The First Circuit Court of Appeal has held that Daubert does not require that an expert actually test an alternative design for a product before he can testify that it is safer than the defendant's design. Quilez-Velar v. Ox Bodies, Inc. 823 F.3d 712 (1st Cir. 2016).
Plaintiffs' decedent was a 28-year old wife and mother who was driving an SUV that collided with the back of a truck owned and operating by employees of the City of San Juan, Puerto Rico. The SUV underrode the truck's body resulting in fatal injuries to the decedent. Plaintiffs brought products liability claims against the manufacturer of the truck's underride guard, among other defendants. The manufacturer subsequently moved in limine to exclude the testimony of plaintiffs' expert. It argued the expert had not done necessary calculations and tests to prove that the alternative design he proposed was safer than the manufacturer's. A magistrate judge of the district court denied the motion in limine. Notably, defendant did not request a Daubert hearing during a voir dire of the expert's qualifications at trial. The jury subsequently found against the defendant at trial and awarded substantial damages.
On appeal, the First Circuit initially noted that the manufacturer was not entitled to a de novo review of the admissibility of the expert's testimony respecting the alternative design because it had not requested a Daubert hearing at trial. Accordingly, the court reviewed the admission of the expert's testimony for an abuse of discretion. The court rejected defendant's argument that Daubert required the expert to either build and physically test his alternative design or to virtually test it through computer modeling. Instead, the First Circuit said the expert had provided other testimony that was sufficient to permit the admission of his opinion, including a review of crash test information from several sources and patents, and his "stress calculations" and "photogrammetry analysis" of his design. The Court said in "most cases, 'vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional means of attacking shaky but admissible evidence.'"
Quilez-Velar v. Ox Bodies, Inc. 823 F.3d 712 (1st Cir. 2016).
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