In product liability cases, expert testimony is key. A recent decision from the Eleventh Circuit—Crawford v. ITW Food Equip. Grp., LLC, No. 19-10964, 2020 WL 6154207, at *12 (11th Cir. Oct. 21, 2020)—discusses one such type of expert testimony, specifically, testimony about a “reasonable alternative design.” The case also offers guidance on how courts should apply the public records exception to the rule against hearsay.
The facts can be briefly summarized. Crawford was a meat-market manager at a supermarket. When leaving his meat saw to attend to some other task at work, he forgot to deploy the saw’s blade guard. On return, his arm came in contact with the unsheathed blade and was amputated. Crawford sued the defendant, the company that had designed the saw, claiming the design was negligent.
A. Court Affirms Expert Testimony
At trial, Crawford offered the expert testimony of Professor Ralph Barnett, a professor of mechanical and aerospace engineering who was an expert in saw and guard design. Barnett “testified that [defendant] failed to use reasonable care in designing the Hobart 6614 due to its use of an adjustable blade guard. Based on his experience, he testified, this failure to use reasonable care was a contributing cause of Crawford’s amputation; had the Hobart 6614 been designed with a self-deploying blade guard, Crawford’s injury would not have occurred.” Critically, Professor Barnett had designed, built, and tested an alternative meat saw that, though closely modeled on the defendant’s meat saw, “employed a self-deploying blade guard.”
The defendant argued that the trial court erred in admitting Barnett’s alternative design, arguing that it did not meet the Daubert standard. Specifically, the defendant argued that “Barnett did not test whether his proposed design would function similarly to the Hobart 6614 meat saw, or whether his design would be purchased by users.”
The Eleventh Circuit rejected these arguments. With respect to the testing criticism, the court noted that Barnett had, in fact, tested his alternative design. The court wrote: “[B]y constructing an alternate design he employed a standard method of testing . . . . Barnett tested the model, applied for a patent, and submitted it for peer review in the American Journal of Mechanical Engineering. The jury even saw a video of Barnett demonstrating the operation of his model.” With respect to the criticisms about whether consumers would have bought the alternative product, the court noted that the defendant “does not cite any case law indicating that consumer surveys or commercial analysis of a product is required before its design can be admitted.” And, the court observed, “Barnett testified that the cost of materials he used in modifying the Hobart 6614 was a mere $264 . . . . probative evidence that his alternative design was . . . economically or commercially feasible.”
B. Court Affirms Admission of OSHA Reports
Separately, Crawford offered “summaries of incidents reported to the Occupational Safety and Health Administration (OSHA) in which saw operators had been injured by meat saws with adjustable blade guards while not cutting meat. Some of these incidents involved the Hobart 6614’s predecessor saw, the model 6801, which had the same adjustable guard as the model 6614.”
The defendant argued that the court’s admission of these reports violated the rule against hearsay. Again, the Eleventh Circuit disagreed, holding the district court properly admitted the OSHA reports under the public records exception to the Rule Against Hearsay.
By way of brief background, the rule states:
“Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(8) Public Records. A record or statement of a public office if: (A) it sets out: . . . (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”
Fed. R. Evid. 803(8).
The court observed that, “[t]o evaluate trustworthiness, courts are to look at a non-exhaustive list of four factors: the timeliness of the investigation, the investigator’s skill/experience, whether a hearing was held, and possible bias.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167 n.11 (1988) (paraphrasing the Advisory Committee’s note).
The Eleventh Circuit found the reports trustworthy. The court explained:
“The reports are not mere collection[s] of statements from a witness, but are factual findings that are based upon the knowledge or observations of the preparer of the report . . . . Indeed, the OSHA reports fall squarely within the public records exception for ‘factual findings from a legally authorized investigation,’ Rule 803(8)(A)(iii), a fact not disputed by [defendant]. Rather, [defendant] argues only that they should have been excluded as untrustworthy. But [defendant] has failed to carry its burden of proof that the reports are untrustworthy. There is no evidence of untrustworthiness suggested by the reports themselves. They are timely: only two of the reports were delayed as much as six months after the incidents in question and five of the eight investigations began within three weeks. There is no evidence that the investigators who drafted the reports were unskilled or inexperienced. And there is no evidence of possible bias. The only Beech Aircraft factor that the reports do not meet is that they were not prepared with the aid of a hearing. In short, [defendant] has adduced no evidence that the OSHA reports lack trustworthiness.”
C. State-of-the Art Jury Instruction
Although not within the scope of this article, the case is also notable because of the spirited debate between the majority and dissenting Judge Tjoflat about whether the trial court erred in failing to instruct the jury on the so-called “state-of-the-art defense.” That instruction requires the jury to “consider the state of the art of scientific and technical knowledge . . . . that existed at the time of manufacture, not at the time of loss or injury.” Fla. Stat. § 768.125. The majority held the trial court did not err in refusing to give the instruction.
D. Takeaways
In any product liability case challenging the design of the product, expert testimony will be key. The Crawford case is a good example of the kind of testimony that will withstand rigorous challenges and appellate scrutiny. The case also reminds practitioners to consider all sources of probative evidence, including public records that are not technically related to the case.
If you want to read the entire Crawford decision, you can click on the link below.
