The HONORABLE HENRY J. WOODS, United States District Judge for the 1

Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1042

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Michael R. Dancy, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the 

* Eastern District of Arkansas.

Hyster Company, *

*

Appellee. *

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Submitted: June 12, 1997

Filed: September 25, 1997

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Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

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FLOYD R. GIBSON, Circuit Judge.

Michael Dancy (“Dancy”) appeals the District Court’s exclusion of his expert 1

witness. Dancy also appeals the grant of summary judgment in favor of Hyster

Company (“Hyster”). We affirm.
The lift truck was capable of safely lifting 3,450 pounds. There is a dispute in 2

the record as to whether the combined weight of the two rolls was 2,400 pounds or

4,238 pounds. Like the District Court, we are inclined to believe the latter figure; but,

again like the District Court, we decline to reach this issue because it is not necessary

to the issues at hand.

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I. BACKGROUND

Dancy began working for Union Camp Corporation in the Spring of 1994 and

was trained to operate a “lift truck.” A lift truck is a machine similar in appearance to

a forklift. Its appearance differs in that, instead of having a “fork” in front of the

machine to raise and lower heavy objects, a lift truck has a large clamp that encircles

and grips large objects. In this case, Dancy used the lift truck to lift large cylindrical

rolls of paper. On July 7, 1994, Dancy lifted two rolls of paper with the goal of placing

them on top of two other rolls stacked on the floor. He accomplished this by lifting the

bottom of two rolls that were stacked on top of each other, thereby lifting both rolls

simultaneously. See Jt. App. at 205. The lift truck overturned, pinning Dancy’s right 2

foot under the lift truck. Dancy’s right leg had to be amputated just below the knee.

Dancy filed suit against the lift truck’s manufacturer, Hyster, alleging that the lift

truck was defective because it did not have a cage or guard around the compartment

to prevent the operator from being pinned under the lift truck. He also alleged that

Hyster was negligent for failing to place a cage or guard around the operator’s

compartment. Dancy designated Dr. Richard Forbes as his sole expert witness. The

District Court granted Hyster’s motion to strike this designation in light of Daubert v.

Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786 (1993). The District Court then

granted Hyster summary judgment, concluding Dancy could not prevail in this case

without an expert witness. Dancy has appealed both rulings.
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II. DISCUSSION

A. The Expert Witness

Dr. Forbes is a mechanical engineer and a professor at the University of

Mississippi and was retained by Dancy in 1996. He has never designed a forklift, a lift

truck, or any other similar machine; his specialty is in the field of thermal science. At

his deposition, Dr. Forbes theorized that the lift truck should have had a guard to keep

Dancy’s leg within the lift truck’s frame. Dr. Forbes had not tested this theory in any

way, had not seen this type of device on a forklift or any other similar machine, and had

not even designed the device he suggested would have prevented Plaintiff’s injury. See

Jt. App. at 125-27; 130. Approximately one month after his deposition, Dr. Forbes

provided a supplemental report wherein he stated: 

It is my opinion that a permanently-located open-mesh guard on the right

side of the lift would have prevented Dancy’s injury. The guard would

be located so as to reduce the probability that the operator’s legs would

leave the interior of the overhead guard during tipover. . . . I am confident

that such guards can be designed which will not affect the utility of the lift

truck and which will not add any significant cost to the machines.

Jt. App. at 19. This wording suggests that Dr. Forbes still had not designed or tested

the proposed safety device.

“Decisions concerning the admission of expert testimony lie within the broad

discretion of the trial court, and these decisions will not be disturbed on appeal absent

an abuse of discretion.” Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 296 (8th Cir.

1996). The starting point for analyzing expert testimony is Federal Rule of Evidence

702, which provides:
For instance, Dr. Forbes testfied: 3

I’ll probably do some thinking about a design after today, . . . . Again, I’m

talking about some kind of mesh, some kind of thing you’d see commonly

around here on highway brushhogs to protect the operator from throwing

objects mainly but doesn’t significantly obstruct the view of the things

that [the operator] need[s] to see.

Jt. App. at 135. This demonstrates that (1) Dr. Forbes had not seriously considered a

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If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue,

a witness qualified as an expert by knowledge, skill, experience, training,

or education, may testify thereto in the form of an opinion or otherwise.

Under Daubert, district courts are to perform a “gatekeeping” function and insure

that proffered expert testimony is both relevant and reliable. See Penney v. Praxair,

Inc., 116 F.3d 330, 333 (8th Cir. 1997); Peitzmeier, 97 F.3d at 296-97; Pestel v.

Vermeer Mfg. Co., 64 F.3d 382, 384 (8th Cir. 1995). “Daubert suggests that a trial

court, when assessing the reliability of expert testimony, consider (1) whether the

concept has been tested, (2) whether the concept has been subject to peer review, (3)

what the known rate of error is, and (4) whether the concept is generally accepted by

the community.” Pestel, 64 F.3d at 384. The District Court considered these factors

in this case and concluded that Dr. Forbes’s theory could be, but had not been, tested.

