## 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. Mathew s with him on the brief), Steece, Mathews & Associates, P.C., Oklahoma City, Oklahoma, for the PlaintiffAppellant. James A. Jennings, III (W.T. Womble, Womble & Cotel lesse, 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.- 2 -

Plaintiff Christi Alfred was on active duty with th e United States Navy when she was severely injured by a paver manufactur ed by defendant Caterpillar. In this product liability suit, she alleges the pav er’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. 5 0(a). Plaintiff challenges both rulings. We again address the issue of timing of D aubertmotions, and exercising jurisdiction pursuant to 28 U.S.C. § 1291, we rever se 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 mat ter 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 pave r 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.- 3 -

Plaintiff alleges the paver’s control mechanism is defective because it is counterintuitive; defendant responds that the accid ent was caused by human error and that the mechanism is not defective or unreason ably 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 defe ct 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) (citi ng Kirkland v. Gen. Motors Corp. , 521 P.2d 1353, 1363 (Okla. 1974)). Munsell, a me chanical engineer, testified that the use of a rotary variab le speed control instead of a lever was “not intuitive” and was a direct cause of plain tiff’s injury. (Appellee’s App. at 40.) Plaintiff’s only evidence regarding defend ant’s liability for product design was Munsell’s testimony. After plaintiff rested, defendant moved to strike M unsell’s testimony on the ground that he was not qualified by knowledge, skil l, 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).- 4 -

The court granted the motion to strike and, conclud ing that without Munsell’s opinion plaintiff’s case was not supported by the e vidence, proceeded to grant judgment as a matter of law for defendant. The cou rt made the following observations:

Mr. Munsell gave an opinion that was very limited a nd it was backed by very little work and very little expertis e. I think Mr. Jennings has covered all that at the bench and it n eed not be repeated. The only actual investigation that he did was to fi nd 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 conc lusion. Aside from identifying those guidelines and standar ds, however, he has done no work that supports his conc lusion 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 und er Daubert and other cases construing Daubert ; that it is not supported by sufficient testing, experience, background, educati on, 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 t he expert testimony and, secondly, its Rule 50 motion for jud gment as a matter of law. (Appellant’s App. at 8–9.)
II Rule 702 of the Federal Rules of Evidence authorize s a “witness qualified as an expert by knowledge, skill, experience, train ing, or education” to give opinion testimony “[i]f scientific, technical, or o ther specialized knowledge will- 5 -

assist the trier of fact to understand the evidence or to determine a fact in issue.” Consistent with the Supreme Court’s decision in Dau bert v. Merrell Dow Pharmaceuticals, Inc. , Rule 702 requires trial courts to act as gatekeep ers, admitting only expert testimony that is both reliab le 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, an d 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 Daub ert , 509 U.S. at 592).
A We turn briefly to the timeliness of defendant’s mo tion 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 Cou rt affirmed a district court’s rejection of Daubertobjections raised by a defendant at the close of a ll the evidence. In doing so, we concluded “that Defendan t forfeited the opportunity to subject the expert testimony of [the] plaintiff’s . . . experts to a Daubertchallenge by failure to make a timely objection before that t estimony was admitted.” Id. at 1231. Recognizing that the law traditionally does not rew ard ambush trial tactics, in Macsenti this Court correctly criticized the practice of fi ling Daubertmotions- 6 -

