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From Products Liability Law Daily, December 3, 2018

Expert’s opinion too speculative to prove that 50 year-old lift was defective when it left the manufacturer

By Jeffrey H. Brochin, J.D.

A federal district court in New Jersey has ruled that An expert witness’s testimony as to whether a hydraulic lift was defective when it left the manufacturer 50 years earlier, and as to whether certain design modifications would have prevented a worker’s injuries, was too speculative to be admitted as evidence, a federal district court in New Jersey ruled, granting both the lift maker’s motion to exclude the testimony by the worker’s expert’s and its motion for summary judgment. The court considered the age, prior usage, and lack of maintenance over the years in finding a lack of evidence supporting the worker’s allegations that the product was defectively designed or lacked proper warnings (Moore v. Krause Mfg.Co., Inc., November 30, 2018, Bumb, R.).

A worker employed by a New Jersey cable products manufacturer was severely injured as he descended from the employer’s roof and fell from a hydraulic lift, known as the Krause Hydraulic Elevator Model R-68 (R-68) and manufactured by Krause Manufacturing Company (Krause). After attaching the R-68 to a forklift, the forklift operator can elevate the R-68 by raising the forks and the R-68 operator can further elevate the bucket through controls in the R-68 bucket itself. The worker had operated the R-68 previously on numerous occasions, but at the time of the accident, the lift was being operated by a co-worker as it caught on the edge of the building and became dislodged from the fork lift to which it was attached. The lift was manufactured in the mid-1960s, and production stopped prior to 1978. Krause no longer exists and had been subsumed by a subsidiary of Terex Corporation. The worker’s employer acquired the R-68 from another machinery company in 1996, and at the time of acquisition, it had been subjected to extensive wear and tear, was non-operational, and was lacking a locking chain and other parts described in a 1970s brochure. The successor to the manufacturer moved to have testimony by the worker’s expert excluded, and for summary judgment.

Exclusion of expert testimony. A purported expert on industrial work and machine design inspected the R-68 and reviewed materials relevant to the accident, and concluded that the product was defective and unreasonably dangerous because the mechanism by which the lift attached to the forklift was defective. He acknowledged that there previously may have been a chain that secured the R-68 to the forklift, but claimed that the mechanism of attachment should have been affixed permanently to the lift such as by welding, so that it could not become lost or misplaced over time. He admitted that there was evidence of weld marks indicating that the referenced locking chain may have in fact originally been welded to the lift. The court found that the expert’s opinion was based on speculation rather than facts or any scientific, technical, or other specialized knowledge. He did not possess any unique background knowledge about the R-68, and his opinions were not based on any specialized methodology. Accordingly, the court ruled that the testimony failed to meet the requirements under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Rule 702 of the Federal Rules of Evidence, and it granted company’s motion to exclude the testimony.

Design defect claim. In order for the worker to prevail on his design defect claim, he needed to prove that (1) the product was defective; (2) the defect existed when the product left the hands of the manufacturer; and (3) the defect caused an injury to a reasonably foreseeable user. The court noted that New Jersey courts have held that proving that a defect existed when a product left the hands of the manufacturer is "particularly difficult" when a product is old, as in the case of the R-68, and no direct evidence exists that any defective condition existed when the manufacturer sold the product. Furthermore, given the difficulty of evaluating an older product like the R-68, the proper test is whether the circumstantial evidence supports a reasonable inference that it is more likely than not that the defect existed prior to sale.

Thus, the court took into consideration the lift’s age, prior usage, expected life span, durability, and operation without maintenance as important considerations in determining whether such an inference was permissible. The court concluded that in the absence of admissible expert testimony, the evidence of the significant age, wear, and modifications to the R-68 unit in question, and the Krause brochure showing that the R-68 was designed to include a chain to secure the unit to a forklift, no reasonable fact-finder could infer that the R-68 in question was defective when it left the hands of the manufacturer.

Based on the foregoing, the court granted the successor company’s motion for summary judgment.

The case is No. 1:15-cv-08085-RMB-JS.

Attorneys: Brian P. McVan (McVan & Weidenburner) for William Moore and Joann Moore. Kenneth R. Meyer (McCarter & English LLP) for Terex Corp. d/b/a Terex Aerials.

Companies: Krause Mfg. Co., Inc.; Terex Corp. d/b/a Terex Aerials

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