1 United States Court of Appeals,

Fifth Circuit.

No. 96-60084.

Loretta WATKINS, Administrator of the Estate of Eugene Watkins,

Deceased, and Individually as the Wron gful Death Beneficiary of

Eugene Watkins, Deceased, Plaintiff-Appellant,

v.

TELSMITH, INC., et al., Defendants,

Telsmith, Inc., Defendant-Appellee.

Sept. 16, 1997.

Appeal f rom the United States District Court for the Northern

District of Mississippi.

Before JOLLY, JONES and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Loretta Watkins sued Telsmith, Inc., after a conveyor

m anufactured by Telsmith's predecessor caused the death of he r

husband, Eugene Watkins. Telsmith removed the case to federal

court, and the case proceeded to trial under the theory that the

conveyor embodied an unreasonably dangerous design. Upon a motion

by Telsmith, the district court heard outside the jury's presence

and then excluded the testimony of Watkins's proffered expert under

Fed. Rule of Evidence 702. As this exclusion was fatal to the

plaintiff's case, the district court also granted Telsmith's motion

for judgment as a matter of law . Watkins appeals, alleging that

the court improperly applied Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 11 3 S.Ct. 2786, 125 L.Ed.2d

469 (1993), to exclude the expert testimony. Finding no abuse of

discretion, we affirm.2 I.

Eugene Watkins was a superintendent at Memphis Stone and

Gravel Co. During a visit to the company's Batesville, Mississippi

gravel wash plant on November 16, 1989, Watkins and Tommy Bolton

were working with a Model 374 portable conveyor, or "radial

stacker," that was manufactured in 1943 by Barber-Greene Company,

Telsmith's predecessor-in-interest. In order to move the conveyor,

they began clearing away sand accumulated around its base. At some

point, Eugene Watkins walked under the conveyor, the wire rope

supporting the conveyor snapped, and the conveyor fell on him. He

died the next day.

The Model 374 conveyor arm, on which the conveyor belt ran,

was attached to a base that sat o n wheels. The conveyor was

portable and could be towed at low speeds. The conveyor arm could

be moved vertically via an elevator system and could also be moved

radially. Neither of these functions had been used in recent

years. The parties stipulated that the machine had been modified

several times by Memphis Stone and Gravel and earlier owners.

The conveyor arm is upheld by a continuous piece of wire rope

that runs the length of the conveyor and wraps around both ends.

The conveyor arm is raised and lowered by a hydraulic cylinder that

acts on the wire rope. At the base of the conveyor, near its

wheels, sand that had fallen off the conveyor over time had hidden

the wire rope from view, and it was in this area that the wire rope

failed.

Loretta Watkins's lawsuit originally alleged negligence,1 The colloquy on this motion went as follows:

THE COURT: Do you have any problem with that [exclusion

o f the 1987 ANSI standard and evidence of subsequent

design] Mr. Smith [plaintiff's counsel]?

3 defective design, and failure to warn claims, but onl y the

defective design claim went to trial. Her theory was that the

conveyor was an unreasonably dangerous product because the conveyor

arm was only supported by one wire rope.

Watkins offered the testimony of Marcus Dean Williams as an

expert to assert that the conveyor was unsafe and that alternative

designs were feasible. The alternative designs were: 1)

supporting the conveyor with two wire ropes, 2) rerouting the cable

to enable easier inspecti on, 3) supporting the conveyor with two

hydraulic cylinders a ttached to the frame itself, 4) using side

posts or "outriggers" to hold the conveyor up in the event the wire

rope failed, and 5) using a cros s bar or stop plate to lock the

conveyor in place when elevated.

Watkins also intended to introduce the 1987 American National

Standards Institute (ANSI) Safety Standards for Conveyors and

Related Equipment, as wel l as evidence of Telsmith's post-1943

designs to buttress the feasibility of her proposed design changes.

Telsmith file d two motions in limine to exclude Williams's

testimony and evidence of the post-manufacture standards.

At trial, relying on his perception that Telsmith had conceded

that the proposed alternate designs were feasible, Wa tkins's

counsel agreed not to introduce the 1987 ANSI standards or evidence

of subsequent designs. 1MR. SMITH: No, Your Honor. As long as I get in return

the fact that these alternate designs that our expert

will testify to are feasible. And I think that's what

his response says. And that is that—

THE COURT: There's no contest as to feasibility?

