The HONORA BLE HENRY J. WOODS, United States District Judge for the 1 Eastern District of Arkansas. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1042

_____________ Michael R. Dancy, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Hyster Company, * * Appellee. *

_____________ Submitted: June 12, 1997 Filed: September 25, 1997

_____________ Bef ore BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

_____________ FLOYD R. GIBSON, Circuit Judge.

Michael Dan cy (“Dancy”) appeals the District Court’s exclusion of his expert 1 witness. Da ncy also appeals the grant of summary judgment in favor of Hyste r Company (“Hyster”). We affirm.The lift truck w as capable of safely lifting 3,450 pounds. There is a dispute in 2 the rec ord as to whether the combined weight of the two rolls was 2,400 pounds o r 4,238 pounds. Like the District Court, we are inclined to believe the latter figure; but, again like the Distric t Court, we decline to reach this issue because it is not necessary to the issues at hand. -2- 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 th e machi ne 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 w ith the goal of placing them on top of two other rolls stacked on the floor. H e accomplished this by lifting the bottom of tw o rolls that were stacked on top of each other, thereby lifting both roll s simultaneously. SeeJt. App. at 20 5. 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, Hys ter, 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 tha t Hyste r was negligent for failing to place a cage or guard around the operator’ s c o mpartment. 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 the n gr anted Hyster summary judgment, concluding Dancy could not prevail in this cas e without an expert witness. Dancy has appealed both rulings.-3-

II. DISCUSSION A. The Expert Witness

Dr. Forbes is a mechanical engineer and a professor at the University o f Mississippi and was retained by Dancy in 1996. He has ne ver designed a forklift, a lift truck, or any other s imilar machine; his specialty is in the field of thermal science. At his deposition, Dr. Forbes theoriz ed that the lift truck should have had a guard to keep Dancy’s leg with in 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. Forbe s provided a supplemental report wherein he stated: It is my opinion that a perm anently-located open-mesh guard on the right si de of the lift would have prevented Dancy’s injury. The guard woul d 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 t he utility of the lift truck and which will not add any significant cost to the machines. Jt. Ap p. at 19. This wording suggests that Dr. Forbes still had not designed or tested the proposed safety device.

“Deci sions concerning the admission of expert testimony lie within the broa d discretion of the trial cour

t, 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 y ou’d see commonly around here on highway brush hogs to protect the operator from throwing obj ects mainly but doesn’t significantly obstruct the view of the thing s that [the operator] need[s] to see. Jt. App. at 135. This demonstrates that (1) Dr. Forbes had not seriously considered a -4- If s cientific, technical, or other specialized knowledge will assis t the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by k nowledge, 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 pr offered 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

. Vermee r Mfg. Co. , 64 F.3d 382, 384 (8th Cir. 1995). “ Daubert suggests that a tria l court, when assessing the reliability of expert testimony, consider (1) whether th e concept has been tested, (2) whether the concept has been subject to peer review, (3) what th e 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 th at 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. 3particular

design and, more importantly, (2) Dr. Forbes had not seriously considere d the effect his envisioned safety device would have on the effective and safe operation of the lift truck.
Altho ugh Dr. Forbes seemed to have addressed these concerns in hi s supp lemental report, careful reading reveals that Dr. Forbes simply expressed hi s co nfidence that an effective device could be created without interfering with th e operation of a lift truck; in short, he simply “assumed away” any problems. -5- Dancy attemp ts to avoid the effects of Daubert by contending that it does no t 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 als o cont ends that Dr. Forbes’s testimony should have been admitted based on hi s explanation that a device similar to the one he envisioned had been used o n bobcats and f ront-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 ha s presented no argument demonstrating the District Court’s con clusion in this regard was incorre ct, and our review of the record reveals no basis for reaching a differen t conclusion.

We conclude that the District Court was justified in questioning the reliabilit y and usefulness of Dr. Forbes’s testimony. Disallo wing his testimony did not constitute an abuse of discretion.-6-

B. Summary Judgment

We review the District Court’s grant of summary judgment de novo, applyin g the same standard as applied by the District Court. A moving party is entitled t o summary judgment on a claim only if ther e 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, 1 15 (8th Cir. 1986). "[W]hile the materiality determination rests on th e substantive law, it is the substantive law's identification of which facts are critical and which fac ts 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 mos t favor able to the non-moving party, giving that party the benefit of all inferences tha t 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.2 d 653, 655 (8th Cir. 1984) , cert. denied , 470 U.S. 1057 (1985). However, a party opposing a motion forsummar y 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 exper t 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 la w controls the substance of these two causes of action.-7- 1. Strict Liability
“Generally speaking, there are t hree varieties of product defects: manufacturing defects, design defects, and inadequate warnin gs.” West v. Searle & Co. , 806 S.W.2d 608, 610 (Ark. 1991). Plaintiff has all eged a cause of action based on the existence of

a des ign defect and, faced with the unavailability of expert testimony, contends tha t expert testimony was not needed to establish the existence of a defect.

