By Georgia D. Koutouzos, J.D.
Engineering expert didn’t utilize a proper factual basis or discernible methodology to support his conclusion that the loader was unreasonably dangerous, nor did he employ an identifiable scientific or systemic method in concluding that the loader’s alleged design flaw had caused the injury-producing accident.
The manufacturer of a Bobcat Skid-Steer Loader was entitled to summary judgment on a strict liability—design defect claim by a steel factory employee who allegedly had been injured while using the loader, an Illinois federal court determined. Noting that the injured man needed the expert’s testimony to establish two critical elements of his design defect claim (unreasonably dangerous design and causation), the court nevertheless concluded that the expert’s proffered opinions fell short of meeting any of the requisite reliability factors, i.e., testing, general acceptance, peer review, and error rates (Kirk v. Clark Equipment Co., September 18, 2020, Blakey, J.).
As part of his duties as a torch man at a steel factory, an employee operated a Bobcat Model S130 Skid-Steer Loader equipped with a 62-inch low-profile bucket attachment to clean scale material under roll lines at the factory. Bobcat loaders primarily are used for earth moving, including digging, carrying, and dumping loose materials via the bucket attachment. Equipped as it was with solid rubber tires, rear axle counterweights, and a heavy rear work light guard fabricated post sale, the loader operated by the employee purportedly had a Rated Operating Capacity (ROC) indicating that it could safely carry up to approximately 1,420 pounds.
Accident. To clean under the roll lines, the employee scraped material from the floor into the loader’s bucket and then transported the material up a concrete ramp that was inclined at approximately a 30-degree angle. According to the employee, the loader began to bounce and tip forward as he prepared to dump the material onto a dump pile at the top of the ramp, necessitating that he place his right foot near the loader’s front opening in an attempt to stabilize himself. However, the employee’s foot slipped out and became caught between the loader’s lift-arm cross member and mainframe cross member as the lift arms descended, allegedly causing serious injuries to his foot and ankle that resulted in multiple surgeries/hospitalizations, permanent right leg disability, and the loss of his job.
The employee and his spouse filed suit against the loader’s manufacturer, Clark Equipment Co., for strict liability under a design defect theory as well as for loss of consortium. The manufacturer moved to exclude the employee’s liability expert and, because the expert’s opinion was dispositive of the case, also moved for summary judgment in its favor.
Expert’s qualifications. The injured man’s liability expert was an individual who had been a licensed engineer since 1970, had worked in various engineering positions, and had served since 1989 as the president of Polytechnic, Inc.—a firm that provides forensic engineering analyses of mechanical engineering issues, including the evaluation of the design and implementation of material-handling equipment. In his eight-page report, the expert rendered opinions on both design flaw and causation.
Expert’s opinion. With respect to design, the expert opined that the loader was "unreasonably dangerous for its intended and foreseeable use because it had the innate propensity to not perform as the consumer/operator would expect." More specifically, he contended that the loader’s "design providing for the use of the 62" LP bucket made it highly likely, if not certain, that the bucket would be loaded in excess of the loader’s Rated Operating Capacity of 1300/1400 lbs.," and that limiting the size of the bucket to a 54-inch capacity would have prevented exceeding the ROC of 1300/1400 lbs. and prevented the tip forward at the time of the employee’s injury.
As to causation, the expert asserted that the "unreasonably dangerous condition" of the loader equipped with the 62-inch bucket "directly contributed to cause the leg injury suffered by [the plaintiff] because the sudden tip forward resulted in [the plaintiff’s] proper attempt to lower the bucket while his leg was instinctively and inadvertently [sic] positioned in the zone where it was crushed between the descending lift arm cross member and loader frame."
Design defect. In moving to exclude the expert’s testimony, the manufacturer argued that he failed to employ a reliable methodology for arriving at his opinion. The expert opined that the loader was defective only when equipped with a 62-inch or larger bucket, because the size of the bucket allows for a load so heavy that it causes the loader to tip over; the expert also contended that, in the instant case, the defect in fact had caused the injured employee’s accident. Reviewing his report and deposition testimony, however, the court found that the record reflected too great of an analytical gap between the undisputed portions of the factual record and the expert’s opinions on design flaw and causation. Thus, those opinions were unreliable and, ultimately, inadmissible, the court determined.
Unreasonably dangerous design. As to the expert’s opinion that the loader was defective, he speculated that the "very short wheelbase of the machine (less than three feet), in conjunction with the load in the bucket, causes a designed propensity for the loader to tip forward because, unknown to the operator, the foreseeable load in the 62" bucket could exceed the Rated Operating Capacity." He did not explain the basis for that opinion, however, and he did not cite any scientific studies, treatises, or other generally accepted industry standards to support that bare conclusion. Nor did he offer data from other similar accidents involving either the subject loader or even similar skid-steer loaders. Despite the opportunity for testing and inspection, the expert conceded that he had performed no testing or inspection of any kind as to the equipment (or accident site) at issue, in order to support his conclusion that the 62-inch bucket, in fact, results in tipping when filled with excess weight. In short, the expert failed to utilize a proper factual basis or discernible methodology to support his conclusion that the loader was unreasonably dangerous, rendering that portion of his opinion wholly unreliable.
Causation. Similarly unreliable was the expert’s causation opinion, the court held, noting that he had utilized no identifiable scientific or systemic method in concluding that the loader’s alleged design flaw had caused the injured employee’s accident. Instead, the expert appeared to come to his causation opinion through his observations that: (1) the loader’s manual and training materials advised operators that it can tip forward if the bucket is overloaded; and (2) industry literature showed that forward tipping of skid-steer loaders has been one of the most frequent causes of injury and death from use of such equipment.
Observing that an analytical gap existed between the fact that overloaded buckets on skid-steer loaders can cause a loader to tip and the conclusion that this particular loader’s 62-inch bucket caused the overloading and subsequent tipping in this instance, the court said that the expert failed to bridge that gap. He conceded that he did not know the weight of the loader’s bucket at the time it tipped, much less whether the weight in the bucket actually had exceeded the ROC at the time it tipped. Moreover, as discussed above, the expert performed no testing on the loader or an exemplar loader to confirm his theory of causation; nor did there exist any evidence of peer review or general acceptance of his conclusory theory. Ultimately, the expert’s proffered opinions fell short of meeting any of the reliability factors articulated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)—testing, general acceptance, peer review, and error rates. Those deficiencies demonstrated that his methodology failed to meet the requisite level of intellectual rigor that characterizes the practice of an expert in the relevant field, the court concluded, excluding the expert’s opinions in their entirety.
The exclusion of the expert’s testimony was fatal to the employee’s claims on which the manufacturer moved for summary judgment because, without the expert’s testimony, the employee failed to raise a triable issue on two essential elements on his claim: unreasonably dangerous design and causation. Accordingly, because the employee failed to create a triable issue on those two elements of his strict liability claim, summary judgment favoring the manufacturer was granted on the design defect claim. Furthermore, because the loss-of-consortium claim derived from and was dependent on the viability of the employee’s design defect claim, summary judgment favoring the manufacturer also was warranted on that claim.
The case is No. 3:17-cv-50144.
Attorneys: Robert Bruce Patterson (Law Offices of Robert B. Patterson, Ltd.) for Tyler Kirk and Melissa Kirk. Jonathan H. Garside (Greensfelder, Hemker & Gale, PC) for Clark Equipment Co. d/b/a Bobcat Co.
Companies: Clark Equipment Co. d/b/a Bobcat Co.
MainStory: TopStory IndustrialCommercialEquipNews DesignManufacturingNews ExpertEvidenceNews CausationNews IllinoisNews
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