MR. SMITH: That's the response that I got to it. And as

long as that's underst ood, then I think that would be

absolutely correct.

THE COURT: Well, are we talking about technology that

existed in 1943?

MR. BROCK: The technology existed, Your Honor. It's a

question of whether it's a good design or better design

or bad design.

THE COURT: Yes. Well, you follow me. Under that W ard v.

Hobart case, I believe it was a

... meat grinder that was

manufactured in 1948, and the case was tried in 1966 or

something, and the Fifth Circuit ruled it was error ...

to hold this manufacturer to the duty, using 1965, 1966

standards, for a machine that was manufactured 20 years

earlier. And that's what the Ward v. Hobart case held.

That's still good law.

MR. SMITH: Your Honor, the only reason I brought up the

ANSI standards was if—and any subsequent changes in the

product was if the defense were to say, well, that design

change is not feasible, and since they've now said that

those design changes are feasible, then I have no need to

bring that up. I think the Court is absolutely correct.

THE COURT: Well, as long as we understand that I'm going

to hold this manufacturer to standards that existed in

1943 when the machine as manufactured, not something that

was developed in 1963. That pretty well takes care of

that....

4 The next motion was the exclusion of Williams. As part of the

hearing on this motion pursuant to Rule 104(a) of the Federal Rules

of Evidence, the court heard testimony from Williams as well as

from Dr. Raymond Neathery, the defense expert.

Williams received a Bachelor of Science in Civil Engineering

from Mississippi State University in 1949 and was a registered2 On direct, he testified:

Q. In [your work with the Highway Department in] '49 and

'50 and '51, were you involved with transporting

materials from place to place?

A. Yes, sir.

Q. Describe what yo u did with the Highway Department

during those three or four years.

A. Well, in the first place, I was not in charge of any

of that. The contractors handled all of that operation.

5 professional engineer. He was a B-17 pilot in World War II, and as

a part of his duties served as a maintenance supervisor. His work

i n that capacity at least tangentially exposed him to the use of

conveyors. Later, he worked for Boeing in facility engineering and

tool design. Williams also served with the Army Corps of Engineers

in the early 1960's. He worked for the Mississippi Highway

Department for two periods totaling approximately seven years. In

addition, Williams taught drafting, surveying, structural design

and engineering materials at Northwest Mississippi Junior College.

Williams testified th at he had extensive experience in

building roads and bridges and other str uctural engineering

proje cts, in all of which he observed conveyors in use. For the

Army, Williams participated in setting up a gravel wash facility.

There was a portable conveyor at that wash plant, but he could not

remember how the conveyor arm was supported. Williams had seen

conveyors using hydraulic cylinders, outriggers, and stop plates or

bars, but none using two wir e ropes. He could neither remember

many of the types and brands of conveyors that he had worked with

nor clearly describe whether his work directly utilized conveyors. 2But we do the i nspection, and so I was involved in the surveying

and inspection end of it at that time.

Q. Were there conveyors being used to transport materials

from place to place during that operation?

A. Yes, sir.

Q. And was it your job to be familiar with those

conveyors?

A. Yes, to some extent, it was.

And then on cross-examination, he testified:

Q. Most of these conveyors that you've seen were not a major concern to you at the time you had them, were they?

You were basically the civil engineer on the job?

A. Yes, sir.

Q. You saw them there, but—

A. Yes, sir.

Q. —you didn't brin g them in; the contractor brought

them in, things like that; right?

A. Lot of them the contractor brought in, yes, sir.

Q. In your accident reconstruction work, you've only

dealt with two other conveyors; isn't that right?

A. I think that's right.

Q. And those were auger or screw-type conveyors?

A. No. One of them was a belt conveyor. Maybe it was

three of them.

Q. Okay. Do you recall telling me in your deposition that

you only had two others and they were both screw

conveyors?

A. Yes, sir. I think that's what I told you.

Q. But now you think there's another belt conveyor?

A. Well, I keep remembering some of these things.

6 Williams did not know if any conveyors were built in 1943 using his7

alternative proposed designs.

He also stated that he was familiar with the safety factors

employed in us ing wire rope and has tested the strength of wire

rope. Williams used his education in materials strength and

structura l design, information that was "common knowledge" among

engineers, and his experience with conveyors to analyze the design

in question. He considered the problem "not really enough to be a

good engineering project."