In fact, Dr. Forbes had not even attempted to design the device he was suggesting was

necessary to prevent the lift truck from being defective. Although he opined that the

device he envisioned would work, he had no basis for reaching this conclusion. In fact,

it appears that Dr. Forbes’s views were being altered and refined based on questions

raised during the deposition.3
particular design and, more importantly, (2) Dr. Forbes had not seriously considered

the effect his envisioned safety device would have on the effective and safe operation

of the lift truck. 

Although Dr. Forbes seemed to have addressed these concerns in his

supplemental report, careful reading reveals that Dr. Forbes simply expressed his

confidence that an effective device could be created without interfering with the

operation of a lift truck; in short, he simply “assumed away” any problems.

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Dancy attempts to avoid the effects of Daubert by contending that it does not

apply unless the expert’s testimony will rely on scientific principles or methods. We

have expressly rejected this argument. See Peitzmeier, 97 F.3d at 297. Dancy also

contends that Dr. Forbes’s testimony should have been admitted based on his

explanation that a device similar to the one he envisioned had been used on bobcats and

front-end loaders. The District Court concluded that there are significant differences

between these two pieces of lifting equipment and lift trucks: differences that prevent

the automatic assumption that what works on one will work on another. Dancy has

presented no argument demonstrating the District Court’s conclusion in this regard was

incorrect, and our review of the record reveals no basis for reaching a different

conclusion. 

We conclude that the District Court was justified in questioning the reliability

and usefulness of Dr. Forbes’s testimony. Disallowing his testimony did not constitute

an abuse of discretion.
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B. Summary Judgment

We review the District Court’s grant of summary judgment de novo, applying

the same standard as applied by the District Court. A moving party is entitled to

summary judgment on a claim only if there is a showing that "there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c); see generally Williams v. City of St. Louis, 783 F.2d

114, 115 (8th Cir. 1986). "[W]hile the materiality determination rests on the

substantive law, it is the substantive law's identification of which facts are critical and

which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986); see also Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.

1992). In applying this standard, the Court must view the evidence in the light most

favorable to the non-moving party, giving that party the benefit of all inferences that

may be reasonably drawn from the evidence. See Matsushita Electric Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th

Cir. 1984), cert. denied, 470 U.S. 1057 (1985). However, a party opposing a motion

for summary judgment "may not rest upon the mere allegations or denials of the . . .

pleading[s], but . . . by affidavits or as otherwise provided in [Rule 56], must set forth

specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

The District Court concluded that, without the aid of expert testimony, there was

no evidence demonstrating (1) the existence of a defect in the product or (2) negligence

by Hyster. We consider these issues separately, keeping in mind that Arkansas law

controls the substance of these two causes of action.
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1. Strict Liability

“Generally speaking, there are three varieties of product defects: manufacturing

defects, design defects, and inadequate warnings.” West v. Searle & Co., 806 S.W.2d

608, 610 (Ark. 1991). Plaintiff has alleged a cause of action based on the existence of

a design defect and, faced with the unavailability of expert testimony, contends that

expert testimony was not needed to establish the existence of a defect.

Arkansas law does not require expert testimony in all product liability cases.

“Strictly speaking, since proof of negligence is not an issue, res ipsa loquitur has no

application to strict liability; but the inferences which are the core of the doctrine

remain, and are no less applicable.” Higgins v. General Motors Corp., 699 S.W.2d

741, 743 (Ark. 1985). Consequently, “[p]roof of a specific defect is not required when

common experience teaches the accident would not have occurred in the absence of a

defect.” Id.; see also Lakeview Country Club, Inc. v. Superior Products, 926 S.W.2d

428, 431 (Ark. 1996); Williams v. Smart Chevrolet Co., 730 S.W.2d 479, 482 (Ark.

1987). However, “[t]he mere fact of an accident, standing alone, does not make out

a case that the product is defective.” Higgins, 699 S.W.2d at 743. Consideration of

this issue also requires examination of the extent to which the plaintiff has negated

other possible causes for the accident. See Williams, 730 S.W.2d at 482-83; Higgins,

699 S.W.2d at 743.

Initially, we note that this res ipsa loquitur-like doctrine is ill-suited to cases

involving defective design for failure to include a safety device. Higgins, Lakeview,

and Williams all involved products that did not work in the manner intended; that is,
These points cannot be dismissed as mere speculation on the Court’s part;

4

indeed, to do so demonstrates the hazard involved. These are matters the jury is

required by law to consider in determining whether a defect exists, and without

evidence on the point the jury would be doing nothing more than speculating -- which,

of course, cannot be allowed.

