F I L E D

United States Court of Appeals

Tenth Circuit

AUG 21 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTI ALFRED,

Plaintiff - Appellant,

v.

CATERPILLAR, INC., a foreign

corporation, doing business as CAT,

also known as CAT,

Defendant - Appellee.

No. 00-6317

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. CV-99-14-C)

Thomas J. Steece (Steven R. Jung and Mark A. Mathews with him on the brief),

Steece, Mathews & Associates, P.C., Oklahoma City, Oklahoma, for the PlaintiffAppellant.

James A. Jennings, III (W.T. Womble, Womble & Cotellesse, Houston, Texas,

with him on the brief), Jennings Cook & Hoisington, Oklahoma City, Oklahoma,

for the Defendant-Appellee.

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.
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Plaintiff Christi Alfred was on active duty with the United States Navy

when she was severely injured by a paver manufactured by defendant Caterpillar. 

In this product liability suit, she alleges the paver’s design was defective and that

the defect caused her injury. At the close of her case, the district court struck the

testimony of plaintiff’s expert witness and granted defendant’s motion for

judgment as a matter of law under Fed. R. Civ. P. 50(a). Plaintiff challenges both

rulings. We again address the issue of timing of Daubert motions, and exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we reverse in part and affirm in part

the district court’s decision to strike plaintiff’s expert testimony on the merits and

affirm the trial court’s grant of judgment as a matter of law in defendant’s favor.

I

Alfred was assigned to a construction battalion at the United States Naval

Base in Rota, Spain. While giving hand signals to the operator of an asphalt

paver, Alfred was ordered to stand between the paver and a tree. Nearing the

tree, the operator stopped the paver on plaintiff’s signal, but upon her subsequent

order to reverse direction the operator mistakenly moved the paver forward,

pinning her against the tree. His mistake appears to have consisted of failing to

place the direction toggle switch into reverse mode before turning the rotary dial

that controls the vehicle’s speed. As a result of the accident, plaintiff’s right leg

was injured and later amputated below the knee.
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Plaintiff alleges the paver’s control mechanism is defective because it is

counterintuitive; defendant responds that the accident was caused by human error

and that the mechanism is not defective or unreasonably dangerous. At trial,

plaintiff admitted that the operator made a mistake with the controls and that she

should not have been standing between the paver and the tree.

To prove her case plaintiff relied on the testimony of her liability expert,

William P. Munsell, that the paver contained a defect that made it unreasonably

dangerous and caused plaintiff’s injury—two of the elements of a manufacturer’s

product liability cause of action in Oklahoma. See Alexander v. Smith &

Nephew, P.L.C., 98 F. Supp. 2d 1310, 1318 (N.D. Okla. 2000) (citing Kirkland v.

Gen. Motors Corp., 521 P.2d 1353, 1363 (Okla. 1974)). Munsell, a mechanical

engineer, testified that the use of a rotary variable speed control instead of a lever

was “not intuitive” and was a direct cause of plaintiff’s injury. (Appellee’s App.

at 40.) Plaintiff’s only evidence regarding defendant’s liability for product design

was Munsell’s testimony.

After plaintiff rested, defendant moved to strike Munsell’s testimony on the

ground that he was not qualified by knowledge, skill, training, or education to

offer opinion testimony in the case and that he had done insufficient research to

support his conclusion that the paver was defective in design. Defendant

concurrently moved for judgment as a matter of law under Fed. R. Civ. P. 50(a). 
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The court granted the motion to strike and, concluding that without Munsell’s

opinion plaintiff’s case was not supported by the evidence, proceeded to grant

judgment as a matter of law for defendant. The court made the following

observations:

Mr. Munsell gave an opinion that was very limited and it was

backed by very little work and very little expertise. I think Mr.

Jennings has covered all that at the bench and it need not be

repeated.

The only actual investigation that he did was to find a machine

that had the lever rather than the dial in order to satisfy himself that

it was possible, and to identify for the benefit of the jury the

guidelines and standards on which he based his conclusion.

Aside from identifying those guidelines and standards,

however, he has done no work that supports his conclusion that they

are prohibited, that the design of this machine is defective, or that the

guidelines and standard apply even to the mechanics of this machine.

. . . .

I find that his opinion is simply not competent under Daubert

and other cases construing Daubert; that it is not supported by

sufficient testing, experience, background, education, or thought to

be relied upon by this jury. Without that opinion, I think it’s quite

clear that there is no evidence on which this case can go to the jury,

and it is for those reasons and on that basis that I grant the

defendant—first, the defendant’s motion to strike the expert

testimony and, secondly, its Rule 50 motion for judgment as a matter

of law.

(Appellant’s App. at 8–9.)