Williams lacks ed ucation in mechanical engineering, and his

experience in machine design is limited to a project he conducted

in one of his engineering classes in which he designed the base of

a chair. He has never designed a conveyor, although he claimed to

have designed "nuts and bolts and that kind of thing one at a

time." Williams has performed accident reconstruction for three

conveyor cases, but only one was a belt conveyor; in those cases,

he investigated whether the conveyors should have been designed

with guards to prevent workers from being caught in the conveyor.

Preparing for this case, Williams twice exami ned the

reconstructed conveyor as it operated on site. He reviewed

manufacturer's design drawings for the Model 374 conveyor and

studied photographs of the conveyor. He also considered the 1987

ANSI standard. Although Williams testified that he made some

sketches and calculations as part of his analysis, he had kept none

of them because he did not consider them to be important. He made

no design dr awings and conducted no tests of his proposed

a lternatives. Williams did not analyze how much the alternative8

designs would cost or what impact they would have on the conveyor's

utility. He admitted that he reached his opinion in this case

after one day's work.

Raymond Neathery testified as an expert for Telsmith.

Neathery has a Master of Science degree in Mechanical Engineering

and a Ph.D. in Engineering Mechanics and is a professor of

mechanical design. He testified that the process of design,

although varying slightly by product and company, includes several

essential steps: identifying the problem, conceptualizing possible

solutions, investigating the present art, evaluating the conc ept

through engineering analysis, modeling, and testing, and selecting

the alternative. Neathery described this as an iterative process

that requires a number of attempts at each step. He testified that

Williams's analysis reveals only an attempt at problem

identification an d proposing solutions, but no investigation of

other designs, analysis, or testing of alternatives.

On cross-examination, Neathery testified that the designs

proposed by Williams were "conceptual ways of [supporting the

conveyor], and ways which, given time and effort, might be properly

designed to do it." But according to Neathery's analysis,

Williams's proposed alternatives "interfere with function."

Neathery conceded, howev er, that the conveyor could probably be

operated with two cables, and that a locking pin or other device

could be used to secure the conveyor at a particular height.

Neathery also agreed that the defendant had manufactured a conveyor

that used a hydraulic cylinder lift rather than a cable, but he did3 We do not reach Watkins's contentions that the trial court

erred in finding Williams insufficiently qualified and in applying

the Mississippi case law on products liability. S perry-New Holland

v. Prestage, 617 So.2d 248 (Miss.1993).

9 not know whether such a conveyor was manufactured in the 1940s. In

response to questioning by the court, Neathery stated that the

proposed alternatives would not be "exorbitant in cost."

The next day, the district court excluded William s's

testimony. The court found Williams unqualified as an expert

because his training is in civil engineering, while the expertise

required by this case, of which Williams possesses little, lies in

mechanical engineering. The court found Williams's testimony

substantively inadequate under Rule 702, Dauber t and applicable

Mississippi products liability la w. Watkins now appeals the

exclusion of the expert evidence and the resulting judgment as a

matter of law.

II.

Distric t courts enjoy wide latitude in determining the

admissibility of expert testimony, and "the discretion of the trial

judge and his or her decision will not be disturbed on appeal

unless "manifestly erroneous'." Eiland v. Westinghouse Electric,

58 F.3d 176, 180 (5th Cir.1995) (quoting Smogor v. Enke, 874 F.2d

295 (5th Cir.1989)).

Dispositive of this appeal is the question whether Williams's

testimony satisfied the Daubert standard of rigor. 3 Watkins

contends that the standards articulated in Da ubert only apply to

"scientific k nowledge" and expert testimony based on "novel"4 The Daubert case concerned admissibilit y of novel expert

witness testimony on the relation of an expectant mother's taking

of Bendectin and the incidence of children's birth defects.

10 scientific evidence. This case presents no such novelty, she

contends, but merely the application of Williams's experience and

common engineering principles to evaluate the safety of this

conveyor and envision alternative des igns. The jury should have

been allowed to hear and evaluate his testimony.

