to prove that the door “would have to a

reasonable probability prevented [her injury], without impairing

the utili t y, usefulness, practicality, or desirability of the

[forklift] to users or consumers”. M I SS

. C ODE A NN

. § 11-1-63(f)(ii).

The district court ruled Guy relied properly on Crown’s preexisting design and manufacture of a door for this model forklift21

as evidence the door was a design alternative. The court found,

however, that Guy presented no evidence that the door was a

feasible design alternative: that it did not impair the utility,

usefulness, practicality, or desirability of the forklift to users

or consumers. Accordingly, the court ruled that, because Guy did

not prove the door design satisfied the MPLA standard, she did not

prove a design defect.

Guy asserts she produced the r equisite evidence through the

testimony of Crown’s expert, Dunlap. Guy claims Dunlap’s testimony

provided the jury with ample evidence of the door’s benefit: it

decreased risk of left-leg injury; and Crown’s already having

manufactured forklifts with doors showed the feasibility of adding

a door. Guy contends a jury could have applied a common-sense

analysis to these facts and concluded the door satisfied the MPLA

standard.

Crown responds that the distric t court concluded correctly

that Gu y did not show the door was a MPLA feasible design

a lternative because she failed to produce specific evidence for

such factors as the cost of a door and how its inclusion would have

affected the forklift’s utility in terms of other possible dangers

faced by forklift operator s. Crown notes a major aspect of a

design’s utility is its s afety, and claims Guy did not prove a

forklift w ith a door is, o n the whole

, safer than one without.

Along this line, Crown contends that, without the aid of expert22

testimony, a jury cannot determine whether the addition of a door

would pass the MPLA feasible-design-alternative analysis.

Based upon our de novo review, Guy did not present the

requisite evidence for a reasonable jury to find that a door is a

MPLA feasible design alternative. In this regard, however, we note

that the MPLA’s plain language does not state expert testimony is

required p er se to prove a design defect. S ee M ISS C ODE A NN

. §§

11-1-63(a), (b), (f). S ee also Malbrough v. Crown Equip. Corp

.,

No. 04-30118, slip op. 630,

___ F.3d

___ (5th Cir. 23 Nov. 2004)

(holding, on interlocutory appeal, that expert testimony not always

required by the terms of the Louisiana Product Liability Act to

prove prima facie design defect). In any event, we need not reach

the question whether such testimony was required because Guy did

present expert testimony : she called Dunlap, Crown’s expert, as an

adverse witness.

Dunlap, Guy’s only witness testifying a b out the forklift

design, presented no opinion, however, that a door would be a MPLA

feasible design alternative. His testimony was just the opposite:

there were suitable warnings or instructions in the ope rator’s

manual to advise operators about the dangers of left-leg injuries;

forklifts without doors were safe if used as instructed and were

not likely to cause serious injuries; an operator of a forklift

without a door could avoid left-leg injuries in most instances by

keeping her leg within the operator compartment and operating the23

forklift in a safe manner; Crown provided doors for the forklift at

issue only

upon special order; the majority of its customers used

and wanted forklifts without doors; although forklifts with doors

were available as substitute products, they were not necessarily as

safe in all situations as those without doors; and Crown could not

put a door on a forklift without impairing the forklift’s safety in

situations where the forklift tips over laterally or falls off a

loading dock.

Judgment as a matter of law was properly granted. Guy failed

to provide the requisite evidence for a MPLA feasible design

alternative. Therefore, the evidence produced by Guy was not

sufficient for a reasonable jury to find, inter alia

, that the

Crown forklift had a design defect that rendered t he forklift

unreasonably dangerous.

III.

For the foregoing reasons, the judgment is

AFFIRMED.