at a late stage in the adversarial process when the re has been no motion in limine or concurrent objection to an expert’s participatio n. Counsel should not “sandbag” Daubertconcerns until the close of an opponent’s case, th ereby placing opposing counsel and the trial court at a severe di sadvantage. See Macsenti , 237 F.3d at 1233–34. The truth-seeking function of lit igation is best served by an orderly progression, and because Daubertgenerally contemplates a “gatekeeping” function, not a “gotcha” junction, Macsenti permits a district court to reject as untimely Daubertmotions raised late in the trial process; only in rare circumstances will such tardy motions, albeit allow ed under our decision in Goebel , be warranted. 215 F.3d at 1087 (indicating a dis trict court can satisfy its Daubertgatekeeping role “when asked to rule on a motion i n 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 Daubertobjections on the merits, rather than deeming them waived. Be cause 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 furt her development of Macsenti ’s timing jurisprudence.- 7 - B Our review of a trial court’s exercise of its Daube rtgatekeeping 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 ru ling will not be disturbed on appeal unless it is “arbitrary, capricious, whimsic al 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 choi ce in the circumstances.” Atlantic Richfield Co. v. Farm Credit Bank of Wichi ta , 226 F.3d 1138, 1163 (10th Cir. 2000) (citations omitted). Plaintiff argues Munsell’s testimony qualified as a dmissible expert testimony under the requirements of Rule 702 and Da ubertand therefore was erroneously stricken. Munsell’s testimony was base d on engineering standards promulgated by the Society of Automotive Engineers (“SAE”) as well as on his investigative work. Citing SAE Standard J297, enti tled “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 inst ead of a lever, he concluded, its design was defective for failing to meet the SAE st andard.- 8 -

Munsell testified that he had nine years of experie nce in failure analysis and evaluation of industrial accidents, including i nvestigation and analysis of various control mechanisms, and that he has routine ly researched and applied engineering standards promulgated by various organi zations, including the SAE. He testified further regarding his methodology in t his case, which included researching engineering standards applicable to pav ers, in particular those governing speed control mechanisms, and applying th ose standards to knowledge gained during field research. Defendant did not di spute that the SAE standards upon which Munsell’s opinion was based are well-acc epted in the engineering community. Technical committees of the SAE draft a nd review engineering safety standards for mobility systems, including of f-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 defectiv e design. See Daubert , 509 U.S. at 589. Munsell’s testimony was reliable—meeting o ne of the Daubert criteria—because it was the result of his having re searched and applied standards promulgated by an internationally recognized organi zation of engineers. The- 9 -

testimony was relevant—meeting the other—because al though it is not dispositive and might be countered by conflicting testimony, itcould allow the jury to infer Caterpillar’s paver was defective for failing to me et industry design standards. Because that portion of his opinion qualified as ad missible expert testimony under Rule 702 and Daubert , we hold that striking Munsell’s testimony as to t he 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 a lso concerned “a field of expertise known as human factors.” (Appellee’s App . at 51.) Not only did Munsell acknowledge that there are specialists in h uman factors and that he is not one, but he also testified that his knowledge of th at 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 thathe 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 foun d no indication in the record that Munsell had ever evaluated a paver prior to th is litigation. Those admissions demonstrate that Munsell’s qualifi cations in the field of human factors were inadequate and that his field re search and preparation for trial were cursory, undermining the reliability of his op inion that the Caterpillar paver’s control mechanism is “not intuitive” to pav er operators. (Appellee’s App.- 10 -

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 c ontrol. (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, doe s 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 judg e is granted great latitude in deciding which factors to use in evaluating the rel iability 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 Daubertanalysis. Cf. Goebel , 215 F.3d at 1088 (holding a trial court’s Daubertruling inadequate where there was “not a single explicit statement on the record to indicate that the district court ever conducted any form of Daubertanalysis 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 tr aining in human factors- 11 -

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 amatter of law in defendant’s favor would have been permissible had M unsell’s testimony regarding Caterpillar’s noncompliance with SAE stan dards remained a part of the evidence and been properly credited in the JMOL ana lysis.
III We review de novo a grant of judgment as a matter o f law. Phillips v. Hillcrest Med. Ctr. , 244 F.3d 790, 796 (10th Cir. 2001). Rule 50 “all ows the trial court to remove cases or issues from the jury’s con sideration ‘when the facts are sufficiently clear that the law requires a particul ar 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 contro l 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 d angerous. Although the fact that a piece of equipment fails to comply with publ ished engineering standards may allow a jury to infer that the product is defec tive, it does not establish, by itself, that the defect made the product unreasonab ly dangerous to an extent beyond that which would be contemplated by the ordi nary consumer. See- 12 -

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 in troduced no additional evidence to show defective design or unreasonable d angerousness. Thus, we conclude there was an inadequate residuum of eviden ce that could support a reasonable jury verdict favoring plaintiff’s produc t liability claim.
IV The district court’s grant of judgment as a matter of law in favor of defendant is AFFIRMED

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