To evaluate these contentions, it is necessary bri efly to

recapitulate Daubert. The Supreme Court held that when expert

testimony is offered, the trial judge must perform a screening

function to ensure that the expert's opinion is relia ble and

relevant to the facts at issue in the case. S ee Daubert, 509 U.S.

at 589, 113 S.Ct. at 2794-95. D aubert went on to make "general

obser vations" intended to guide a district court's evaluation of

scientific ev idence. 4 The nonexclusive list includes "whether [a

theory or technique] can be (and has been) tested," whether it "has

been subjected to pe er review and publication," the "known or

potential rate of error," and the "existence and maint enance of

standards con trolling the technique's operation," as well as

"general acceptance." 509 U.S. at 593-594, 113 S.Ct. at 2796-97.

The Court summarized:

The inquiry envisioned by Rule 702 is, we emphasize, a

flexible one. Its overarching subject is the scientific

validity and thus the evidentiary relevance and reliability—of

the principles that underlie a proposed submission. The

focus, of course, must be solely on principles and

methodology, not on the conclusions that they generate.

Id. at 594-95, 113 S.Ct. at 2796.5 The Ninth Circuit has held that the standards for admission

of scientific knowledge do not apply to expert testimony based on

specialized knowledge of criminal behavior patterns. S ee U nited

States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1997) (modus operandi

of drug tra ffickers); U nited States v. Webb, 115 F.3d 711 (9th

Cir.1997) (expert testimony as to why people typically hide guns in

the engine compartments of their cars). However, two judges wrote

in separate concurrences in Webb to explain that the trial judge

still has a significant role in ensuring the reliability of expert

testimony based on specialized kn owledge. S ee Id. at 715-22

(Jenkins, J. concurring) and Id. at 722 (Fletcher, J. concurring).

These cases are not particularly relevant to engineering or applied

science testimony about product design efficacy and safety.

11 One ap pellate court case supports Watkins's position that

Daubert does not apply here. In C ompton v. Subaru of America,

I nc., 82 F.3d 1513 (10th Cir.), c ert. denied,

--- U.S. ----, 117

S.Ct. 611, 136 L.Ed.2d 536 (1996), 5 the Tenth Circu it held that

" Daubert sets out additional f actors the trial court should

consider under Rule 702 if an expert witness offers testimony based

upon a particular methodology or technique," but "application of

the Daubert factors is unwarranted in cases where expert testimony

is based solely upon experience or training." I d. at 1518-19. The

court concluded that Daub ert did not apply to the proposed

testimony of an automotive engineer in a car rollover case because

he was not relying on "some particular methodology or technique,"

but upon "general engineering principles and his twenty-two years

of experience as an automotive engineer." Id. at 1519.

Two other circuits have, however, disagreed with Compton and

held that Daubert is not limited to novel scientific techniques or

methodologies. S ee Cummins v. Lyle Indus., 93 F.3d 362, 366-371

(7th Cir.1996); P eitzmeier v. Hennessy Indus., Inc., 97 F.3d 293,

296-98 (8th Cir.1996), cert. denied,

--- U.S. ----, 117 S.Ct. 1552,12

137 L.Ed.2d 701 (1997).

In Cummins, the Seventh Circuit affirmed the excl usion of

expert testimony in a products liability case brought against the

manufacturer of an industrial trim press. 93 F.3d at 365. The

district court excluded testim ony by the plaintiff's expert

regarding adequacy of warnings and the feasibility of alternative

designs because the expert lacked a reliable basis for his opinions

under Daubert. The court based its decision on the facts that "he

had never tested his alternative designs and warnings or read any

studies of such tests," and did "not have practical knowledge

concerning the use of the alternative components in an industrial,

machine-tool production environment." I d. at 366. The court of

appeals agreed that the proffered expert's testimony did not meet

the requirements of Rule 702. C ummins outlined how Seventh Circuit

cases have interpreted Daubert:

First, the district court must determine whether the expert's

testimony is reliable.... [A] district judge should assure

himself, before admitti ng expert testimony, that the expert

knows whereof he speaks. In the context of theoretical and

applied science, this requiremen t places on the court the

obligation to ensure that the proffered testimony pertains to

scientific knowledge....[I]t must rule out subjective belief

or unsupported speculation.... Second, the district court has

to determine wh ether the evidence or testimony assists the

trier of fact in understanding the evidence or in determining

a fact in issue.

Id. at 367-68 (citations and quotations omitted).

