In Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, (6th Cir. 2007), the United States Court of Appeals for the Sixth Circuit upheld the District Court’s use of the prudent-manufacturer test when it excluded expert testimony from an engineer under Tennessee’s products liability law. Manitowoc Boom Trucks, an industrial crane manufacturer, was sued by a worker who was injured when one of its truck-mounted crane tipped over at a construction site. Plaintiff intended to present an expert engineer to testify that the crane was defectively designed and unreasonably dangerous because its outriggers were not electronically linked to the operation of crane via an interlocking system. The expert’s testimony as to a safer design was based entirely on a schematic he drew up for how the interlocking system from smaller truck might be integrated into larger crane, such as the one at issue.
Tennessee’s products liability law recognizes two different tests for determining whether a product is defective and unreasonably dangerous. The first, the consumer-expectation test, is used where a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it. The second, the prudent-manufacturer test, imputes knowledge of the dangerous condition to the manufacturer, and then asks whether, given that knowledge, a prudent manufacturer would market the product. In this action, both parties agreed that the prudent-manufacturer test was appropriate because the industrial crane constituted a complex product of which an ordinary consumer would have no reasonable expectation as to its safety. Under the prudent-manufacturer test, however, expert testimony about the prudence of the decision to market a product with a given design by a manufacturer becomes essential to a plaintiff's case in chief.
Utilizing the factors set forth in the Supreme Court decisions in Daubert and Kumho, the District Court excluded the plaintiff’s expert on a number of grounds. First, that he failed to test whether his alternate design could even be installed on a larger crane. The Court noted that at least a modicum of empirical testing should have been performed in order to determine how easily an interlocking outrigger system could be installed onto the Manitowoc crane, as well as whether such a system would bring with it any downsides in safety or function.. "After all, the design of industrial equipment is a complex process and changes to prevent one problem could create other problems, thus increasing the overall danger of using a product." Second, the Court recognized that the engineer was not sufficiently experienced in truck outriggers or cranes and there was no showing that at time crane was sold, that interlocking systems on such cranes were industry standard. Finally, the Court of Appeals took special note that the engineer developed opinion solely for litigation. It commented that the expert's opinions were conceived, executed, and invented solely in the context of this litigation, such that he appeared in many ways to be "the quintessential expert for hire." Rather, this expert failed to offer a proposed design that would necessarily make the subject crane safer and merely offered a design that might have prevented a very specific accident under very specific conditions.
Tia Ghattas, a member of the Cozen O’Connor Chicago office who has faced numerous "experts for hire" in her defense of product liability cases, was encouraged by the Court of Appeals taking such a hard line on the admission of questionable expert testimony.
She believes the use of the prudent-manufacturer test permitted the Court to justify shifting its perspective such that it became easier to perform the critical analysis envisioned by the Supreme Court when it rendered the Daubert and Kumho decisions. Knowing that the exclusion of an expert can often be the death knell for a plaintiff’s case, Ghattas often employs arguments similar to those in Manitowac and advises her clients that a persuasive motion to bar expert testimony can be the a significant weapon when used properly.
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