Arkans as 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 n o applicatio n

to strict liability; but the inferences which are the core of the doctrin e
rem ain, and are no less applicable.” Higgins v. General Motors Corp. , 699 S.W.2 d 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 a lso 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

acase 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 negate d 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 case s 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 p oints 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 i s required by law to consider in determining whether a defect exists, and withou t evidence on the point the jury woul d be doing nothing more than speculating -- which, of course, cannot be allowed. -8- 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 contend s the lift truck was not designed pr operly because it lacked a safety device. Lay jurors would tend to understan d produc ts that do not work; they are not likely to possess “common understanding ” about how products are designed. We cannot expect lay jurors to posses s unders tanding about whether the mesh guard envisioned by Dr. Forbes would b e capab le of withstanding the force involved in a fall and be effective in protectin g Plaintiff from the injury he received. We cannot expect a lay juror to know whethe r 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 itsel f would cause more injuries than it creates by, for instance, breaking and puncturing the lifttr uck’s operator. Although Dancy does not have the burden of proving that hi s 4 “alte rnative safer design was available and feasible in terms of cost, practicality an d technolog ical 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 provin g that his proposed design will actually work, a nd we believe the answer to this question is beyond the ken of lay jurors.-9-

Dancy has also failed to negate other causes for h is injuries. A jury may believe his testimony that the combined weight of the two rolls did not exceed the lift-truck’s specific ations. However, there is also evidence that it was not safe to be lifting tw o rolls of any weight in the manner in which Dancy was lift ing the two rolls in July 1994. Nothing in the record negates this as a cause of Dancy’s injuries.

W e also find support for our conclusion in the outcomes of the three Arkansas Supreme Court decisions referenced above. In Higgins , the court declared that i t “could not say that when a car moves suddenly, even swiftly, into an intersectio n common experience tell s 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 d river error or control.” 699 S.W.2d at 743. In Williams , the court declare d that it could not hold “that when a car door suddenly flies open while the car i s traveling on a gravel road at 10 miles per hour common e xperience 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 thoug h she testified “she i s 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 th at there were numerous reasons why paint would peel, including “misuse and imprope r application.” 926 S.W.2d at 431. After requiring expert testimony i n 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 t o demonstrate that any decent protective eyewear would hav e prevented the string from striking appellant's eye, in which event, no such injury could ha ve possibly occurred.” We cannot so hold because here the jury ha d no ba sis, except for pure guesswork, to find that safety goggles woul d have totally prevented the injury or to what degree they would hav e reduced the injury. . . . Further, assuming goggles were available an d practica lto wear, the proof did not show whether they would hav e pr eventedthe string or the stake from entering from the side of th e gl asses; what the tensile strength of such glasses was; whether th e whipping force of the string and stake, if coming from the front, woul d have broken or shattered the glasses; to what extent, if any, the glasses wou ld 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 redu ced the injury if they had not shattered or broken if the forc e 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.

-10- 2. Negligence
Negligence requires proof that an ordinarily prudent person in the same situation will fore see 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 e xpert testimony, there is no basis for the jury to evaluate the actions of an ordinarily prudent person in the same situatio n as Hyster. Cf

. Skinner v. R.J. Griffin & Co. , 855 S.W.2d 913, 915 (Ark. 1993). Our conclusion is buttressed by the lack 5855 S.W.2d at 915. This concl usion is reinforced by the fact that there is no evidence

in the record that Hyster’s lift truc ks had a history of or propensity toward overturning and pinning their operators beneath them. In this case, there is no evidence in th e record that will permit the jury to do anything other than speculate in the manne r described and prohibited in Skinner

. -11- of any evidence suggesting Hyster’s lift trucks had a history of or propensity towar d 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 su

bsequent entry of summary judgment in favor of Hyster Company is affirmed.
A true copy.

Attest:

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