M uch like Watkins, the plaintiff in C ummins argued that the

case dealt not with a novel scientific theory but "the application

of well-known instruments of the engineering profession to a

particular and not-out-of-the-ordinary application." Id. at 368,13

n. 2. The court respond ed that although D aubert 's holding was

limited to the "scientific context," Daubert, 509 U.S. at 589-90,

n. 8, 113 S.Ct. at 2795, the Supreme Court also stated that "we do

not read the requirements of Rule 702 to apply specially or

exclusively to unconventional evidence." I d. at 593, n. 11, 113

S.Ct. at 2796. As C ummins explaine d, this language "counsels

against wholesale abandonment" of Daubert in cases involving "the

application o f science to a concrete and practical problem,"

particularly because of the difficulty in differentiating between

scientific and technical testimony. C ummins, 93 F.3d at 368, n. 2.

The court concluded:

The basic task of the district court remains essentially the

same—to ensure that the evidentiary submission is of an

acceptable level of "evidentiary reliability. " It may be

that, in some "as applied" situat ions, some of the

non-exhaustive factors noted by the Supreme Court in Daubert

are worthy of less emphasis than in situations involving more abstract or novel scientific theory. We do not believe,

however, that [the plaintiff] has established here that the

district court exceeded the bounds of permissible judgment in

placing signi ficant emphasis on the lack of any testing of

[her expert's] view. Indeed, the witness had acknowledged

that testing was a part of the design process.

93 F.3d at 368, n. 2 (citations omitted). Testing is not an

"absolute prerequisite" to the admission of expert testimony on

alternative designs, but Rule 702 demands that experts "adhere to

the same standards of intellectual rigor that are demanded in their

professional work." Id. at 369.

The Eighth Circuit has also applied Daube rt to engineering

testimony about the efficacy of alternative designs for a6 See also Pestel v . Vermeer Mfg. Co., 64 F.3d 382 (8th

Cir.1995) (evidence of expert's proposed alternative engineering

design excluded on basis of Daubert ).

7 A lthough no Fifth Circuit case has directly addressed the

applicability of Daubert to a case such as this, t he opinion in

United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5t h

Cir.1996), which re versed the exclusion of expert valuation

evidence in a condemnation case, touches on a related issue. After

noting that Daubert limited itself to scien tific evidence, the

court concluded that the decision "did not otherwise work a sea change over federal evidence law." Id. However, the panel agreed

that Da ubert articulated the district court's role in ensuring

"that an expert's testimony both rests on a reliable foundation and

is relevant to the task at hand," while not replacing the adversary

system's traditional methods for attacking "shaky evidence." Id.

(quoting Daubert, 509 U.S. at 597, 113 S.Ct. at 2799).

14 "low-tech" product. 6 In P eitzmeier, the court affirmed the

exclusion of expert testimony regarding design defe cts in, and

alternative designs to, a tire-changing machine. 97 F.3d at 297.

The court noted that the expert had "neither designed nor tested"

proposed safety devices, having only made "rough sketches that have

not been adapted into engineering drawings, much less prototypes."

Id. The expert admitted "that he has never designed, built, or

tested a platform that has been shown to reduce the launch effect

of an exploding tire and wheel assembly while adequately supporting

the tire and wheel assembly during the tire-changing process." I d.

The expert's proposed designs had not been subjected to peer review

and could not be evaluated for their "general acceptance" or known

rate of error because they had not been designed or tested. I d. at

297-98.

We agree for the reasons stated by the Seventh and Eighth

Circuits that the Daubert analysis applies to the type of expert

testimony presented by Williams. 7 Not every guidepost outlined in8 Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 186 (7th

Cir.1993).

9 Tyus v. Urban Search Management, 102 F.3d 256, 262-63 (7th

Cir.1996).

10 Pestel, 64 F.3d at 384.

15 Daubert will necessarily apply to expert te stimony based on

engineering principles and practical experience, but the district

court's "preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid and of

whether t hat reasoning or methodology properly can be applied to

the facts in issue" is no less important. D aubert, 509 U.S. at

592-93, 113 S.Ct. at 2796. We cannot agree with the C ompton

court's conclusion that Daubert only applies when "unique, untested

or controversial methodologies or techniques" are relied on by the

expert. 82 F.3d at 1518. D auber t expressly denies that the

precepts of Rule 702 apply only to unconventional evidence. 509

U.S. at 592 n. 11, 113 S.Ct. at 2796 n. 11. And while Daubert dealt

with expert scientific evidence, 509 U.S. at 590 n. 8, 113 S.Ct. at

2795 n. 8, the decision's focus on a standard of evidentiary

reliability and the requirement that proposed expert testimony must

be appropriately validated are criteria equally applicable to

"technical, or other specialized knowledge...." Fed. Rule of Evid.

