By Susan Engstrom
In an action stemming from a traffic accident in which a sedan slid underneath the side of an 18-wheel tractor trailer, a Kentucky federal court did not err in excluding expert witness testimony proffered by the sedan driver regarding an alternative design that allegedly would have prevented the severe injuries she had sustained in the crash, the U.S. Court of Appeals for the Sixth Circuit ruled. The proposed alternative design, a "telescoping side guard," had never been built or tested, and neither of the driver’s experts had designed such a guard prior to this litigation. Because the driver’s claims could not survive without the experts’ evidence, the manufacturer of the trailer was entitled to summary judgment (Wilden v. Laury Transportation, LLC, August 23, 2018, Rogers, J.).
On the day of the accident, a Chevrolet sedan driven by a 19-year-old woman crashed into the side of a trailer being pulled by a tractor that allegedly failed to yield the right-of-way. The tractor-trailer was turning left into the northbound lanes of a divided highway when the Chevrolet, which was traveling south on that highway, struck the left side of the trailer. The sedan’s right-front edge struck the trailer’s left back tandem axle, and the remainder of the car went underneath the trailer, pushing past the windshield, in a type of car-and-truck collision known as a "side-underride." At the time of the crash, the trailer’s rear wheels were in their most rearward possible position. The sedan driver had been travelling at approximately 38 miles per hour and at a 63-degree angle relative to the trailer’s roadside floor rail when she struck the trailer. As a result of the accident, she suffered severe and debilitating injuries, including brain damage. The trailer, which was manufactured by Great Dane Limited Partnership in 1998, lacked protection against side-underride. The driver (represented by her legal guardian) filed suit against Great Dane, asserting a "crashworthiness" claim.
Crashworthiness claim elements. Under Kentucky law, a crashworthiness claim has three elements: (1) an alternative safer design, practical under the circumstances; (2) proof of what injuries, if any, would have resulted had the alternative safer design been used; and (3) some method of establishing the extent of enhanced injuries attributable to the defective design.
Expert testimony. To prove the existence of an alternative safer design, the driver offered the opinions of two experts proposing to testify as to the feasibility of a telescoping side guard, described as "a horizontal bar underneath the side of the trailer that would expand or slide rearward as the trailer tandems are repositioned rearward underneath the trailer." According to one of the experts, only a telescoping design would have extended back far enough to the rear wheels so as possibly to prevent the underride experienced by the driver in this case.
District court ruling. The district court found the experts’ opinions to be unreliable and, thus, inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. In considering the three applicable factors set forth by the Sixth Circuit, the district court determined that the telescoping side guard: (1) was inadequately tested; (2) was not generally accepted; and (3) had not been created by the experts prior to this litigation, although the concept might have existed. The district court also granted summary judgment to the manufacturer, concluding that the experts’ opinions were crucial to the driver’s claims because only a telescoping design would have prevented the underride.
Testing. With respect to the first factor, the appellate panel agreed with the lower court that the telescoping design was inadequately tested. No engineer, manufacturer, or any other entity had built or tested a physical prototype of a telescoping side guard. According to the appeals court, physical-prototype testing was needed here because it would help find the necessary balance between rigidity and energy absorption. Moreover, designing side-underride protection, especially a telescoping side guard, would be even more complicated than designing rear-underride protection. The court explained that because trailers are much longer than they are wide, side guards must protect a larger area than rear guards. In addition, unlike most rear collisions, side collisions happen at a wide range of impact angles, such as the 63-degree angle at which the driver’s sedan in the current case had struck the trailer. Finally, sliding rear-wheel assemblies mean that a telescoping design is needed, which makes the design more complicated by introducing moving parts and extra joints. Accordingly, the district court did not abuse its discretion by requiring physical-prototype testing.
General acceptance. The district court also reasonably concluded that because the telescoping design had never been built, it could not be generally accepted within the trucking industry. The Sixth Circuit previously equated "general acceptance" with industry custom. In the panel’s view, it cannot be an industry custom to use something that has never once been built.
"Prepared for litigation." Regarding the third factor, i.e., whether the design was prepared solely for the litigation at hand, the appeals court found that because neither expert had developed a telescoping design until hired to do so (apparently in response to the particular accident in the case at bar), the design was not a natural outgrowth of their independent research. Therefore, this factor also weighed against admissibility, albeit not as heavily as the others.
Physical-prototype requirement. Finally, the driver contended that affirming in this case would unduly hamper future products liability litigation due to the expense of building physical prototypes. However, the appeals court cautioned that it was not creating a bright-line rule that plaintiffs must always physically test proposed alternative designs. Rather, the inquiry is tied to the facts of a particular case. Here, the court merely concluded that the lower court had the discretion to require physical-prototype testing of this particular never-built design. In sum, the district court did not abuse its discretion in excluding the experts’ testimony, and because the driver’s claims could not survive without it, summary judgment favoring the manufacturer was proper.
The case is No. 17-6306.
Attorneys: Kevin C. Burke (Burke Neal PLLC) for Jamie L. Wilden. John L. Tate (Stites & Harbison, PLLC) for Great Dane Ltd. Partnership a/k/a Great Dane Trailers, Inc. a/k/a Great Dane Trailers Ltd. Partnership.
Companies: Laury Transportation, LLC; Great Dane Ltd. Partnership a/k/a Great Dane Trailers, Inc. a/k/a Great Dane Trailers Ltd. Partnership
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