II

Rule 702 of the Federal Rules of Evidence authorizes a “witness qualified

as an expert by knowledge, skill, experience, training, or education” to give

opinion testimony “[i]f scientific, technical, or other specialized knowledge will
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assist the trier of fact to understand the evidence or to determine a fact in issue.” 

Consistent with the Supreme Court’s decision in Daubert v. Merrell Dow

Pharmaceuticals, Inc., Rule 702 requires trial courts to act as gatekeepers,

admitting only expert testimony that is both reliable and relevant. 509 U.S. 579,

589 (1993). “This gatekeeper function requires the judge to assess the reasoning

and methodology underlying the expert’s opinion, and determine whether it is

scientifically valid and applicable to a particular set of facts.” Goebel v. Denver

& Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000) (citing Daubert,

509 U.S. at 592).

A

We turn briefly to the timeliness of defendant’s motion to strike expert

testimony after the close of plaintiff’s case. In our recent decision of Macsenti v.

Becker, 237 F.3d 1223, 1230–34 (10th Cir. 2001), this Court affirmed a district

court’s rejection of Daubert objections raised by a defendant at the close of all the

evidence. In doing so, we concluded “that Defendant forfeited the opportunity to

subject the expert testimony of [the] plaintiff’s . . . experts to a Daubert challenge

by failure to make a timely objection before that testimony was admitted.” Id. at

1231.

Recognizing that the law traditionally does not reward ambush trial tactics,

in Macsenti this Court correctly criticized the practice of filing Daubert motions
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at a late stage in the adversarial process when there has been no motion in limine

or concurrent objection to an expert’s participation. Counsel should not

“sandbag” Daubert concerns until the close of an opponent’s case, thereby placing

opposing counsel and the trial court at a severe disadvantage. See Macsenti, 237

F.3d at 1233–34. The truth-seeking function of litigation is best served by an

orderly progression, and because Daubert generally contemplates a “gatekeeping”

function, not a “gotcha” junction, Macsenti permits a district court to reject as

untimely Daubert motions raised late in the trial process; only in rare

circumstances will such tardy motions, albeit allowed under our decision in

Goebel, be warranted. 215 F.3d at 1087 (indicating a district court can satisfy its

Daubert gatekeeping role “when asked to rule on a motion in limine, on an

objection during trial, or on a post-trial motion”). In this case, unlike in

Macsenti, the district court chose to address the defendant’s Daubert objections

on the merits, rather than deeming them waived. Because of the split character of

our disposition on the merits—affirming in part and reversing in part the decision

to strike Munsell’s testimony—we elect not to reach the issue of the motion’s

belated consideration, leaving for another day further development of Macsenti’s

timing jurisprudence.
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B

Our review of a trial court’s exercise of its Daubert gatekeeping function is

for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997);

Goebel, 215 F.3d at 1087; Mitchell v. Gencorp, Inc., 165 F.3d 778, 780 (10th Cir.

1999). Under an abuse of discretion standard, a ruling will not be disturbed on

appeal unless it is “arbitrary, capricious, whimsical or manifestly unreasonable”

or when this Court is convinced that the trial court “has made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.” 

Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163 (10th

Cir. 2000) (citations omitted).

Plaintiff argues Munsell’s testimony qualified as admissible expert

testimony under the requirements of Rule 702 and Daubert and therefore was

erroneously stricken. Munsell’s testimony was based on engineering standards

promulgated by the Society of Automotive Engineers (“SAE”) as well as on his

investigative work. Citing SAE Standard J297, entitled “Operator Controls on

Industrial Equipment,” he opined that the variable speed control on a paver should

be in the form of a lever rather than a rotary dial. Because the paver involved in

the litigation was equipped with a rotary dial instead of a lever, he concluded, its

design was defective for failing to meet the SAE standard.
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Munsell testified that he had nine years of experience in failure analysis

and evaluation of industrial accidents, including investigation and analysis of

various control mechanisms, and that he has routinely researched and applied

engineering standards promulgated by various organizations, including the SAE. 

He testified further regarding his methodology in this case, which included

researching engineering standards applicable to pavers, in particular those

governing speed control mechanisms, and applying those standards to knowledge

gained during field research. Defendant did not dispute that the SAE standards

upon which Munsell’s opinion was based are well-accepted in the engineering

community. Technical committees of the SAE draft and review engineering

safety standards for mobility systems, including off-highway equipment. See

Satcher v. Honda Motor Co., 52 F.3d 1311, 1316 (5th Cir. 1995). According to

Munsell’s testimony, several Caterpillar employees were members of committees

responsible for promulgating the SAE standards.