70 2. Moreover, the nonexclusive list of factors relevant under

Daubert to assessing scientific methodology—testing, peer review,

and "general acceptance"—are also relevant to assessing other types

of expert evidence. Whether the expert would opine on economic

valuation, 8 advertising psy chology, 9 or engineering, 10 application1 1 See Navarro v. Fuji Heavy Indus., 117 F.3d 1027(7th Cir.

1997) ("a conclusion without any support is not one based on expert

knowledge and entitled to the dignity of evidence"; under D aubert,

e ngineering expert must "show how his conclusion

... is groun ded

in—follows from—an expert study of the problem").

16 of the Daubert factors is germane to evaluating whether the expert

is a hired gun or a person whose opinion in the cou rtroom will

w ithstand the same scrutiny that it would among his professional

peers. 11

Compton also suffers from the vagueness of the line it draws

between "methodology" and other scientific or technical knowledge.

As one of our district judges aptly observed:

An alternative design is by definition a different method of

configuring the product. In the C ompton case, for example

, the expert was clearly proposing that the vehi cles be

constructed b y some other method that would embody his

proposed standards.

Tassin v. Sears, Roebuck and Co., 946 F.Supp. 1241, 1247

(M.D.La.1996). Alternative designs by definition include elements

of science, technology, and methodology. Further, it seems exactly

backwards that experts who purport to rely on general engineering

principles and practical experience might escape screening by the

district court simply by stating that their conclusions were not

reached by any particular method or technique. The moral of this

approach would be, the less factual support for an expert's

opinion, the better. C ompton 's view of the admissibility of expert

evidence is untenable.

We conclude that whethe r an expert's testimony is based on

"scientific, technical or other specialized knowledge," Daubert and

Rule 702 demand that the di strict court evaluate the methods,17

analysis, and principles relied upon in reaching the opinion. The

court should ensure that the opinion comports with applicable

professional standards outside the courtroom and that it "will have

a reliable basis in t he knowledge and experience of [the]

discipline." 509 U.S. at 592, 113 S.Ct. at 2796.

III.

Turning to the testimony of Williams, Watkins defends his

analysis because he relied on his experience with conveyors and his

familia rity with hydraulic cylinders and other technologies in

conveying his design proposals. He reviewed drawings of the

conveyor, inspected the rebuilt conveyor, reviewed photographs of

the accident aftermath, and reviewed the 1987 ANSI standards.

Williams had seen hydraulic cylinders, outriggers, and stop plates

on other conveyors.

In support, Watkins cites D ixon v. International Harvester,

754 F.2d 573, 579 (5th Cir.1985). In D ixon, the expert witness was

a design engineer, a member of a committee that performed crash

testing and investigations, "was familiar with the standards-making

processes of professional societies and

... had experience in

investigating crane, tractor, and automobile accidents." I d. This

court held that the expert's testimony should have been considered

in ru ling on the motion for directed verdict. Noting that the

expert "inspected the design of the [tractor involved] ... [and]

the control arrangements of the Harvester tractor, examined a set

of blueprints of the trac tor, and viewed photographs showing the

condition of the tractor at the time of the accident," we concluded18

that "[o]nce [he] was properly admitted as an expert, the jury was

at liberty to accept or reject his testimony, and t o judge his

credibility." Id. at 580 (citations omitted). Dixon 's facts are

sketchy, and in any event, the opinion's emphasis on qualifications

over reliability of the expert testimony reflect a pre- D aubert

sensibility. Dixon is not controlling.

Having evaluated the district court's gate-keeping effort in

this case, we conclude that there was no manifest error.

Williams's testimony lacked the requisite indicia of reliability to

derive from "scientific, technical, or other specialized

knowledge." Fed.R.Civ.Ev. 702. First, the proper methodology for

proposing alternative designs includes more than just

conceptualizing possibilities. The district court appropriately

noted the lack of testing of any of the proposed alternatives. S ee

Daubert, 509 U.S. 579, 590, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469;

Cummins, 93 F.3d at 368-69; P eitzmeier, 97 F.3d at 297; A merican

& Foreign Ins. Co., 45 F.3d at 139 (electrical engineer's failure

to test theory that circuit breakers should have tripped faster).

