The Tenth Circuit affirmed the grant of summary judgement against a plaintiff who argued that a forklift was defective in design because it lacked a door. Petersen v. Raymond Corp., 994 F.3d 1224, 1225 (10th Cir. 2021).
Plaintiff allegedly injured himself while operating the Raymond Model 4200 stand-up counterbalance lift truck. The Raymond forklift has an open compartment meaning it does not fully enclose the operator’s lower extremities. When Plaintiff lost control of the Raymond forklift, his left leg slid out of the open compartment and he crushed it against warehouse racking. Plaintiff proposed to offer expert testimony that adding a door could cure this deficiency. But Plaintiff’s expert did not commit to the specific type of door he believed necessary. Instead, he offered that any number of doors would have worked. Surely many doors are better than one? or none?
Not so fast. Under Utah law, a plaintiff bringing a strict products liability claim must show that at the time of the injury an “alternative, safer design, practicable under the circumstances” existed. Allen v. Minnstar, Inc., 8 F.3d 1470, 1476, 1479 (10th Cir. 1993). Plaintiff argued the district court improperly had found that Utah law limits a plaintiff to offering only one alternative design. But the district court did not make such a finding. In fact the district court explicitly referenced that sometimes “multiple design options are warranted.” But, the district court found that Plaintiff’s expert failed to commit to any definitive feasible design alternative. And it rightfully excluded his testimony on that basis.
Without a definitive design, neither Plaintiff’s expert nor the district court could meaningfully compare any proffered design with the existing design. And neither could a jury. For this reason, the district court did not abuse its discretion in excluding Plaintiff’s expert’s testimony for failure to offer any specific safer, alternative design. Contrary to Plaintiff’s argument, the district court did not exclude Plaintiff’s expert’s testimony because experts could differ on whether adding a door would on whole be a safer alternative design. The district court found Plaintiff’s expert’s opinions unreliable because
Plaintiff’s expert failed to say how he considered the various doors listed in his report; failed to identify any scientific or technical analysis he applied to each, or any of them, and offered no scientific support for his naked conclusion that each or any of them is safer than the Raymond design.
For a jury to find an alternative design “safer” than the Raymond design, a comparative analysis must be possible. See Restatement (Third) of Torts, Prod. Liab. § 2 cmt. d (1997) (“Assessment of a product design in most instances requires a comparison between an alternative design and the product design that caused the injury ….”). And so Plaintiff had to offer at least one definitive competing design. See Allen, 8 F.3d at 1480–81 (“[I]n showing that the product can be made safer through the use of devices, a plaintiff must show that the devices exist and are not merely speculative.” (internal quotation marks and citation omitted)). A jury cannot compare the existing design to, essentially, anything and everything else. Plaintiff’s expert did not commit to any door design. Without commitment to any design, Plaintiff’s expert offered only sweeping opinions about doors in general. Plaintiff’s expert argued that he could put a door on the Raymond forklift, but he had never done so. 994 F.3d at 1228–29. Affirmed.