Based on our review of the record, we are persuaded that Munsell’s

testimony that the speed control mechanism did not comply with SAE J297 was

both reliable and relevant to the issue of defective design. See Daubert, 509 U.S.

at 589. Munsell’s testimony was reliable—meeting one of the Daubert

criteria—because it was the result of his having researched and applied standards

promulgated by an internationally recognized organization of engineers. The
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testimony was relevant—meeting the other—because although it is not dispositive

and might be countered by conflicting testimony, it could allow the jury to infer

Caterpillar’s paver was defective for failing to meet industry design standards. 

Because that portion of his opinion qualified as admissible expert testimony under

Rule 702 and Daubert, we hold that striking Munsell’s testimony as to the paver’s

failure to comply with SAE J297 was an abuse of the trial court’s discretion.

Munsell admitted that the factual issues at trial also concerned “a field of

expertise known as human factors.” (Appellee’s App. at 51.) Not only did

Munsell acknowledge that there are specialists in human factors and that he is not

one, but he also testified that his knowledge of that specialty was gained during a

trip to the library the week prior to trial, after he had arrived at his opinion

regarding the Caterpillar paver. Munsell conceded he had only looked at one

paver during his preparation for the case, and that he had never seen a paver of

the type involved in the accident or researched the control mechanisms of any

types of pavers other than the one he saw. We found no indication in the record

that Munsell had ever evaluated a paver prior to this litigation.

Those admissions demonstrate that Munsell’s qualifications in the field of

human factors were inadequate and that his field research and preparation for trial

were cursory, undermining the reliability of his opinion that the Caterpillar

paver’s control mechanism is “not intuitive” to paver operators. (Appellee’s App.
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at 40.) The only information Munsell was qualified to provide based on his

experience and field research was that at least one manufacturer of pavers used

levers instead of rotary dials for variable speed control. (See Appellee’s App. at

48 (“I just know that levers are feasible.”).) The trial court was well within its

discretion in concluding, first, that the existence of one paver equipped with a

lever instead of a rotary dial, standing alone, does not constitute relevant

“specialized knowledge” that could help the jury to determine a fact in issue and,

second, that Munsell was not “qualified as an expert” in the relevant field of

human factors. Fed. R. Evid. 702. “The trial judge is granted great latitude in

deciding which factors to use in evaluating the reliability of expert

testimony . . . .” United States v. Charley, 189 F.3d 1251, 1266 (10th Cir. 1999). 

The trial judge’s statement accompanying her ruling was sufficiently detailed to

indicate she had conducted an adequate Daubert analysis. Cf. Goebel, 215 F.3d at

1088 (holding a trial court’s Daubert ruling inadequate where there was “not a

single explicit statement on the record to indicate that the district court ever

conducted any form of Daubert analysis whatsoever”).

We reverse only the decision to strike that part of Munsell’s testimony

regarding compliance with SAE standards and affirm the balance of the Daubert

ruling based on Munsell’s lack of experience and training in human factors
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engineering, expressing no opinion on the merits of those aspects of the

testimony. That, however, does not end the matter.

Questions remain whether the grant of judgment as a matter of law in

defendant’s favor would have been permissible had Munsell’s testimony

regarding Caterpillar’s noncompliance with SAE standards remained a part of the

evidence and been properly credited in the JMOL analysis.

III

We review de novo a grant of judgment as a matter of law. Phillips v.

Hillcrest Med. Ctr., 244 F.3d 790, 796 (10th Cir. 2001). Rule 50 “allows the trial

court to remove cases or issues from the jury’s consideration ‘when the facts are

sufficiently clear that the law requires a particular result.’” Weisgram v. Marley

Co., 528 U.S. 440, 448 (2000) (quoting 9A Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 2521, at 240 (2d ed. 1995)). Munsell’s

testimony regarding the failure of the speed control mechanism to comply with

SAE J297, standing alone, was insufficient to allow a reasonable finder of fact to

conclude the paver was defective and unreasonably dangerous. Although the fact

that a piece of equipment fails to comply with published engineering standards

may allow a jury to infer that the product is defective, it does not establish, by

itself, that the defect made the product unreasonably dangerous to an extent

beyond that which would be contemplated by the ordinary consumer. See
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Bohnstedt v. Robscon Leasing L.L.C., 993 P.2d 135, 136 (Okla. Civ. App. 1999)

(setting forth the essential elements of a products liability action under Oklahoma

law). Aside from Munsell’s testimony, plaintiff introduced no additional

evidence to show defective design or unreasonable dangerousness. Thus, we

conclude there was an inadequate residuum of evidence that could support a

reasonable jury verdict favoring plaintiff’s product liability claim.

IV

The district court’s grant of judgment as a matter of law in favor of

defendant is AFFIRMED.