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they involved manufacturing defects. Higgins involved a car that accelerated without

warning, Lakeview involved paint that peeled, and Williams involved a car door that

unexpectedly opened while the car was moving. In this case, Plaintiff does not contend

that the lift truck malfunctioned in any way; he contends the lift truck was not designed

properly because it lacked a safety device. Lay jurors would tend to understand

products that do not work; they are not likely to possess “common understanding”

about how products are designed. We cannot expect lay jurors to possess

understanding about whether the mesh guard envisioned by Dr. Forbes would be

capable of withstanding the force involved in a fall and be effective in protecting

Plaintiff from the injury he received. We cannot expect a lay juror to know whether

such a device would increase the risk associated with the vision impairment discussed

by Dr. Forbes. We cannot expect a lay juror to know whether the mesh guard itself

would cause more injuries than it creates by, for instance, breaking and puncturing the

lift truck’s operator. Although Dancy does not have the burden of proving that his

4

“alternative safer design was available and feasible in terms of cost, practicality and

technological possibility,” French v. Grove Mfg. Co., 656 F.2d 295, 297 (8th Cir.

1981), he still has the burden of proving the existence of a defect by showing that a

safer alternative design actually exists. He cannot carry this burden without proving

that his proposed design will actually work, and we believe the answer to this question

is beyond the ken of lay jurors.
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Dancy has also failed to negate other causes for his injuries. A jury may believe

his testimony that the combined weight of the two rolls did not exceed the lift-truck’s

specifications. However, there is also evidence that it was not safe to be lifting two

rolls of any weight in the manner in which Dancy was lifting the two rolls in July 1994.

Nothing in the record negates this as a cause of Dancy’s injuries.

We also find support for our conclusion in the outcomes of the three Arkansas

Supreme Court decisions referenced above. In Higgins, the court declared that it

“could not say that when a car moves suddenly, even swiftly, into an intersection

common experience tells us it would not have happened absent a defect” and went on

to conclude that the plaintiff failed to “adequately negate[] any cause of the accident

due to driver error or control.” 699 S.W.2d at 743. In Williams, the court declared

that it could not hold “that when a car door suddenly flies open while the car is

traveling on a gravel road at 10 miles per hour common experience tells us that it could

not have happened absent a defect.” 730 S.W.2d at 483. The court further held that

the plaintiff failed to negate causation due to driver error, even though she testified “she

is positive she shut and locked the door and that she was driving slowly and the road

was straight.” Id. Finally, in Lakeview, the Arkansas Supreme Court agreed with the

trial court that there were numerous reasons why paint would peel, including “misuse

and improper application.” 926 S.W.2d at 431. After requiring expert testimony in

these cases, it seems obvious that the Arkansas Supreme Court would require expert

testimony in this case.
 The pertinent quote from Skinner involved Defendant’s arguments regarding 5

comparative fault: 

[T]he defendant asks us to hold that . . . “[i]t takes no expert to

demonstrate that any decent protective eyewear would have prevented the

string from striking appellant's eye, in which event, no such injury could

have possibly occurred.” We cannot so hold because here the jury had

no basis, except for pure guesswork, to find that safety goggles would

have totally prevented the injury or to what degree they would have

reduced the injury. . . . Further, assuming goggles were available and

practical to wear, the proof did not show whether they would have

prevented the string or the stake from entering from the side of the

glasses; what the tensile strength of such glasses was; whether the

whipping force of the string and stake, if coming from the front, would

have broken or shattered the glasses; to what extent, if any, the glasses

would have reduced or eliminated the injury if they had only slowed the

string whipping from the side; or to what extent, if any, the glasses would

have reduced the injury if they had not shattered or broken if the force

was from the front. Thus, a causal connection between the failure to wear

some unspecified type of goggles and the injury to plaintiff's eye was not

established beyond mere conjecture and speculation.

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2. Negligence

Negligence requires proof that an ordinarily prudent person in the same situation

will foresee an appreciable risk of harm to others, causing him or her to act in a more

careful manner. E.g., Mason v. Jackson, 914 S.W.2d 728, 730 (Ark. 1996). Much of

what we said with respect to Dancy’s product liability claim applies to his negligence

claim: absent expert testimony, there is no basis for the jury to evaluate the actions of

an ordinarily prudent person in the same situation as Hyster. Cf. Skinner v. R.J. Griffin

& Co., 855 S.W.2d 913, 915 (Ark. 1993). Our conclusion is buttressed by the lack 5
855 S.W.2d at 915. This conclusion is reinforced by the fact that there is no evidence

in the record that Hyster’s lift trucks had a history of or propensity toward overturning

and pinning their operators beneath them. In this case, there is no evidence in the

record that will permit the jury to do anything other than speculate in the manner

described and prohibited in Skinner.

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of any evidence suggesting Hyster’s lift trucks had a history of or propensity toward

tipping over and causing injuries similar to those sustained by Dancy.

III. CONCLUSION

For the foregoing reasons, the District Court’s order barring Dr. Forbes’s

testimony and its subsequent entry of summary judgment in favor of Hyster Company

is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.