This is not to say that alternative product designs must always be

tested by a plaintiff's expert, but in this case, both Neathery and

Williams acknowledged the importance of testing in design. S ee

Cummins, 93 F.3d at 368, n. 2 (district court has not "exceeded the

bounds of permissible judgment in placing significant emphasis on

t he lack of any testing of [the expert's] view. Indeed, the

witness had acknowledged that testing was a part of the design

process"). Second, the fact that Williams had "seen" conveyors19

with hydraulic cylinders, outriggers, and stop-plates, without more

information regarding the types of conve yors and their intended

functions, does not save his testimony from its lack of empirical

support. Williams did not investigate designs of other conveyors

available today or those available in 1943. When directly asked

about his efforts to find similar conveyors, Williams stated:

"I've looked arou nd." His testimony about his prior experiences

with conveyors was similarly vague. Where an expert bases his

opinion in part on his experience with similar machines, we cannot

fault the court for demanding a more detailed recollection of the

expert's review and u nderstanding of similar machines than was

reported by Williams.

Furthermore, Willi ams did not even make any drawings or

perform any calculations that would allow a trier of fact to infer

that his theory that the conveyor design was defective and that

alternative designs would have prevented the accident witho u t

sacrificing utility were supported by valid engineering principles.

Any calculations or sketches he made he did not consider important

enough to keep. Perhaps a design defect case can be mounted

without calculations to support an expert's theories, but the

district court did not err in concluding that so me such

calculations were necessary to demonstrate the fe a sibility of

Williams's ideas. Although he claimed experience in analyzing

stresses and the appropriate safety factor s in cable wires,

Williams did not perform any such calculations (that he thought

were important enough to retain) about the load put on the wire in20

this conveyor, or about the loads the wire was capable of

sustaining, or about the effect of improper maintenance, or about

the marginal safety factor of an additional wire or any of the

other redundant systems he proposed. S ee Rosado v. C.J. Deters, 5

F.3d 119, 124 (5th Cir.1993) (accident reconstruction expert

properly excluded where "he could not independently establish the

necessary physica l and mathematical bases for his opinion"). In

fact, Williams never even asked to examine the wire r ope used on

this conveyor.

Thus, the district court did not err in concludi ng that

Williams made his ass essment of unreasonable dangerousness and

proposed his alternative designs "without

... any sci entific

approach to the proposition at all."

Watkins also argues that because Telsmith conceded that

Williams's design alternati ves were "feasible," much of the

objection to Williams's testimony falls away. A "feasible

alternative design" under Mississippi law "is a design that would

have to a reasonable probability prevented the harm without

impairing the utility, usefulness, practicality or desirability of

the product to users or consumers." Miss.Code Ann. § 11-1-

63(f)(ii) . The concession of feasibility, Watkins argues, means

that Telsmith can have no objection to whatever basis Williams has

for his opinions. We disagree, because Telsmith did not concede so

much. Telsmith's motion to exclude subsequent designs states that

"Defendant certainly does not contest feasibility of such designs,

although Defendant does claim that subsequent designs do not serve21

the identified functions the Model 374 served." Telsmith clearly

did not stipulate that the alternative designs do not impair the

"utility, usefulness, practicability or desirability of the product

to users or consumers." Miss.Code. Ann. § 11-1-63(f)(ii). In open

court, Telsmith's counsel stated that "[t]he technology existed,"

but that there was "a question of whether it's a good design or

better design or bad design." Accordingly, the trial judge did not

misconstrue the scope or effect of the defendant's co ncession on

this issue in deciding that Williams must still be able to

independently establi sh the technical basis for the utility and

safety of the proposed alternative designs.

IV.

The district court properly applied the principles of Daubert

and did not commit manifest error in excluding Williams's testimony

for lack of a sufficiently reliable scientific or technical basis.

Without the testimony by Williams, the district court's decision to

grant judgment as a matter of law was mandated, as the plaintiff

had not produced evidence that the utility of the conveyor was

outweighed by a ny dangers in its design. It is unnecessary to

reach Watkins's disagreement with the district court's

interpretation of Mississippi products liability law.

For the foregoing reasons, we AFFIRM the judg ment of the

district court.